Sims v. City of Seattle et al, No. 2:2022cv00483 - Document 57 (W.D. Wash. 2023)

Court Description: ORDER granting Defenfants' 22 Motion to Dismiss Plaintiff's Claim for Injunctive Relief. Signed by Judge Tana Lin. (LH)

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Sims v. City of Seattle et al Doc. 57 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 1 of 16 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 ANTHONY SIMS, CASE NO. 2:22-cv-00483-TL Plaintiff, 12 v. 13 ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF CITY OF SEATTLE, et al., 14 Defendants. 15 16 17 This is a civil rights action under 42 U.S.C. § 1983 for damages, declaratory relief, and 18 injunctive relief stemming from an interaction between a Seattle resident and Seattle police 19 officers. The matter is before the Court on Defendants’ motion to dismiss Plaintiff’s claim for 20 injunctive relief (the “Motion to Dismiss”). Dkt. No. 22. Having considered Plaintiff’s response 21 (Dkt. No. 25), Defendants’ reply (Dkt. No. 27), and the relevant record, the Court finds that 22 Plaintiff does not have standing to pursue his claim for injunctive relief and therefore GRANTS the 23 Motion to Dismiss. 24 ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 1 Dockets.Justia.com Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 2 of 16 1 2 I. BACKGROUND The facts alleged in the First Amended Complaint (“FAC”), which the Court takes as true 3 for the purposes of this Order, are as follows: Plaintiff Anthony Sims is an African American 4 citizen of Washington State and a resident of Seattle, Washington. Dkt. No. 20 ¶ 2.1. Defendants 5 Robert Brown, Gregory Nash, Garrett Follette, and Bradley Richardson are Caucasian male 6 officers employed by the Seattle Police Department (“SPD”). Id. ¶¶ 2.3–2.6. 7 Plaintiff works as a delivery driver and was working on the morning of May 17, 2020. Id. 8 ¶ 4.1. At that time, Defendant Brown followed Plaintiff for several blocks until Plaintiff parked 9 in front of a 7-Eleven store in downtown Seattle. Id. ¶¶ 4.1, 4.3. While following Plaintiff, 10 Defendant Brown relayed Plaintiff’s license plate number to a dispatcher. Id. ¶ 4.4. Without 11 waiting for the results of his inquiry, Defendant Brown detained Plaintiff. Id. ¶ 4.6. When 12 Plaintiff exited his car to go into the 7-Eleven, Defendant Brown began issuing a series of 13 commands over a public address system. Id. ¶ 4.7. He first commanded Plaintiff to return to his 14 vehicle and wait, then to exit the vehicle, and finally to turn around and walk toward him. Id. 15 ¶ 4.8. Plaintiff complied with each command. Id. 16 During Defendant Brown’s interaction with Plaintiff, additional police units arrived, 17 including Defendants Nash, Follette, and Richardson. Id. ¶ 4.9. Defendant Nash drew his firearm 18 and pointed it at Plaintiff. Id. ¶ 4.11. Multiple officers did the same. Id. ¶ 4.12. Defendant Brown 19 stated over the public address system, “I have no doubt that’s probably your vehicle,” and 20 “sometimes there’s a misunderstanding.” Id. ¶ 4.10. While Plaintiff was detained, Defendants 21 Nash, Follette, and Richardson searched Plaintiff’s car. Id. ¶ 4.14. Officers also frisked and 22 searched Plaintiff and continued to ask questions of him. Id. ¶¶ 4.15–4.16. Ultimately, a police 23 dispatcher told Defendant Brown that Plaintiff’s license plate had not been reported stolen and 24 was clear. Id. ¶ 4.18. Plaintiff was released without arrest. Id. ¶ 4.19. When told of the incident ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 2 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 3 of 16 1 later by Defendant Brown, Sergeant Patrick Moore “approved and condoned the actions” of the 2 Defendant officers. Id. ¶ 4.20. 3 Plaintiff further alleges that the City of Seattle (the “City”) “failed to discipline any of the 4 officers involved, and found their conduct consistent with City policy and practices.” Id. ¶ 4.29. 5 In doing so, the City “relied on the assertion that Mr. Sims’s license plate was a ‘near hit’ with a 6 different license plate.” Id. SPD “instructs officers to point their firearms at members of the 7 public during so-called high risk vehicle stops.” Id. ¶ 4.31. A high-risk vehicle stop is defined as 8 “any stop which poses a significant risk to the officer(s) when dealing with the occupant(s) of a 9 motor vehicle.” Id. In response to a disciplinary complaint by Plaintiff, the City’s Office of 10 Police Accountability (“OPA”) recommended changes to the City’s use of force training and 11 policies. Id. ¶ 4.30. OPA’s investigation of the stop of Plaintiff concluded that “[i]t it is up to the 12 individual officer to articulate why they did or did not use that tactic.” Id. ¶ 4.31. 