Cheairs v. City of Seattle

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — UNITED STATES DISTRICT COURT — 8 — WESTERN DISTRICT OF WASHINGTON AT SEATTLE — 9 — — 10 — TAYLOR CHEAIRS, CASE NO. 2:21-cv-01343-LK — 11 — Plaintiff, ORDER GRANTING 12 v. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 13 CITY OF SEATTLE et al., 14 Defendants. — 15 — 16 This action arises from injuries Plaintiff Taylor Cheairs suffered while attending a protest 17 in Seattle late on the night of June 7, 2020. See generally Dkt. No. 1. He alleges that the City of 18 Seattle, the Seattle Police Department, and several unnamed officers violated his First and Fourth 19 Amendment rights under the United States Constitution when an SPD officer lobbed a blast ball 20 grenade that ricocheted off the ground and exploded as it struck him in the groin. Id. at 2–7. Cheairs 21 seeks monetary relief pursuant to 42 U.S.C. § 1983 as a result of the physical and psychological 22 harm he experienced. Id. at 5–7. Currently before the Court is the City’s Motion for Summary — 23 — — 24 — 1 Judgment. Dkt. No. 24.1 Although Cheairs opposes the motion, he does not respond to the City’s 2 arguments that no seizure occurred under the Fourth Amendment, that his presence at the protest 3 was not protected activity under the First Amendment because he was in violation of a valid order 4 to disperse, and that there is no evidence of retaliatory animus. See generally Dkt. No. 41. For the 5 reasons discussed herein, the Court grants the City’s motion.2 6 I. BACKGROUND 7 A. Factual Background 8 1. Protests Erupt Following the Killing of George Floyd 9 An intense, nationwide protest movement broke out in this country in the aftermath of 10 George Floyd’s killing in Minneapolis on May 25, 2020. See, e.g., Dkt. No. 25-1 at 13; Dkt. No. 11 29-1 at 19; Dkt. No. 41-3 at 34. In Seattle, Mayor Jenny Durkan issued a proclamation of civil 12 emergency on May 30, 2020 to address the “rapidly evolving” events and “escalating” police 13 responses. Dkt. No. 25-1 at 22–25; see also Dkt. No. 27-1 at 27 (written statement of SPD Captain 14 John Brooks noting that in Seattle, “[a]s the week progressed and greater attention nationally 15 became focused on the death of George Floyd, the size of the event grew in scope and size”). The 16 demonstrations in Seattle started to gain traction on May 29, 2020, and continued every day for 17 the next week. See Dkt. No. 25-1 at 13 (SPD summary); see also Dkt. No. 25-1 at 2 (written 18 statement of SPD Captain Matthew Allen noting that he worked in a demonstration management 19 role on May 31, 2020, June 1–3, 2020, June 5, 2020, as well as June 7, 2020); Dkt. No. 27-1 at 20 27–74 (Captain Brooks’ report on the events of May 30 through June 7); Dkt. No. 26-1 at 2 (use 21 of force report authored by SPD Officer Carl Anderson noting that “[d]ue to the George Floyd — 22 — 1 The City filed a revised version of its motion correcting two minor clerical errors which the Court incorporates into 23 its citations to Docket Number 24 herein. See Dkt. Nos. 34, 34-1. 2 Because the Court can decide this motion based on the parties’ filings, it denies the parties’ requests for oral 24 argument. Dkt. No. 24 at 1; Dkt. No. 41 at 1. 1 protests and riots, [he] ha[d] been working an emergency schedule with little time in between work 2 shifts” and “had to use force multiple times in these incidents almost every day since 05/29/20.”); — 3 — id. at 3 (“The East Precinct area had been under siege by violent anti-police rioters for about six 4 days at this point and we had already had at least three violent clashes.”). 5 2. Cheairs Attends the June 7, 2020 Protest in Capitol Hill 6 Cheairs is a Seattle resident in his mid-30s who attended one such demonstration around 7 midnight on the night of June 7, 2020. Dkt. No. 41-5 at 1–2. He had just returned from out of town 8 when he decided to go from his home in Columbia City for dinner in Capitol Hill. Dkt. No. 31-1 9 at 6–7. After dinner, Cheairs went to the area near the intersection of 11th Avenue and East Pine 10 Street because he was curious about the budding protest movement. Id. at 7 ; see also Dkt. No. 4111 5 at 1–2. He avers that he attended the protest to observe what was going on and that while there, 12 he recorded two videos on his phone. Dkt. No. 41-5 at 2; Dkt. No. 31-1 at 8–9; see also id. at 9 , 13 15–18 (Cheairs’ deposition testimony describing his intent to film “the interaction between the 14 protesters and the police” and affirming that he does not “remember anything from that night that 15 isn’t captured on those two videos,” but also that he does not remember whether he started filming 16 as soon as he arrived); Dkt. No. 31-1 at 33–34 (Cheairs’ cell phone videos). 17 Cheairs’ video recordings begin at approximately 12:08 a.m. on the morning June 8, 2020, 18 and capture tense moments between protestors and SPD officers. Dkt. No. 31-1 at 33–34.3 Audible 19 at the beginning of Cheairs’ first video is the following directive, broadcast by the SPD over a 20 loudspeaker and punctuated by the sound of blasts and yelling: 21 . . . all those assembled at 11th and Pine to immediately disperse, which means leave this area. If you do not do so, you may be arrested or subject to other police — 22 — — 23 — 3 The City’s expert, William T.C. Neale, prepared a synced compilation of four SPD officers’ body worn videos (“BWVs”) and Cheairs’ two cell phone videos. Dkt. No. 28 at 2; Dkt. No. 28-1 at 36. The timestamps in the upper right corner of the BWVs read as “T07:08:40,” but as the SPD’s Forensic Digital Imaging Section manager explains, 24 these timestamps are seven hours ahead of Pacific Standard Time. Dkt. No. 30 at 2; see also Dkt. No. 26-1 at 34. 1 action. Other police action could include the use of chemical agents or less lethal munitions, which may inflict significant pain or result in serious injury. If you 2 remain in the area just described, regardless of your purpose, you will be in violation of city and state law. The following routes of dispersal are available: 3 Westbound on Pine. Southbound on Twelve. 4 Dkt. No. 31-1 at 33 (00:01–00:41); see also Dkt. No. 29-1 at 23 (the full statement, issued while 5 Cheairs was present, begins “I command all those assembled at 11th and Pine to immediately 6 disperse . . . .”); Dkt. No. 26-1 at 25–26. Cheairs testified at deposition that he remembered there 7 was a “loud speaker broadcast” but did not remember whether he heard the order of dispersal. Dkt. 8 No. 31-1 at 10–11; see also id. at 14 . However, in his declaration, he states that as he approached 9 the intersection of 11th Avenue and Pine Street, the “SPD began to broadcast messages to try and 10 move the crow[d]s[.]” Dkt. No. 41-5 at 2. He also remembers smelling a “kind of sulfuric fireworks 11 smell” and seeing smoke. Dkt. No. 31-1 at 13–14. Despite what appeared to be a volatile situation, 12 he stated that he did not consider leaving because he “wanted to see what was happening” and felt 13 curious about the events. Id. at 18–19 (“[I]t didn’t really cross my mind like, oh, I should leave. 14 And there were a lot of people that were also there and not leaving . . . . So it didn’t really occur 15 to me like, oh, I should -- like, I have to get out of here.”). The remainder of his first video 16 documents a line of SPD officers standing across from the protestors gathered at the intersection 17 of 11th and Pine, smoke in the air, unintelligible yelling, projectiles flying back and forth, and the 18 sound of fireworks and other blasts. Dkt. No. 31-1 at 33 (00:42–02:29). 19 From the City’s perspective, Cheairs’ video captures the heated minutes several hours— 20 and several days—into a volatile escalation spurred by violent individuals among the protestors. 21 SPD personnel describe the protestors removing fencing earlier in the evening, closing in on the 22 SPD positions throughout the night, fashioning improvised weapons, throwing dangerous objects 23 at officers, and disobeying police orders. See Dkt. No. 25-1 at 3–10 (detailed report by Captain 24 Allen regarding the night of June 7, 2020 and morning of June 8, 2020); id. at 12–20 (SPD Incident 1 Action Plan for June 7, 2020 describing the general environment); Dkt. No. 26-1 at 2–5, 20–26 2 (summary of the night’s events as recounted by Officer Anderson); Dkt. No. 27-1 at 27–74 3 (Captain Brooks’ recap of the days preceding and events of the night of June 7, 2020); id. at 83– 4 100 (summary of SPD radio log of events); Dkt. No. 41-3 at 12 (additional radio log entries). 