A year ago, Seattle was in the middle of what its mayor, Jenny DurkanJenny DurkanWashington officials warn vendors offering VIP vaccine access Seattle mayor announces she will not run for re-election. In times of crisis, American mayors are ready to work with President-elect Biden MORE, called “Summer of Love” with the establishment of an “autonomous zone” called “Capitol Hill Occupied Protest” or “CHOP”. Rioters took over a police station and were allowed to occupy an entire part of the city. At the time, I wrote that if Durkan and Seattle were sued for the resulting chaos, they could stick to the doctrine of law they had denounced in police brutality cases: immunity.
That has now happened to a number of state and federal lawsuits. At the latest in a lawsuit brought by the mother of a young man killed during the CHOP reign, the city is likely to argue that it has immunity to its discretionary decisions, including handing parts of the city over to a mob.
Donnitta Sinclair lost her son Horace Lorenzo Anderson to Cal Anderson Park, which was a focus of the “reinvented” government of the mob. City officials did nothing when the park and the surrounding area became full of crime and drugs. On June 20, Anderson, who had completed an alternative youth education program the day before, was allegedly shot and killed by Marcel Long, 18, after an altercation.
Due to the autonomy granted by Durkan and the City of CHOP, emergency treatment for Anderson was delayed as the medical crews in the occupied zone were treated as “strangers”. Eventually, the dying Anderson was placed in a private vehicle to be taken out of CHOP. Sinclair’s lawsuit alleges that a “Medic One ambulance was about a block and a half from Anderson’s bleeding site” and that its crew repeatedly radioed requests to enter the autonomous zone. When police and medical teams tried to gain entry, they reported being met by demonstrators asserting their sovereign rights.
The violence in CHOP continued. A little over a week later, another shooting killed a 16-year-old boy and a 14-year-old badly wounded. Crimes in CHOP included murders, shootings, robberies and sexual assault – while city officials watched and did nothing.
While it was first celebrated in the media as a fun “block party” with colorful art and hangouts like the “No Cop Café”, the truth about CHOP soon became clear and less popular. Durkan belatedly ordered the police to restore control of the area.
To police officers, defending the city may seem as familiar as it is frustrating. This is the downside of deadly violence such as the shooting of Ma’Khia Bryant, 16, last month in Columbus, Ohio, where Officer Nicholas Reardon used lethal violence to stop another girl from stinging. In the case of CHOP, Durkan and other Seattle officials decided not to act despite deaths, sexual assault, and other crimes. You will now argue that their inaction was a well-intentioned but admittedly unsuccessful attempt at de-escalation.
The difference, however, is that they made their decision over weeks as the victims ascended – while Officer Reardon had literally seconds to decide in Columbus.
As Seattle and Durkan councilors praised CHOP, there were also calls from councilors to disappoint the police, fire white officers, and lift the immunity doctrine to protect police officers. Congresswoman Pramila Jayapal (D-Wash.), Seattle City Council President Lorena González, Councilors Teresa Mosqueda, Tammy Morales, and Kshama Sawant, and other elected officials of the state all called for an end to police immunity defenses.
You are not alone. New York City City Council voted to end the practice, and President Biden is pushing for the U.S. Senate to pass the George Floyd Justice in Policing Act, which includes the elimination of qualified immunity for law enforcement officers.
The immunity doctrine protects government officials from complaints about their discretionary decisions and actions. In 1982, the Harlow v Fitzgerald Supreme Court ruled that “government officials exercising discretion are generally shielded from liability for civil damage unless their conduct violates clearly established legal or constitutional rights that a reasonable person would have known . ”
How “established” is it to leave a whole part of a city to mob rule as a social experiment? A similar question could be raised in court if Seattle claims, as expected, that it cannot be sued for deaths caused by Durkan’s decision to leave the CHOP area.
Fortunately for Durkan, no leader has been so open to ceding territory to a mob. And no one had reason to say the obvious – that a government’s first obligation is to actually govern.
Some previous cases of “sovereign immunity” activate the “doctrine of public duty,” which protects the government from liability if it refuses to act to enforce law. This is not just figurative, but literally true for citizens held hostage due to the inaction of officials. In 1855 the Supreme Court in South v. Maryland that a sheriff was not liable after allowing a gang to take a man hostage for unpaid money. The court ruled that the sheriff owed his duty to the public rather than to individual citizens.
While some states have restricted claims to sovereign immunity and defense against “public duties”, governments and government officials still have adequate discretionary protection. Even without immunity, the standard of negligence provides protection for civil servants by not only reinventing the police but also redefining governance.
On the other hand, we have never come across CHOP or a city that wanted to imagine that it no longer existed. This was not just a hostage-taking that lasted a few hours, but weeks of self-appointed, government-recognized mob occupation. Some citizens were trapped in this ceded zone, working under the curious notion that the government is obliged to provide them with basic protection and not choose between them and a popular mob.
If Seattle is hacked in court, it is not because of government failure, but because of government failure.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.