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Barham v. Ramsey

September 24, 2004

JEFFREY BARHAM, ET AL., PLAINTIFFS,
v.
CHARLES H. RAMSEY, ET AL., DEFENDANTS.
JULIE ABBATE, ET AL., PLAINTIFFS,
v.
CHARLES H. RAMSEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

These related cases arise from events on September 27, 2002, when approximately 3000 to 5000 people joined in demonstrations in the District of Columbia protesting the policies of the World Bank, the International Monetary Fund ("IMF"), and the United States government. Plaintiffs in Civil Action 02-2283 ("Barham plaintiffs") and Civil Action 03-767 ("Abbate plaintiffs") were among the approximately 400 people arrested at or near a demonstration taking place in General John Pershing Park ("Pershing Park"), located on Pennsylvania Avenue N.W. between 14th and 15th Streets N.W.. Plaintiffs allege that their arrests and subsequent detentions violate clearly established constitutional rights, including the right to "be free from the unreasonable seizure of one's person and to be free from government disruption of, interference with, or retaliation for, engagement in free speech, assembly, petition and free press activities." Pls.' Opp. to Ramsey and Williams Mot. to Dismiss in 02-2283 at 7; Pls.' Opp. to Newsham Mot. to Dismiss in 02-2283 at 4; Am. Compl. in 03-767 ¶ 4 (stating that plaintiffs "bring this action under 42 U.S.C. § 1983 and the common law to vindicate their civil rights, including the right to be free from the unreasonable seizure of their persons or deprivation of liberty or property without due process of law and to exercise their First Amendment rights of free speech and assembly"). Plaintiffs pursue these claims against various named and unnamed District of Columbia and United States officials in both their individual and official capacities. Three of the named*fn1 defendants, Chief of the District of Columbia Metropolitan Police Department ("MPD") Charles H. Ramsey, Assistant Chief of the MPD Peter J. Newsham, and Mayor of the District of Columbia Anthony Williams, assert that they enjoy qualified immunity from personal liability, and move the Court to dismiss the claims as they pertain to defendants personally.

Pending before the Court in Civil Action 02-2283 are Defendant Newsham's Motion to Dismiss or in the Alternative for Summary Judgment, and Defendants Williams's and Ramsey's Motion for Summary Judgment on Claims Pertaining to Qualified Immunity. Pending before the Court in Civil Action 03-767 are Defendant Newsham's Motion to Dismiss the Complaint or in the Alternative for Summary Judgment and Defendant Ramsey's Motion for Summary Judgment Pertaining to Qualified Immunity Issues. Upon careful consideration of the motions, the responses and replies thereto, all supplemental briefing, the extensive oral arguments of counsel, as well as the governing statutory and case law, and for the following reasons, it is by the Court hereby ordered that Defendant Newsham's Motion to Dismiss or in the Alternative for Summary Judgment in Civil Action 02-2283 is DENIED; Defendants Williams's and Ramsey's Motion for Summary Judgment on Claims Pertaining to Qualified Immunity in Civil Action 02-2283 is GRANTED as to Defendant Williams and GRANTED IN PART AND DENIED IN PART as to Defendant Ramsey; Defendant Newsham's Motion to Dismiss the Complaint or in the Alternative for Summary Judgment in Civil Action 03-767 is DENIED; and Defendant Ramsey's Motion for Summary Judgment Pertaining to Qualified Immunity Issues in Civil Action 03-767 is GRANTED IN PART AND DENIED IN PART.

II. FACTUAL AND PROCEDURAL BACKGROUND

The IMF and World Bank annually conduct meetings in Washington D.C; these meetings historically draw small, peaceful protests. Over the past several years, however, the protests have grown in size, as has the number of protest-related arrests. Over an eight-day period in April 2000, more than 1000 people were arrested in Washington D.C. during protests related to the 2000 IMF/World Bank Meetings. Protests in 2001 were minimal, and no arrests were made, as the meetings were canceled following the events of September 11, 2001.

