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MOTIONOFDEFENDANTKSHAMASAWANTREDISMISSORMOREDEFINI
MOTIONOFDEFENDANTKSHAMASAWANTREDISMISSORMOREDEFINI
17 SEP 29 PM 1:05
13 Defendant.
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15 I. RELIEF REQUESTED
16 For the reasons that follow, Seattle City Councilmember Kshama Sawant (hereafter, CM
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Sawant) submits this Motion To Dismiss Or For A More Definite Statement pursuant to Civil
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Rules (CR) 12(b)(6) and 12(e).
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II. STATEMENT OF FACTS
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21 CM Sawant is an elected member of the Seattle City Council. Plaintiffs, two employees
22 of the Seattle Police Department (SPD), bring suit alleging that CM Sawant defamed them by
23 speaking publicly about a controversial civilian killing for which they were responsible and
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vowing to Seattle residents that she would seek accountability for this and a long-standing,
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widely-perceived pattern of racially-disparate use of force incidents by SPD officers. See
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generally, Complaint, Docket (Dkt.) 1.
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2 Taylor. Id. at 19-20. Plaintiffs admit that they did not employ de-escalation techniques
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before shooting Taylor multiple times and killing him when they encountered him on a
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Wedgewood street, while Plaintiffs were allegedly in the neighborhood to serve a warrant on
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another Seattle resident. Id. at 14, 18-19.
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Less than five days later, on February 25, 2016, the family of Che Taylor, Seattle
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8 community members outraged by the killing, and advocates for racially-just policing held a
9 march which culminated in a public demonstration in the street on Fifth Avenue between City
10 Hall and the SPD headquarters. Id. at 21. As alleged in Plaintiffs Complaint, CM Sawant
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stopped by the ongoing demonstration and made brief remarks to the assembled crowd, including
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the following statements:
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First of all, we have to work on the specific demands to bring justice to Che
14 Taylor, and if the [police] Chief and other leaders in the Police Department are
15 incapable or unwilling to facilitate that process and show genuine leadership at
this moment, where we know there's systematic racial injustice and profiling by
16 the police, then yes, we will need to hold allnot just the Police Department, but
we need to hold elected officials accountable. Ultimately, the buck stops at City
17 Hall.
18 The Police Department reports to the Mayors office and the City Council. We
19 need to make sure that we hold the political leadership accountable. One of the
things we need to move towards and use this energy to build towards real
20 community accountability [is] community oversight. That's been a demand of the
Black Lives Matter movement all along. We need to hold all these people
21 accountable and then it's their choice, whether they want to stand on the right side
of history or the wrong side of history
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23 This is dramatic racial injustice, in this city and everywhere in this nation. The
brutal murder of Che Taylor, just a blatant murder at the hands of the police, show
24 how urgently we need to keep building our movement for basic human rights for
Black people and brown people. I want to let you know that I stand here both as
25 an elected official, as a brown person, as an immigrant woman of color, and as
someone who has been in solidarity with the Black Lives Matter movement, and
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our movement for racial, economic and social justice. We need to keep building
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18 This motion relies upon the allegations in Plaintiffs Complaint and the February 2016
19 statement of CM Sawant referenced and thus incorporated into Plaintiffs Complaint.1
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As the contents of the statement were alleged in the Complaint, the Court may consider the statement without
24 converting the instant motion into a motion for summary judgment. See, e.g., Trujillo v. Nw. Tr. Servs., Inc., 183
Wn.2d 820, 828 n. 2, 355 P.3d 1100 (2015). This is especially salient in defamation cases, where statements alleged
25 defamatory should be considered in whole and not in part or parts detached from the main body of speech. Camer
v. Seattle Post-Intelligencer, 45 Wn. App. 29, 723 P.2d 1195 (1986), rev. denied, 107 Wn.2d 1020 (1987), cert.
26 denied, 482 U.S. 916 (1987).
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8 the plaintiffs factual allegations as true. Tenore v. AT&T Wireless Svcs., 136 Wn.2d 322, 330,
9 962 P.2d 104 (1998). However, the Court need not accept a plaintiffs asserted legal
10 conclusions. Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 120, 744 P.2d 1032
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(1987).
