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Chang v. United States

July 10, 2007


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


On September 27, 2002, demonstrations occurred around the District of Columbia in connection with World Bank and International Monetary Fund ("IMF") meetings. These related cases arise from a mass arrest in General John Pershing Park ("Pershing Park" or "Park") on that day. Plaintiffs in Civil Action No. 02-2010 ("Chang plaintiffs") and Civil Action No. 02-2283 ("Barham plaintiffs") were among approximately 400 people arrested in the Park. Plaintiffs allege various constitutional, statutory, and common law violations stemming from the arrests. Pending before the Court in the Barham (02-2283) and Chang (02- 2010) cases are motions by the federal defendants'*fn1 to dismiss or, in the alternative for summary judgment. Also pending before the Court in the Chang case is defendant Fairfax County Sheriff's Department's ("FCSD") motion to dismiss, motion for summary judgment, or, in the alternative, motion for more definitive statement. Upon review of the motions, responses and replies thereto, the applicable law, and the entire record, the Court DENIES the federal defendants' motion in the Barham case, GRANTS IN PART AND DENIES IN PART the federal defendants' motion in the Chang case, and DENIES Fairfax County's motion in the Chang case.


This Court's September 24, 2004 Memorandum Opinion in Barham v. Ramsey, 338 F. Supp. 2d 48 (D.D.C. 2004), and the D.C. Circuit's review of that decision, 434 F.3d 565 (D.C. Cir. 2006), detail the events at Pershing Park on the morning of September 27, 2002, the aftermath of such events, and the involvement of the District of Columbia Metropolitan Police Department ("MPD").

This Memorandum Opinion focuses on the role of the federal defendants and Fairfax County Sheriff's Department officers.

A. United States Park Police

The National Park Service annually hosts more than 3,000 demonstrations and other special events. As part of their routine procedures, they coordinate with other federal and local law enforcement agencies. Barham Fed. Defs.' Statement of Material Facts ¶ 4; Chang Fed. Defs.' Statement of Material Facts ¶ 4. Prior to the September 27 demonstrations, the Park Police and other law enforcement agencies participated in meetings to address how to respond to possible scenarios that could arise during predicted demonstrations. Barham Fed. Defs.' Statement of Material Facts ¶ 8; Chang Fed. Defs.' Statement of Material Facts ¶ 5.

On September 27, 2002, Major Richard Murphy was the senior Park Police officer at Pershing Park. Before his arrival at the Park, Murphy was informed that demonstrators left Freedom Plaza and were heading west toward Pershing Park. Barham Fed. Defs.' Statement of Material Facts ¶ 15; Chang Fed. Defs.' Statement of Material Facts ¶ 10. When Murphy arrived at the Park around 9:20 a.m., the entire Park was not closed off. Murphy Dep. 228:10-14. Murphy was asked by an MPD official to help "hold" persons in the Park. Murphy Dep. 177:14-16; 178:17-179:1; 206:13-19.*fn2 In response, Murphy radioed the following communication: "[C]ar 27, have 901 deploy his personnel on the south side of Pershing Park. We're going to enclose the demonstrators up here in Pershing Park with Metropolitan Police." Murphy Dep. 181:6-10. The Park Police (with the assistance of FCSD officers contracted to work with them) proceeded to assist MPD officers in creating a police line on the north and south sides of Pershing Park. At 9:35 a.m., Murphy radioed the following communication to his fellow Park Police officers: "[C]ar 27 for the officers who have just been deployed in Pershing Park, we've established a police line. We're going to keep the crowd inside Pershing Park. We're not going to allow them to come through the police line. We're working with Metropolitan on this." Id. 193:6-12. At some point during this period, Murphy saw people coming and going from the south side of the Park and he called additional units to deploy there. Id. 229:13-17. At least as to the west end of the Park, Murphy was also aware that people arrived separately and in different groups. Barham Pls.' Statement of Genuine Issues ¶ 16; Barham Fed. Defs.' Resp. to Pls.' Statement of Genuine Issues ¶ 16.

