PLAINTIFFS’ MOTION TO CLIFFORD STOTT, PH.D. TO PRESENT EXPERT WITNESS TESTIMONY AT TRIAL

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HONORABLE SANDRA WIDLAN Hearing Date: January 8, 2024 (Without Oral Argument)

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SUPERIOR COURT OF WASHINGTON FOR KING COUNTY ZOE ADBERG, SARA ANDERSON, MEGAN BUSS, GRACE CARMACK, LEANNA CARR, AISLING COONEY, ABIE EKENEZAR, EDWARD FARMER, NIMA FORGHANI, NOAH FOWLER, ZACHARY GARDNER, IAN GOLASH, GRACE GREGSON, MIRANDA HARDY, LEXUS HARTLEY, CLAYTON HOLLOBAUGH, JASON SCHIERER as guardian ad litem for minor MALICHI HOWE a.k.a.

BRYAUNA HOWE, JESSE HUGHEY, AUBREANNA INDA, MARY JURGENSEN, TIMOTHY KAUCHAK, JENNA KINYON, BEN KOENIGSBERG, JACOB KOENIGSBERG, SETH KRAMER, DANIEL LUGO, JACOB MARTIN, JOSHUA MATNEY, CHLOE MERINO, LOGAN MILLER, TONI MILLS, ALESSANDRA MOWRY, KELSEY MURPHYDUFORD, WESLEY PEACOCK, JORDAN A. PICKETT, CHARLES PIERCE, DANIEL PIERCE, RENEE RAKETTY, JAVIER RIZO, ALEXANDER RUEDEMANN, MICHAUD SAVAGE, CAROLYN STERNER, SEAN SWANSON, The Estate of SUMMER JOLIE WILLIAMS TAYLOR, by and through MATTHEW D. TAYLOR, Personal Representative, MEGHAN THOMPSON, BRUCE TOM, TIFFANY VERGARA-MADDEN, ALIYE VOLKAN, STEVEN WIDMAYER, JOSEPH WIESER, GILLIAN WILLIAMS, QUINN ZOSCHKE, and DOES 1-40;

NO. 20-2-14351-1 SEA PLAINTIFFS’ MOTION TO ALLOW CLIFFORD STOTT, PH.D. TO PRESENT EXPERT WITNESS TESTIMONY AT TRIAL

Plaintiffs, v.

CITY OF SEATTLE, a governmental entity; Defendant.

24 PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 1

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

A.

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RELIEF REQUESTED

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Plaintiffs requests the Court determine that Professor Clifford Stott, the world’s foremost

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expert in crowd policing, may present trial testimony at the request of the Plaintiffs. Even though

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he was hired to perform non-litigation work by the Defendant. This motion is based upon ER 702

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and WPI 2.10.

B.

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EVIDENCE RELIED UPON

This Motion is based on the Deposition of Professor Stott, the Declaration of Karen Koehler and attachments which include:

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1. The PowerPoint he prepared for the Office of Inspector General (OIG) as part of Wave

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One of Defendant’s Sentinel Review Process (SRP) regarding the George Floyd/BLM

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protests and not specifically for litigation;

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2. The highlighted deposition of Professor Stott;

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3. The 60-page report regarding his Wave One analysis, conclusions, and

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recommendations;

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4. The Professor Stott’s PowerPoint presentation;

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5. The transcript of the audio file that was imbedded in the PowerPoint presentation;

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6. Excerpts of the video of the deposition of Professor Stott;

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7. Excerpts of the deposition of Chief Adrian Diaz;

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8. Disclosure of Possible Primary Witnesses – Professor Stott by Plaintiffs; 1 and

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9. Curriculum Vitae of Professor Stott.

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See Exhibit 8 to Declaration of Karen Koehler (hereinafter “Koehler Declaration”): Plaintiffs’ First Supplemental Disclosure of Possible Primary Witnesses, dated 12/15/2023.

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PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 2

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

C.

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ISSUES PRESENTED

1. A witness who qualifies as an expert may testify at trial, regardless of whether the party

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calling them has hired or paid them money.

