Kurd v. Republic of Turkey

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         This case deals with events that took place at a May 2017 protest over Turkish President Recep Erdogan's visit to the District of Columbia. Plaintiffs were protesting President Erdogan's policies when they allege that they were attacked by Defendants who include the Republic of Turkey, Turkish security forces, and civilian Defendants. As is relevant to this Memorandum Opinion, Plaintiffs have filed five claims against civilian Defendants Eyup Yildirim, Sinan Narin, and Alpkenan Dereci: assault, battery, intentional infliction of emotional distress, hate crimes under D.C. Code § 22-3704, and civil rights violations pursuant to 42 U.S.C. § 1985. Defendants have moved to dismiss each claim, either in part of in full, for failure to state a claim for which relief may be granted.

         Now before the Court are Defendants E. Yildirim and Narin's [21] Partial Motion to Dismiss Plaintiffs' Complaint and Defendant A. Dereci's [32] Partial Motion to Dismiss Plaintiffs' Complaint. Upon consideration of the pleadings, ^[1] the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART DENIES Defendants E. Yildirim and Narin's Partial Motion to Dismiss and Defendant A. Dereci's Partial Motion to Dismiss. The Court concludes that Plaintiffs have failed to state a claim for (1) conspiracy to commit battery, (2) intentional infliction of emotion distress as to Plaintiff Jalal Kheirabadi, and (3) violation of civil rights under 42 U.S.C. § 1985. Accordingly, these claims are DISMISSED WITHOUT PREJUDICE. However, the Court concludes that Plaintiffs have otherwise stated claims for which relief may be granted.

         I. BACKGROUND

         For the purposes of the motions before the Court, the Court accepts as true the well-pled allegations in Plaintiffs' Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).

         There are fifteen Plaintiffs bringing claims in this case against the Republic of Turkey, Turkish security forces, and five civilian Defendants. See generally Compl., ECF No. 1. Plaintiffs' claims arise out of a May 2017 visit by Turkish President Erdogan and Turkish Foreign Minister Mevlut Cavusoglu to the District of Columbia. Id. at ¶ 51. Their trip included a planned visit to the White House. Id. Upon learning that President Erdogan would be visiting the White House, leaders of the local Kurdish community planned a protest and applied for and were granted a permit to protest. Id. at ¶ 53. The Kurdish leaders intended to protest President Erdogan's treatment of the Kurdish ethnic minority in Turkey and other allegedly repressive practices. Id. at ¶¶ 45-50.

         During President Erdogan's White House visit, Plaintiffs and other individuals gathered in front of the White House “to express their opposition to the repression and abuses of the Erdogan regime.” Id. at ¶ 55. Also at the White House was a group that supported President Erdogan. But, the two groups remained separated. Id. at ¶ 56.

         Following his White House visit, President Erdogan planned to go to the Turkish Ambassador's Residence. Id. at ¶ 57. A group of anti-Erdogan protesters, including Plaintiffs, also went to the Ambassador's Residence in order to continue the protest. Id. at ¶ 58. When they arrived, a group of pro-Erdogan civilians, Turkish security officials, and individuals who appeared to be staff members from the Turkish delegation were already at the Residence. Id. at ¶ 59. Plaintiffs allege that this group included people who had accepted the Turkish Ambassador's invitation to come to the District of Columbia to show support for President Erdogan. Id. Defendants E. Yildirim, Narin, and A. Dereci were civilian members of the pro-Erdogan group. Id.

         Members of the pro-Erdogan group carried Turkish flags, while the protesters carried signs pertaining to Kurdish rights. Id. at ¶¶ 60, 62, 63. The protesters were outnumbered by the pro-Erdogan group and gathered on the sidewalk across from the Residence. Id. at ¶ 62. Plaintiffs allege that the pro-Erdogan group yelled threats and anti-Kurdish slurs at the protesters. Id. at ¶ 65. However, the pro-Erdogan group and the protesters were separated by Metropolitan Police Department officers and United States Secret Service officers who stood between the two groups, facing the pro-Erdogan group. Id. at ¶ 66.

