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Abbate v. Ramsey

January 24, 2005

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



The opinion of the court was delivered by: Sullivan, District J.

CONSENT ORDER DISMISSING CASE WITH PREJUDICE AND RETAINING JURISDICTION FOR PURPOSE OF ENFORCING SETTLEMENT

Pursuant to Fed.R.Civ.P. 41(a)(2), plaintiffs Julie Abbate, Alexis Baden-Mayer, Christopher Downes, Adam Eidinger, Joseph L. Mayer, Mindi Morgan, and Tom Ulrich (collectively "Plaintiffs") and defendants District of Columbia and Charles H. Ramsey, and Peter J. Newsham (collectively the "Defendants"), have entered into a Settlement Agreement resolving this matter (a copy of which is attached as Attachment A). That Settlement Agreement provides for the performance of a number of tasks and contemplates the potential for continued interaction and continuing obligations between the parties. The Settlement Agreement also contemplates that this Court will retain jurisdiction over this matter solely for purposes of enforcing the Settlement Agreement as expressly provided for by its terms, and the parties have moved this Court to dismiss this matter with prejudice, except to the extent of retaining jurisdiction pursuant to the Settlement Agreement for purposes of enforcing the Settlement Agreement.

This Court having duly considered the joint motion of Plaintiffs and Defendants and the interests of justice, it is this ______ day of January 2005,

ORDERED that the joint motion of the Plaintiffs and Defendants is hereby GRANTED; and it is further

ORDERED that this matter is dismissed with prejudice, except that this Court retains jurisdiction over this matter to entertain any of the motions to this Court described in paragraph 9 of the Settlement Agreement and, further, to make such orders as are necessary to remedy systemic material breaches of this Settlement Agreement pursuant the following procedures:

The Plaintiffs, personally, or through Plaintiffs' attorneys, shall have standing to enforce the terms of this Settlement Agreement according to the procedures set out below.

Before the Plaintiffs move the Court to enforce the Settlement, they shall give the District of Columbia written notice of and ninety (90) days to cure defendant's alleged systemic deficiencies that the Plaintiffs contend constitute a systemic material breach of the Settlement, unless the alleged material breach is the proposed adoption of a change or changes to the language and/or measures provided for by the Settlement, in which case the notice and cure period shall be forty-five (45) days. During the cure period, District Defendants shall have the opportunity to cure the deficiencies that the Plaintiffs contend constitute a material breach of the Settlement. The opportunity to cure shall also include good faith negotiations in face to face meetings between the District of Columbia and the Plaintiffs seeking enforcement of this Settlement or their attorneys to resolve their differences without the need for Court intervention. The Plaintiffs may not seek enforcement of the Settlement without satisfying the foregoing notice and cure provision.

A "systemic material breach" is either (a) the occurrence of conduct prohibited by the Objectives caused by implementation and/or enforcement of an MPD policy, or the decision of a District policymaker, which violates one or more Objectives in a manner causing injury in fact to one or more persons, or (b) adoption of any changes to the agreed-upon PAO's or Measures that are not reasonably likely to comply with the respective Objective(s). The terms "policy" and "policymaker" shall be defined as those terms are used for purposes of 42 U.S.C. Section 1983 as contemplated by Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Jett v. Dallas Indep. School Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); and St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988).

The terms of this Settlement shall remain in effect for exactly three years following the date of the Plaintiffs' acceptance of this Offer, immediately after which time this agreement shall become null and void and the jurisdiction of the Court to enforce this Settlement will lapse except to the extent that a matter timely and properly presented to the Court pursuant to the Enforcement and Sunset Provision is still pending before the Court; and it is further

ORDERED that any motion brought pursuant to this Settlement Agreement shall be referred to Magistrate Judge Alan Kay for final resolution pursuant to Fed.R.Civ.P. 73.

ATTACHMENT A

SETTLEMENT AGREEMENT BETWEEN DEFENDANTS THE DISTRICT OF COLUMBIA, CHIEF CHARLES H. RAMSEY, ASSISTANT CHIEF PETER J. NEWSHAM AND PLAINTIFFS JULIE ABBATE, ALEXIS BADEN-MAYER, CHRISTOPHER DOWNES, ADAM EIDINGER, JOSEPH L. MAYER, MINDI MORGAN, AND TOM ULRICH, COLLECTIVELY

Plaintiffs Julie Abbate, Alexis Baden-Mayer, Christopher Downes, Adam Eidinger, Joseph L. Mayer, Mindi Morgan Mancuello, and Tom Ulrich (collectively "Plaintiffs") sue defendants District of Columbia and Charles H. Ramsey, (collectively the "District Defendants") and Peter J. Newsham (collectively the "Defendants"), in this matter, Julie Abbate, et. al, v. Chief Charles H. Ramsey, et. al, 03CV00767 (EGS)(AK) asserting claims of constitutional violations, pursuant to 42 U.S.C. Section 1983, and common law tort claims, seeking damages, declaratory judgment, and injunctive relief, costs, and attorney fees. The parties have engaged in discovery, conducted motions practice, filed an interlocutory appeal and cross-appeal, and participated in mediation and negotiations to resolve this matter. Having done so, Plaintiffs and Defendants have agreed to resolve this litigation, upon the following terms.