Between 9:42 a.m. and 10:20 a.m., Murphy met with senior MPD officials on the scene including Assistant Chief Peter Newsham ("AC Newsham") and Assistant Chief Brian Jordan and he overheard conversations by then Commander Cathy Lanier. Id. 213:7-18. Major Murphy had two separate encounters with AC Newsham between 9:42 and 10:20 a.m. During the first encounter, Newsham asked Murphy if the group in the Park had a permit to demonstrate there and Murphy told him that they did not. Id. 215:5-10. Newsham then asked whether the individuals in the Park could be arrested for demonstrating without a permit. Murphy responded that they technically could be arrested for demonstrating without a permit but the Park Police would not arrest individuals for that offense because it was Park Police policy to inform demonstrators of the violation and order them to disperse prior to any arrests. Id. 218:22-219:13. Murphy also commented to Newsham at that time that it appeared that individuals were being prevented from departing from the area at the time of their conversation. Id. 219:13-15. Newsham then paused and recounted that if the group attempted to go through police lines, they would be arrested for crossing police lines and if they made it to the street, they would be arrested for parading without a permit. Id. 219:17-21. Murphy responded that this was Newsham's call. Id. 220:2-3. That was the end of the first encounter between Newsham and Murphy.

A little while later, Murphy was again approached by Newsham who informed Murphy that the individuals in the Park were going to be arrested for failure to obey a police order, specifically a traffic regulation, before they entered the Park. Id. 227:5-17. It is undisputed that all persons in the Park were "ultimately surrounded, enclosed, were not free to leave and were under arrest." Barham Pls.' Statement of Genuine Issues ¶ 8; see also Barham Fed. Defs.' Resp. To Pls.' Statement of Genuine Issues ¶ 8 (noting no dispute). The parties do dispute, however, the role of the Park Police in the arrest and their intent for being at Pershing Park.

B. Fairfax County Sheriff's Department

On September 23, 2002, the FCSD entered into an interagency agreement with the United States Park Police, which was effective from September 25-30, 2002. FCSD's Statement of Material Facts ¶ 1. The agreement calls for the FCSD to provide "law enforcement assistance on Federal parkland" during the IMF/World Bank demonstrations. Id. ¶ 2. The agreement provides that "[r]esponsibility for the overall law enforcement operations during this event on Federal parkland will remain with the Chief of the Force*fn3 or her designee." Interagency Agreement ¶ 2. The agreement further provides that the "Officer-in-charge of the Fairfax County Sheriff's Office personnel will have an integral part of any decision making process that could have an effect of its officers, including decisions made with other agencies that may be brought in and made part of the law enforcement detail." Id. ¶ 2. The agreement also states that the Park Police were requesting the assistance of 26 FCSD officers. Id. ¶ 4.

FCSD Commander Basilio Cachuela was the highest ranking officer on the scene at Pershing Park on September 27. FCSD's Statement of Material Facts ¶ 8. Cachuela claims that he "reported to" U.S. Park Police Lieutenant Tom Neider. Id. ¶ 9. Lieutenant Neider told Commander Cachuela to deploy FCSD officers to Pershing Park and have those officers "form a perimeter" along the edge of the Park. FCSD's Statement of Material Facts at ¶ 10; Chang Pls.' Resp. to FCSD's Statement of Material Facts ¶ 10; Cachuela Dep. 50:11-19. After FCSD officers formed a perimeter on the north side of the Park, a D.C. police lieutenant said "[n]o one in, no one out." Cachuela Dep. 53:14-15. Cachuela then "looked at the Lieutenant of the Park Police . . . and [the Park Police Lieutenant] just kind of nodded his head like, okay, we heard that, and then [Cachuela] told [his] guys, you know, we got the word, no one in, no one out." Id. 53:14-19. FCSD officers remained along the perimeter as MPD officers "funnel[ed] the people in the crowd into Metro buses." Id. 53:14-54:22. Once the crowd got to a size where FCSD officers were not needed anymore, they left. Id. 54:10-11.