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2. The expert hired by Defendant in a non-litigation capacity, to review and participate in

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the Office of Inspector General’s Sentinel Review Process, which was in substantial

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part adopted by SPD as its after incident review of the 2020 George Floyd/BLM

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protests, may be called to testify as an expert witness on behalf of Plaintiffs.

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3. BACKGROUND FACTS

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Dr. Clifford Stott, PhD, is considered to be the world’s premier expert in the field of crowd

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policing. 2

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He is a professor of social psychology at Keele University in England and the director of

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the Keele Policing Academy Corporation – a strategic research center that specializes in police

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related research for the University. 3 He is current the visiting fellow in the Department of Crime

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Science at the University College London and visiting professor in the John Glenn College of

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Public Affairs at Ohio State University. Previously holding similar positions in Denmark,

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Australia, and the UK. 4 He has been associate editor for the British Journal of Social Psychology,

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See Exhibit 2 to Koehler Declaration: Highlighted deposition transcript of Clifford Stott, Ph.D. at 14:10-14. Also see video excerpts of the deposition of Clifford Stott, Ph.D., taken on 12/14/2023, as Exhibit 6 to the Koehler Declaration.

3 See Exhibit 2 to Declaration of Karen Koehler: Deposition of Clifford Stott, Ph.D. at 5:18-24; 19:1-6.

4 Id at 6:15-25.

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PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 3

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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the European Journal of Social Psychology, and Policing and Society. 5 His trove of scholarly

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articles are set forth in his CV.

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Professor Stott has managed millions worth of research grants and income from research

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counsels, governments, police forces. 6 Although he is currently research focused, he has taught

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throughout his career including social cognition, group crises, and crowd psychology. 7

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In December 2020, Professor Stott, through his consultancy company, was hired by the

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Defendant’s Office of Inspector General (OIG), in relation to the City of Seattle’s Sentinel Event

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Review. 8 According to SPD Chief Diaz, the Sentinel Event Review replaced the After Incident

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Report which would generally follow a significant use of force event. 9

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As the process developed, Professor Stott became more involved in helping the OIG to

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make decisions about how it was managing the Sentinel Event process, particularly, the extent to

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which the empirical analysis was underpinning and informing it. 10 Ultimately he published a 60

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page report with the involvement of the OIG regarding wave one – the first four or five days of

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protests. 11 The team of analysists from OIG were assigned to the sentinel event review and were

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involved in the day to day organizing, gathering, and analyzing of data for that process. 12 The

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Professor helped to correct the OIG’s work and built a more accurate interpretation of data and

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chronology. 13

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For example, when viewing body worn video (BWV) provided by the OIG and SPD, he

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noted a rapid deployment of a blast munition by the police where people were “clearly very, very

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frightened and fleeing in fright.”

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Id at 7:7-14. Also see Exhibit 9 to Koehler Declaration: Curriculum Vitae of Clifford Stott, Ph.D. Id at 7:20-25; 8:1-2.

7 Id at 8:24-25; 9;1-2.

8 See Exhibit 2 to Koehler Declaration: Stott deposition 9:7-22; 10:21-25; 11:1-11; 68:23.

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24 PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 4

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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Professor Stott formed forensic opinions which he set forth in an audio PowerPoint

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presentation and his report. The audio version of the PowerPoint was not provided in discovery,

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but the PowerPoint and the written transcript were. 14 From the Professor’s perspective:

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[W]hat is important to me analytically and empirically is that the police don’t say anything.

The police officers just are not saying anything at all. They’re just standing there. They’re not trying to de-escalate the situation. They’re not trying to communicate with people.

There’s simply just standing there in a corner in a cordon with these people trying to get some sort of explanation out, which is an incredibly important point in terms of the nature of crowd psychology and what we know about effective crowd policing which is characterized by good dialogue. 15

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“[I]n my opinion, the Seattle Police Department did not utilize dialogue as a de-escalation tool at critical junctures. And had they had the capacity to exercise dialogue, then it’s very likely that the pattern of events would’ve evolved in a fundamentally different way and that they would not have experienced the rioting that took place that day.”16

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At another point he addressed a SPD leader’s characterization of the gathering as being a “riot.”