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In determining whether or not a complaint fails to state a claim, it is important to note
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that [a]lthough inexpert pleading is permitted, insufficient pleading is not. Lewis v. Bell, 45
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15 Wn. App. 192, 197, 724 P.2d 425 (1986). A complaint may be found to be insufficiently
16 pleaded, warranting dismissal, if it fails to notify the defendant of either the general legal
17 theories against him or fails to plead the elements of such theories or facts in support of such
18 elements. See e.g., Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 24-25, 974 P.2d 847
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(1999) (claim dismissed where plaintiff failed to allege all elements necessary to establish prima
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facie case); Havsy v. Flynn, 88 Wn. App. 514, 518, 945 P.2d 221 (1997), as amended on
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reconsideration (Oct. 17, 1997) (plaintiff failed to state claim where he failed to allege facts to
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25 To prove defamation, a plaintiff must show that a defendant: (1) made a false and
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defamatory statement of fact about plaintiff to a third party; (2) that the publication of such
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2 plaintiff by result. Eastwood v. Cascade Broadcasting Co., 106 Wn.2d 466, 471, 722 P.2d 1295
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(1986); Caruso v. Local Union No. 690 of Intl Bhd. Of Teamsters, 100 Wn.2d 343, 352, 670
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P.2d 240 (1983). To satisfy the first element, plaintiffs must show that the allegedly-defamatory
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statement was one of fact, not opinion. Robel v. Roundup Corp., 148 Wn.2d 35, 56, 59 P.3d 611
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(2002).
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8 Additionally, courts routinely require that plaintiffs assert specific facts regarding the
9 statements alleged to be false and defamatory. See, e.g., Marks v. City of Seattle, 2003 WL
10 23024522, *3 (W.D. Wash. 2003) (Defamation claims, in particular, must be advanced with
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sufficient specificity.); Flowers v. Carville, 310 F.3d 1118, 1130 (9th Cir. 2002); Wiggins v.
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Philip Morris, Inc., 853 F.Supp. 458, 466 (D.D.C. 1994) (subjecting defamation claim to a
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heightened pleading standard); Black v. National Football League Players Assn, 87 F.Supp.2d
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15 1, 6 (D.D.C. 2000). Given this heightened pleadings standard, conclusory statements averring
16 defamation are insufficient to state a claim. Hoffman v. Hill and Knowlton, Inc., 777 F.Supp.
17 1003, 1005 (D.D.C.1991); Black, 87 F.Supp.2d at 6. Instead, defamation plaintiffs must plead
18 the time, place, content, speaker and listener of the alleged defamatory matter. Wiggins v.
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Equifax, 848 F.Supp. 213, 223 (D.D.C. 1993); Black, 87 F.Supp.2d at 6. Absent identification of
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the precise statements alleged to be false and defamatory (see Flowers, 310 F.3d at 1131), a
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plaintiffs claims must fail.2
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On these grounds, the Honorable Marsha Pechman, W.D. Wash., at least twice dismissed defamation claims on the
pleadings where the complaint failed to identify the allegedly defamatory statements with specificity, even before
25 federal courts abrogated their notice pleading standard. See Marks, supra, at *3 (dismissing complaint for failure
[to] identify with specificity any statements in the broadcasts that were defamatory); Harris v. City of
26 Seattle, 2003 WL 1045718, *4 (W.D.Wash. 2003) (dismissing complaint for failure to state with specificity the
alleged defamatory statements).
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2 First Amendment speech simply through its pendency, courts should swiftly adjudicate whether
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the allegations made could support a defamation claim, if proven. See, e.g., Id. at 1130
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([W]here a plaintiff seeks damages for conduct which is prima facie protected by the First
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Amendment, the danger that the mere pendency of the action will chill the exercise of First
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Amendment rights requires more specific allegations than are otherwise required.); Kottle v.
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8 Northwest Kidney Centers, 146 F.3d 1056, 1063 (9th Cir. 1998) (claims implicating First
9 Amendment speech do not receive the benefit of the doubt); Marks, 2003 WL 23024522 at *3
10 ([C]ourts should consider First Amendment concerns even at the pleading stage.).