5 Captain Allen, who served as the operations section chief on the night of June 7, 2020, described 6 in detail the tension building over the course of the night. “[A]t approximately 1917 hours there 7 was a group at 11th and Pine St. who breached the fence. I used the PA system to issue multiple 8 warnings and asked them to organize themselves, but people disregarded the warnings and 9 continued coming onto our side of the fence.” Dkt. No. 25-1 at 5. “[A]t approximately 2000 hours 10 there were about a hundred people on our side of the fence and the protest organizers were unable 11 to convince them to return to the other side.” Id. 12 At approximately 8:20 p.m., “a vehicle reportedly drove into the crowd and a man with a 13 gun[] shot someone,” and “[o]fficers quickly arrested the shooter and recovered the firearm[.]” Id. 14 (citing SPD Case #20-183426); see also Dkt. No. 27-1 at 68. “[A]t approximately 2047 hours the 15 driver of a red Ford Escape was reportedly handing out rocks to the small crowd at 12th Ave. and 16 E. Pike St.” Dkt. No. 25-1 at 6. “[A]t approximately 2103 hours there were about three hundred 17 people in the crowd at 12th and Olive St. and some were shining flashlights into the officers’ eyes. 18 Per the SPOC log, at approximately 2120 hours protesters at 13th and Pine St. had taken down the 19 heavy-duty fencing and were making announcements to burn down the precinct.” Id. “[A]t 20 approximately 2123 hours I used the PA to warn the crowd at 11th and Pine St. to stop 21 disassembling the fence and stop advancing towards our officers. . . . Often[] times when I would 22 ask the crowd to step back for their safety and ours, the crowd would repeatedly shout: YOU STEP 23 BACK!” Id. “The protesters breached and disassemble[d] the fence. The protesters then 24 disregarded multiple orders/requests to return to the other side of the fence. The protesters then 1 chose to continue advancing towards our police line. All the while, the officers continued to hold 2 their initial line.” Id. “[A]t approximately 2013 hours there were reportedly twenty protesters at 3 11th Ave. and Pike St. with shields, helmets and gas masks trying to start a disturbance.” Id. at 7 . 4 “[A]t approximately 2228 hours the crowd at 12th and Pike St. brought up shields to the fence 5 line.” Id. “[A]t approximately 2345 hours there is a notation that the crowd (referring to the crowd 6 in the 1100 block of Pine St.) was one foot away from officers. I would have estimated the distance 7 at about three feet but in either event, it was far too close for comfort and left very little room to 8 safely and effectively maneuver.” Id. 9 “[A]t approximately 2345 hours there is a notation that the officers at 13th and Pine St. 10 found an unlit Molotov cocktail on the ground and at the same time someone in the crowd 11 reportedly threw a water bottle that contained an unknown chemical irritant so officers were 12 donning their gas masks.” Id. at 8 . “I heard someone announce that some of the wooden shields 13 some of the protesters had in their possession had nails in them and I directed the officers to 14 confiscate them if possible.” Id. 15 In light of the potential threats to safety presented by individuals among the crowd, Captain 16 Brooks avers that “[a]s with other protests in the days prior to June 7, 2020, some trained officers 17 on June 7, 2020 were equipped with less lethal tools, namely OC spray and blast balls.” Dkt. No. 18 27 at 4.4 He states that “[t]hese tools are designed to create space and stop assaultive behavior or 19 property destruction” and “are intended to counter resistance without relying on greater force 20 options that increase the likelihood of injury to the suspect, to the community or to the involved — 21 — — 22 — — 23 — 4 OC spray, or oleoresin capsicum spray, is commonly referred to as pepper spray. Dkt. No. 27-1 at 12, 72. A blast ball, sometimes referred to as a flash bang grenade, is “a light and sound diversion device” that can “help to disrupt ongoing criminal acts by causing a loud noise and flash of light.” Dkt. No. 27 at 4; see Dkt. No. 29-1 at 29–30 (detailed 24 description of blast ball); Dkt. No. 27-1 at 76 (image of blast ball); id. at 81 (manufacturer specifications on blast ball). 1 officers.” Dkt. No. 27 at 4 (“The tools also allow officers to address and counteract assaultive 2 conduct from a distance, which protects other protestors, police, property, and the suspect.”). 3 By the time Cheairs started filming, the SPD had begun deploying these less lethal tools. 4 See, e.g., Dkt. No. 25-1 at 8 (Captain Allen: “[A]t approximately 0004 hours in the 1100 block of 5 E. Pine St., there was reportedly a disturbance on the north side of the line followed by a 6 deployment of OC spray and OC blast balls.”). According to Captain Allen’s summary, “at 7 approximately 0005 hours there is a notation that the camera shows protesters throwing items at 8 officers and a minute later, fireworks and bottles were reportedly being thrown by the crowd.” Id. 9 Earlier in the night, Captain Allen instructed the officers on the line to activate their body 10 worn cameras. Id. at 5 .5 The BWVs reflect a significant escalation beginning at approximately 11 12:04 a.m., the precise cause of which is difficult to discern. See Dkt. No. 30-1 at 2 (00:17:13– 12 02:02:09) (Officer Washington’s BWV showing protestors standing feet away from police and 13 chanting for nearly two hours until a sudden disturbance in the crowd leads to the deployment of 14 OC spray and the protestors moving back, followed by dozens of projectiles being lobbed toward 15 police and the increased police use of less lethal munitions); id. at 1 (00:00:15–00:18:15) (Officer 16 Anderson’s BWV showing the same transition from standoff to sudden escalation); id. at 3 17 (00:01:00–00:35:38) (Officer Oh’s BWV showing the same); id. at 4 (00:01:23–00:35:25) (Officer 18 Knight’s BWV showing the same); see also Dkt. No. 25-1 at 8 (Captain Allen’s written report); 19 Dkt. No. 27-1 at 69 (Captain Brooks’ written statement that “the group at 11th and Pine began 20 throwing objects at the line. I observed officers respond with OC spray directed at the 21 perpetrators.”).6 — 22 — 5 The four SPD officers whose BWV is submitted in the record are as follows: Officer Anderson, Officer Quindelia 23 Washington, Officer Curtis Oh, and Officer Joshua Knight. See Dkt. No. 24 at 7; Dkt. No. 30 at 2. 6 The Court notes that Officer Oh appears to be struck with a water bottle right at the same time, but it is not clear — 24 — 1 At around 12:10 a.m., after several minutes of the SPD’s ongoing deployment of less lethal 2 munitions and the protestors refusing to disperse and continuing to throw projectiles, the police 3 line moved toward the protestors gathered across 11th Avenue. See Dkt. No. 30-1 at 1 (00:23:31– 4 00:24:05) (Officer Anderson’s BWV); id. at 2 (02:07:55–02:08:11) (Officer Washington’s BWV); — 5 — id. at 3 (00:40:48–00:41:20) (Officer Oh’s BWV); id. at 4 (00:40:25–00:40:50) (Officer Knight’s 6 BWV); Dkt. No. 27-1 at 69 (Captain Brooks: “I felt it was tactically unsound to remain in place 7 and I ordered the line officers to advance from approximately midblock on Pine, west to 11th.”). 8 From SPD’s perspective, “at approximately 0011 hours, our personnel were reportedly being 9 surrounded on three sides (of the intersection [of 11th and Pine]): south, west, and north.” Dkt. 10 No. 25-1 at 8. “I then heard someone on the radio announce that there was a man with a gun at 11 11th and Pine St. and I was gravely concerned that someone was going to get shot and killed. There 12 had already been one person shot earlier in the evening and I did not want there to be another.” Id. 13 Because “[f]urther de-escalation efforts were neither safe nor feasible,” and “[t]o protect the lives 14 of everyone present, I directed the SWAT Commander, Lieutenant Bergmann (Unit 271), to 15 deploy CS gas with the expectation that it would help quell the violence and further disperse the 16 crowd.” Id. Then, shortly after 12:14 a.m., SPD officers deployed tear gas and the crowd began to 17 disperse. See Dkt. No. 30-1 at 1 (00:27:45–00:28:25) (Officer Anderson BWV); id. at 2 (02:11:53– 18 02:12:43) (Officer Washington BWV); id. at 3 (00:44:55–00:45:45) (Officer Oh BWV); id. at 4 19 (00:44:40–00:45:25) (Officer Knight’s BWV); Dkt. No. 27-1 at 69 (Captain Brooks: “I requested 20 the use of CS and it was granted. I felt this was the only thing that would stop the attacks and 21 provide enough room for officers to move to address the crowd. CS was deployed and it very 22 quickly disrupted the attacks and permitted us to move.”). — 23 — whether that is what specifically caused the escalation. See Dkt. No. 30-1 at 3 (00:34:55–00:35:20) (Officer Oh’s 24 BWV). 1 The transcript of the SPD radio log from the night of June 7 and morning of June 8 further 2 reflects the escalating confrontation: 3 • 10:21:02 p.m. – Captain Brooks authorizes use of blast balls if officers confronted. 