“And the extent to which you can define a crowd of probably in excess of 3,000 people at a minimum as a riot where two incidents of confrontation involving essentially two individuals is a riot is I think a very, very questionable decision.” 17

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Regarding the pushing of protesters who said, “don’t touch me,” leading to the deployment of chemical sprays, baton, and bikes, the Professor stated:

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. See Exhibit 7 to Koehler Declaration: Excerpts of Diaz Deposition transcript, deposition at 59:11-22. Also see Exhibit 1 to Koehler Declaration: COS_0214488, OIG Sentinel Event Review (Wave 1) of Police Response to 5/29 to 6/1, authored on 7/22/2021.

10 Id at 20:5-13.

11 Id at 12:12-25; 21:1-3. Also see Exhibit 3 to Koehler Declaration: COS_0842804, Crowd Psychology, policing, and interactional Dynamics, dated 5/13/2022 authored by Clifford Stott, Ph.D. 12 See Exhibit 2 to Koehler Declaration: Stott deposition 13:1-19.

13 Id at 21:4-25.

14 See Exhibit 4 to Koehler Declaration: PowerPoint of Stott Presentation re Police & Protestors on 5/30/2020.

PowerPoint. Also see Exhibit 5 to Koehler Declaration: Written transcript of audio for PowerPoint.

15 See Exhibit 2 to Koehler Declaration: Stott Deposition at 34-35.

16 Id at 48:18-25.

17 Id at 44:14-23.

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PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 5

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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“[I]n my opinion, the move to the use of chemical weapons, chemical spray, was very quick…tactical communicated verbal interaction to relatively high-level use of force occurs in a few seconds, and that is also in a densely crowded situation where other people are directly affected by these munitions who are merely peacefully protesting. I think that raises all sorts of issues that are problematic for various reasons.” 18

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He explained the importance of chronology and understanding it in the context of crowd

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science:

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“I’ve seen multiple—multiple studies we’ve done – we’ve done on riots. You get that sequence of interaction that the collective conflict flows after indiscriminate police use of force.” 19

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Q.

And that is what happened here in your opinion?

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A.

It is. 20

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Professor Stott also noted that during the first wave, when police made announcements

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such as to disperse, “it would’ve been very, very difficult for the people in the crowd at the

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point…to have heard that announcement.” 21

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That Monday outside the precinct, Professor Stott found no evidence of direct physical

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conflict or sustained missile throwing at the police, before the police deployed use of force against

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the protesters. 22

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He opined that the police “incorrectly assumed that once a crowd begins to exhibit even

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small amounts of violence, that they would then interpret that as a shift to the classical crowd

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psychology. And it was that that then leads them to apply this escalatory form of policing.” 23

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Professor Stott’s deposition cumulated with the following statement of fact and opinion:

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Id at 57:1-8.

Id at 57:13-25.

20 Id at 58:1-3.

21 Id at 64:4-10 22 Id at 64:11-18.

23 Id at 89:2-7.

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PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 6

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

“…I’ve never seen that level of intensity of use of munitions in as confined a geographical location in any other democratic state.” 24

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Defendant paid Professor Stott:

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•

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whom have been deposed in this case for their key roles in the protests].

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$74-77,000 for two-day training packages for the entire command team; and

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$60,000 for the work on the Sentinel Review Process. 25

Defendant did not retain Professor Stott as an expert witness in this case. After receiving his (at times blistering) critique on Wave One, the City did not request that he continue to assist Waves two, three or four of the Sentinel Review Process.

