The initial plaintiffs in this case were a group of twenty-two individuals who were arrested in September 2002 at a mass political demonstration in Washington, D.C. On November 19, 2002, they filed suit in the United States District Court for the District of Columbia under 28 U.S.C §§ 1331 and 1343 against a number of municipal and federal defendants.
Represented by the Partnership for Civil Justice and the National Lawyers Guild Mass Defense Committee, the plaintiffs claimed they were falsely arrested and imprisoned without probable cause, depriving them their First and Fourth Amendment rights. The plaintiffs further alleged the defendants--in violation of the Equal Protection Clause--processed and treated them differently than others arrested for minor offenses. And they also accused the arresting officials of negligence, as well as negligent supervision on the part of their supervisors. This case was one of a number filed or pending around that time against the Metropolitan Police Department and relating to its handling of mass demonstrations.
The plaintiffs amended their complaint three times to include a charge of deliberate indifference to constitutional rights against the arresting officers' supervisors and to propose a class of plaintiffs consisting of all persons--about 400 in total--who were arrested in Pershing Park September 27, 2002. In amending their complaint, the plaintiffs also added a new municipal defendant, Peter Newsham, Assistant Chief of Police, as well as a new federal defendant, Richard Murphy, who was the acting Commander of the Special Forces Branch of the U.S. Park Police.
The MPD, according to the complaint, had a practice of of deploying its Civil Disturbance Units for the purpose of disturbing and disrupting protests and demonstrations. And the CDU was successful doing so, though by means of unconstitutional tactics, resulting in false arrest and imprisonment. One tactic of note was the CDU's "box-in" technique, in which CDU officers (clad in full riot gear) trap individuals--protestors and civilians alike--by surrounding them on on all sides, foreclosing any chance of escape, then arresting them. In this manner the CPD not only curtailed but also deterred the exercise of constitutionally protected rights.
The second aspect of the MPD's unconstitutional practices ensued after the arrests: the MPD disparately treated individuals arrested for minor offenses in connection with mass demonstrations. Those arrested simply for minor offenses (i.e., not in connection with any demonstration) were given the "post and trial" option, receiving quick release from jail in exchange for offering up collateral, and for which they also received a trial date for challenging the legality of their arrest. On the other hand, those individuals arrested for minor offenses in connection with demonstrations were released instead by "posting and forfeiting." In exchange for their release, they were instructed they had to forfeit their chance to challenge the legality of their arrest. As a result, they faced a longer confinement solely because they wished to challenge the legality of their arrest. This disparate treatment, the plaintiffs claimed, was the denial of equal protection under the law.
The plaintiffs alleged that the FBI used the mass arrests as a mass intelligence gathering operation, with the MPD soliciting--then providing the FBI--identification information from those it falsely arrested as a condition of their release. Thus the FBI compiled intelligence on political activists, their activities, and others who either associated with them or simply happened to be in their proximity.
In their complaint the plaintiffs requested declaratory judgment that the MPD's practice of disrupting and preventing political protests without justification violated the First and Fourth Amendments. And the plaintiffs sought a permanent injunction prohibiting such tactics. Among other forms of relief--including compensatory and punitive damages--the plaintiffs requested the Court mandate the MPD treat those arrested for minor offenses in connection with mass demonstrations just as it does those arrested simply for minor offenses, by enjoining it from (1) subjecting them to a harsher period of processing and confinement, (2) threatening or instituting longer periods of confinement for those who wish to challenge the legality of their arrest, and (3) offering them the "post and forfeit" option instead of the customary "post and trial" option. As to the federal defendants, the plaintiffs requested a permanent injunction barring the Department of Justice from accessing information relating to arrests at mass demonstrations made by local law enforcement authorities.
The Court (Judge Emmet G. Sullivan) approved certification of the plaintiffs' proposed class, finding their circumstances of their arrest were virtually identical, all resulting from a single action in which the arrestees were treated as a single group by law enforcement.