Scope of Settlement Offer and Resultant Settlement

1. The Defendants' Settlement Offer ("Offer") and this resultant Settlement Agreement may only be accepted jointly and collectively by all Plaintiffs in resolution and satisfaction of all claims that have been or could have been brought by any of the Plaintiffs, their agents, heirs, and/or assigns against any and all defendants in this case, to include any and all persons who are or have been agents, employees, officers, or officials of the District of Columbia. Plaintiffs' acceptance of the Defendants' Offer and this Settlement Agreement are reflected by their signatures upon this Settlement Agreement.

2. All defendants deny culpability and/or liability for or upon any claim asserted by any and all Plaintiffs. This Settlement Agreement, and/or any Order, Judgment, and/or action taken pursuant to this Settlement Agreement shall have no collateral estoppel or res judicata effect, whatsoever, or otherwise preclude defendants from asserting any defense. Plaintiffs are not prevailing parties.

Financial Consideration

3. The District of Columbia will pay the "Settlement Amount" of a total of $425,000 to all Plaintiffs, jointly and collectively in full satisfaction of all claims and potential claims for damages and other monetary relief against all defendants encompassed by the Amended Complaint or any subsequently-filed complaint, including claims for attorneys fees and/or other costs incurred in prosecuting this action through the date of the execution of this Settlement Agreement Plaintiffs agree, jointly and severally, and on behalf of their attorneys, as well as themselves, that under no circumstances may Plaintiffs or their attorneys obtain any monetary relief and/or recovery for the claims encompassed by this Offer in addition to this $425,000 from the District, or any official, officer, agent, or employee or any person who is now or has been an official, officer, agent, or employee of the District. This Settlement Amount is to be paid by check payable to "Covington & Burling, Interest on Lawyer Trust Account," within forty-five (45) days of the execution of this Settlement Agreement; in the event that payment is not made within forty-five (45) days of the execution of this Settlement Agreement, interest will accrue upon the Settlement Amount at the rate provided for by 28 U.S.C. Section 1961 for interest upon judgments commencing on the forty-sixth (46st) day following the execution of this Settlement Agreement. Plaintiffs agree on behalf of themselves and their counsel to promptly execute such documents and to provide such information as is reasonably and routinely necessary for the District to issue payment of the Settlement Agreement. Payment shall be made to Covington & Burling, which shall make an appropriate distribution to the Plaintiffs and other counsel.

4. The Settlement Amount is payable only from the funds of the District of Columbia and may not be collected from any other defendant in this action or from any other person or entity.

5. Insofar as any order may result from this Settlement Agreement, such order may not be docketed, recorded, or reported for any purpose against any defendant other than the District of Columbia.

Additional Relief to Abbate Plaintiffs

A. Expungement and Sealing of Arrest Records

6. The District of Columbia will expunge all records in the possession of its Executive Branch (including all records in the possession of the Metropolitan Police Department, and the Office of the Attorney General for the District of Columbia) pertaining to the arrests of the Plaintiffs at Pershing Park on September 27, 2002 and will employ best efforts to procure the expungement of all records in the possession of the United States Government (including but not limited to the Federal Bureau of Investigation) and any other state or local government pertaining to the arrests of the Plaintiffs at Pershing Park on September 27, 2002.

7. The Defendants will not oppose a motion, pursuant to District of Columbia Superior Court Rule of Criminal Procedure Rule 118, seeking the sealing of the records of any Plaintiff pertaining to his or her arrest at Pershing Park on September 27, 2002.

8. The District of Columbia will either (1) procure the expungement or delivery to Plaintiffs' counsel of all records in the possession of the United States government (including, but not limited to the Federal Bureau of Investigation) and any other state and local government pertaining to the arrest on September 27, 2002, or resulting detention or charge of any Plaintiff; or (2) if the District is unable (in whole or in part) to procure this relief, inform Plaintiffs in writing of the specific steps, and the results thereof, taken by the District in an effort to procure it.

9. The Defendants will not oppose any motion by any Plaintiff to the United States District Court for the District of Columbia in this case seeking an order declaring his or her arrest at Pershing Park on September 27, 2002 to be a nullity and/or seeking an order allowing any Plaintiff to deny the occurrence of his or her arrest at Pershing Park on September 27, 2002, without being subject to any penalty of perjury, fraud or other offense premised upon misrepresentation or deception, in response to any query, whether posed orally or in writing.

B. Conciliatory Statement

10. Chief Ramsey will personally sign the following conciliatory statement, addressed to each of the Plaintiffs, and presented to them through their attorneys, within thirty days after the Plaintiffs accept this Offer:

Dear [Name of Plaintiff]:

The District of Columbia government has carefully examined the events of September 27 and 28, 2002, concerning arrests and detentions that occurred on those days. Our investigation shows that our handling of various aspects of those events was flawed. Our investigation also shows that you should not have been arrested or detained. On my own behalf, and that of the Government of the District of Columbia, we sincerely regret any hardship that our mistakes of September 27 and 28, 2002 may have caused you or persons close to you.

Through our review of those events, informed in part by your testimony, the District government has identified and implemented measures to prevent a recurrence of the events in question. To implement these measures, Mayor Williams and I have worked hard with the Metropolitan Police Department and the Office of the Attorney General for the District of Columbia to assure that the District of Columbia Government carries out its duty to ensure that persons may enjoy free and open expression in this city with the utmost confidence that their constitutional rights will be respected.

I hope that you will be comfortable in the future in peaceably and lawfully exercising your First Amendment rights in the Nation's Capital.

Sincerely,

CHARLES H. RAMSEY Chief, Metropolitan Police Department Washington, ...


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