13 Finally, Plaintiff alleges that the City “has a policy, practice, or custom of conducting 14 searches and seizures without probable cause or other legal justification, and of using excessive 15 force.” Id. ¶ 4.32. These policies and practices “are part of the training and instruction the City of 16 Seattle imparts to its police officers.” Id. Plaintiff notes that SPD is under supervision by the 17 Western District of Washington pursuant to a Consent Decree following a United States 18 Department of Justice (“DOJ”) investigation. Id. ¶ 4.33. In a 2011 report, DOJ found that 19 “Seattle police engage in a pattern or practice of excessive force due to the City’s policies, 20 training, and supervision.” Id. DOJ also found that “SPD officers exhibited confusion about the 21 necessity of having reasonable suspicion in order to conduct investigatory stops.” Id. 22 Plaintiff also alleges that the City “has a practice or custom of engaging in unjustified 23 stops, searches, arrests, and excessive use of force, disproportionately against African American 24 and other non-white residents, as compared to white residents.” Id. ¶ 4.34. Plaintiff cites a ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 3 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 4 of 16 1 January 2021 study by the Center for Policing Equity (“CPE”) that found “African Americans 2 were subjected to the use of force more than seven times as often per capita as compared to 3 Caucasians.” Id. The study also found that African Americans were stopped by police more than 4 four times as often as Caucasians, and that Seattle police were “far more likely” to point or 5 display a firearm when interacting with African Americans. Id. 6 In this action, Plaintiff seeks declaratory relief and monetary damages. Id. ¶¶ 7.2–7.3, 7 7.5–7.8. Plaintiff also seeks an injunction “preventing Defendants from continuing to violate the 8 Constitution and providing other equitable relief,” including “other declaratory and injunctive 9 relief as the Court deems just and proper.” Id. ¶¶ 7.4, 7.9; see also id. ¶¶ 6.1–6.4. 10 11 Defendants move to dismiss Plaintiff’s claim for injunctive relief for lack of subject matter jurisdiction based on the face of the FAC. Dkt. Nos. 22, 27. Plaintiff opposes. Dkt. No. 25. 12 13 II. LEGAL STANDARD A motion to dismiss may be brought for lack of subject matter jurisdiction. See Fed. R. 14 Civ. P. 12(b)(1). The Court must dismiss an action if it determines that it lacks subject matter 15 jurisdiction “at any time.” Fed. R. Civ. P. 12(h)(3). A motion to dismiss for lack of subject 16 matter jurisdiction may be either a facial attack (challenging the sufficiency of the pleadings) or 17 a factual attack (presenting evidence contesting the truth of the allegations in the pleadings). See 18 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). “When reviewing a [facial] dismissal 19 pursuant to Rule 12(b)(1) . . . , ‘we accept as true all facts alleged in the complaint and construe 20 them in the light most favorable to plaintiff[ ], the non-moving party.’” DaVinci Aircraft, Inc. v. 21 United States, 926 F.3d 1117, 1122 (9th Cir. 2019) (second alteration in original) (quoting 22 Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1156–57 (9th Cir. 2017)). 23 24 Subject matter jurisdiction encompasses doctrines of justiciability under Article III of the Constitution, such as standing. See City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (“It ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 4 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 5 of 16 1 goes without saying that those who seek to invoke the jurisdiction of the federal courts must 2 satisfy the threshhold [sic] requirement imposed by Article III of the Constitution.”). Such 3 threshold jurisdictional issues must be satisfied “separately for each form of relief sought.” 4 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (internal quotation marks omitted) 5 (citing Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000)). 