4 • 10:53:14 p.m. & 11:17:39 p.m. – Captain Allen says that multiple warnings had been given to the crowd to move back to no avail. — 5 — • 12:04:02 a.m. – Captain Allen calls for officers to “fall back.” — 6 — • 12:04:19 a.m. – Captain Allen: “Hold the air, hold the air. We have a disturbance, north 7 side of our line, 11th and Pine.” 8 • 12:04:55 a.m. – Captain Brooks: “Deploy OC Blast Balls. Hold the line.” 9 • 12:05:39 a.m. – Captain Allen says that a dispersal order has been given. 10 • 12:05:56 a.m. – Captain Brooks: “We’re still taking multiple bottles and fireworks (unintelligible).” — 11 — • 12:07:09 a.m. – Captain Allen: “[W]e have items being thrown at the officers. We are deploying munitions. I’ve given two dispersal orders. Um, we have a green laser — 12 — coming back at us, shining at the officers’ eyes.” — 13 — • 12:09:19 a.m. – Captain Brooks makes a broadcast that is mostly unintelligible but mentions projectiles, followed by orders to “keep using blast balls.” — 14 — Dkt. No. 41-3 at 12–13; see also Dkt. No. 27-1 at 87–93. — 15 — 3. Cheairs Is Injured By a Blast Ball — 16 — At approximately 12:12 a.m. on June 8, 2020, Officer Anderson—whom the City has — 17 — identified as the officer who deployed the munition that struck Cheairs—lobbed a blast ball which — 18 — bounced on the pavement in front of Cheairs and then struck him in the groin while he was standing — 19 — on the sidewalk on the corner of 11th and Pine. Dkt. No. 24 at 9; Dkt. No. 30-1 at 1 (00:25:13– — 20 — 00:25:49) (Officer Anderson BWV); Dkt. No. 31-1 at 34 (00:00:46–00:00:55) (Cheairs’ cell phone — 21 — video); Dkt. No. 28-1 at 36 (00:03:17–00:03:33) (synchronized video prepared by Neale). — 22 — Cheairs testified at deposition about his memory of the incident: — 23 — So I’m standing there filming, kind of panning around to catch the scene of what’s — 24 — going on, and I come back quite a bit from sort of the front corner of the 1 intersection. I’m standing back probably, I don’t know, about ten yards, and this ball of sparks just like super fast flies across the ground, you know. I see it. I’m 2 filming. And it hits the curb and it bounces up, and it hits me, like, directly in the groin. It all happens very quickly, but the second it hits, it also explodes. So it was 3 like a one-two. 4 And I immediately, like, turned around and there was like a guy who said, “Are you okay?” And I was just like, “I have to leave.” You know, like everything got really 5 real really fast. And I’m -- I was freaking out. 6 Dkt. No. 31-1 at 22. Cheairs said the pain felt like “getting punched with barb wire, because it’s 7 like this combination of, like, getting hit really, really hard by something, but then, also, this crazy, 8 like, stinging burning.” Id. at 23 ; see also Dkt. No. 41-2 at 13 (“[I]t hurt really bad. Like, 9 immediately it felt like I had been punched extremely hard in the abdomen. And then it started to 10 feel like my groin area, lower abdomen was on fire.”). 11 After Cheairs retreated to safety, he undid his pants and reached his right hand down to his 12 groin and it “felt welt,” and when he pulled his hand up, it was “covered in blood.” Dkt. No. 31-1 13 at 22–23. Within the 15 or 20 minutes, Cheairs arrived at Swedish Medical Center on Capitol Hill 14 to seek treatment for his injuries. Id. at 24–25; Dkt. No. 41-5 at 2–3. The injuries included a “half15 dollar or larger size area of skin that had been either burned or exploded off to the right of [his] 16 penis and then the front or top of [his] penis had cuts and lacerations down the front,” as well as a 17 three inch “gash” on his “left upper thigh.” Dkt. No. 31-1 at 25; Dkt. No. 41-2 at 2–4 (photos of 18 the injury). Other than two “slight” scars, Cheairs testified at deposition that his physical injuries 19 completely healed in about six weeks. Dkt. No. 31-1 at 26. And although he has never been 20 diagnosed, he claims to “suffer symptoms of Post-Traumatic Stress Disorder (PTSD)” because he 21 “often avoid[s] crowds and experience[s] panic when seeing police officers and vehicles,” and 22 further avers that he has “received counseling for [his] emotional distress resulting from this 23 incident.” Dkt. No. 41-5 at 3; see Dkt. No. 45-1 at 13 (Cheairs’ deposition testimony affirming 24 that he has never received a PTSD diagnosis). 1 4. Officer Anderson Explains His Use of Force 2 Officer Anderson has been a member of the SPD since 2001 and SPD’s SWAT team since 3 2007, and prior to June 7, 2020, had received extensive training on use of force, use of less lethal 4 munitions—including blast balls—and crowd control. Dkt. No. 26 at 1–2; Dkt. No. 26-1 at 14–15; 5 see also Dkt. No. 41-3 at 9 (noting that Officer Anderson’s SPD training records indicate that he 6 “was up to date with his training and had attended blast ball training as recently as 04/29/2020”). 7 In the moments surrounding Cheairs’ injury, Officer Anderson deployed a series of four 8 blast balls in quick succession, the second of which appears to have hit Cheairs. See Dkt. No. 309 1 at 1 (00:25:13–00:25:49) (Officer Anderson’s BWV); id. at 3 (00:42:38–00:43:20) (Officer Oh’s 10 BWV); Dkt. No. 28-1 at 36 (00:03:07–00:03:42) (synchronized video).7 The Office of Police 11 Accountability (“OPA”) subsequently investigated Officer Anderson for the fourth blast ball in 12 the series, which struck a woman and purportedly led to her entering cardiac arrest. Dkt. No. 26-1 13 at 51–56; see Dkt. No. 30-1 at 2 (02:10:05–02:10:20) (Officer Washington’s BWV of the incident); — 14 — id. at 3 (00:42:50–00:43:20) (Officer Oh’s BWV of the incident).8 15 SPD Sergeant Juan Tovar interviewed Officer Anderson on October 8, 2020 as part of 16 OPA’s investigation. Dkt. No. 26-1 at 12. With respect to his intended target when throwing the 17 four blast balls, Officer Anderson stated that he was attempting “[t]o disperse the crowd, to provide 18 space and time and distance between the line officers and the assaultive crowd.” Id. at 31–32 — 19 — 7 In its motion, the City indicates that the “third of the series struck” Cheairs, Dkt. No. 24 at 11, but that appears 20 inconsistent with the video evidence it submitted in the record. 8 OPA sustained an allegation of improper deployment of the fourth blast ball against Officer Anderson, and he 21 appealed that decision. Dkt. No. 26-1 at 51, 55–56; Dkt. No. 26 at 3. Cheairs’ also filed a complaint with OPA but OPA declined to pursue a further investigation because the SPD conduct alleged by Cheairs had already been assessed 22 in OPA’s prior investigation. See Dkt. No. 26-1 at 55 (Officer Anderson “deployed four blast balls in quick succession . . . . With regard to the first three deployments, [Officer Anderson] appeared to throw the blast balls into 23 open space. . . . OPA finds that it was within policy to use blast balls to continue to push the crowd back, thus creating a buffer between officers and demonstrators and protecting officers from being struck by projectiles.”); Dkt. No. 413 at 21 (email from OPA to Cheairs’ counsel stating that “[a]s Mr. Cheairs did not provide any new information that 24 OPA can act upon, we consider this matter closed and will take no further action”). 1 (“[T]rying to keep the line officers safe, to push the crowd back so they couldn’t target us with 2 thrown or launched projectiles, I am attempting to push the crowd back as ordered by the Incident 3 Commander.”). In response to Sergeant Tovar’s question about why said deployment was 4 reasonable, Officer Anderson said: 5 We were being ah, feloniously assaulted by a hostile crowd. I was given the order to disperse the crowd. They were given a lawful dispersal order to leave the 6 immediate area, and they failed to do that. Um, I was creating time and distance and shielding between the line officers and the—the rioters. That is why I believe 7 it was reasonable and appropriate. — 8 — Id. at 34 . When asked specifically about the target of his deployment of the blast ball that struck 9 Cheairs, Officer Anderson similarly stated that he was “continuing to try to push and disperse the 10 crowd that ha[d] been given several dispersal orders, who ha[d] refused to leave the area, refused 11 lawful order to disperse, and . . . continue[d] to assault [officers] with possible deadly force.” Id. 12 at 35–36 (stating that he was attempting “to create time distance, and shielding between the line 13 officers and the . . . assaultive crowd”); see also id. at 37–42 (providing substantively the same 14 answers with respect to third and fourth blast balls deployed). 