The MPD believed that the 2002 meetings were likely to draw large, potentially violent and destructive protests, largely because recent anti-globalization protests in Seattle had seen acts of violence and breaches of the peace. See Newsham Mot. to Dismiss in 02-2283 at 5. Prior to the scheduled September 2002 Meetings, the MPD Civil Disturbance Unit ("CDU") members received training in preparation for the expected protests. Chief Ramsey was in overall command of MPD's operation plan and handling of the expected parades and demonstrations. Four Assistant Chiefs were charged with responsibility for specific areas of the city; Assistant Chief Newsham was responsible for the zone encompassing Pershing Park. In addition, MPD developed "post and forfeit" and "citation release" options for people arrested for misdemeanors; these procedures would allow arrestees to post and forfeit collateral and then be released without having to await arraignment in detention. The plan allowed for arrestees to be processed at three centers within the District. Ramsey and Williams Statement of Material Facts in 02-2283 ¶¶ 42-45; Ramsey Statement of Material Facts in 03-767 ¶¶ 42-45.

On the day of the protests, Chief Ramsey heard via police radio that "significant activity" was taking place in Pershing Park, and thus proceeded to Pershing Park. When he arrived, Assistant Chief Newsham advised him that the people in Pershing Park would be arrested based on his personal observation and reports from MPD subordinates that the people in the Park had engaged in unlawful acts prior to congregating in the Park, including refusing MPD officers' commands to move from the roadway, and knocking over trash receptacles and newspaper vending machines. Williams and Ramsey Statement of Material Facts in 02-2283 ¶ 32; Ramsey Statement of Material Facts in 03- 767 ¶ 32. Assistant Chief Newsham asserts that he walked around the perimeter of the park for 45 minutes, and observed that some protestors were wearing masks and taunting police officers. Newsham Statement of Material Facts in 02-2283 ¶¶ 46-47; Newsham Statement of Material Facts in 03-767 ¶¶ 46-47. Assistant Chief Newsham gave the order for the mass arrest, "correctly believing that, based on what he advised Chief Ramsey in their conversation, Chief Ramsey tacitly approved... Newsham's decision." Williams and Ramsey Statement of Material Facts in 02-2283 ¶ 38; see also Newsham Statement of Material Facts in 03- 767 ¶ 49.

As admitted during oral argument at the April 6, 2004, Motions Hearing, it is undisputed that Assistant Chief Newsham did not give an order to disperse prior to effectuating the mass arrest. April 6, 2004, Motions Hearing Transcript ("Tr.") at 6 (defense counsel for Ramsey and Williams confirming that no notice to disperse was given); see also Newsham Statement of Material Facts in 03-767 ¶ 54 (stating "Assistant Chief Newsham did not give orders for the demonstrators to clear the Park"). The Park was cordoned off on all sides by 10:15 a.m., and all of the people in the Park were arrested. Newsham Statement of Material Facts in 03-767 ¶ 53.

On the same day, a large number of people were also arrested at or near Vermont Avenue and K Street, N.W.. Assistant Chief Brian Jordan, who was responsible for the area during the protests, ordered a mass arrest. Williams and Ramsey Statement of Material Facts in 02-2283 ¶ 53. Assistant Chief Jordan asserts that, after observing protestors "ignoring vehicular traffic," he determined that "in order to ensure the public's safety, the only recourse was to effect the arrests of all protestors who were marching illegally." Jordan Decl. ¶¶ 4,5.

It is undisputed that, despite the planned availability of expedited citation release, there were lengthy delays in prisoner processing. MPD attributes these delays to information technology malfunctions and operational adjustments, including the Information Technology ("IT") system falling non-operational until the evening of September 27, 2002; incompatibility problems with cameras used to photograph arrestees and computer software; and previously scheduled deactivation of the Criminal Justice Information System (CJIS). Williams and Ramsey Statement of Material Facts in 02-2283 ¶¶ 46-50; Ramsey Statement of Material Facts in 03-767 ¶¶ 46-50. While in transit and while being held, arrestees were restrained by "flexi-cuffs," which are "plastic bands that operate much like small belts." Williams and Ramsey Statement of Material Facts in 02-2283 ¶¶ 55-57. Some arrestees, specifically the 200 arrestees who were detained at the MPD's Institute for Police Science gymnasium ("IPS"), were restrained by a series of three flexi-cuffs, which attached an individual's wrist to her opposite ankle and left the arrestee in a seated position. Williams and Ramsey Statement of Material Facts in 02-2283 ¶ 50.