6 “To establish Article III standing, an injury must be concrete, particularized, and actual or 7 imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” 8 Martin v. City of Boise, 920 F.3d 584, 608 (9th Cir. 2019) (quoting Clapper v. Amnesty Int’l 9 USA, 568 U.S. 398, 409 (2013)). To establish standing for injunctive relief, a plaintiff must 10 allege “either ‘continuing, present adverse effects’ due to [their] exposure to Defendants’ past 11 illegal conduct, or ‘a sufficient likelihood that [they] will again be wronged in a similar way.” 12 Villa v. Maricopa Cnty., 865 F.3d 1224, 1229 (9th Cir. 2017) (quoting O’Shea v. Littleton, 414 13 U.S. 488, 495-96 (1974), and Lyons, 461 U.S. at 111). 14 15 III. A. DISCUSSION Lyons and Injunctive Relief in the Ninth Circuit A plaintiff who asserts civil rights violations and seeks injunctive relief must find a way 16 17 to distinguish City of Los Angeles v. Lyons and its progeny, which courts have repeatedly cited in 18 the last 40 years as the basis for denying such relief. 1 Lyons has faced sustained criticism by 19 courts, scholars, and the public. 2 Nonetheless, it remains the governing law. 20 1 21 22 See, e.g., Lopez-Aguilar v. Marion Cnty. Sheriff’s Dep’t, 924 F.3d 375, 393–96 (7th Cir. 2019); J W by and through Tammy Williams v. Birmingham Bd. of Ed., 904 F.3d 1248, 1264–73 (11th Cir. 2018); Simmons v. Poe, 47 F.3d 1370, 1382–83 (4th Cir. 1995); Gladden v. Roach, 864 F.2d 1196, 1198–99 (5th Cir. 1989); Curtis v. City of New Haven, 726 F.2d 65, 67–69 (2d Cir. 1984). 2 23 24 See, e.g., Joanna Schwartz, Shielded: How the Police Became Untouchable 173 (2023) (“[Plaintiffs] are left with two unsatisfactory options—try to overcome the seemingly insurmountable barriers imposed by Lyons and Rizzo, or hope that money damages will force the changes they seek.”); Fletcher v. City of Madison, No. C21-1431, 2021 WL 5359348, at *6 (N.D. Ala. Nov. 17, 2021) (“The law presents a maddening catch-22 for many would-be plaintiffs ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 5 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 6 of 16 The story of Lyons has been told in more detail elsewhere, 3 but a brief recounting is 1 2 warranted here to understand the barriers that Plaintiff faces. On October 6, 1976, at 2 a.m., Mr. 3 Adolph Lyons was stopped by Los Angeles police officers for a traffic or vehicle code violation. 4 Lyons, 461 U.S. at 97. Although Mr. Lyons did not resist the officers, threaten them, or 5 otherwise provoke them, the officers seized him and applied a “chokehold” rendering him 6 unconscious and damaging his larynx. Id. at 97–98. Mr. Lyons sued the City of Los Angeles for damages, declaratory relief, and—most 7 8 important for the instant matter—injunctive relief barring the use of chokeholds except where 9 officers are threatened with deadly force. Id. at 98. In support of his request for injunctive relief, 10 Mr. Lyons alleged that the city's police officers, ‘pursuant to the authorization, instruction and encouragement of defendant City of Los Angeles, regularly and routinely apply these choke holds in innumerable situations where they are not threatened by the use of any deadly force whatsoever,’ that numerous persons have been injured as the result of the application of the chokeholds, that Lyons and others similarly situated are threatened with irreparable injury in the form of bodily injury and loss of life, and that Lyons ‘justifiably fears that any contact he has with Los Angeles police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse.’ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 seeking accountability and reform.”); Erwin Chemerinsky, Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights 4 (2021) (Lyons “dramatically constrains the ability of the federal judiciary to stop police from using unconstitutional and racist practices like the chokehold.”); Sunita Patel, Jumping Hurdles to Sue the Police, 104 Minn. L. Rev. 2257, 2271–76 (2020) (discussing Lyons as an impediment to systemic police reform); Ian Millhiser, “How the Supreme Court enabled police to use deadly chokeholds,” Vox (May 30, 2020, 9:00 AM), https://www.vox.com/2020/5/30/21274697/supreme-court-police-chokehold-george-floyd-derek-chauvin-lyons-losangeles (discussing Lyons in the context of the George Floyd protests); MacIssac v. Town of Poughkeepsie, 770 F. Supp. 2d 587, 600 (S.D.N.Y. 2011) (“[T]his Court is bound to follow [Lyons] and ‘its harsh practical results.’” (quoting Laura E. Little, It’s About Time: Unraveling Standing and Equitable Ripeness, 41 Buff. L. Rev. 933, 936 (1993))); see also Lyons, 461 U.S. at 137 (“The Court's decision removes an entire class of constitutional violations from the equitable powers of a federal court.”) (Marshall, J., dissenting). 