C. Federal Bureau of Investigation

The FBI is the lead federal agency responsible for addressing threats or acts of terrorism and crisis management in connection with weapons of mass destruction. Barham Fed. Defs.' Statement of Material Facts ¶¶ 5-6. Prior to the September 27, 2002 demonstrations, the FBI participated in planning meetings where responses to possible scenarios that could arise during demonstrations were discussed. Id. ¶ 8. Based on prior instances of rioting and violence at such events and expected large crowds, the FBI also opened a Counter-Terrorism/Special Events case regarding the IMF/World Bank meetings. Rice Decl. ¶ 4.

During the September 27, 2002 demonstrations, FBI personnel were responsible for various tasks. Barham Fed. Defs.' Statement of Material Facts ¶ 12. FBI Joint Terrorism Task Force ("JTTF") personnel engaged in intelligence gathering through crowd surveillance. Rice Decl. ¶ 7; Gardner Dep. 38:4-39:19. The FBI also provided "liaison and assistance, as requested, to local law enforcement and fire-rescue personnel." Rice Decl. ¶ 4; Barham Fed. Defs.' Statement of Material Facts ¶ 7. Specifically, the FBI provided portable fingerprint processing equipment and thirteen FBI employees from the Criminal Justice Information System ("CJIS") Division to operate that equipment, in order to assist with post-arrest identification of those individuals arrested in Pershing Park. Strait Decl. ¶¶ 4, 7; Rice Decl. ¶ 9.

On September 27, 2002, the CJIS "fly-away team" operated portable fingerprint processing stations at the MPD Academy gymnasium where arrestees were detained after their arrest in Pershing Park. Strait Decl. ¶¶ 8, 10. CJIS personnel digitally scanned all fingerprint cards for fingerprints taken by the MPD and entered identification data from the cards into the Integrated Automated Fingerprint Identification System ("IAFIS") -- an FBI database that matches scanned fingerprints against existing fingerprints in the system. Strait Decl. ¶¶ 5, 8. One purpose of the IAFIS system is to provide a rapid means of confirming the identity of each arrested individual. Id. ¶ 9.

The FBI criminal history databases contain information regarding the arrest of at least some of the named plaintiffs who were arrested on September 27, 2002. Id. ¶¶ 16-18. Such information is maintained in the FBI's Fingerprint Identification Records System ("FIRS") and the National Crime Information Center ("NCIC") Interstate Identification Index ("III"). Id. ¶ 14.

Finally, some CJIS personnel took pictures in the MPD gymnasium with their own cameras. Id. ¶ 12. Some of the arrestees appear in some of these photographs. Id. The FBI claims, however, that these photographs are not of individual arrestees, were not taken at the direction of FBI personnel or with FBI equipment. Id.

D. Pending Motions

The federal defendants have filed motions to dismiss pursuant to Rules 12(b)(1) and/or 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In the Barham case, Civil Action No. 02-2283, the federal defendants argue in their motion that plaintiffs lack standing to bring claims for injunctive relief against the federal defendants, that the Park Police's actions did not constitute an arrest or seizure, or, alternatively, that the Park Police legitimately responded to a request for assistance from another law enforcement agency. As to the FBI, the federal defendants in the Barham case argue that none of the actions taken by the FBI in processing fingerprints violated any rights of any plaintiffs. Finally, the federal defendants in the Barham case also argue that claims brought against Richard Murphy in his individual capacity should be dismissed on qualified immunity grounds.

In the Chang case, Civil Action No. 02-2010, the federal defendants also argue lack of standing, that the Park Police did not arrest or seize anyone or, alternatively, responded to a legitimate request from law enforcement, and that Murphy is entitled to qualified immunity. In addition, the federal defendants in the Chang case argue that any claims for money damages against federal organizations and individual defendants in their official capacities are barred on sovereign immunity grounds. The federal defendants in the Chang case further argue that plaintiffs' claims under 42 U.S.C. §§ 1985 and 1986 lack merit and plaintiffs' Due Process, Miranda, and right to counsel claims should be dismissed for failure to state a claim.

The FCSD filed its own motion to dismiss, for summary judgment, or for a more definitive statement in the Chang case. In addition to incorporating the arguments of the federal defendants by reference, the FCSD argues that it should be dismissed from ...

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