Seattle Gets Eatery's Suit Over BLM Protest Zone Trimmed

By Rachel Riley | August 30, 2023, 8:44 PM EDT ·

A Korean restaurant in Seattle can't move forward with claims that the city infringed on its constitutional rights by abandoning entire city blocks during Black Lives Matter protests in 2020 without specifying how the city's response created a "particularized danger" for the business, a Washington federal judge ruled this week

U.S. District Judge Thomas S. Zilly partially sided with Seattle, agreeing in a Tuesday order to toss three of 3Pak LLC's four claims stemming from the formation of the Capitol Hill Organized Protest, also known as CHOP, in June 2020, amid the nationwide wave of civil unrest over racial injustice.

The judge dismissed the restaurant's negligence claim with prejudice and dismissed two other claims with leave to amend, giving the business until Sept. 14 to file revised allegations on claims that the city violated its substantive due process rights and its constitutionally-protected rights to access its property. He did not rule on the suit's fourth claim for nuisance, noting that the city withdrew that portion of its dismissal bid after the restaurant clarified the basis for the claim.

Judge Zilly reasoned that the restaurant, doing business as Oma Bap, failed to describe in its April 2023 complaint how Seattle's actions made it a target, and instead focused on alleging that actions by the city caused property damage, economic loss and other adverse impacts to the entire neighborhood.

"Although Oma Bap alleges that the city knew of the harm it was suffering during CHOP because Oma Bap regularly complained to city officials about the specific adverse effects CHOP was having on its business," the judge wrote Tuesday, citing the complaint, "the danger alleged in the operative complaint was not directed specifically at Oma Bap or any discrete and identifiable group."

The suit is one of a few similar actions pending in Washington federal court, brought by business owners and property managers who assert that Seattle encouraged the protest by deserting a nearby police precinct and allowing protesters to take over a roughly 16-block area. That led to vandalism, lost business, and blocked access to homes and businesses, they allege.

Judge Zilly concluded that Oma Bap's case echoes claims made in Hunters Capital LLC v. City of Seattle, a suit brought by a group of property owners that was ultimately settled out of court in February. The plaintiffs in that case asserted a similar due process claim, based on the notion of a harmful state-created danger, that was dismissed on summary judgment in January.

The Seattle Times reported in February that the city agreed to settle the suit for $3.65 million, including $600,000 in penalties, after Judge Zilly sanctioned the city for destroying evidence by deleting thousands of text messages.

While Seattle contended that Oma Bap hadn't met the standard for demonstrating how its alleged actions created a danger specific to the restaurant, the Korean eatery pointed to a recent Ninth Circuit ruling in another CHOP-related case to bolster its due process claim.

In an opinion published March 1, a panel of the Ninth Circuit affirmed a lower court's dismissal of a complaint filed by mother Donnitta Sinclair against the city after her 19-year-old son was fatally shot in the protest zone in June 2020. The panel remarked that Hunters Capital and other property owners came "appreciably closer to meeting the particularity standard" than the mother who lost her son.

But Judge Zilly found Tuesday that Oma Bap's case failed for the same reasoning the Ninth Circuit offered.

"Despite Oma Bap's argument to the contrary, the Ninth Circuit's opinion in Sinclair has not 'de facto overruled' this court's order in the Hunters Capital matter granting the city's motion for summary judgment as it related to the plaintiffs' substantive due process claims," the judge wrote. "Like the mother's allegations in Sinclair, Oma Bap has failed to plausibly allege that the city's response to CHOP created a particularized danger for Oma Bap."

Judge Zilly also rejected the restaurant's allegation that the city blocked access to its business by putting dumpsters and portable toilets at a nearby intersection. He determined that Oma Bap "does not allege that its employees, suppliers, and customers were unable to access the business during and after CHOP," but "asserts only that they chose not to come to the business based on safety concerns."

Representatives for the parties did not immediately respond to requests for comment Wednesday.

The restaurant is represented by Patricia A. Eakes, Angelo J. Calfo, Tyler S. Weaver and Gabe Reilly-Bates of Morgan Lewis & Bockius LLP.

Seattle is represented by Tyler L. Farmer, Shane P. Cramer and Erica Iverson of Harrigan Leyh Farmer & Thomsen LLP.

The case is 3Pak LLC v. City of Seattle, case number 2:23-cv-00540, in the U.S. District Court for the Western District of Washington.

--Editing by Covey Son.

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