3 See, e.g., Schwartz, supra, at 169–73; Chemerinsky, supra, at 4–16. ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 6 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 7 of 16 1 Id. The United States Supreme Court denied his request, stating that Mr. Lyons “has failed to 2 demonstrate a case or controversy with the City that would justify the equitable relief sought.” 3 Id. at 105. It was not enough, the Court reasoned, the Mr. Lyons “may have been illegally 4 choked,” nor was it enough that Mr. Lyons also alleged in the complaint that “the police in Los 5 Angeles routinely apply chokeholds in situations where they are not threatened by the use of 6 deadly force . . . .” Id. Instead, to establish standing for injunctive relief, 7 8 9 10 Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner. 11 Id. at 105–06. “We cannot agree,” the Court reasoned, “that the ‘odds’ that Lyons would not only 12 again be stopped for a traffic violation but would also be subjected to a chokehold without any 13 provocation whatsoever are sufficient to make out a federal case for equitable relief.” Id. at 108. 14 The Court noted that in the five months between the alleged incident and the filing of a 15 complaint, there were no allegedly unlawful encounters between Mr. Lyons and police. Id. 16 Ultimately, absent a showing that Mr. Lyons was “realistically threatened by a repetition of his 17 experience,” or that there was “a sufficient likelihood that he will again be wronged in a similar 18 way,” Mr. Lyons could not demonstrate standing. Id. at 109, 111. 19 20 21 22 23 Still, the Ninth Circuit has enumerated two ways in which a plaintiff can distinguish Lyons and properly establish standing for injunctive relief: First, a plaintiff may show that the defendant had, at the time of the injury, a written policy, and that the injury stems from that policy. Second, the plaintiff may demonstrate that the harm is part of a pattern of officially sanctioned . . . behavior, violative of the plaintiffs' [federal] rights. 24 ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 7 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 8 of 16 1 Melendres v. Arpaio, 695 F.3d 990, 998 (9th Cir. 2012) (quoting Mayfield v. United States, 599 2 F.3d 964, 971 (9th Cir. 2010)). Two cases are illustrative of the Ninth Circuit’s approach to 3 injunctive relief in cases of alleged unlawful street encounters with law enforcement agents. 4 In Hodgers-Durgin v. de la Vina, two plaintiffs sought to bring a class action for 5 injunctive relief against the United States Border Patrol to prohibit the agency from continuing to 6 engage in “roving patrol operations” that involved allegedly unlawful seizures under the Fourth 7 Amendment. 199 F.3d 1037, 1038–39 (9th Cir. 1999) (en banc). It was uncontested that the two 8 named plaintiffs had engaged in entirely innocent conduct. Id. at 1041. The two plaintiffs alleged 9 that they had each been stopped once by the Border Patrol over the span of 10 years. Id. at 1039. 10 The Ninth Circuit found that it was “not sufficiently likely” that the plaintiffs would be stopped 11 again. Id. at 1044. Thus, there was no basis for an injunction “that would restructure the 12 operations of the Border Patrol and that would require ongoing judicial supervision normally, 13 and properly, overseen by the executive branch.” Id. 14 On the other hand, in Melendres, a class of plaintiffs sought injunctive relief against 15 defendants Sheriff Joe Arpaio and the Maricopa County Sheriff’s Office to prohibit detention 16 based only on the belief that a person was unlawfully present in the United States. 695 F.3d at 17 994. The plaintiffs alleged that, for years, the defendants had conducted “racially discriminatory 18 traffic stops” and “crime suppression sweeps” known as “saturation patrols,” that specifically 19 targeted Latinos. Id. Moreover, each of the five named plaintiffs had been stopped by defendants. 20 Id. at 995. The Ninth Circuit affirmed the district court’s finding of standing for the named 21 plaintiffs, based on the defendants’ “expressed claim of authority” to detain persons only on 22 suspicion of unlawful presence, as well as the evidence of a “pattern or practice” of saturation 23 patrols or sweeps. Id. at 998. Although the district court held that “the likelihood of a future stop 24 of a particular individual may not be high,” the Ninth Circuit determined that the court did not ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 8 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 9 of 16 1 err in finding that “future injury was nevertheless sufficiently likely given the Defendants’ stated 2 policy and practice.” Id. (quotation omitted). 