Angus Lee sends letter to Clark County Sheriff Chuck Atkins and Vancouver Police Chief James McElvain cautioning them against making ‘an invalid arrest’
Vancouver attorney Angus Lee has issued a strong rebuke of a Superior Court judge’s decision to grant an injunction against protests within a mile of Vancouver Public Schools sites. Lee offered his reaction in a letter sent Thursday to Clark County Sheriff Chuck Atkins and Vancouver Police Chief James McElvain.
The letter was in response to the injunction granted Tuesday by Clark County Superior Court Judge Suzan Clark. The injunction requires that “protests, rallies, gatherings on or near school premises that disrupt educational services, immediately cease and desist and not be allowed to convene on or within a one-mile radius of any Vancouver School District building or grounds.” The injunction is effective as long as state-issued mask mandates are in effect.
In his Thursday letter, Lee cautioned Sheriff Atkins and Chief McElvain from allowing their law enforcement officers from making what he termed would be “an invalid arrest.’’
“As you know, citizens of this great nation enjoy the natural right to protest against governmental misconduct. That right is codified in the constitutions of Washington and the United States,’’ Lee wrote to the law enforcement leaders.
Lee went on to write that the injunction “does not impose a general ban on protests; it applies only to men (not women); and is legally invalid on its face for its failure to require Vancouver Public Schools to post a bond.’’
Lee offered four specific points supporting his claims.
• “First, the judge’s order, by its own terms, attempts to ban only those protests that ‘disrupt educational services.’ The order does not bar anyone from protesting peaceably across the street on a public sidewalk, so long as such protest does not “disrupt educational services.’ As students attend class inside the school building any peaceable protests outside on the sidewalk are clearly not in violation of the order as written.’’
• “Second, the order places no restrictions on women protesters at all. Rather, the order applies only to a single woman, and to “John Does” (AKA, unknown men). An order that bars men from protesting, but not women, is clearly unconstitutional. Moreover, given contemporary culture’s current stance regarding gender identity, it would be unwise for you or your officers to assume a protester is a man (“John Doe”) when they could actually be a Jane Doe (and therefore not subject to the order). As you know, gender identity is very tricky and looks can be deceiving.’’
• “Third, the injunction order does not appear to have required the school district to post a bond as is required by law for an injunction order to be valid. See RCW 7.40.080, which states “No injunction or restraining order shall be granted until the party asking it shall enter into a bond, in such a sum as shall be fixed by the court. As the Washington State Supreme Court made clear in State v. Goins, “[f]undamental to statutory construction is the doctrine that “shall” is construed as mandatory language…” 151 Wash. 2d 728, 749, 92 P.3d 181, 191 (2004) (emphasis added). In Irwin v. Estes, 77 Wn.2d 285 (1969), the Washington State Supreme Court held that posting a bond is mandatory. A year later, the supreme Court again ruled that where the trial court did not fix a bond amount the injunction was “invalid.” Evar, Inc. v. Kurbitz, 77 Wash. 2d 948, 951 (1970). While RCW 7.40.080 does allow a court to waive the bond requirement in ‘situations in which a person’s health or life would be jeopardized,’ the order here does not reflect that any such waiver was made. Rather, the bond requirement was simply forgotten by the lawyer for the school district that drafted the order. Further, the school district’s petition for the injunction did not include any allegation related to ‘health or life.’ The petition focused only on an alleged disruption of educational activities. As such, there is no legal basis for a waiver of the bond requirement in this matter, and the court order does not include any finding that would support waiver of the bond requirement.’’
• “Fourth, before you take action, please consider your past inaction when BLM protesters violated Washington state law by blocking traffic on I-5, and later blocking traffic on Highway 99. In those instances, neither the Sheriff’s Office, nor the Vancouver Police Department took action.’’
Lee summarized his assessment of the injunction by calling it “a questionable order.’’
“The order in question is of limited application, clearly unconstitutional, and apparently invalid for lack of a bond,’’ Lee wrote. “You would be wise to consider your oaths to defend the Constitution, and consult with the Clark County Prosecuting Attorney’s Office or the Vancouver City Attorney before taking enforcement action on any perceived violations of such a questionable order.’’