Spring 2024 Legal Updates

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The Legal Department at the ACLU of Washington continues to advance litigation and court-based advocacy in every priority area. The ACLU-WA continues to shape the legal landscape through its robust amicus practice before the Courts of Appeals and the Washington Supreme Court. Below is a sampling of our recent court-based advocacy. 

Safeguarding Voting Rights  

The ACLU-WA, representing Empowering Latina Leadership and Action (ELLA), sent a notice on April 16 of intent to sue to the Sunnyside School District for violating the Washington Voting Rights Act. The notice triggers a 90-day waiting period during which the School District can remedy the violation, or we will file suit to protect the rights of Latinx voters. The District’s current at-large election system dilutes Latinx votes, preventing the community from having an equal opportunity to meaningfully influence the outcome of elections, despite Latinx residents representing a substantial majority of the community. 


State of Washington v. Giancoli  

The ACLU-WA filed an amicus brief in State v. Giancoli describing the racial disparities in mandatory life sentences imposed under Washington’s three-strikes law: the Persistent Offender Accountability Act. Mr. Dennis Giancoli, an Indigenous man raised on the Muckleshoot Reservation, filed a petition for review to the Washington Supreme Court after the court of appeals upheld his third strike death-in-prison sentence. Our brief advocates for the court to review his case due to the racially disproportionate application of Washington’s three-strikes law, which results in death-in-prison sentences imposed on Black and Indigenous people at rates that far exceed their proportion of Washington’s population. While Mr. Giancoli is serving a death-in-prison sentence, his co-defendant — a white man convicted of the same crimes based on the same incident who was also originally sentenced to die — is not. As the ACLU-WA’s brief argues, “This court should accept review because this disparate outcome calls into question the most basic principle of fundamental fairness – an issue of substantial public interest.”  


State of Washington v. McGee 

The ACLU-WA filed an amicus brief in State v. McGee, a reversed conviction on appeal before the Washington Supreme Court. Mr. McGee's conviction was reversed after the trial court suppressed illegally obtained evidence with respect to one charge but allowed that evidence to be admitted to prove a separate charge. The state is now appealing this reversal, arguing in part that tainted police investigations should be "salvaged" because, if not, "it could result in convicted murderers going free" despite law enforcement violation of Article 1, Section 7 of the Washington State Constitution. Our amicus brief outlines several concerns for the court, including that the state's proposed weakening of the exclusionary rule would encourage police to gather evidence illegally, and that incentivizing this police misconduct would diminish privacy rights, especially for people of color who are historically and currently over-policed.  


Cousins v. State of Washington DOC  

After Ms. Cousins’ sister died in Department of Corrections (DOC) custody, Ms. Cousins submitted a public records request to find out happened to her sister. DOC provided records and then closed the request despite Ms. Cousins’ reminder that she had only received a portion of the requested records. DOC eventually re-opened the request, found over a thousand additional pages of documents, and months later sent a second closing letter. Ms. Cousins sued based on DOC’s failure to comply with the Public Records Act. The Court of Appeals ruled that the statute of limitations had expired because Ms. Cousins did not file suit within one year of the first closing letter. While much of the case revolves around the application of the Public Records Act’s 1-year statute of limitations regarding suits against state agencies who violated the law, our amicus brief laid out for the court the reality facing incarcerated people and their loved ones: inspecting DOC records is the most immediate and effective way to ensure that prisons are transparent and to hold DOC accountable for abuse and negligence. The argument in our amicus brief focused on the danger of prisons, the humanity of incarcerated people, and the need to hold DOC accountable. The Washington Supreme Court ultimately sided with Ms. Cousins — and us — and determined that the statute of limitations had not run out, and that Ms. Cousins timely filed her lawsuit and could challenge the failure to timely produce documents.  