3 Courts in this Circuit have found standing for injunctive relief at the motion to dismiss 4 stage of a case where plaintiffs successfully alleged either a written policy or pattern of officially 5 sanctioned behavior or otherwise distinguished Lyons. See, e.g., Solano v. U.S. Immigr. and 6 Customs Enf’t, No. C21-1576, 2021 WL 4539860, *4–5 (C.D. Cal. 2021) (finding standing for 7 prisoner subject to “systemic policy or practice” of immigration arrests by private contractors); 8 Magassa v. Wolf, 487 F. Supp. 3d 994, 1010–11 (W.D. Wash. 2020) (finding standing for airport 9 employee subject to “continuous” security policy); Doe v. Hagee, 473 F. Supp. 2d 989, 997 10 (N.D. Cal. 2007) (distinguishing Lyons because plaintiffs alleged likelihood of encounter with 11 Marines recruiters and that Marines “condoned” the “practice” of sexual assault); Rodriguez v. 12 Cal. Highway Patrol, 89 F. Supp. 2d 1131, 1142 (N.D. Cal. 2000) (distinguishing Lyons because 13 plaintiffs did not yet have discovery, standing did not require commission of crime, and 14 complaint alleged pattern of activity by law enforcement). But see Puckett v. Cnty. of 15 Sacramento, No. C22-0350, 2023 WL 2432919, at *4 (E.D. Cal. Mar. 9, 2023) (finding no 16 standing where plaintiff alleged prior unlawful investigation by police but “does not show any 17 ‘real or immediate’ threat” of further incarceration or investigation); East v. City of Richmond, 18 No. C10-2392, 2010 WL 4580112, at *5–6 (N.D. Cal. Nov. 3, 2010) (finding no standing where 19 plaintiff alleged prior incident of physical retaliation by police but did not identify “any realistic 20 future threat or that she will be subject to the same harm again”). 21 B. 22 Arguments of the Parties Defendants argue that Plaintiff’s alleged future injury is “speculative, insufficiently 23 particularized to Plaintiff, and does not constitute a credible threat of a future violation.” Dkt. 24 No. 22 at 3. Defendants further argue that the alleged harm is “not likely to be redressed by the ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 9 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 10 of 16 1 requested injunction,” and that “settled principles of federalism” weigh strongly against 2 injunctive relief. Id. 3 Plaintiff argues that the cases relied upon by the Defendants did not involve motions to 4 dismiss and were decided after discovery had been conducted. The Court acknowledges this 5 distinction, but a plaintiff must still plead enough in a complaint to establish standing for the 6 relief sought. Villa, 865 F.3d at 1229. 7 Plaintiff asserts that he has established standing for injunctive relief in both of the ways 8 enumerated by the Ninth Circuit. Dkt. No. 25 at 7. First, Plaintiff argues that the City maintains 9 “specific written policies” that caused his injury, including SPD training materials on high-risk 10 vehicle stops and the City’s specific findings as to Plaintiff’s alleged incident. Id. at 7–8. Plaintiff 11 contends that these documents show that “City policy authorizes its officers to conduct felony 12 ‘high risk’ stops of Mr. Sims based on nothing more than the claim that his license plate is ‘near 13 hit.’” Id. at 8; see also id. at 11. Second, Plaintiff argues that he has alleged a pattern of officially 14 sanctioned behavior by pointing to the CPE study showing that SPD officers are far more likely 15 to display a firearm when interacting with a Black person than with a white person. Id. at 8. 16 Plaintiff also points to “the City’s pattern or practice of excessive force”, as documented by DOJ 17 in its investigation of SPD. Id. at 9. In their reply, Defendants argue, among other things, that Plaintiff did not actually plead 18 19 a “near hit” policy and did not plead facts that would support standing even if the policy was 20 properly alleged. Dkt. No. 27 at 3–5. 21 C. 22 Realistic Threat of Repeated Violation The question before the Court is whether Plaintiff himself is “realistically threatened by a 23 repeat of [the violation],” namely, “dangerous and unconstitutional ‘high risk’ vehicle stops 24 against Black men without reasonable suspicion or probable cause” based on an alleged “nearORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 10 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 11 of 16 1 hit” policy. Dkt. No. 20 at 10–11. The Court’s answer to this question is constrained by the 40- 2 year legacy of Lyons, which establish a very high standard for plaintiffs seeking injunctive relief. 