MPD After-Action Reports concluded that there were "deficiencies in the Department's handling of aspects of the September 27, 2002 events." Id. ¶ 58. The MPD also concluded that "the park had not been cleared of all persons before the persons who had been observed to have engaged in criminal misconduct entered the park. Nor had an order been given advising all persons within the park to disperse." Id. ¶ 60; Ramsey Statement of Material Facts in 03-767 ¶ 58. Chief Ramsey ultimately issued an official reprimand to Assistant Chief Newsham for the failure to give warnings to disperse before conducting the mass arrests. Id. ¶¶ 60-61; Ramsey Statement of Material Facts in 03-767 ¶¶ 58-59.

Plaintiffs' claims in both actions flow from these mass arrests and subsequent detention. The heart of their "trap and arrest" charge is that police cordoned off the Pershing Park area, essentially "trapping" the protestors within the Park, and*fn2 then initiated a mass arrest without first warning the protestors that they must disperse to avoid arrest. Plaintiffs argue that these arrests, the resulting detention, and the use of restraining force, violate clearly established constitutional protections, and allege that Mayor Williams, Chief Ramsey, and Assistant Chief Newsham should be held liable in both their official and personal capacities for the constitutional injuries. The three defendants argue that principles of qualified immunity shield them from any personal liability. Thus, the question currently before the Court is not whether plaintiffs prevail on their underlying claims, but rather whether any or all of the defendants could face personal liability if plaintiffs do eventually prevail on their claims.

III. STANDARD OF REVIEW

In appraising the sufficiency of a complaint, a court must follow"the accepted rule that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); s ee also Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) (stating that a court may dismiss a complaint"only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations")(quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). For purposes of a motion to dismiss, a court must treat the plaintiff's factual allegations as true, and must liberally construe the complaint in favor of the plaintiff. See, e.g., Warth v. Seldin, 422 U.S. 490, 501 (1975); Jenkins v. McKeithen, 395 U.S. 411, 421-422 (1969).

Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). As with the Court's review of a motion to dismiss, the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, when the moving party has carried its burden, the non-movant must raise more than "some metaphysical doubt as to the material facts;" simply stated, only a genuine issue of fact will suffice to defeat a motion for summary judgment. Id. at 586.

IV. QUALIFIED IMMUNITY STANDARD

"Qualified immunity shields officials from liability for damages so long as their actions were objectively reasonable, as measured in the light of the legal rules that were 'clearly established' at the time of their actions." Lederman v. United States, 291 F.3d 36, 46 (D.C. Cir. 2002); see also Butera v. District of Columbia, 235 F.3d 637, 646-47 (D.C. Cir. 2001). Once a qualified immunity defense is raised, the question becomes whether the government official asserting qualified immunity "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury." Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). In order for an immunity defense to be defeated, "the contours of the right [must be] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Thus, the qualified immunity analysis is essentially a two step inquiry: (1) whether a constitutional violation has occurred, and (2) whether the violated right was "clearly established" at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 200 (2001); International Action Center v. United States, 365 F.3d 20, 25 (D.C. Cir. 2004). The question of whether a right is "clearly established" involves an analysis of "whether the Supreme Court, the District of Columbia Circuit, and, to the extent that there is a consensus, other circuits have spoken clearly on the lawfulness of the conduct at issue." Butera, 235 F.3d at 652. If it would "be clear to a reasonable officer that his conduct was unlawful in the situation he confronted," the right is considered clearly established. Groh v. Ramirez, 124 S.Ct 1284, 1293 (2004) (quoting Saucier, 533 U.S. at 202); see also Butera, 235 F.3d at 646 (the constitutional right must be established "at the appropriate level of specificity").