Cedar Park Assembly v. Kriedler  

The ACLU-WA filed an amicus brief in the Ninth Circuit Court of Appeals arguing to uphold the Washington State Reproductive Parity Act’s requirement that employer-sponsored health plans include access to abortion services. Our amicus brief argues that the Reproductive Parity Act (RPA) does not violate the First Amendment rights of the church as a religious organization and employer. The RPA, passed in 2018, requires that insurance carriers providing health plans that cover maternity care services also provide coverage for equivalent abortion care services. The law also requires that health plans provide contraceptive coverage. Our brief describes Washington’s clear, long, and committed history of supporting and expanding access to reproductive health care, including abortion care, because it is essential primary care. We explain the importance of the RPA’s inclusion of access to abortion services, particularly for people with low incomes, people of color, immigrants, and young people who face significant barriers to access of resources, information, and services related to reproductive health and abortion care.   


ACLU-WA v. King County  

We filed a lawsuit to enforce the Hammer v. King County settlement agreement relating to issues around conditions being experienced by inmates at the King County Correctional Facility (KCCF). The settlement agreement requires the jail to maintain certain conditions subject to court enforcement. Recent severe staffing shortages have resulted in people not being transported to medically necessary appointments, not receiving the appropriate time out of cell, and not being transported to court. KCCF has had the highest number of deaths in recent memory. The ACLU-WA filed a lawsuit in Pierce County to protect people incarcerated in the facility by enforcing the settlement agreement. In response to our lawsuit, KCCF has done significant work and the case is ongoing, with trial set for December.  


United States of America v. City of Seattle  

We continue to monitor a Consent Decree to hold the Seattle Police Department accountable for constitutional policing practices.  

In 2010, the ACLU-WA, along with 35 community organizations, called on the U.S. Department of Justice to investigate the Seattle Police Department (SPD) regarding egregious incidents of excessive force against community members of color. As a result of that investigation, a lawsuit began, which resulted in a Consent Decree that was put in place to ensure that SPD engaged in constitutional policing. In April 2023, the United States and the City of Seattle asked the Court to terminate the Consent Decree, which would end the Court’s oversight of discriminatory policing, and adopt a Transition Agreement, which would focus on two remaining issues- the use of force within the context of crowd control and officer accountability.  

Since the ACLU-WA was one of the organizations that originally requested the investigation, we filed an amicus brief refuting the claim that SPD is a “transformed organization”, citing clear racial disparities that still plague the Department. Our amicus brief focuses on how officers conduct stops and details the rampant abuse and misuse of tear gas against people engaging in protected First Amendment activities, which is the basis for our lawsuit Black Lives Matter Seattle- King County v. City of Seattle. We also stressed the pressing need for the city to implement the 2017 Accountability Ordinance, which created an integrated structure of community input and civilian oversight. Finally, our brief explicitly highlighted that many of the significant issues that led to the Consent Decree are still present and as such, if the Consent Decree is terminated, it should not be celebrated as a success, but instead serve as a call to action for the city and SPD to continue the perpetual work of constitutional policing and for the civilian oversight bodies and community groups to continue oversight to ensure the Department is being held accountable.  

After filing our amicus brief, we received some press coverage, including in The Seattle Times. In response to our amicus brief, the City of Seattle responded, agreeing that our brief provides guidance and highlights the areas in which continued reform is still needed. Specifically, the City of Seattle agreed that “work remains in the areas of mitigating racial disparities in policing and through civil society. The City also must continue to invest in its police accountability system and ensure its sustainability.” Ultimately, the court dissolved many portions of the Consent Decree except for the portions that govern use of force, racially biased policing, and crowd control. Although the court declared SPD a changed institution, within days of its declaration SPD killed an international student and mocked her death and it became public that SPD had a mock tombstone for Damarius Butts — a young Black man killed by SPD. 


Black Lives Matter Seattle-King County v. City of Seattle 

We continue our contempt action against SPD in the use of less-lethal weapons against protesters. 

The Seattle Police Department (SPD) responded to protests in the wake of George Floyd’s murder by indiscriminately unleashing less-lethal weapons against peaceful protesters. We sued to stop them and obtained a temporary restraining order prohibiting the SPD from indiscriminately using tear gas, pepper spray, flash-bang grenades, foam-tipped projectiles, or other less-lethal weapons against protesters. The city agreed to extend the TRO as a preliminary injunction. When the SPD used these weapons again in violation of the preliminary injunction, we filed a contempt motion, which we settled when the city agreed to language clarifying that there is no “riot” exception to the preliminary injunction. The case was stayed pending adjudication of the legality of the Seattle City Council's ordinance banning less-lethal weapons under the settlement in the separate case brought by the U.S Justice Department, which led to a consent decree against the SPD. The Order issued on Sept. 7, 2023 in the consent decree case made clear that the city is not in substantial compliance with regard to the issue of use of force, including crowd management (and accountability). Further, the Order does not appear to address the City Council’s passing of the ordinance banning tear gas. This case is still stayed, as a result.  