3 And it is a standard that Plaintiff has not met, for reasons that follow. 4 As an initial matter, Plaintiff’s claim does not depend on Plaintiff committing a crime to 5 be subject to a repeated violation. Citing Lyons, courts have denied injunctive relief under such a 6 condition. See Melendres, 695 F.3d at 998 (“[S]tanding is not appropriate where a plaintiff can 7 avoid injury by avoiding illegal conduct . . .”); see also, e.g., Ilae v. Tenn, No. C12–0316, 2013 8 WL 4499386, at *15 (D. Haw. Aug. 20, 2013) (finding no standing where plaintiff could avoid 9 injury by not creating probable cause for arrest); Price v. City of Seattle, No. C03-1365, 2005 10 WL 8172772, at *2–4 (W.D. Wash. Jan. 26, 2005) (finding no standing where plaintiffs could 11 avoid injury by not driving with a suspended license). Here, as Plaintiff observes (Dkt. No. 25 at 12 10) and Defendants do not appear to dispute, there is no allegation that Plaintiff committed a 13 criminal act. Plaintiff’s claim cannot be dismissed on this basis. But Plaintiff fails to clear the 14 remaining hurdles of Lyons. 15 While this case is not a precise analogue to either Hodgers-Durgin or Melendres, its facts 16 hew closer to Hodgers-Durgin than to Melendres. To establish standing for injunctive relief, a 17 plaintiff must allege more than an isolated incident. But Plaintiff presents himself closer to Mr. 18 Lyons and the two plaintiffs in Hodgers-Durgin: he alleges only a single incident, with no 19 further unlawful encounters with police in the over two years between the incident and the filing 20 of Plaintiff’s FAC. By contrast, Melendres involved allegations of a long pattern of behavior and 21 included official statements demonstrating an ongoing policy. While the 2011 DOJ report and 22 the 2021 CPE study may be evidence of troubling behavior by the SPD, these materials do not 23 support an individualized finding by the Court that Plaintiff himself will suffer a repeated 24 violation. Plaintiff fails to make that showing. See Partington v. Gedan, 961 F.2d 852, 862 (9th ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 11 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 12 of 16 1 Cir. 1992) (“Past deprivation by itself is not enough to demonstrate the likelihood of future 2 deprivations such that the requirements of Article III are met.”). 3 Plaintiff attempts to tie the documented pattern and practice of racial bias by the SPD to 4 him in particular through an alleged “near hit” policy as the “near hit” policy “served as [the] 5 basis for the ‘high risk’ felony stop.” Dkt. No. 25 at 11. But as Defendant points out (Dkt. No. 27 6 at 3), Plaintiff has not sufficiently alleged the existence of a “near hit” policy. There is only one 7 allegation in the FAC relating to the “near hit”: “In condoning the officer’s actions, the City 8 relied on the assertion that Mr. Sims’ license plate was a ‘near hit.’” Dkt. No. 20 ¶ 4.29. In short, 9 Plaintiff only alleges that a “near hit” finding was part of the basis for a lack of officer discipline 10 in this incident. 4 The Court cannot find that OPA’s review of a single incident represents either a 11 written policy or pattern of officially sanctioned behavior that “realistically threaten[s]” Plaintiff 12 personally with a repeated violation. Melendres, 695 F.3d at 997. Nor does Plaintiff provide any 13 authority to the contrary. Plaintiff’s claim depends upon the kind of “chain of speculative contingencies,” Nelsen v. 14 15 King Cnty., 895 F.2d 1248, 1252 (9th Cir. 1990), that was disapproved in Lyons and that has 16 historically troubled the Ninth Circuit. See also Lee v. State of Oregon, 107 F.3d 1382, 1389 (9th 17 Cir. 1997) (gathering cases). Like Mr. Lyons himself, whose claim depended on a finding that he 18 would be stopped again and subject to a chokehold without provocation, Lyons, 461 U.S. at 108, 19 Plaintiff alleges a threat of repeat injury that depends on Plaintiff being stopped again for the 20 same mistaken license plate “hit” and police officers going beyond the strictures of SPD policy 21 to use excessive force. This likelihood is undermined by Plaintiff’s allegation that SPD instructs 22 4 23 24 Plaintiff’s assertion that Lieutenant Brown did not wait for the results of his inquiry into Mr. Sim’s license plate (Dkt. No. 20 ¶ 4.6)—and therefore could not have known if the license plate was a “near hit” or not at the time of the initial stop—undermines the claim that the officer’s actions were taken on the basis of any policy, suggesting instead questionable policing by an individual officer. ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 12 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 13 of 16 1 its officers to draw firearms only in “any stop which poses a significant risk to the officer[s],” not 2 in any stop whatsoever. Dkt. No. 20 ¶ 4.31 (emphasis added). The FAC does not indicate why 3 Plaintiff is realistically threatened by police officers who act within “the strictures of the City’s 4 policy.” Lyons, 461 U.S. at 106. Plaintiff’s citations to the 2011 DOJ report and the 2021 CPE study of data are 5 6 inapposite. Dkt. No. 20 ¶¶ 4.32–4.36. The DOJ report is dated 11 years prior to the 7 commencement of this action and 12 years prior to the filing of the instant motion; such a report 8 cannot reasonably inform the Court’s understanding of the likelihood of future harm to Plaintiff. 9 While Plaintiff has pled the existence and continued enforcement of the Consent Decree, he does 10 so in a conclusory manner and does not plead factual allegations—beyond his single incident— 11 regarding the contemporary policies or behavior of the SPD that would support a finding that 12 Plaintiff faces a realistic threat of a repeated violation like the one he alleges. Moreover, the Ninth Circuit has instructed that a court’s standing analysis “cannot be 13 14 reduced to considering probability merely in terms of quantitative percentages,” or “a 15 probabilistic estimate that the general circumstances to which the plaintiff is subject may 16 produce future harm . . . .” Nelsen, 895 F.2d at 1250. Rather, a plaintiff must make “an 17 individualized showing that there is a ‘very significant possibility’ that the future harm will 18 ensue.” Id. (quoting Sample v. Johnson, 771 F.2d 1335, 1343 (9th Cir. 1985)) (emphasis added). 19 While the Court is troubled by what the DOJ report and the CPE study reveal about the history 20 and practice of policing in this City, 5 the Court must give this information less weight in its 21 22 23 24 5 The Washington Supreme Court recently observed that persons of color are subject to “excessive police scrutiny” as well as “excessive police contacts, investigative seizures, and uses of force by law enforcement.” State v. Sum, 511 P.3d 92, 106–07 (Wash. 2022). The Court further observed that “[w]hen it comes to police encounters without reasonable suspicion, ‘it is no secret that people of color are disproportionate victims of this type of scrutiny.’” Id. at 103 (quoting Utah v. Strieff, 579 U.S. 232, 254 (2016) (Sotomayor, J., dissenting)). ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 13 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 14 of 16 1 standing analysis, as they do not support an individualized showing that Plaintiff himself—as 2 opposed to another similarly situated individual, or the African American community in Seattle 3 writ large—is likely to suffer a repeated violation based on Lyons and its progeny. As 4 Defendants point out, these materials “lack an individual nexus to Plaintiff.” Dkt. No. 27 at 3. 5 Both Parties devote considerable space to discussing Howard v. City of Vallejo, No. C13- 6 1439, 2013 WL 6070494 (E.D. Cal. Nov. 13, 2013), whose facts bear some similarities with the 7 instant matter. In Howard, a plaintiff sought injunctive relief against a city and police officers to 8 prohibit further use of “excessive and unreasonable force” against persons. Id. at *6. The 9 plaintiff alleged one particularly harrowing encounter with law enforcement, in which officers 10 displayed firearms, restrained the plaintiff, broke his elbow, and kicked him in the face. Id. at *1. 11 Notably, Plaintiff further alleged that “neither officer had been disciplined for their misconduct,” 12 which Plaintiff argued was the demonstration of the existence of a policy or practice of 13 encouraging excessive force and other unlawful behavior. Id. Plaintiff also alleged that he “is 14 informed . . . that as a matter of official policy, . . . the City has long allowed citizens like 15 plaintiff to be abused by the police, that throughout [the previous year] numerous citizens had 16 been killed by police and the City has failed to discipline or retrain any of the officers.” Id. The 17 court, after recounting the holdings of Lyons and related cases, summarily denied the motion to 18 dismiss plaintiff’s claim for injunctive relief, stating that the cited cases stood for the proposition 19 that “plaintiffs’ claim for injunctive relief must be resolved on an evidentiary record and not at 20 the pleading stage.” Id. at *7. 