         Despite the presence of the law enforcement officers, Plaintiffs allege that members of the pro-Erdogan group pushed past the officers and physically attacked the protesters. The attackers allegedly repeatedly hit, punched, and kicked the protesters, including Plaintiffs. Plaintiffs allege that Defendants E. Yildirim, Narin, and A. Dereci each participated in the attack. Id. at ¶¶ 67, 68. Plaintiffs specifically allege that during the first attack Defendant A. Dereci repeatedly punched Plaintiff Kheirabadi. Id. at ¶ 167. Plaintiffs also allege that Defendant E. Yildirim threatened and physically beat Plaintiff Kheirabadi during this first attack. Id. at ¶ 166.

         According to Plaintiffs, the first attack ended relatively quickly. Id. at ¶ 69. Following the first attack, law enforcement allegedly created a cordon to keep the pro-Erdogan group on the sidewalk and away from the protesters. Id. at ¶ 70. Despite this cordon, Plaintiffs allege that the pro-Erdogan supporters continued to attempt to bypass the officers. Id. at ¶ 71. During this time, Plaintiffs also allege that the pro-Erdogan group continued to yell ethnic slurs and make threats. Id. at ¶ 72. Additionally, Plaintiffs claim that the pro-Erdogan group played a Turkish nationalist song over a loud speaker. Id. at ¶ 78.

         After the first attack, one of the Defendants allegedly told a law enforcement officer, “we are waiting [for] you to take them out, because President [Erdogan] is coming. If you don't take … I will take.” Id. at ¶ 74. Plaintiffs further claim that the Turkish Ambassador to the United States told a law enforcement officer, “I am the ambassador. You cannot let this … you cannot touch us.” Id. at ¶ 75. And, Defendant E. Yildirim allegedly yelled at a law enforcement officer warning of potential violence if the protesters continued. Id. at ¶ 76. Defendant E. Yildirim also allegedly called the protesters “dirty bastards” and yelled “shut the fuck up, bitch!” to a protester.

         Id. Plaintiffs further claim that Defendant Narin called on the pro-Erdogan group to line up in the street, ignoring the commands of law enforcement. Id. at ¶ 77. Defendant Narin explained that he was ignoring law enforcement's orders because “[m]y President is coming, I don't want them to be over there.” Id.

         At some point during or shortly after the first attack, Plaintiffs allege that President Erdogan arrived at the Residence. President Erdogan remained in his car in the driveway of the Residence. Id. at ¶ 79. Plaintiffs allege that President Erdogan's head of security, Mushin Kose, leaned into President Erdogan's car to confer with the President. Id. Plaintiffs claim that President Erdogan ordered a second attack on the protesters. Id. at ¶ 80. According to Plaintiffs, after speaking with President Erdogan, Mr. Kose communicated with other Turkish security officials both in person and through an electronic communication device. Those Turkish security officials then hurried toward the protesters. Id. Moments later, Plaintiffs allege that Turkish security officials and civilian Defendants broke through the law enforcement cordon in a “coordinated” fashion. Id. at ¶ 81.

         Plaintiffs claim that the second attack was longer and more violent than the first. Id. Plaintiffs allege that Turkish security officials and civilian Defendants bypassed the law enforcement cordon and chased, kicked, punched, and grabbed protesters. Plaintiffs allege that the violence was unrelenting and that the attackers surrounded and kicked protesters who had fallen onto the ground. Id. During the attack, Plaintiffs claim that the attackers yelled anti-Kurdish slurs and threats. Id. at ¶ 82. Plaintiffs further claim that United States law enforcement officers attempted to stop the attack, but the attackers would not listen. Id. at ¶ 86.

         Specifically, Plaintiffs allege that during the second attack Defendants E. Yildirim and Narin attacked Plaintiff Elif Genc by repeatedly kicking her and threatening her. Id. at ¶ 160.

         Plaintiffs further assert that Defendant E. Yildirim kicked Plaintiff Murat Yasa in his body and threatened Plaintiff Yasa by telling him that he would make life miserable for the Kurds. Id. at ¶¶ 188, 191.