Kitcheon v. City of Seattle  

Many municipalities across the state choose to criminalize homelessness by creating, passing, and enforcing bans on camping or sitting and lying down in public spaces. These bans on being unhoused in public, especially when shelters are at capacity and housing is limited or nonexistent, constitute cruel punishment. They criminalize actions that individuals who cannot afford brick-and-mortar housing, and who have no choice or alternatives must take to protect themselves from the elements, safeguard their privacy, and keep their personal belongings secure. Furthermore, municipalities often enforce their camping bans by conducting sweeps, where government personnel and police open the doors of tents and temporary shelters, search through personal possessions, remove belongings, and discard entire homes and property into garbage trucks — all without a warrant.  

The ACLU-WA has continued to litigate our case against Seattle for their “encampment abatement program” policies and practices that we claim violate the privacy protections of the state constitution and other legal requirements. We defeated the City of Seattle’s motion for summary judgment and the court partially granted ACLU-WA’s motion for summary judgment, holding that the city’s “obstruction sweeps” violate unhoused individual’s privacy rights under the state constitution. The court also found that the city’s sweeps policy constituted cruel punishment under Article 1, section 14 of Washington’s Constitution in some circumstances because the sweeps subject the unhoused to criminal and civil penalties for living on public land when they have no alternative. The city obtained an emergency stay of the order. Although this matter is currently before Division I of the Court of Appeals, we filed a Motion to Transfer to the Supreme Court and are awaiting a final determination.  


Potter v. City of Lacey  

The ACLU-WA filed an amicus brief in Potter v. City of Lacey¸ a case before the Washington Supreme Court. Jack Potter lives in a trailer and had been allowed by the City of Lacey to park his truck and trailer in a city parking lot until the city council passed an ordinance prohibiting “recreational” vehicles from parking for more than 4 hours a day anywhere in the city, subject to impoundment if parked over 4 hours. Potter was evicted from the city lot and sued the City of Lacey, claiming his rights to travel and reside where he chose and against cruel punishment were violated because the ordinance did not allow sufficient time for him to sleep in his vehicular home. The Washington Supreme Court will now determine whether there is a state constitutional right to intrastate travel and, if so, whether Potter’s right was violated. The ACLU-WA’s brief raised additional issues including whether the Lacey ordinance allowing impoundment for parking more than 4 hours violates the state constitution’s excessive fines clause, and whether aspects of the ordinance violate state constitutional rights against discrimination based on poverty.  


MG v. Yakima School District  

The ACLU-WA, along with community partners at The Korematsu Center and Disability Rights Washington, filed an amicus brief before the Washington Supreme Court arguing that Article IX, Section 1 of the Washington Constitution ensures that all children receive a quality education in Washington. A Latinx high schooler (M.G.) was suspended from his neighborhood school for alleged “gang activity” with no plan to return him to school. The original suspension was for 10 days, but morphed into a de facto expulsion, keeping M.G. out of school for his entire high school education. During this time, the Yakima School District placed him in an online program he could not access for a variety of reasons, including lack of internet access at home and that his reading level was not at the level required for the program. Despite knowing that M.G. could not access the program, the district did nothing to ensure that he received an education while extending his suspension indefinitely, resulting in M.G. completing only a handful of classes and not receiving enough credits to graduate during his 4-year suspension. We argued that this de facto expulsion was a clear violation of M.G.’s due process rights and his constitutional right to access an education. We also included research about how exclusionary discipline practices impact children of color at disproportionate rates and do not make schools safer; rather, vague, exclusionary discipline practices that fail to adhere to the law breed distrust in school communities and make them less productive and safe. The Court ruled in favor of M.G. and found that the Yakima School District did not comply with statutory protections for students.  


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