15 As for his decision to throw these blast balls overhand instead of rolling them, Officer 16 Anderson stated that “there was a line of officers in front of [him], so [he] was unable to roll it on 17 the ground in between them because of . . . obstructions,” and also because he was trying to deploy 18 the blast balls “further out.” Id. at 47 ; see also id. at 33 (noting that due to his height, Officer 19 Anderson could not necessarily see over the line of officers standing in front of him). In addition, 20 Officer Anderson indicated that his deployment of the blast balls was not proportional to the threat 21 posed by the protestors because it was less forceful that what was warranted in light of the 22 protestors’ actions toward police. Id. at 35 , 38–39. 23 Officer Anderson prepared his written recollection of the events of that night ten days later, 24 on June 17, 2020, and included notes regarding several uses of force in the span of a few minutes: 1 I observed Officers deploying OC spray and blast balls with little effect. I deployed four to five OC muzzle blast rounds from my 40mm multi-launcher towards the 2 front line of the rioters. I then started deploying inert and OC blast balls in between the line Officers and the protesters to move the crowd back from the line and to 3 keep the Officers from being assaulted. We were then given the command to start pushing the crowd westbound on Pine St. I clearly heard Cpt. Allen giving dispersal 4 orders over the PA system several times. When we were near the intersection of 11th and Pine, I heard the incident commander give the order to deploy CS to 5 disperse the rioters. 6 I used force multiple times throughout this event. I deployed numerous inert and OC blast ball grenades, 40mm direct impact rounds, 40mm OC muzzle blast 7 rounds, and CS grenades to protect myself and the line Officers from being feloniously assaulted, to create time and distance between the line Officers and the 8 rioters, and to disperse the crowd. 9 I used the blast balls and CS grenades to move the assaultive crowd back from the Officers and to stop felony assaults. I deployed the blast balls in both the underhand 10 and overhand method. I was forced to use overhand deployments due to being behind a line of Officers at times and to get them deployed farther out. — 11 — Id. at 4 ; see also id. at 43 ; Dkt. No. 41-3 at 6–7 (Force Investigation Report prepared by Detective — 12 — Jason Dewey); Dkt. No. 30-1 at 1 (00:17:55–00:29:31) (Officer Anderson’s BWV); Dkt. No. 26 — 13 — at 3 (Officer Anderson’s declaration). As for his justification for using force, Officer Anderson — 14 — stated that “[o]n each occasion that [he] used force, [he] made [his] decisions based on specific — 15 — circumstances that warranted the level of force used to stop the occurrence of crimes” and that he — 16 — “felt that the resistance and assaultive behavior presented by the rioters were likely to cause injuries — 17 — to Officers and that hands-on control tactics and other force options would be likely to cause — 18 — greater injury to the rioters than [his] use of blast balls, CS grenades and direct impact munitions.” — 19 — Dkt. No. 26-1 at 4; see also id. at 5 (“I was forced to make split-second decisions during extremely — 20 — tense, uncertain, dynamic and rapidly evolving circumstances. I attempted to only use force that — 21 — was proportional to the threats and urgency of the situation to disperse the rioters and to keep — 22 — myself and other Officers safe.”). — 23 — — 24 — 1 5. SPD’s Policy on Blast Balls and Court Action Subsequent to Cheairs’ Injury 2 SPD policy requires the use of force to be objectively reasonable, necessary, and 3 proportional to a subject’s threat of resistance. Dkt. No. 27-1 at 134–35. In general, “[t]he 4 deployment of blast balls within close proximity to people is reported and investigated as Type II 5 force,” regardless of whether someone is injured or complains. Id. at 141 . Type II force is defined 6 as “[f]orce that causes or is reasonably expected to cause physical injury greater than transitory 7 pain but less than great or substantial bodily harm.” Id. at 137 . Blast balls are only allowed to be 8 deployed by officers who have completed required training, and “[w]hen feasible, officers shall 9 avoid deploying blast balls in the proximity of people who are not posing a risk to public safety or 10 property,” and not until after a dispersal order has been issued, the crowd has been given a 11 reasonable amount of time to comply, and a supervisor has authorized the deployment. Id. at 140 ; 12 see also Dkt. No. 27 at 5–6 (describing the required training). However, officers “may reasonably 13 deploy blast balls to address an imminent risk of harm to a person or significant property damage.” 14 Dkt. No. 27-1 at 140. “The preferred method of blast ball deployment is low deployment (‘bowling 15 style’),” but officers are permitted to “use a high deployment (‘overhand throw’) when the need 16 for a farther deployment or the need to get around an obstruction outweighs the risk created by the 17 separating sub-munition.” Id.; see also Dkt. No. 27 at 5–6. Officers are required to report their use 18 of blast balls regardless of whether an individual is struck, and “must document their deployment 19 method and the reasoning for using such in their use-of-force report.” Dkt. No. 27-1 at 140–41; 20 Dkt. No. 27 at 6 (“The Seattle Police Department highly scrutinizes ‘high’ deployment of 21 munitions.”). In addition, “[a]fter the initial blast ball deployment, each subsequent deployment 22 must be reasonable and the employee should reevaluate the situation accordingly.” Dkt. No. 27-1 23 at 141. — 24 — 1 The City points out that this district reviewed and approved its use of force and crowd 2 management policies as part of its consent decree with the Department of Justice. See Dkt. No. 44 3 at 5; Dkt. No. 45-1 at 22–102. Cheairs submits a 2022 preliminary assessment of the SPD’s use of 4 force prepared by the Seattle Police Monitor, which notes that “[o]ver the course of the Consent 5 Decree, SPD’s use of force decreased significantly” with the exception of “the historic levels of 6 protest-related force in 2020. SPD reported record high usage of less lethal instruments both during 7 protest situations and outside of protests in 2020.” Dkt. No. 41-3 at 25. The assessment observes 8 that “the Department sometimes used force against the protest crowds generally, when only certain 9 individuals amidst the crowd may have been committing criminal acts,” and that the “SPD used 10 tools like blast balls, tear gas, and OC spray against crowds sometimes in an indiscriminate manner 11 with insufficient justification in reporting for such actions.” Id. at 36 . Further, Cheairs notes that 12 on June 9, 2020, a group of plaintiffs moved for a temporary restraining order against the SPD 13 related to its use of less lethal munitions, and on June 12, 2020, the Honorable Richard A. Jones 14 granted the motion. Dkt. No. 41-2 at 27–38; Dkt. No. 41-3 at 52–85. On June 17, 2020, Judge 15 Jones entered a stipulated order for a preliminary injunction. Dkt. No. 41-4 at 2–4. The order 16 enjoined the SPD from “employing chemical irritants or projectiles of any kind,” including blast 17 balls, “against persons peacefully engaging in protests or demonstrations,” but expressly reserved 18 the right of individual officers to take “necessary, reasonable, proportional, and targeted action to 19 protect against a specific imminent threat of physical harm to themselves[.]” Id. at 3 . On December 20 7, 2020, Judge Jones held the City in contempt for violations of the preliminary injunction, 21 including with respect to three instances where SPD officers threw blast balls. Dkt. No. 41-2 at 22 40–66. Cheairs further highlights that Mayor Durkan expressed disapproval over the SPD’s tactics 23 during her remarks on June 7, 2020, saying: “SPD’s response needed to be better measured. While 24 the accountability system will review all of the facts, the response seem[ed] too quick to escalate. 1 Too quick to deploy of flash bangs, pepper spray and deployment of the National Guard.” Dkt. 2 No. 41-4 at 57. 3 B. Procedural Background 4 Cheairs initiated this action in October 2021. Dkt. No. 1. He seeks damages under Section 5 1983 for the injuries he suffered as a result of blast ball incident. Id. at 5–7. Following the 6 completion of discovery, the City moved for an order granting summary judgment on all of 7 Cheairs’ claims. Dkt. No. 24 at 2. The parties met and conferred prior to the City’s filing the instant 8 motion. Id.; Dkt. No. 31 at 2. 9 II. DISCUSSION 10 A. Jurisdiction 11 This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 12 because Cheairs alleges constitutional violations under 42 U.S.C. § 1983 . See Dkt. No. 1 at 2. 13 B. Legal Standard 14 Summary judgment is appropriate only when “the movant shows that there is no genuine 15 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 16 Civ. P. 56(a). The Court does not make credibility determinations or weigh the evidence at this 17 stage. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The sole inquiry is “whether the 18 evidence presents a sufficient disagreement to require submission to a jury or whether it is so one19 sided that one party must prevail as a matter of law.” Id. at 251–52. And to the extent that the Court 20 resolves factual issues in favor of the nonmoving party, this is true “only in the sense that, where 21 the facts specifically averred by that party contradict facts specifically averred by the movant, the 22 motion must be denied.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). 23 The Court will, however, enter summary judgment “against a party who fails to make a 24 showing sufficient to establish the existence of an element essential to that party’s case, and on 1 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317 , 322 2 (1986). Once the moving party has carried its burden under Rule 56, “the nonmoving party must 3 come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. 4 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (cleaned up). Metaphysical doubt 5 is insufficient, id. at 586 , as are conclusory, non-specific allegations, Lujan, 497 U.S. at 888–89. 6 C. Preliminary Matters 7 1. Cheairs Cannot Substitute Individual Officers in His Opposition to the City’s Motion 8 The City argues that because Cheairs does not name an individual defendant in his 9 operative pleading, he must meet the relevant standards for establishing municipal liability under 10 Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978). See Dkt. 11 No. 24 at 15–16 (“[Cheairs] does not bring any claims against Officer Anderson or any other 12 individual defendant.”); see also Dkt. No. 44 at 6–7. In a footnote in his opposition to the City’s 13 motion, Cheairs does not dispute that he has failed to seek amendment of the complaint to 14 substitute any individual officer for a named Doe Defendant, even after learning of Officer 15 Anderson’s identity in May 2022. Dkt. No. 41 at 16 n.3. Nevertheless, he “urges the Court to allow 16 a simple amendment to substitute Officer Anderson’s name for John Doe.” Id. 17 Requests for affirmative relief must be made in a motion and not a responsive brief. See 18 Fed. R. Civ. P. 7(b); LCR 7(b); Meghinasso v. Mercedes-Benz USA, No. C17-5930-LK, 2022 WL 19 226078, at *1 (W.D. Wash. Jan. 26, 2022). More fundamentally, Cheairs provides no legal 20 authority in support of his request, nor does he explain why he did not seek such amendment by 21 the deadline for amended pleadings or at any time prior to responding to the City’s motion for 22 summary judgment. See Kuhlmann v. Christianson, No. 1:14-CV-01042-BAM, 2015 WL 23 5008976, at *2 (E.D. Cal. Aug. 20, 2015) (finding that “there is no indication that Plaintiff was 24 diligent in seeking an amendment to substitute individuals for the doe defendants” where he “made 1 no effort to add these defendants prior to the . . . deadline to amend” and did not “make any effort 2 to extend the deadline to amend during the course of litigation”). Accordingly, the Court denies 3 his request and dismisses Cheairs’ claims against the Doe Defendants. See Brass v. Cnty. of Los 4 Angeles, 328 F.3d 1192 , 1197–98 (9th Cir. 2003) (affirming district court’s refusal to permit 5 plaintiff to substitute individual law enforcement officers for Doe defendants where plaintiff did 6 “not even attempt[] to request leave from the Court to add new parties or to file an amended 7 complaint”); see also Drewry v. Cnty. of Riverside, No. EDCV-20-2554-JGB(SHKx), 2023 WL 8 2627740, at *6 (C.D. Cal. Jan. 23, 2023) (dismissing all claims against Doe defendants where, 9 “[d]espite ample opportunity,” Plaintiff failed to move “to amend the complaint to name any doe 10 defendant,” and the deadline to add parties to the complaint had passed). 11 2. The City’s Motion to Strike is Denied 12 The City asks the Court to strike two portions of Cheairs’ declaration because they 13 contradict his deposition testimony. Dkt. No. 44 at 1 (citing LCR 7(g)). Specifically, the City 14 requests that the Court strike the sentence in Cheairs’ declaration stating that as he approached the 15 intersection of 11th Avenue and Pine Street, the crowd was “largely peaceful and in the main was 16 not directly engaging with SPD,” as well as the sentence stating that Cheairs “suffer[s] from 17 symptoms of Post-Traumatic Stress Disorder[.]” Id. at 1–2 (citing Dkt. No. 41-5 at 2–3). The City 18 contrasts these statements with Cheairs’ deposition testimony that he could not recall if the crowd 19 threw objects at the police and that he has never been diagnosed with PTSD. Id. at 2–3 (citing Dkt. 20 No. 45-1 at 9–11, 13). 21 In general, “a party cannot create an issue of fact by an affidavit contradicting his prior 22 deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). But this 23 rule “does not automatically dispose of every case in which a contradictory affidavit is introduced,” 24 and instead pertains to “sham” testimony “that flatly contradicts earlier testimony in an attempt to 1 create an issue of fact and avoid summary judgment.” Id. at 266–67 (quotation marks omitted). 2 District courts must make “a factual determination that the contradiction was actually a ‘sham’” 3 before granting such motion. Id. at 267 ; see also Legal Aid Servs. of Or. v. Legal Servs. Corp., 561 4 F. Supp. 2d 1187, 1203 (D. Or. 2008), aff’d, 608 F.3d 1084 (9th Cir. 2010). In addition, the Ninth 5 Circuit has “emphasized that the inconsistency between a party’s deposition testimony and 6 subsequent affidavit must be clear and unambiguous to justify striking the affidavit,” and that “the 7 non-moving party is not precluded from elaborating upon, explaining or clarifying prior 8 testimony[.]” Van Asdale v. Int’l Game Tech., 577 F.3d 989 , 998–99 (9th Cir. 2009) (quoting 9 Messick v. Horizon Indus., 62 F.3d 1227 , 1231 (9th Cir. 1995)). 10 The Court cannot conclude based on the record before it that the disputed portions of 11 Cheairs’ declaration constitute “sham” testimony in this context. First, Cheairs’ attestation that he 12 is traumatized and suffers from “symptoms” of PTSD does not necessarily contradict his 13 deposition testimony that he has never been diagnosed with PTSD. Compare Dkt. No. 45-1 at 10– 14 11, 13, with Dkt. No. 41-5 at 3. See, e.g., Legal Aid Servs. of Or., 561 F. Supp. 2d at 1203 (denying 15 motion to strike where both the deposition testimony and later-filed declaration “could 16 simultaneously be true.”). Cheairs testified at his deposition that he reported “feelings or symptoms 17 of trauma” to his doctor. Dkt. No. 45-1 at 11. Nor is this factual dispute particularly relevant to the 18 motion at hand given that the City does not dispute that Cheairs suffered physical injuries as a 19 result of being struck by the blast ball. 20 Second, that Cheairs did not know whether members of the crowd were throwing objects 21 at the police does not clearly and unambiguously contradict his declaration. In his declaration, 22 Cheairs states: 23 As I approached the intersection of 11th Avenue and Pine Street in Capitol Hill, I noticed a large crowd of people adjacent to a phalanx of SPD officers dressed in — 24 — 1 fully militarized riot gear. The crowd at this intersection was largely peaceful and in the main was not directly engaging with SPD. — 2 — Dkt. No. 41-5 at 2. The City argues that this is “merely an attempt to rewrite his deposition — 3 — testimony to create an issue of fact about the crowd’s conduct,” Dkt. No. 44 at 2, but it can — 4 — simultaneously be true that Cheairs did not know as he approached the intersection that protestors — 5 — were assaulting and throwing objects at officers and that his impression at the time was that the — 6 — crowd appeared “largely” peaceful and “in the main” not directly engaging with the SPD. — 7 — Moreover, Cheairs testified at deposition that he did not remember whether he started filming as — 8 — soon as he arrived at the demonstration, Dkt. No. 31-1 at 9, and that his memory of the event is — 9 — perhaps impacted by how many times he has watched his own video recordings, id. at 14 (“It’s — 10 — actually one of the things where I’m not sure if, you know, the memory that I have is directly — 11 — connected to that event or if it’s because I have the entire thing on video.”). In fact, Cheairs said — 12 — at his deposition that he did not remember anything from that night that was not captured on his — 13 — two videos. Id. at 15. — 14 — Certainly, a reasonable factfinder could consider Cheairs’ deposition testimony to — 15 — undermine the trustworthiness of the assertions in his declaration regarding crowd behavior. But — 16 — this is a question of credibility: contradictions in the testimony that fall short of the “clear and — 17 — unambiguous” standard “affect the weight given to the evidence, rather than its admissibility,” and — 18 — are not “grounds for automatically striking the testimony[.]” Williams v. Los Angeles Sheriff’s — 19 — Dep’t, No. CV 17-05640-AB (Ex), 2020 WL 5948286 , at *7 (C.D. Cal. June 29, 2020) (cleaned — 20 — up). Finally, the Court notes that “for purposes of ruling on a motion for summary judgment, [it] — 21 — may properly view the facts in the light depicted by bodycam footage and its accompanying audio, — 22 — to the extent the footage and audio blatantly contradict testimonial evidence.” Hughes v. — 23 — Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022). — 24 — 1 Accordingly, the City’s motion to strike is denied. See, e.g., Hunters Cap., LLC v. City of 2 Seattle, No. C20-0983-TSZ, 2023 WL 184209 , at *10 n.14 (W.D. Wash. Jan. 13, 2023); New Flyer 3 Indus. Canada ULC v. Rugby Aviation, LLC, 405 F. Supp. 3d 886 , 901 n.6 (W.D. Wash. 2019). 