21 While the Parties dedicate a lot of their briefing to discussing this case, Howard is not 22 binding on this Court. First, there is no similar allegation of information of an official policy here 23 as there was in Howard. Second, the assertion that claims for injunctive relief “must be resolved 24 on an evidentiary record” does not appear to find support in the cited authorities. That the claims ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 14 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 15 of 16 1 were resolved after evidence had been developed in those cases does not mean that standing 2 must always be resolved on an evidentiary record. On the contrary, the Ninth Circuit has held 3 that a plaintiff’s lack of standing may be challenged at the pleading stage. See Schmier v. U.S. Ct. 4 of Appeals for the Ninth Circuit, 279 F.3d 817, 823 (9th Cir. 2002) (finding that “Supreme Court 5 decisions . . . show that this injury element most assuredly remains the proper basis of a motion 6 [to dismiss],” citing Lyons and other cases). Further, Howard merely punted the question of 7 standing to later in the proceedings, seeking more information before ruling; the court did not 8 affirmatively hold that the plaintiff had shown standing. 6 Therefore, Howard is of limited 9 persuasion in this matter. 10 Plaintiff’s other authorities are similarly unavailing. In Maneely v. City of Newburgh, the 11 court found standing where the plaintiff alleged an official policy of strip searching all arrestees, 12 including a telling remark from the arresting officer that “everyone had to go through this 13 procedure.” 208 F.R.D. 69, 71, 73 (S.D.N.Y. 2002). Here, Plaintiff does not allege an official 14 policy that was expressed or endorsed by an official. Defendants’ admission that Lieutenant 15 Brown stated to Plaintiff that “I have no doubt that’s probably your vehicle” and “sometimes 16 there’s a misunderstanding” (Dkt. No. 21 ¶ 4.10) certainly supports Plaintiff’s allegation that 17 Defendant Brown had not waited for the results of the inquiry about Plaintiff’s license plate 18 number. Dkt. No. 20 ¶ 4.6. But again, that does not indicate the existence of any policy. See 19 supra n.4. 20 In Alsaada v. City of Columbus, the court found standing where the plaintiff alleged both 21 formal policies and functional equivalents, as well as the defendants’ “ongoing, sustained pattern 22 of conduct that resulted in numerous injuries” to protestors. 536 F. Supp. 3d 21, 254–57 (S.D. 23 6 24 The court never revisited the question, as the matter was settled and voluntarily dismissed. Howard, No. C13-1439, Dkt. No. 42 (E.D. Cal. June 18, 2015). ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 15 Case 2:22-cv-00483-TL Document 57 Filed 05/24/23 Page 16 of 16 1 Ohio 2021). Here, there is only a single incident alleged with regard to a stop based on a “near 2 hit”, with no properly alleged policy or demonstrated repetition of conduct. And in Nobley v. 3 Tooley, the court found standing where the defendants told the court in a filing that they had 4 “every right” to use a boilerplate lease provision to search a residence in response to suspicion of 5 criminal activity. 125 F. Supp. 2d 481, 484 (M.D. Fla. 2000). Here, Defendants make no such 6 claim of authority. On the facts currently alleged, Plaintiff has not demonstrated a realistic threat of a 7 8 repeated violation. Thus, he does not have standing to pursue his claim for injunctive relief. 7 9 IV. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s Claim for 10 11 CONCLUSION Injunctive Relief (Dkt. No. 22). Dated this 24th day of May 2023. 12 A 13 14 Tana Lin United States District Judge 15 16 17 18 19 20 21 22 23 24 7 Having found no realistic threat of a repeated violation, the Court need not address Defendants’ arguments about redressability. Dkt. No. 22 at 9–11. But in dismissing Plaintiff’s claim for injunctive relief, the Court expresses no opinion on the merits of Plaintiff’s remaining claims. ORDER ON MOTION TO DISMISS CLAIM FOR INJUNCTIVE RELIEF - 16

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