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Seattle is due for a costly lesson

During the summer’s nationwide lunacies — statues toppled and stores looted, ostensibly to demand better law enforcement — Seattle’s government chose to turn 16 city blocks into an exploration of the delights of life without law. The fun paled after three weeks, and now the city might get an expensive lesson about existing law.

On June 8, Seattle’s police department abandoned its precinct building in the Capitol Hill neighborhood. Into the vacuum flowed visionaries who settled on the name Capitol Hill Organized Protest (or Occupying Protest), declared CHOP a “no-cop” zone and instituted what they termed a “loose form of governance and justice.” Living in the streets and a seven-acre park, some citizens of this spontaneous republic of virtue, some carrying guns, organized a “replacement police force.”

The city government, according to the businesses, homeowners and other plaintiffs in a lawsuit, supplied CHOP with “medical equipment, washing/sanitation facilities, portable toilets, nighttime lighting, and other material support.” Mayor Jenny Durkan tweeted to advertise how tickled she was about the “new community garden popping up” in the park. CHOP, she said, “is not a lawless wasteland” but “a peaceful expression of our community’s collective grief and their desire to build a better world.” Asked how long CHOP would exist, Durkan said, “I don’t know. We could have the Summer of Love.”

Not exactly. CHOP’s sandbox revolutionaries and their city government sympathizers soon learned that Thomas Hobbes was right: In a state of nature — a situation without a sovereign authority — life is “nasty, brutish and short.” If the accumulating trash, feces and other refuse did not dampen what Durkan serenely called the “block-party atmosphere,” the two murders and other shootings and injuries did. So, on July 1 the city reoccupied CHOP, where Seattle’s police chief said she was “stunned by the amount of graffiti, garbage, and property destruction,” adding that “we don’t even know how much trauma people were experiencing.” And some of CHOP’s casualties — including businesses cut off from suppliers and customers, and others denied the enjoyment of their property — headed to court, armed with facts and the U.S. Constitution.

The plaintiffs charge that the city “adopted a policy supporting the CHOP occupation, acting with deliberate indifference toward those suffering harms from it.” It is federal law that local governing bodies can be sued when “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” This can involve the direct participation of local officials in a deprivation of a constitutional right, or the setting in motion of acts by others that the government knew or should have known would inflict constitutional injury. The city’s policy of “no response” by police within CHOP should itself suffice to establish liability, before tabulating the material and moral support the city government gave to this embryonic utopia.

The injuries claimed by the plaintiffs include unconstitutional takings. The Fifth Amendment says private property shall not be taken “for public use, without just compensation.” The city, by enabling CHOP, deprived plaintiffs of protected property interests. The Washington Court of Appeals has held that “temporary takings are subject to the same categorical treatment as permanent takings where a regulation denies all use of the property.”

Furthermore, the 14th Amendment says no state shall “deprive any person of life, liberty, or property, without due process of law.” The absence of law was a CHOP aspiration, one facilitated by the city providing CHOP with beds, medical equipment and barriers to seal off streets from public access.

While a government’s failure to protect an individual from private violence does not constitute a violation of the due process guarantee, there is an exception when a local government acts to restrict the individual’s freedom to act on his own behalf. Or when there is a “state-created danger” — when a local government acts with “deliberate indifference” to a “known or obvious danger.”

The mills of justice grind slowly, so this litigation will live a lot longer than CHOP did. If the suit results, properly, in financial restitution for CHOP’s victims and financial pain for Seattle taxpayers, CHOP will have been, on balance, a net public benefit. Beyond demonstrating to Seattle voters the cost of electing childish people like Mayor Durkan and kindred spirits on the city council, the suit can warn progressive governments from coast to coast that there is a price to be paid for pandering to the carriers of fashionable passions.

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George Will’s email address is georgewill@washpost.com.

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