         Eventually, law enforcement officers were able to stop the attack. Following the attack Plaintiffs claim that Defendants tore up and threw the protesters' signs. Id. at ¶ 89. Plaintiffs contend that Defendant E. Yildirim stomped on one of the protester's flags. Id.

         In the days after the attack, multiple members of the United States government condemned the attacks. Id. at ¶¶ 196-207. In June 2017, the United States Attorney's Office charged Defendant Narin with aggravated assault and assault and Defendant E. Yildirim with aggravated assault and assault with significant bodily injury, all committed based on the actual or perceived race or ethnicity of the victims. Id. at ¶ 208. Defendants E. Yildirim and Narin later pled guilty to assault with significant bodily injury, and Defendant E. Yildirim pled guilty to assaulting Plaintiff Yasa. Id. at ¶ 212. In August 2017, a District of Columbia grand jury indicted 19 individuals for their role in the attacks. These individuals included fifteen Turkish security officials and four civilians. Id. at ¶ 209. It is not clear from the Complaint whether or not Defendants E. Yildirim, Narin, and A. Dereci were included among those civilians indicted. However, if they were ever indicted, the charges against them were later dropped. Id. at ¶ 211.

         On May 11, 2018, Plaintiffs filed this lawsuit, bringing seven claims in total, but only five of which are against the civilian Defendants. See generally Id. On July 16, 2018, Defendants E. Yildirim and Narin filed a joint partial motion to dismiss. And, on August 24, 2018, Defendant A. Dereci also filed a partial motion to dismiss. The majority of the arguments in Defendants' motions to dismiss are the same. Accordingly, the Court will address both motions in this Memorandum Opinion. The discussion in this Memorandum Opinion pertains to only Defendants E. Yildirim, Narin, and A. Dereci as they are the only Defendants who have filed motions to dismiss.

         II. LEGAL STANDARD

         Defendants E. Yildirim, Narin, and A. Dereci move to dismiss at least partially each of Plaintiffs' claims against them under Federal Rule of Civil Procedure 12(b)(6). Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must construe the complaint in the light most favorable to the plaintiff and accept as true all reasonable factual inferences drawn from well-pled factual allegations. See In re United Mine Workers of Am. Emp. Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C. 1994).

         III. DISCUSSION

         Plaintiffs bring five claims against Defendants E. Yildirim, Narin, and A. Dereci. In Count one, each Plaintiff alleges assault against each Defendant. Compl., ECF No. 1, ¶¶ 228-34.

         In Count 2, thirteen Plaintiffs allege battery against each Defendant. Id. at ¶¶ 235-40. In Count 4, twelve Plaintiffs bring intentional infliction of emotional distress claims against each Defendant. Id. at ¶¶ 245-50. In Count 5, each Plaintiff brings a hate crime claim against each Defendant under D.C. Code § 22-3704. Id. at ¶¶ 251-57. Finally, in Count 7, each Plaintiff brings a civil rights violation claim against all civilian Defendants under 42 U.S.C. § 1985. Id. at ¶¶ 272-76. Defendants move to dismiss, at least in part, each of the claims against them.

         The Court concludes that Plaintiffs have sufficiently stated a claim against Defendants for all claims except: (1) each Plaintiff failed to state a claim for conspiracy to commit battery against Defendants, (2) Plaintiff Kheirabadi failed to state a claim for intentional infliction of emotional distress against Defendants, and (3) each Plaintiff failed to state a claim for a civil rights violation against Defendants. Accordingly, the Court DISMISSES WITHOUT PREJUDICE these claims against Defendants E. Yildirim, Narin, and A. Dereci. The Court again notes that this Memorandum Opinion applies only to Defendants E. Yildirim, Narin, and A. Dereci as those are the only Defendants who have filed Motions to Dismiss.

         A. Count 1- Assault

          In Count 1 of their Complaint, all Plaintiffs allege assault against each Defendant. Compl., ECF No. 1, ¶¶ 228-34. Defendant E. Yildirim concedes that Plaintiffs Genc and Yasa have stated assault claims against him. Defs. Yildirim and Narin's Mot., ECF No. 21, 20 n.9. Defendant Narin concedes that Plaintiff Genc has stated an assault claim against him. Id. And, Defendant A. Dereci concedes that Plaintiff Kheirabadi has stated an assault claim against him. Def. Dereci's Mot., ECF No. 32, 17 n.9. But, Defendants request that the Court dismiss all other assault allegations for failure to state a claim.