4 D. The City’s Motion for Summary Judgment 5 The City argues that Cheairs (1) fails to “state a claim” for municipal liability under 42 6 U.S.C. § 1983 ; (2) has not raised a genuine dispute as to whether Defendants violated his First and 7 Fourth Amendment rights; and (3) cannot adequately establish municipal liability sufficient to 8 survive summary judgment on his Monell claim. Dkt. No. 24 at 17–25; Dkt. No. 44 at 7–15. 9 Cheairs maintains that his constitutional rights were violated, and that his Monell claim should be 10 decided by a jury. Dkt. No. 41 at 16–27. The Court finds that summary judgment is warranted 11 because Cheairs has not established a genuine issue for trial with respect to necessary elements of 12 his First and Fourth Amendment claims, thus precluding liability on his Monell claim. 13 1. No Disputes of Material Fact Exist Regarding Whether a Constitutional Violation Occurred — 14 — “Section 1983 provides a cause of action for ‘the deprivation of any rights, privileges, or — 15 — immunities secured by the Constitution and laws’ of the United States.” Wilder v. Virginia Hosp. — 16 — Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983 ). In Monell, the Supreme Court held — 17 — that municipalities may only be held liable under Section 1983 for constitutional violations — 18 — resulting from official policy or custom. 436 U.S. at 694 ; see also id. at 691 (“[A] municipality — 19 — cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality — 20 — cannot be held liable under § 1983 on a respondeat superior theory.”). However, the “first inquiry” — 21 — in any suit pursuant to Section 1983 “is whether the plaintiff has been deprived of a right ‘secured — 22 — by the Constitution and laws.’” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1145 (9th Cir. — 23 — 2021) (quoting Baker v. McCollan, 443 U.S. 137, 140 (1979)); see also Orin v. Barclay, 272 F.3d 24 1 1207, 1217 (9th Cir. 2001) (“A § 1983 action against a city fails as a matter of law unless a city 2 employee’s conduct violates one of the plaintiff’s federal rights.”); Quintanilla v. City of Downey, — 3 — 84 F.3d 353, 355 (9th Cir. 1996) (“[A]n individual may recover under § 1983 only when his federal 4 rights have been violated.”). Thus, the Court addresses Cheairs’ claims of constitutional violations 5 under the Fourth and First Amendments. 6 (a) Cheairs Has Not Raised a Genuine Dispute of Material Fact Precluding Summary Judgment on His Fourth Amendment Claim — 7 — “In addressing an excessive force claim brought under § 1983, analysis begins by — 8 — identifying the specific constitutional right allegedly infringed by the challenged application of — 9 — force.” Graham v. Connor, 490 U.S. 386, 394 (1989). “The validity of the claim must then be — 10 — judged by reference to the specific constitutional standard which governs that right, rather than to — 11 — some generalized ‘excessive force’ standard.” Id.; accord Hughes, 31 F.4th at 1220 . — 12 — Cheairs alleges his excessive force claim under the Fourth Amendment, Dkt. No. 1 at 2, 6– — 13 — 7, which protects against unreasonable seizures, see Seidner v. de Vries, 39 F.4th 591, 596 (9th — 14 — Cir. 2022). There are two ways a person may be seized for purposes of the Fourth Amendment: by — 15 — physical force or show of authority. Terry v. Ohio, 392 U.S. 1, 19, n.16 (1968); see also Torres v. — 16 — Madrid, 592 U.S. 306, 322 (2021). Here, it is undisputed that Cheairs did not voluntarily submit — 17 — to officers’ repeated commands for the crowd to disperse. Thus, even assuming that an order to — 18 — disperse can constitute seizure by show of authority if the subject yields, there is no dispute that — 19 — this species of seizure did not occur here. See California v. Hodari D., 499 U.S. 621, 626 (1991) — 20 — (a seizure by show of authority does not occur if the subject does not yield). The threshold question — 21 — is therefore whether Cheairs was seized by physical force when he was hit with a blast ball — 22 — deployed by Officer Anderson. Seidner, 39 F.4th at 596 (citing Villanueva v. California, 986 F.3d 23 1158, 1165 (9th Cir. 2021)). — 24 — 1 The City argues that the blast ball striking Cheairs does not constitute a seizure as a matter 2 of law because (1) Officer Anderson did not intend to hit or apprehend Cheairs, but instead 3 “wanted to create space and cause people in the crowd to leave the area as they had been ordered 4 to”; and (2) “it is undisputed that [Cheairs’] freedom of movement was not restricted by that use 5 of force.” Dkt. No. 24 at 18–19; see also Dkt. No. 44 at 7–8. Specifically, “Anderson did not intend 6 to apprehend [Cheairs] or anyone else,” and “the video showing the blast ball impacting the 7 ground, bounding, and changing direction forecloses any argument that Anderson was trying to 8 hit [Cheairs] with the blast ball”; therefore, “[a]t most, this was ‘accidental’ force[.]” Dkt. No. 24 9 at 18–19. 10 Not “every physical contact between a government employee and a member of the public” 11 qualifies as a Fourth Amendment seizure. Torres, 592 U.S. at 317 . As the Supreme Court has 12 emphasized, “[a] seizure requires the use of force with intent to restrain,” and “[a]ccidental force 13 will not qualify.” Id. “Nor will force intentionally applied for some other purpose satisfy this rule.” — 14 — Id. This inquiry is an objective one: the question is whether the challenged conduct objectively 15 manifests an intent to restrain, without regard to the subjective motivations of police officers or 16 the seized person. Id. 17 As the City points out, Cheairs does not respond to or otherwise rebut the City’s arguments 18 that no seizure occurred for purposes of the Fourth Amendment, and instead addresses only 19 whether Officer Anderson’s use of force was reasonable. Dkt. No. 44 at 7; see generally Dkt. No. 20 41. It is the nonmoving party’s job “to identify with reasonable particularity the evidence that 21 precludes summary judgment,” and if he elects not to do so, the Court need not “scour the record 22 in search of a genuine issue of triable fact[.]” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) 23 (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)); see also Celotex, 477 24 U.S. at 322. In fact, the Court cannot do so: “[u]nder the principle of party presentation, courts 1 must presume that parties represented by competent counsel know what is best for them, and are 2 responsible for advancing the facts and argument entitling them to relief.” Todd R. v. Premera 3 Blue Cross Blue Shield of Alaska, 825 F. App'x 440 , 442 (9th Cir. 2020) (quotation marks and 4 citation omitted). This principle is especially forceful “in a case such as this, involving a 5 specialized area of civil law and competent, highly experienced counsel on both sides.” Id. Because 6 Cheairs chose not to respond to the City’s arguments relating to seizure, the City’s factual 7 averments with respect to whether a seizure occurred, see Dkt. No. 24 at 17–19, are undisputed, 8 and Cheairs has waived argument on the issue. See Fed. R. Civ. P. 56(e)(2); Samica Enterprises 9 LLC v. Mail Boxes Etc., Inc., 460 F. App'x 664, 666 (9th Cir. 2011) (“Arguments not raised in 10 opposition to summary judgment . . . are waived.”); Loomis v. Cornish, 836 F.3d 991, 997 (9th 11 Cir. 2016) (“[Plaintiff] did not raise these arguments before the district court in his opposition to 12 summary judgment, so they were waived.”); Guarino v. Brookfield Twp. Trs., 980 F.2d 399 , 405 13 (6th Cir. 1992) (“[The nonmoving party’s] burden to respond is really an opportunity to assist the 14 court in understanding the facts. But if the non-moving party fails to discharge that burden—for 15 example, by remaining silent—its opportunity is waived and its case wagered.”). 