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C. STANDARD FOR CR 12(E) MOTION FOR MORE DEFINITE STATEMENT
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A court may grant CR 12(e) motion for a more definite statement if it finds that a
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complaint is either so vague and ambiguous that [the defendant] cannot reasonably be required
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to frame a responsive pleading, or if more particularity in that pleading [would] further the
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16 efficient and economical disposition of the action. Wash. R. Civ. P. 12(e). Motions for a more
17 definite statement are addressed to the discretion of a trial court; the courts ruling will not be
18 disturbed absent abuse of discretion. Hough v. Stockbridge, 152 Wn. App. 328, 336-37, 216
19 P.3d 1077 (2009), rev. denied, 168 Wn.2d 1043 (2010).
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D. THREE INDEPENDENT BASES SUPPORT THE IMMEDIATE DISMISSAL OF
21 PLAINTIFFS CLAIMS.
2 information. RCW 4.96.020(2)-(3). Thereafter, plaintiffs must wait sixty days before
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commencing litigation. RCW 4.96.020(4). Plaintiffs who fail to comply with these
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requirements are barred from bringing suit. Id. Here, as Plaintiffs have failed to comply and
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plead compliance with the RCW 4.96.020 requirements, their claims should be dismissed.
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The RCW 4.96.020 procedural requirements apply only when officials are sued for acting
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8 in their official capacity. RCW 4.96.020(1); Wright v. Terrell, 162 Wn.2d 192, 195-96, 170 P.3d
9 570 (2007). Thus, Plaintiffs seek to skirt the requirements by claiming that they name CM
10 Sawant strictly in her personal capacity. See, e.g., Complaint, 1 (This is a Complaint seeking
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damages against one individual who, acting in her own capacity and only on her own behalf,
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defamed two good men.). However, the Court is not required to and should not accept this legal
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conclusion asserted by Plaintiffs, especially as it is plainly contradicted by the remaining facts
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15 Plaintiffs allege.
16 Few legal guidelines define the official role of a Seattle City Councilmember, and none
23 IV, Section IV. However, no authority constrains the official role of a City Councilmember to
24 just those actions taken within City Council chambers during official Council meetings; to the
25 contrary, it is axiomatic that Councilmembers, like all other legislators, are expected to interact
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regularly with Seattle residents, to be responsive to Seattle residents concerns, and to take
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8 Ed. 2d 235 (1966) (The manifest function of the First Amendment in a representative
9 government requires that legislators be given the widest latitude to express their views on issues
10 of policy Legislators have an obligation to take positions on controversial political questions
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so that their constituents can be fully informed by them, and be better able to assess their
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qualifications for office.).
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In addition, the face of Plaintiffs Complaint and, by incorporation, the statements of CM
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15 Sawant that it alleges as the basis of Plaintiffs claims, plainly demonstrate that Plaintiffs claims
16 are predicated upon CM Sawants role and acts as an elected public advocate. The following
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6 residents on February 25, 2016, that she was addressing them as a City Councilmember, and in
7 that capacity, would fight for public accountability for Che Taylors death:
8 I stand here both as an elected official, as a Brown person, as an immigrant woman of
color, and as someone who has been in solidarity with the Black Lives Matter movement,
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and our movement for racial, economic, and social justice And I am here as an
10 elected official because I am completely committed, unambiguously committed, to
holding the Seattle Police Department accountable.
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Woodward Dec. at 3 (emphasis added).
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Plaintiffs cannot plausibly have it both ways; they cannot rely upon CM Sawants alleged
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14 us[e] [of] City resources and her leadership position [and] role in Seattle to claim that she
15 had an elevated platform for her speech, causing Plaintiffs alleged far-reaching [damage],
16 extending throughout King County and well-beyond, while simultaneously denying that their
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claims stem from CM Sawants role as an elected City official.3 Complaint, at 7, 10, 12, 36.
