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September 20, 2005.

STEPH SHERER, Plaintiff,

The opinion of the court was delivered by: JOHN BATES, District Judge


On April 20, 2000, during protests coinciding with meetings of the World Bank and International Monetary Fund in Washington D.C., plaintiff Steph Sherer was grabbed by a United States Deputy Marshal and pushed to the ground. She brought this claim seeking compensatory damages under the Federal Tort Claims Act ("FTCA") for injuries she alleges that she suffered from the incident. From May 26, 2005 through June 2, 2005, this Court presided over a bench trial on plaintiff's FTCA claims. Upon consideration of the testimony offered and evidence submitted at trial and the entire record in this case, including two video recordings of the incident, the Court will enter judgment in favor of defendant.


  Pursuant to Fed.R.Civ.P. 52(a), the Court makes the following findings of fact on the basis of a full and careful review of the record in the case. That review has included the live testimony of witnesses and video recordings that capture the entire incident forming the basis of this action. I. Events Leading Up To The Incident

  Plaintiff Steph Sherer is a community activist who was twenty-four years old and living in San Diego at the time of the events in this case. 5/26 Tr. at 1-44 (Sherer). Prior to the protests giving rise to this case, plaintiff had participated in roughly one dozen demonstrations. 5/26 Tr. at 44 (Sherer). She had acted as a liaison between the protesters and the police officers at some of these demonstrations, and she testified that she considers her relationship with police officers to be one of mutual respect. 5/26 Tr. at 44-45 (Sherer). At some point, a nun who operated an activist organization in California invited Sherer to travel to Washington, D.C. to lobby political leaders on issues of globalization and human rights and to participate in protests set to coincide with the meetings of the World Bank and International Monetary Fund that were scheduled for April 2000. 5/26 Tr. at 46-47 (Sherer).

  The protests were well-organized events. Demonstrators from throughout the country gathered at a central meeting place in Washington. Protest leaders organized a series of group meetings, including one in which lawyers explained that they had talked with law enforcement personnel and negotiated a rule that if police deemed a certain protest activity unlawful, they would make an announcement to that effect, and give the protesters an opportunity to disperse prior to an arrest. 5/26 Tr. at 47-49 (Sherer). Plaintiff testified that the demonstrators intended to engage only in peaceful protest activity, and even required each protestor to consent to follow non-violent guidelines that were posted on the wall of the meeting house, and were described at meetings. 5/26 Tr. at 50 (Sherer).

  Deputy United States Marshals (DUSMs) received intelligence briefings on the scope and intensity of the anticipated protest activity. 5/31 Tr. at 137-38 (Shealey). Supervisors had determined that there were likely to be major protests, ones that presented at least a possibility of acts of violence and the destruction of property. 6/1 Tr. at 171 (Waters). The briefings focused on the protest activities during the then-recent World Trade Organization demonstrations in Seattle, where protesters had thrown objects and hazardous liquids at officers that included urine and bleach. 5/31 Tr. at 147 (Shealey). DUSMs were shown videotapes of what had transpired in Seattle, and the supervisor in charge of the briefings discussed with them the possibility that similar incidents could take place in Washington. 5/31 Tr. at 177-79 (Shealey); 6/1 Tr. at 170 (Waters). DUSMs were sent to Washington from all over the country to assist in security during the protests. 6/1 Tr. at 174-75 (Waters).

  The demonstrations in Washington occurred between April 16 and April 20, 2000. More than 600 protesters were arrested at the demonstrations. 5/31 Tr. at 139 (Shealey). When arrested, the protesters often refused to provide their names, and instead used the names Jane Doe or John Doe. 5/26 Tr. at 66-67 (Sherer); 5/31 Tr. at 139 (Shealey). The protesters were brought to the cellblock in D.C. Superior Court, where consistent with the D.C. Code, they were held until they provided their identities. 5/31 Tr. at 139-40 (Shealey). Many arrestees provided their identities, allowing them to be released. 5/31 Tr. at 140 (Shealey). More than 150 arrestees could not be identified, and those arrestees were transported to the D.C. jail. 5/31 Tr. at 141 (Shealey). The U.S. Marshals Service did not treat the protesters any differently than they would any other arrestees. 5/31 Tr. at 142 (Shealey).