16 The undisputed facts are as follows. As violence directed at the police from protestors 17 escalated,9 the SPD “broadcast messages to try and move the crow[d]s” away from the area. Dkt. 18 No. 41-5 at 2; Dkt. No. 26-1 at 3–4. Although Cheairs heard an order to disperse and had ample 19 time to comply, he chose not to do so. Dkt. No. 41-5 at 2; Dkt. No. 28-1 at 19.10 After Captain 20 Brooks issued an order to deploy OC blast balls, Officer Anderson threw four blast balls from — 21 — 9 Cheairs does not dispute that protestors in the crowd threw fireworks and other dangerous projectiles at the police in — 22 — the minutes before and after Officer Anderson’s deployment of the blast ball which struck Cheairs, and the officers’ BWV clearly shows this to be the case. See, e.g., Dkt. No. 30-1 at 2 (02:05:30–02:12:00) (Officer Washington’s 23 BWV); id. at 3 (00:34:59–00:45:05) (Officer Oh’s BWV). 10 Cheairs does not argue that the dispersal orders were not warranted or that they were otherwise deficient in any 24 respect. See generally Dkt. No. 41. 1 behind a line of other officers without any concomitant effort to apprehend or otherwise restrain 2 any member of the crowd, including Cheairs. Dkt. No. 41 at 5; Dkt. No. 41-3 at 12–13; Dkt. No. 3 26-1 at 4–5; Dkt. No. 24 at 18. In his use of force report, Officer Anderson stated that he deployed 4 the blast balls to create space between the police line and protestors and cause people to leave the 5 area in accordance with the dispersal orders. Dkt. No. 26-1 at 4; see also Dkt. No. 24 at 19. Unlike 6 the plaintiff in Nelson v. City of Davis, 685 F.3d 867 , 875–76 (2012), Cheairs was not immobilized 7 after one of these blast balls ricocheted and hit him, Dkt. No. 41-5 at 2; Dkt. No. 31-1 at 22–23. 8 Indeed, he does not dispute the City’s contention that his freedom of movement was not restricted 9 by Officer Anderson’s use of force. Dkt. No. 24 at 18. Furthermore, Cheairs was not stopped or 10 arrested by any officer. Id.; Dkt. No. 44 at 8. 11 These undisputed facts do not objectively manifest an intent to restrain. Rather, they are 12 entirely consistent with an intent to prompt the crowd to leave without attempting to apprehend or 13 otherwise restrain anyone. Therefore, Cheairs has failed to rebut the City’s showing that no seizure 14 occurred. See Jackson-Moeser v. Armstrong, 765 F. App'x 299 (9th Cir. 2019) (affirming summary 15 judgment for defendant officer on plaintiff’s Fourth Amendment claim because the officer’s baton 16 strike against plaintiff as a line of officers was pushing protesters off a freeway, resulting in 17 plaintiff running away without any officer telling her to stop or following her, did not show an 18 unambiguous intent to restrain); cf. Meggs v. City of Berkeley, 246 F. App'x 402, 403 (9th Cir. 19 2007) (“The use of force to repel [plaintiffs] from the skirmish line is properly analyzed under the 20 Fourteenth Amendment guarantee of substantive due process and not under the Fourth 21 Amendment because it did not occur in the course of an arrest, investigatory stop, or other seizure.” 22 (quotation marks and citation omitted)). — 23 — — 24 — 1 (b) Cheairs Has Not Raised a Genuine Dispute of Material Fact Precluding Summary Judgment on His First Amendment Retaliation Claim — 2 — To prevail on his First Amendment retaliation claim under Section 1983, Cheairs must — 3 — show that (1) he was engaged in constitutionally protected activity, (2) Defendants’ conduct would — 4 — chill a person of ordinary firmness from continuing to participate in the protected activity, and — 5 — (3) the protected activity was a “substantial or motivating factor” in the Defendants’ conduct. See — 6 — Index Newspapers v. U.S. Marshals, 977 F.3d 817, 827 (9th Cir. 2020). If Cheairs makes a prima — 7 — facie showing of retaliation, “the burden shifts to the defendant official to demonstrate that even — 8 — without the impetus to retaliate he would have taken the action complained of[.]” Hartman v. — 9 — Moore, 547 U.S. 250, 260 (2006). “If . . . retaliation was not the but-for cause of the [adverse — 10 — action], the claim fails for lack of causal connection between unconstitutional motive and resulting — 11 — harm, despite proof of some retaliatory animus in the official’s mind.” Id. In other words, “if the — 12 — government officials would have taken the same adverse action even in the absence of their animus — 13 — or retaliatory motive arising from the plaintiff’s speech, then the officials’ animus was not a but14 for cause of the adverse action, and there was no violation of the plaintiff’s constitutional rights.” — 15 — Boquist v. Courtney, 32 F.4th 764 , 778 (9th Cir. 2022). — 16 — The City argues that Cheairs has not established a genuine dispute of fact as to the elements — 17 — of a retaliation claim. Specifically, the City contends that (1) Cheairs was not engaged in free — 18 — speech or other activity protected under the First Amendment because (a) he was not protesting or — 19 — filming for journalistic purposes and (b) he was in violation of dispersal orders; and (2) even if he — 20 — was engaged in protected activity, he has not produced evidence of any retaliatory animus against — 21 — him or the crowd for any protected activity. Dkt. No. 24 at 21; Dkt. No. 44 at 9–11. Although — 22 — Cheairs argues that the City violated his First Amendment rights by “deploy[ing] flash bang — 23 — grenades indiscriminately against protestors such as [himself], who were not engaging in illegal or — 24 — 1 threatening activity,” Dkt. No. 41 at 21, he does not address the City’s arguments that he was in 2 violation of the dispersal orders and that he failed to show retaliatory animus, see generally id. 3 The First Amendment declares in part that “Congress shall make no law . . . abridging the 4 freedom of speech . . . or the right of the people peaceably to assemble[.]” U.S. Const. amend. I. 5 This right embodies and encourages our national commitment to “robust political debate,” Hustler 6 Mag. v. Falwell, 485 U.S. 46, 51 (1988), by protecting both free speech and associational rights, 7 see, e.g., id. (freedom of speech); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 , 460–61 8 (1958) (freedom of association). Thus, the First Amendment protects political demonstrations, 9 protests, and the act of recording police officers conducting their official duties in public. Boos v. 10 Barry, 485 U.S. 312, 318 (1988); Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th 11 Cir. 2018). 12 But First Amendment protections are not absolute. It is axiomatic, for instance, that 13 government officials may stop or disperse public demonstrations or protests where “clear and 14 present danger of riot, disorder, interference with traffic upon the public streets, or other immediate 15 threat to public safety, peace, or order, appears[.]” Cantwell v. Connecticut, 310 U.S. 296 , 308 16 (1940); see also Cox v. State of La., 379 U.S. 536, 554 (1965). “[W]here demonstrations turn 17 violent, they lose their protected quality as expression under the First Amendment.” Grayned v. 18 City of Rockford, 408 U.S. 104, 116 (1972). In turn, law enforcement may arrest those individuals 19 who refuse to leave when ordered, as their failure to comply exacerbates the danger afflicting the 20 city and hinders law enforcement’s ability to secure the situation. See Feiner v. New York, 340 21 U.S. 315 , 321 (1951) (“It is one thing to say that the police cannot be used as an instrument for the 22 suppression of unpopular views, and another to say that, when as here the speaker passes the 23 bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent 24 a breach of the peace.”). 1 Consistent with these principles, a person is guilty of failure to disperse under Washington 2 law if he “congregates with a group of three or more other persons and there are acts of conduct 3 within that group which create a substantial risk of causing injury to any person, or substantial 4 harm to property” and he “refuses or fails to disperse when ordered to do so by a peace officer or 5 other public servant engaged in enforcing or executing the law.” Wash. Rev. Code § 9A.84.020(1); 6 see also State v. Arreola, 165 Wash. App. 1004 , 2011 WL 5924542 at *3 (Wash. Ct. App. 2011) 7 (a “substantial risk” is “an existing, real, or actual possibility of loss or injury”). Thus, “[w]hen 8 clear and present danger of riot, disorder, interference with traffic upon the public streets, or other 9 immediate threat to public safety, peace, or order, appears, the power of the State to prevent or 10 punish is obvious.” State v. Dixon, 479 P.2d 931, 938 (Wash. 1971) (interpreting the predecessor 11 to Section 9A.84.020) (quoting Cantwell, 310 U.S. at 308 ); see also id. at 937 (“The basically 12 democratic and explicitly constitutional rights of peaceable assembly and freedom of speech are 13 not abridged by laws . . . which thwart the conduct of groups who, having lawfully assembled, 14 formulate a purpose to breach the peace, or injure persons or property or do any other unlawful 15 acts.”). 