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Because Plaintiffs bring claims against CM Sawant for actions actually taken within her scope
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and course of employment as a Seattle City Councilmember and have failed to satisfy a statutory
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prerequisite for filing their claims, Plaintiffs Complaint should be dismissed.
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Noticeably, Plaintiffs have not named as co-defendants any of the other community leaders who do not hold
elected office but likewise made outspoken, media-published remarks at the same February 2016 event attended by
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CM Sawant, calling the killing of Che Taylor murder. See, Alex Garland, Almost 100 Protesters Gathered Outside
SPD Headquarters Today Demanding Answers About the Death of Che Taylor, The Stranger, Feb. 25, 2016,
24 http://www.thestranger.com/slog/2016/02/25/23623738/several-dozen-protesters-gathered-outside-spd-
headquarters-today-demanding-answers-about-the-death-of-che-taylor/ (Seattle King County NAACP President
25 Gerald Hankerson likewise calling the death of Che Taylor murder and a kill[ing of] our brother in cold blood,
and decrying SPD officers like Plaintiffs as people carrying guns that feel like they can shoot us down like savage
26 animals in the street).
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8 Robel, 148 Wn.2d at 56 (quoting Camer v. Seattle Post-Intelligencer, 45 Wn. App. at 39). The
9 determination of whether a communication effects a statement of fact is a question of law for the
10 court unless the statement could only be characterized as either fact or opinion. Davis v.
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Freds Appliance, Inc., 171 Wn. App. 348, 365, 287 P.3d 51 (2012) (internal citation omitted).
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Courts consider three factors to determine whether statements are actionable as defamation or
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constitute non-actionable opinion speech:
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(1) the medium and context in which the statement was published;
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(2) the audience to whom it was published; and,
16 (3) whether the statement implies undisclosed facts.
17 Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986).
18 Regarding the first factor, Washington courts assess the forum for the speech, and
19 whether it is one in which statements of opinion are expected to be found such as editorial
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pages or political debates. Id. A public demonstration is the quintessential setting in which a
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public official may be expected to express a statement of opinion on an issue of public concern
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such as racially-disparate policing patterns and one believed instance of the pattern.
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24 The second factor, similarly, calls upon the Court to consider the audience for the speech,
25 as courts acknowledge that there are certain audiences in which fiery rhetoric may be expected,
26 and chief among them are audiences to public discourse. See, e.g., Info. Control Corp. v.
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2 fact may assume the character of opinion when made in public debate, heated labor dispute, or
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other circumstances in which an audience may anticipate efforts by the parties to persuade others
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to their positions by use of epithets, fiery rhetoric, or hyperbole), cited with approval in,
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Dunlap, 105 Wn.2d at 539. In this instance, a crowd publicly calling attention to Che Taylors
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untimely killing and expressing outrage and despair at the continuation of widely-perceived
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8 racially-disparate uses of force by SPD would be well disposed to understand that CM Sawant
9 was expressing her opinion regarding the unjustified nature of the killing and using the strongest
10 possible rhetoric to do so. Compare with, Robel v. Roundup Corp., 148 Wn.2d at 57 (retail
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employees calling coworker a snitch, squealer, and liar, found to be making expressions
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of personal opinion because coworkers and managers would be aware of history of animosity in
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workplace and customers hearing the comments would perceive the speakers viewpoint as
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16 statements could easily note CM Sawants long history of City Council advocacy for SPD
17 reforms designed to curb its federally-alleged patterns of excessive use of force and
18 discriminatory policing. See, e.g., Kshama Iyengar Swawant, District 3, Central Seattle,
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http://www.sawant.seattle.gov (last visited Sept. 29, 2017) (CM Sawants official
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Councilmember homepage, with tabs entitled #BlackLivesMatter, Anti-Racism, and
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Police, containing written text and video of her Council speeches and correspondence on
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23 police accountability issues); see also, United States v. City of Seattle, Cause No. 12-cv-01282-
24 JLR, Dkt. 1 (W.D. Wash. 2012) (U.S. Department of Justice filing suit against City of Seattle for
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2 professes non-actionable opinion is whether the statement implies the allegation of undisclosed
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facts. Dunlap, 105 Wn.2d at 540; Duc Tan v. Le, 177 Wn.2d 649, 662-666, 300 P.3d 356 (2013).