The individual municipal defendants--Williams, Ramsey, and Newsham--moved for dismissal on the grounds of qualified immunity. The Court ruled Williams was entitled to qualified immunity on the false arrest and excessive force claims, as was Ramsey with respect to the latter. 338 F. Supp. 2d 48, 52. Because there was an issue of fact regarding if Ramsey knew whether a dispersal order had been given before the plaintiffs at Pershing Park were arrested, the Court determined qualified immunity for Ramsey for the false arrest claims was inappropriate. Id. at 62. The Court also found Newsham was not entitled to qualified immunity. Id. at 57. And finally, the court held the MPD's failure to offer arrestees post-and-trial did not violate the Equal Protection Clause, explaining there was no evidence that the plaintiffs were treated differently than other groups of arrestees regarding the availability of the "post and trial" option. Id. at 70.
The federal defendants also moved for dismissal on the grounds of qualified immunity, arguing in addition that the plaintiffs lacked standing to bring their claims for injunctive relief. The Court denied the defendants' standing argument, finding the plaintiffs had shown injury, causation, and redressability--and explaining that the U.S. Park Police not only participated in the arrests are Pershing Park but also could have reasonably understood there was no probable cause for arresting every person in the park. 2007 WL 2007335 at * 6. The Court next determined that defendant Murphy was not entitled to qualified immunity because his alleged conduct--participating in a mass-arrest undertaken without probable cause--violated a clearly established constitutional right. Id. at *10. Defendant Murphy also challenged the § 1983 claim against him, arguing there was no evidence he was acting under color of state law at the time of the mass arrest. The court rejected this argument, too, finding evidence that state and federal officials acted in concert to carry out the mass arrest and noting Murphy and the Park Police acted with the encouragement and at the request of the MPD. Id. at *11. The Court also found the FBI's motion for summary judgment was premature because not enough discovery had been performed. Id. at *11.
In March 2010 the plaintiffs and municipal defendants filed a motion for preliminary approval of a class settlement. The parties observed that, as a result of this and similar contemporaneous lawsuits, the Council of the District of Columbia had enacted the "First Amendment Rights and Police Standards Act of 2004," which was specifically crafted to provide the relief plaintiffs sought, thus eliminating their need for equitable relief from the Court. No recurrence of "box in" mass arrests of protestors had taken place since the Act took effect. In addition, there had been favorable developments for the plaintiffs as a result of settlements from similar cases targeting the MPD's practices. See, Becker v. District of Columbia, Docket No. 1:01-cv-00811 (D.D.C. Apr. 13, 2001); Int'l Action Ctr. v. United States, Docket No. 1:01-cv-00072 (D.D.C. Jan. 16, 2001).
The plaintiffs noted their satisfaction at having implicitly received declaratory judgment from Judge Sullivan's opinions. E.g., 338 F. Supp. 2d 48, 58 (identifying the "'bright line rule' that 'where a group contains persons who have not been violent or obstructive, police may not mass arrest the demonstration as a group without fair warning or notice and the opportunity to come into compliance and disperse'"); 434 F.3d 565, 575 (holding, under the Fourth Amendment, only "when compelling circumstances are present, the police may be justified in detaining an undifferentiated crowd of protestors, but only after providing a lawful order to disperse followed by a reasonable opportunity to comply with that order"). And by a previous order of Judge Sullivan, the class had received expungement of the arrest from their records.
The District agreed to allocate $8.25 million from its Judgment and Settlement Fund for the class settlement. Under the settlement, each enrolled member would receive $16,000, and attorneys fees and costs were also included, totaling about $2.5 million.
The District additionally agreed to allocate funds for implementing a document management system to prevent evidence loss or destruction, which apparently had occurred during this case. Under its new system, the agreement stipulated, the MPD would preserve and index records relating to mass demonstrations and protests, and the MPD would report to plaintiffs' representatives and the Court every six months during the three-year enforcement period of three years, during which time the Court retained jurisdiction to ensure compliance.
The Court approved the parties' motion, pending a fairness hearing. And following the fairness hearing, in September 2010 the parties submitted--and the court approved--the final settlement agreement. The plaintiffs and federal defendants, however, remain in settlement negotiations--as they have been since summer 2010.
David Postel - 02/25/2014
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