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Chang v. United States

September 19, 2010


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


Pending before the Court is [574] Defendant District of Columbia's (the "District") motion for partial summary judgment on plaintiffs' claims for all equitable relief other than the expungement of their individual arrest records. The District moves for summary judgment on two alternative grounds. First, the District argues plaintiffs lack standing to seek prospective injunctive relief. Second, defendant claims plaintiffs are unable to seek this relief because they are bound by the proposed class settlement in the related case of Barham v. Ramsey, Civ. Action No. 02-2283 ("Barham"). On September 8, 2010, the Court ruled on the record in open court that plaintiffs were not bound by any of the provisions of the Barham class settlement. This Memorandum Opinion, therefore, addresses the remaining issue in the District's motion for partial summary judgment: whether plaintiffs have Article III standing to seek equitable relief. Upon consideration of the motion, the response and reply thereto, the parties' supplemental briefing, the arguments of counsel at the September 8, 2010 motions hearing, the applicable law, the entire record, and for the reasons set forth below, the District's motion for partial summary judgment is GRANTED.


This case is one of several which arose from events on September 27, 2002, during demonstrations in the District of Columbia protesting the policies of the World Bank, the International Monetary Fund, and the United States government. Chang Third Am. Compl. ¶¶ 42-43, 46.*fn1 On that date, plaintiffs, seven students from George Washington University, 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. Third Am. Compl. ¶¶ 20-27, 75-82. Plaintiffs were present at Pershing Park either as observers for the National Lawyers Guild or as journalists or photographers for The Hatchet, a George Washington University student newspaper. Third Am. Compl. ¶¶ 15, 18, 75-82. Plaintiffs allege that they were not engaged in any unlawful activity. Third Am. Compl. ¶¶ 75-82.

Nevertheless, police officers surrounded them and hundreds of others in Pershing Park, gave them no warning or order to disperse, and arrested them. Third Am. Compl. ¶¶ 76-82; see also Barham v. Ramsey, 434 F.3d 565, 569-70 (D.C. Cir. 2006) (finding that police gave no order to disperse, did not warn persons in Pershing Park that arrest was imminent, cordoned off the park, and arrested 386 people inside). Plaintiffs allege they were subsequently handcuffed, held on buses for up to 13 hours, and later detained at the Metropolitan Police Academy for up to 18 hours with one wrist cuffed to the opposite ankle. Third Am. Compl. ¶¶ 93-99.

Hundreds of other individuals were arrested and detained at various locations in the city during the September 27, 2002 protests, and several lawsuits followed. In addition to the Chang case, this Court presided over Abbate v. Ramsey, Civ. Action No. 03-767; Barham v. Ramsey, Civ. Action No. 02-2283; and Jones v. Dist. of Columbia, Civ. Action No. 02-2310, all stemming from arrests on that day. On September 24, 2003, this Court issued an Opinion and Order certifying a class action in the Barham case and acceding to the Chang, Jones, and Abbate plaintiffs' requests that they be permitted to opt out of the Barham class.

In the ensuing years, the plaintiffs in these other cases have settled their claims with the District. The Jones plaintiffs settled in 2004. See Jones, Civ. Action No. 02-2310, Doc. Nos. 36, 40. The Abbate plaintiffs settled in January 2005. The Abbate settlement provides for monetary relief as well as equitable relief including, inter alia, revisions to the District's mass demonstration policing policies and practices. See Abbate, Civ. Action No. 03-767, Doc. No. 99. The Barham class reached a settlement agreement with the District in February 2010, which was preliminarily approved by this Court on March 30, 2010. See Barham, Civ. Action No. 02-2283, Doc. Nos. 595, 599. Among the equitable relief negotiated in the Barham settlement is the District's creation and implementation of a document management and retention system, which is intended to "ensure the preservation of records and documents arising from mass demonstrations and protests[.]" Barham, Civ. Action No. 02-2283, Settlement Agreement, Doc. No. 595-3 at 9.

There have been other changes impacting police policies and procedures during mass demonstrations over the last eight years as well. In 2005, the District of Columbia City Council passed the First Amendment Rights and Police Standards Act ("FARPSA"). See D.C. Code §§ 5-331.01, et seq. FARPSA includes provisions which (1) require the police to give clear and audible warnings to disperse at future protests and provide opportunities to exit protest areas; (2) prohibit arrest for parading or demonstrating without a permit; (3) prohibit wrist-to-ankle restraint of persons arrested in connection with a First Amendment assembly; and (4) require that persons arrested in connection with a First Amendment assembly be released within four hours. See id. Finally, in June 2010 another federal judge approved a class action settlement in an additional protest case, Becker v. Dist. of Columbia, Civ. Action No. 01-811. The Becker settlement also contains equitable relief provisions, including mandatory training for all District police regarding First Amendment assemblies and mass demonstrations. See Becker v. Dist. of Columbia, Civ. Action No. 01-811, Doc. No. 358-5 at 8-10.

In sum, while the other mass demonstration actions against the District have settled, the Chang case continues. The plaintiffs do not and never have sought preliminary injunctive relief; instead, they seek permanent injunctive relief, declaratory relief, and damages. Only the requests for declaratory and injunctive relief, not including the expungement of plaintiffs' individual arrest records, are at issue in this motion.*fn2 Plaintiffs' requests for relief include: (1) an order declaring that the arrest and confinement procedures utilized are unconstitutional; and, (2) a requirement that clear and audible warnings to disperse be given at future protests, with opportunities for individuals to exit areas of protest. See Third Am. Compl., Prayer for Relief ¶¶ a, b. Elsewhere in their complaint, plaintiffs seek injunctive relief "to protect the plaintiffs and the public from the policy, custom and/or practice of using excessive force to prevent individuals from leaving trap-and-arrest zones," and "to protect the plaintiffs and the public from a policy, custom and/or practice of keeping arrested individuals in restraints or handcuffed for excessive periods[.]" Third Am. Compl. ¶¶ 3-4. In their opposition to the District's motion for partial summary judgment, plaintiffs describe the relief they seek as "a consent decree that would provide an enforcement mechanism for illegal arrest practices." Pls.' Opp'n at 22-23.

Since the commencement of the lawsuit, plaintiffs' numbers have dwindled to four. See Doc. No. 147 (dismissing plaintiff Enright's claims against the District); Doc. No. 190 (reflecting the acceptance of the District's offer of judgment by plaintiffs Chastain and Young); Minute Order April 4, 2006 (entering judgment on the claims of Chastain, Young, and Enright against the District); Minute Order May 10, 2006 (granting the motion of plaintiffs' counsel to withdraw as counsel for Chastain, Young, and Enright). In December 2009, the District filed a motion for partial summary judgment regarding the remaining plaintiffs' claims for prospective injunctive and equitable relief. The parties conducted limited additional briefing and presented oral argument in early September 2010. The District's motion is now ripe for determination by the Court.


The standards for summary judgment motions regarding standing are the same as the standards for summary judgment motions generally. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)("Since [the elements of standing] are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.")

Under Federal Rule of Civil Procedure 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Celotex court explained:

In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient ...

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