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The rationale for this factor is that [w]hen the audience knows the facts underlying an opinion
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and can judge the truthfulness of the allegedly defamatory statement themselves, the basis for
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liability for the opinion is undercut. Duc Tan, 177 Wn.2d at 664. Here, the Court should
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8 conclude from the timing, particular words, and tone of CM Sawants public statement that CM
9 Sawant did not imply any publicly-undisclosed facts known to her at that time.
10 As Plaintiffs admit, CM Sawants statements came just days after Che Taylors death,
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before SPD or any other City entity had time to complete any investigation of which Sawant may
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gain knowledge through her position on the City Council. Complaint at 23. CM Sawants
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speech clearly speaks to a desire to prospectively push for answers and justice in conjunction
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15 with the community. Woodward Dec. at 5 (We have to work on the specific demands to bring
16 justice to Che Taylor We need justice on the individual actions). Finally, CM Sawants
17 use of the term blatant (commonly defined as completely obvious) implies that any member
18 of the public paying attention to the issue could determine for them self, based on the
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information then released by SPD including the dash cam video referenced in Plaintiffs 24,
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whether or not they agreed with CM Sawants professed opinion that the killing of Che Taylor
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was unjust. In addition, though Plaintiffs contend that CM Sawant called them racist
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23 murderers, which Plaintiffs could perhaps use to argue implied insider knowledge by CM
24 Sawant about Plaintiffs state of mind or beliefs, her statements plainly show that her remarks
25 referred to systematic police brutality and racial profiling, rather than any individual conduct
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by Plaintiffs, whom she did not directly name in her speech at all. Woodward Dec. at 5.
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2 statement implied awareness of inside factual information but fails to plead any fact to
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supports such conclusion, the Court should conclude that the public would draw no such
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implication from the speech. Because, overall, Plaintiffs Complaint does not show that CM
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Sawant made defamatory statements of actual or implied fact against Plaintiffs, the Complaint
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should be dismissed. Robel, 148 Wn.2d at 56.
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8 3. Because Plaintiffs Are Public Figures For The Purposes Of The Instant Suit
And Because CM Sawant Enjoys Qualified Immunity For Her Statements,
9 Plaintiffs Complaint Is Deficient For Failing To Allege Actual Malice.
10 Both plaintiffs who are public figures and plaintiffs suing defendants whose statements
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enjoy qualified immunity must allege actual malice to prevail on a defamation claim. Parry v.
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George H. Brown & Assoc., Inc., 46 Wn. App. 193, 197, 730 P.2d 95 (1986) (calling the actual
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malice standard for claims by public figures and claims seeking to overcome a qualified
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immunity identical). Actual malice requires a showing that the defendant had knowledge of
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16 the falsity of his statements or showed reckless disregard for the falsity. See, e.g., Moe v. Wise,
17 97 Wn. App. 950, 957, 989 P.2d 1148 (1999) (citing cases), rev. denied, 140 Wn.2d 1025 (2000).
18 Plaintiffs are undoubtedly public figures for the purposes of the instant suit, given that the
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statements alleged defamatory regard their conduct as public employees. See, e.g., Himango v.
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Prime Time Broadcasting, Inc., 37 Wn. App. 259, 262-263, 680 P.2d 432 (1984) (police officers
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deemed public figures when statements relate to their official duties, performance thereof, or
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23 fitness for public employment), rev. denied, 102 Wn.2d 1004 (1984). Moreover, CM Sawant is
24 due a qualified privilege by virtue of her position as a public official of a subdivision of the State
25 which, at the least, permitted her to speak out on concerning SPD conduct. See, Wood v. Battle
26 Ground Sch. Dist., 107 Wn. App. 550, 569, 27 P.3d 1208 (2001) (citing Restatement (Second) of
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2 making the alleged statements, this is not sufficient to establish that she acted with the requisite
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malice to deprive her of her privilege and to satisfy the general pleading standard their claims
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require, and Plaintiffs Complaint should be dismissed. Compare, Complaint, at 23-24; with
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Parry, 46 Wn. App. at 197 (stating that malice is not shown by a mere failure to reasonably
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investigate).