  On April 19, 2000, an altercation took place between protesters and DUSMs in front of D.C. Superior Court. 5/31 Tr. at 142 (Shealey); 6/1 Tr. at 174-76 (Waters). A crowd of people were attempting to enter a courtroom in which the cases of several of the protesters were being heard. 5/31 Tr. at 142 (Shealey); 6/1 Tr. at 174-76 (Waters). The U.S. Marshals Service had ordered the public to line up at the entrance to the courthouse. 5/31 Tr. at 142 (Shealey). A protester bolted from the line and made an attempt to run through an employee entrance on the far right side of the courthouse. 5/31 Tr. at 142-43 (Shealey). A DUSM grabbed the protester and used pepper spray on him, pinning him to the ground. 5/31 Tr. at 144 (Shealey). One protester named Edmond Frost came to the assistance of the protester on the ground. He inadvertently was sprayed in the face, as was another of the DUSMs. 5/31 Tr. at 33-36 (Frost); 5/31 Tr. at 147-48 (Shealey).

  Following completion of several of the protests, plaintiff was scheduled to leave Washington on April 18, 2000, but volunteered to stay in town to assist certain of the protesters who remained in D.C. jail. Her friends were holding the plane tickets, identification, and credit cards of many of the protesters, and she offered to stay behind to return these items when the protesters were eventually released. Plaintiff was told that several people were gathering at the D.C. jail the next day to offer their support for the jailed protesters. 5/26 Tr. at 59-61 (Sherer). When she arrived at the jail on the morning of April 19, she found about 20 protesters gathered in a designated grassy area outside of the jail. The grassy area adjoins E Street, which runs east-west and dead-ends in the back entrance to the jail grounds. 5/26 Tr. at 64, 70 (Sherer).

  During the morning of April 19, plaintiff and the other protesters waited in the grassy area, sang songs, and bantered with police officers. 5/26 Tr. at 65 (Sherer). At some point, a member of the protesters' legal team arrived and explained that the prisoners would be taken from the jail to the courthouse at a later time. Plaintiff testified at trial that the legal team was attempting to pursue a strategy by which it would attempt to represent all of the jailed protesters at once, and negotiate a plea in all of their charges together. 5/26 Tr. at 66-67 (Sherer). The legal team therefore wanted two things to happen: that the legal team have an opportunity to get to the courthouse before the prisoners arrived, so that the prisoners would be represented by the legal team rather than by appointed counsel; and that prisoners being transported to the court knew to wait for the legal team and to request them as their counsel. 5/26 Tr. at 67 (Sherer). The protesters at the jail decided that they would attempt to communicate with the prisoners in the transport van through signs, and mull about in front of the van to slow its arrival at the courthouse. 5/26 Tr. at 68, 80 (Sherer)

  II. The Incident on April 20

  On the afternoon of April 20, the Superior Court ordered that roughly a dozen prisoners be transported to the court "as fast as possible." 5/31 Tr. at 147-48 (Shealey); 6/1 Tr. at 180-81 (Waters). A supervisor at the U.S. Marshals Service assigned four individuals to transport the prisoners: Detention Enforcement Officers (DEOs) Carl Teeter and Mark Artis were assigned to operate the prisoner transport van, and DUSMs John Waters and Tim Griel were assigned to operate an escort car that would accompany the van. 5/31 Tr. at 147-48, 162-63 (Shealey).

  DEOs and DUSMs differ in several respects. The principal responsibility of a DEO is the cellblock: DEOs process new arrests, guard and escort prisoners, and transport prisoners to and from the courthouse. 5/31 Tr. at 149-50 (Shealey). On April 20, DEOs Teeter and Artis were not carrying pepper or OC (oleoresin capsicum) spray or extendable batons, and DEOs are not used in a law enforcement capacity outside of the cellblock. 5/31 Tr. at 157-58 (Shealey). DEOs receive three weeks of training that is confined to the handling and movement of prisoners. 5/31 Tr. at 150-51 (Shealey). DUSMs, on the other hand, are given full law enforcement duties and ...

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