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4. AUTHORITY

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During the deposition, defense counsel challenged whether Professor Stott was testifying in the capacity of an expert witness. To which the witness replied:

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“…I’m slightly confused. So, I’m here as an expert witness and you’re asking me if I’m an expert witness?” 26

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This motion is brought to clarify that Defendant’s hiring of Professor Stott with taxpayer

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$50,000 to train Captain Brooks and Lieutenant Dyment in Europe [note: both of

dollars outside of the context of this litigation, does not prevent Plaintiffs from calling him as an expert witness. Defendant notably did not object to the taking of his deposition under Mothershead v. Adams, 32 Wn.App. 325 (1982). Nor did it invoke Crenna v. Ford Motor Co., 12 Wa.App. 824 (1975). Nor did Defendant raise CR 26(b)(4) since it only applies to experts expressly retained for litigation.

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Id at 65:9-13.

Id at 90:3-20.

26 Id at 77:21-24.

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PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 7

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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ER 702 provides:

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If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

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The OIG hired Professor Stott because he is the number one expert in the field of crowd policing. He meets all the requirements of being an expert. See also WPI 2.10. The determination as to whether an expert witness possesses the necessary qualifications to testify on a proper subject is within the sound discretion of the trial court. Rice v. Johnson, 62 Wn.2d 591, 384 P.2d 383 (1963); Saldivar v. Momah, 145 Wn.App. 365, 397, 186 P.3d 1117 (2008) The OIG hired Professor Stott with government funds to perform governmental work.

Because of the Public Records Act, Defendant cannot suppress discovery of his public written opinions or the taking of his testimony by Plaintiffs.

5. CONCLUSION The Plaintiffs’ intent to call Professor Stott as a witness with special expertise and knowledge, is no different than if they called a treating medical doctor. So long as the expert’s opinions are disclosed in advance, there is no requirement that plaintiffs must enter into an expert witness contract with the doctor. Indeed, most doctors would never so agree.

Because Professor Stott’s testimony is central to the issues at bar and the defense protestation so vocal, Plaintiff’s request this ruling be made now.

6. PROPOSED ORDER A proposed order is attached.

22 23 24 PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 8

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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DATED this 22nd day of December, 2023.

I certify that this memorandum contains 1,778 words, in compliance with the Local Civil Rules.

STRITMATTER KESSLER KOEHLER MOORE

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Karen K. Koehler, WSBA#15325 Shannon M. Kilpatrick, WSBA#41495 Debora Silberman, WSBA#59302 Furhad Sultani, WSBA#58778 Co-Counsel for Plaintiffs

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 9

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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CERTIFICATION I hereby certify that on December 22, 2023, I delivered a copy of the document to which this certification is attached for delivery to all counsel of record as follows: Defendant City of Seattle Ghazal Sharifi Joseph Groshong Rebecca Widen Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 joseph.groshong@seattle.gov ghazal.sharifi@seattle.gov rebecca.widen@seattle.gov kelly.nakata@seattle.gov jay.beck@seattle.gov laura.sanabria@seattle.gov Erin.Sundberg@seattle.gov Laura.sanabria@seattle.gov Grace.selsor@seattle.gov & Mark S. Filipini Martha J Dawson G. William Shaw Kari L. Vander Stoep Ryan J. Groshong Trudy Tessaro Ivan Ascott Ben Woodruff Ben Moore Matt Clark K&L Gates LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98104-1158 mark.filipini@klgates.com martha.dawson@klgates.com bill.shaw@klgates.com kari.vanderstoep@klgates.com ryan.groshong@klgates.com trudy.tessaro@klgates.com ivan.ascott@klgates.com ben.woodruff@klgates.com ben.moore@klgates.com matt.clark@klgates.com Leslie.Arai@klgates.com

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PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 10

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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Tim.Hughes@klgates.com dawnelle.patterson@klgates.com cami.smith@klgates.com Co-Counsel for Plaintiffs Sarah Lippek Law Office of Sarah Lippek 1424 11th Ave Ste 400 Seattle, WA 98122-4271

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s/ Kristin Michaud Kristin Michaud Paralegal

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ MOTION FOR LEAVE TO RELY ON EXPERT OPINIONS OF CLIFFORD STOTT, PH.D. AT TRIAL - 11

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777