16 In this case, Cheairs’ First Amendment claim fails to survive summary judgment for two 17 independent reasons: (1) he does not raise a genuine dispute as to whether he was engaged in 18 constitutionally protected activity at the time of his injury, and (2) he does not raise a genuine 19 dispute that such activity was a factor in—let alone the cause of—Defendants’ conduct. 20 (i) Cheairs does not dispute that he was in violation of a lawful order to disperse at the time of the adverse action — 21 — The undisputed evidence shows that Cheairs violated the order to disperse despite being — 22 — given adequate notice and a fair opportunity to comply. Cheairs does not dispute that the SPD’s — 23 — numerous dispersal orders were audible to him and others, Dkt. No. 28-1 at 17; indeed, Cheairs — 24 — 1 states in his declaration that as he approached the intersection, the “SPD began to broadcast 2 messages to try and move the crow[d]s,” Dkt. No. 41-5 at 2. His own video records a dispersal 3 order issued 201.1 seconds prior to the impact by the blast ball. Dkt. No. 28-1 at 19. That order 4 stated as follows: 5 . . . all those assembled at 11th and Pine to immediately disperse, which means leave this area. If you do not do so, you may be arrested or subject to other police 6 action. Other police action could include the use of chemical agents or less lethal munitions, which may inflict significant pain or result in serious injury. If you 7 remain in the area just described, regardless of your purpose, you will be in violation of city and state law. The following routes of dispersal are available: 8 Westbound on Pine. Southbound on Twelve. 9 Dkt. No. 31-1 at 33 (00:01–00:41); see also Dkt. No. 26-1 at 25–26. Although Cheairs had over 10 three minutes to obey the order, he chose not to do so. Dkt. No. 28-1 at 19; Dkt. No. 41-5 at 2. 11 Additionally, Cheairs does not argue that the order to disperse was not warranted or was otherwise 12 unlawful. Dkt. No. 24 at 6; see generally Dkt. No. 41. He does not rebut the City’s expert testimony 13 that Captain Allen gave lawful dispersal orders that evening. Dkt. No. 29-1 at 30–32. He does not 14 dispute that both before and after the above-quoted order to disperse, protestors were violently 15 attacking officers by throwing projectiles and shining lasers in officers’ eyes, or that there was a 16 significant escalation in the violence of the crowd beginning at approximately 12:04 a.m. Notably, 17 Cheairs relies on his own videos and William Neale’s montage of his videos together with the 18 BWVs of officers as accurately representing “[t]he events in question,” Dkt. No. 41 at 3, and those 19 videos clearly corroborate the violence that precipitated the lawful dispersal orders, see supra at 20 7; Dkt. No. 29-1 at 24 (noting that rocks and several “missiles” were thrown at officers and lasers 21 were shined into officers’ eyes in the six minutes before Cheairs was struck); Dkt. No. 24 at 7–8 22 (partial list of the projectiles and lasers visible on the video compilation). And finally, Cheairs 23 does not dispute that his failure to leave the area violated Section 9A.84.020 of the Revised Code 24 of Washington. 1 Considering the undisputed facts in the record, the Court finds that Cheairs has not 2 established a genuine issue for trial regarding whether he was engaged in protected conduct at the 3 time of the adverse action. See Colten v. Kentucky, 407 U.S. 104, 109 (1972) (holding that a 4 plaintiff’s “conduct in refusing to move on after being directed to do so was not, without more, 5 protected by the First Amendment”); Cervantes v. San Diego Police Chief Shelley Zimmerman, 6 No. 17-CV-01230-BAS-AHG, 2020 WL 5759752 , at *7 (S.D. Cal. Sept. 28, 2020) (“Plaintiffs had 7 no First Amendment right to remain in the area of a protest or riot after police issued an order to 8 disperse and were violating the law by doing so.”), aff’d sub nom. Ramirez v. Zimmerman, No. 209 56117, 2021 WL 5104371 (9th Cir. Nov. 3, 2021); Hicks v. City of Portland, No. CV 04-825-AS, — 10 — 2006 WL 3311552 , at *12 (D. Or. Nov. 8, 2006) (“Plaintiff had no protected First Amendment to 11 enter the street in violation of a lawful order to disperse.”). “Nor does existing case law establish, 12 or even suggest, that the First Amendment prohibits law enforcement from enforcing a dispersal 13 order under the circumstances present in this case.” Cervantes, 2020 WL 5759752 , at *8. 14 (ii) Cheairs does not dispute that retaliatory animus was not a motivating factor in Officer Anderson’s deployment of the blast balls — 15 — Even assuming that Cheairs was engaged in activity protected under the First Amendment, — 16 — he fails to dispute the City’s evidence that no retaliatory animus was behind the deployment of the — 17 — blast balls. As an initial matter, Cheairs does not allege in his complaint that the SPD, or Anderson — 18 — specifically, deployed the blast balls in response to anyone’s protected activities. See generally — 19 — Dkt. No. 1; see also Boquist, 32 F.4th at 777 (“[T]o establish the third prong of the prima facie — 20 — case for First Amendment retaliation—which requires the plaintiff to show a causal relationship — 21 — between the protected conduct and the material adverse action—the plaintiff must show that the — 22 — protected conduct played a part, substantial or otherwise, in the defendant’s wrongdoing” (cleaned — 23 — up)); Johnson v. City of San Jose, 591 F. Supp. 3d 649 , 665 (N.D. Cal. 2022). But even if Cheairs — 24 — 1 had stated a claim for First Amendment retaliation, he does not present any evidence of retaliatory 2 animus, nor does he make any effort to rebut the City’s evidence that Officer Anderson threw the 3 blast balls to protect the line officers, create space between officers and the crowd, and to disperse 4 the crowd. See Dkt. No. 26-1 at 4; Dkt. No. 24 at 21; Dkt. No. 44 at 11; see generally Dkt. No. 41; 5 see also Nieves v. Bartlett, 139 S. Ct. 1715 , 1727–28 (2019) (affirming summary judgment on a 6 retaliation claim because the record contained insufficient evidence of what motivated the arresting 7 officer); Cervantes, 2020 WL 5759752 , at *9 (finding that plaintiff did not establish the third 8 element of his retaliation claim when he did not “submit any evidentiary support to raise a genuine 9 factual issue about [the officer’s] motivations”). 10 Accordingly, as with his Fourth Amendment excessive force claim, Cheairs has failed to 11 identify a genuine issue for trial with respect to his First Amendment retaliation claim. 12 2. Cheairs Cannot Establish Monell Liability 13 Because no constitutional violation occurred, there can be no Monell liability on the part 14 of the City, and the City is entitled to summary judgment. Yousefian v. City of Glendale, 779 F.3d 15 1010, 1016 (9th Cir. 2015).11 — 16 — — 17 — — 18 — 11 The Court denies Cheairs’ improper request (raised for the first time in his opposition brief) for leave to amend his 19 complaint “to cure any deficiency in the pleadings.” Dkt. No. 41 at 15 n.2. The deadline to amend pleadings was June 30, 2022, roughly nine months before Cheairs filed his opposition brief. Dkt. No. 15. He makes no effort to show why that deadline could not be met despite his diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th 20 Cir. 1992) (“Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily 21 considers the diligence of the party seeking the amendment.”). Nor does he explain why he did not move for leave to amend by the close of discovery, to the extent facts were not available to him until the discovery phase. There is accordingly no basis to permit leave to amend. See id. (“If th[e moving] party was not diligent, the inquiry should — 22 — end.”); see also, e.g., Seattle Pac. Indus., Inc. v. S3 Holding LLC, 831 F. App'x 814 , 816–17 (9th Cir. 2020) (party that moved for leave to amend three months after the amended pleadings deadline failed to exercise diligence because 23 it could have asserted its proposed claims before that deadline); Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999) (denying leave to amend where plaintiff’s motion “came several months after the 24 stipulated deadline for amending or supplementing the complaint” and “[n]othing in the proposed amended complaint relied on facts that were unavailable before the stipulated deadline”). 1 III. CONCLUSION 2 For the foregoing reasons, the Court GRANTS the City’s Motion for Summary Judgment. 3 Dkt. No. 24. In light of the above, the status conference scheduled for April 29, 2024 at 1:30 p.m. 4 is hereby STRICKEN. Dkt. No. 48. — 5 — 6 Dated this 24th day of April, 2024. 7 A 8 Lauren King United States District Judge — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 —