United States District Court, District of Columbia
For RYAN BARTON LASH, Plaintiff: Jeffrey Louis Light, LEAD ATTORNEY, LAW OFFICE OF JEFFREY LIGHT, Washington, DC.
For JENNIFER LEMKE, Officer, in her individual capacity, TODD REID, Sergeant, in his individual capacity, Defendants: Marina Utgoff Braswell, LEAD ATTORNEY, U.S. ATTORNEYS OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.
JOHN D. BATES, United States District Judge.
Plaintiff Ryan Barton Lash brings this action against defendants Officer Jennifer Lemke and Sergeant Todd Reid of the United States Park Police. Lash claims that defendants' actions violated his Fourth and First Amendment rights, and requests damages under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999,
29 L.Ed.2d 619 (1971). Now before the Court is  defendants' motion to dismiss or, in the alternative, for summary judgment. Upon consideration of the motion, the opposition and reply thereto, and the entire record, and for the reasons described below, the Court will grant defendants' motion for summary judgment.
On January 29, 2012, Lash was participating in the " Occupy DC" movement in McPherson Square, where protesters had set up tents and makeshift shelters. Defs.' Stmt. of Mat'l Facts [ECF 12] (" Defs.' Stmt." ) ¶ ¶ 1, 2.  On that date, United States Park Police (" USPP" ) officers began posting notices on the tents and shelters to convey the government's intent to enforce no-camping regulations. Id. ¶ 2. In response, " some of the individuals in McPherson Square became agitated, verbally harassed the officers, and interfered" with the officers' distribution efforts. Id. ¶ 3. Lash swore at the officers, removed some of the notices from the tents, and put the notices in the trash. Id. ¶ 4. At this point, the parties' accounts of the facts diverge.
According to Lash, Officer Jennifer Lemke informed him that if he took down another notice, he would be arrested for disorderly conduct. Pl.'s Mem. in Opp'n. to Defs.' Mot. Dismiss or Summ. J. [ECF 15] (" Pl.'s Opp'n." ) at 6. Lash then ceased taking down notices and walked away. Id. As he walked away, he said to a group of USPP officers, " You want us to clean up the trash in the park, right? Well[,] here's your fucking trash[,] you fucking pigs." Id. He then crumpled up the notices he had removed and put them in the trash. Id. Officers Lemke, Frank Hilsher, and Tiffany Reed, with Sergeant Todd Reid present, approached Lash, who said, " Why are you coming at me?" Id. Lash states that he " began walking around the park," but " did not attempt to run away or escape." Id. When the officers approached him, Lash claims that he did not see Officer Reed behind him and was " [s]tartled" when she tried to " grab his arms and pull them behind his back." Id. at 6-7. " Because he was being grabbed from behind, [Lash] did not know who was touching him." Id. Officer Hilsher then stepped in to help restrain Lash. Id. At that point, according to Lash, " [he] noticed it was Park Police Officers grabbing him [and] he allowed the officers to place his arms behind his back." Id. Lash alleges that Officer Lemke then tased him. Id.
In contrast, defendants contend that when the officers approached Lash after seeing him remove the notices, Lash " tried to get away from them." Defs.' Stmt. ¶ 5. When the officers attempted to arrest Lash, he refused to cooperate and physically resisted. Id. ¶ 6. The officers then " tried to wrestle him to the ground," but Lash continued to actively resist. Id. ¶ 7. Officer Lemke removed her taser from its holster, but did not use it immediately. Id. ¶ 8. Lash refused to cease his active resistance, so Officer Lemke tased him. Id.
In addition to their written accounts of the facts, the parties also submitted video exhibits--one submitted by Lash and two submitted by defendants--that depict the events leading up to and during the arrest
and taser deployment. See Exs. A, B to Defs.' Mot. Dismiss or Summ. J. [ECF 13]; Ex. 17 to Pl.'s Opp'n [ECF 16]. Lash's video exhibit begins with six USPP officers and several protesters standing next to tents in what appears to be McPherson Square. Ex. 17 to Pl.'s Opp'n at 0:00-0:12.  The protesters use profanity and yell at the officers. Id. Lash, wearing a red shirt and patterned pajama pants, bursts out of one of the tents. Id. at 00:15-00:17. He approaches the officers and yells, " You guys want to come at us tomorrow . . . I'm going to be one of the sleep strikers." Id. at 00:20-00:33. He then continues to yell about how he plans not to sleep for days and proclaims, " this is our park," while another protester yells, " bring it on, bitch," to the officers. Id. at 00:33-00:42.
Lash then tries to pull a wooden stake out of the ground. Id. at 00:48-00:50. When two of the officers see Lash's activity, they make downward motions with their hands--apparently indicating that he should stop trying to pull out the stake. It is not clear if the officers say anything to Lash or touch him, but Lash repeatedly yells, " Get your hands off me." Id. at 00:50-00:56. The officers then walk away and Lash yells at them to " get away from my tent." Id. at 00:56-1:06.
Lash follows the officers, yelling that they should come back tomorrow morning and that he is not going to sleep for days. Id. at 1:06-1:17. The officers stop to turn around and face him, and Lash continues to yell, but it is difficult to hear what he is saying. It is not clear whether the officers have said anything to Lash at this point. The officers walk away for the second time, but Lash follows them and yells, and the officers turn around to face him again. Id. at 1:17-1:48. The officers walk away a third time, and Lash continues to follow them. Id. at 1:48-2:07. The officers and Lash then walk out of view of the camera, but Lash can be heard yelling, " We all know you are coming tomorrow. You're coming tomorrow, big fucking deal. We're aware. What difference does this make" --apparently in reference to the notices. Id. at 2:07-2:26. The video then shows Lash standing in front of several officers yelling, " Tell me what difference does it make," while he loudly claps his hands to punctuate his words. Id. at 2:26-2:30. Lash continues to yell at the officers and makes hand gestures toward them. Id. at 2:30-2:39.
The camera focuses elsewhere for a few moments, and when it refocuses on Lash and the officers, Lash is repeatedly yelling, " fuck your notices," and taking notices off the tents. Id. at 2:39-2:53. Lash quickly walks away from where the officers are standing and continues to tear down notices and yell. Id. at 2:53-3:16. The video then shows Lash walking by some tents with a handful of what appear to be crumpled notices as five USPP officers follow behind him in a single line, maneuvering between tents. Id. at 3:07-3:21. Lash yells, " What's a disorderly conduct on that," and quickly walks away in the background. Id. at 3:21-3:29. The officers appear to briefly talk to each other in the foreground, but their voices are inaudible. Id. Lash then yells, " . . . fucking notices, watch how many I ripped down." Id. at 3:29-3:35. The video then shows the officers walking in Lash's direction. Id. at 3:35-4:03. Lash yells something about " trash," which may be when he throws the notices in the trash, as described in Lash's account of the events. Id.; see also Pl.'s
Opp'n at 6; Compl. [ECF 1] ¶ 13. Throughout the video, there are many protesters standing around or following the officers, and sometimes yelling at the officers. It is not clear whether the officers ever say anything to Lash because their voices are inaudible throughout. The video concludes with the police attempting to restrain Lash and, eventually, tasing him, but it ...