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16 speaker, and listener of the statements alleged defamatory. Flowers, 310 F.3d at 1131; Wiggins
17 v. Equifax, 848 F.Supp. at 223. The Court should be especially attuned to these requirements
18 here, as the speech of a public official elected by Seattle residents to advocate for them on
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matters of urgent public concern like racially-just policing stands to be chilled.
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Plaintiffs allege generally that after February 2016, CM Sawant reiterated [her]
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statements publicly throughout the year and, with particular emphasis, immediately before the
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23 officers inquest and that CM Sawant continues to refer to the shooting as a murder and
24 publicly asserts that [Plaintiffs] avoided accountability. Complaint at 26, 28. However,
25 Plaintiffs Complaint fails to describe any instances in which CM Sawant has publicly made such
26 a statement, the phrasing of the statement, context, or audience even generally in such a
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2 those grounds asserted above or as may be otherwise applicable. Importantly, the context of any
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other alleged statements by CM Sawant on the subject of Che Taylors death, which conceivably
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include City Council chambers, may aid the Court in determining whether Plaintiffs have
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brought suit against CM Sawant based upon statements made in the scope and course of her role
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as a public official such that RCW 4.96.020 prerequisites apply and CM Sawant may have
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8 absolute immunity. See, e.g., Herron v. Tribune Pub. Co., 108 Wn.2d 162, 177, 736 P.2d 249
9 (1987) (Members of legislative bodies are clothed with absolute immunity for any
10 defamatory statements made in the course of official proceedings, provided the statements
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pertain to the subject matter of the proceedings).
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Thus, the Court should either dismiss any additional instances of defamation alleged by
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Plaintiffs or should order that Plaintiffs file a more definite statement of such claims so that it
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16 V. CONCLUSION
17 For the foregoing reasons, CM Sawant respectfully requests that the Court grant the
18 instant motion and order Plaintiffs claims dismissed. In the alternative, CM Sawant requests
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that the Court order Plaintiffs to plead a more definite statement of their claims to further the
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Courts efficient and economical consideration of the grounds for dismissal articulated above.
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//
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23 //
24 //
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LAW OFFICES OF
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STATEMENT - 15 BARNARD IGLITZIN & LAVITT, LLP
3
s/Dmitri Iglitzin
4 Dmitri Iglitzin, WSBA No. 17673
Katelyn M. Sypher, WSBA No. 49759
5 Carson Phillips-Spotts, WSNA No. 51207
Schwerin Campbell Barnard Iglitzin & Lavitt LLP
6 18 W Mercer St, Suite 400
Seattle, WA 98119
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(206) 257-6003
8 Iglitzin@workerlaw.com
Sypher@workerlaw.com
9 Phillips@workerlaw.com
10 Attorneys for Kshama Sawant
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I certify that this memorandum contains 4,697 words in
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LAW OFFICES OF
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STATEMENT - 16 BARNARD IGLITZIN & LAVITT, LLP
2 I, Jennifer Woodward, declare under penalty of perjury under the laws of the state of
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Washington that on September 29, 2017, I electronically filed the foregoing Defendants Motion
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To Dismiss Or For A More Definite Statement with the court using the E-filing system, and
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delivered a true and correct copy of the same via e-service to:
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Daniel A. Brown
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Adam L. Rosenberg
8 Williams Kastner & Gibbs, PLLC
601 Union Street, Suite 4100
9 Seattle, WA 98101-2380
dbrown@williamskastner.com
10 arosenberg@williamskastner.com
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Executed in Seattle, Washington, this 29th day of September, 2017.
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LAW OFFICES OF
DECLARATION OF SERVICE - 17 SCHWERIN CAMPBELL
Case No. 17-2-21842-1 KNT BARNARD IGLITZIN & LAVITT, LLP
18 WEST MERCER STREET SUITE 400
SEATTLE, WASHINGTON 98119-3971
(206) 285-2828