Finally, the Court must determine whether the defendant's actions were objectively reasonable in light of the clearly established law. It is no defense that an official was unaware of a law, as a "reasonably competent public official should know the law governing his conduct." Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982). Thus, "a police officer should prevail on an assertion of qualified immunity if a reasonable officer possessing the same information could have believed that his conduct was lawful." District of Columbia v. Indiana Evans, 644 A.2d 1008, 1025 (D.C. 1994).

V. ANALYSIS

A. Immunity for Arrests in Pershing Park in Civil Action 02- 2283 and Civil Action 03-767

Plaintiffs argue that the type of arrest at issue--that is, a mass arrest made without a previous order to disperse--has been clearly established as unconstitutional and unlawful. Specifically, plaintiffs argue that Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), establishes the clear contours and guidelines pertaining to a police officer's authority to order a mass arrest.

Dellums arose on facts remarkably similar to the present litigation. There, Vietnam War protestors were arrested at the foot of the Capitol steps; the area was cordoned off by police, all assembled were prevented from leaving, and mass arrests ensued. Dellums focused on the police chief's immunity claim; specifically, "whether Chief Powell acted in good faith in arresting plaintiffs and whether his actions were reasonable in light of all the circumstances." Dellums, 566 F.2d at 176. Upholding a jury verdict finding Chief Powell personally liable for First and Fourth Amendment constitutional violations, the Court noted it was the Chief's burden to show that "he had an honest belief that the plaintiffs as a group were violating the law by assembling at the Capitol, and further, that this belief was reasonable in light of the facts available to him at the scene of the arrests and the law as it then existed." Id. at 177 (emphasis in original). The Court concluded that plaintiffs could not constitutionally have been arrested as a group... unless Chief Powell had reason to believe: (1) that the plaintiffs comprised one of the groups that could be banned or ordered from the Capitol under Nicholson; (2) that orders to disperse had been given which apprised the crowd as a whole that it was under an obligation to leave; and (3) that a reasonable opportunity had been given the plaintiffs to leave the Capitol. This conclusion... in our judgment represents well settled law which Chief Powell was obliged to know on pain of losing his qualified immunity.

Id. at 183 (emphasis added).

The Court agrees that Dellums establishes the contours of constitutional protections in mass arrest cases. While defendants urge a reliance on Washington Mobilization Committee v. Cullinane, the Court notes that Dellums and Cullinane are not inconsistent. While Cullinane stands for the proposition that police officers do not have a duty to single out individuals for arrest if a protest as a whole has turned violent, the Court, consistent with Dellums, made clear that

We do not suggest of course that one who has violated no law may be arrested for the offenses of those who have been violent or obstructive. As we have seen... the police may validly order violent or obstructive demonstrators to disperse or clear the streets. If any demonstrator or bystander refuses to obey such an order after fair notice and opportunity to comply, his arrest does not violate the Constitution even though he has not previously been violent or obstructive.

Cullinane, 566 F.2d 107, 120 (D.C. Cir. 1977) (emphasis added).

1. Assistant Chief Newsham's Immunity Claims for Pershing Park Arrests in Civil Action 02-2283 and Civil Action 03- 767*fn3

Assistant Chief Newsham asserts that the mass arrest on September 27, 2002, was lawful and, even assuming arguendo that the arrest was unconstitutional under Dellums and its progeny, he acted reasonably in ordering the mass arrest. Specifically, Assistant Chief Newsham argues that notwithstanding his failure to give an order to disperse prior to effectuating arrests, there was independent probable cause to arrest the protestors because (1) they had broken the law prior to entering the Park, (2) the protestors' presence in the Park was unlawful, and (3) he feared the protestors would engage in violence if they were permitted to leave the Park.

Despite the fact that the official charge levied against the plaintiffs was "failure to obey," Assistant Chief Newsham argues that the asserted probable cause to arrest plaintiffs was not based on plaintiffs' refusal to obey a dispersal order, but rather was established by his knowledge of the protestors' prior unlawful activity. Specifically, Newsham states that he was aware, through personal observation and other officers' reports, that

1. no parade permits had been issued, and thus any street demonstrations were per se unlawful;

2. demonstrators were disregarding officers' instructions to move from the ...


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