         An assault is “‘an intentional and unlawful attempt or threat, either by words or acts, to do physical harm to the victim.'” Hall v. District of Columbia, 867 F.3d 138, 158 (D.C. Cir. 2017) (quoting Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C. 2007)). In order to state a claim for assault, “a plaintiff must show that he suffered apprehension of harmful or offensive contact and that a reasonable person in his position would have experienced such apprehension.” Collier v. District of Columbia, 46 F.Supp.3d 6, 14 (D.D.C. 2014).

         Defendants argue that all claims of assault, other than those mentioned above, should be dismissed because Plaintiffs have failed to specifically allege that Defendants threatened to make or made physical contact with Plaintiffs. Accordingly, Defendants contend that they did not put Plaintiffs in apprehension of harmful or offensive contact. Defendants explain that Plaintiffs are unlawfully attempting to hold them liable for assault based on their mere presence at the crime scene. The Court disagrees.

         In their Complaint, Plaintiffs allege that, during the first attack, “members of the pro-Erdogan group pushed past the police and physically attacked the Protesters. Turkish security officials and civilians repeatedly hit, punched, and kicked protesters, including Plaintiffs.” Compl., ECF No. 1, ¶ 67. Plaintiffs further allege that “all five individual Defendants in this action participated in the first attack.” Id. at ¶ 68. During the second attack, Plaintiffs explain that “[m]ultiple Turkish security officials and civilian Defendants beat and attacked protesters, who were outnumbered by the attackers. … [T]he attackers surrounded and kicked the protesters, including older men and young women, who had fallen and were defenseless on the ground.” Id. at ¶ 81.

         In addition to the two separate attacks in which Plaintiffs allege that each of the three Defendants participated, Plaintiffs also make specific allegations against each Defendant. For example, Plaintiffs allege that Defendant E. Yildirim yelled at an officer, warning him of violence if Plaintiffs continued their protest and that Defendant E. Yildirim physically attacked at least three Plaintiffs during the first and second attacks. Id. at ¶¶ 76, 160, 166, 171, 188, 191. Plaintiffs further allege that Defendant Narin attempted to organize the Pro-Erdogan group to line up in the street because he did not want the protesters present when President Erdogan arrived and that Defendant Narin physically attacked at least one Plaintiff during the second attack. Id. at ¶¶ 77, 160. And, Plaintiffs allege that Defendant A. Dereci repeatedly punched at least one Plaintiff during the first attack. Id. at ¶ 167.

         The Court concludes that Plaintiffs have alleged that each Defendant threatened to make or made physical contact with each of the Plaintiffs. According to Plaintiffs' Complaint, the three Defendants attacked Plaintiffs at least twice, placing each Plaintiff in reasonable apprehension of harmful or offensive contact. An assault does not require actual physical contact, so it is irrelevant that each Defendant did not actually touch each Plaintiff. What matters is that Plaintiffs have sufficiently alleged that each Defendant took an intentional action which placed each Plaintiff in reasonable apprehension of harmful or offensive contact by Defendants.

         Defendants point out that the majority of Plaintiffs' allegations on assault relate to all five civilian Defendants, referring to them as “civilian Defendants, ” or to all Defendants generally. Despite this group naming, the Court concludes that Plaintiffs sufficiently alleged that Defendants E. Yildirim, Narin, and A. Dereci intentionally participated in the attacks. Accordingly, referring, at times, to Defendants as a group does not prevent Plaintiffs from making a claim of assault.

         Defendants cite no case establishing that Plaintiffs' allegations are insufficient to state a claim for assault at the motion to dismiss stage. Defendants cite Hunter v. District of Columbia, 824 F.Supp.2d 125 (D.D.C. 2011), Chen v. District of Columbia, 808 F.Supp.2d 252 (D.D.C. 2011), and Garabis v. Unknown Officers of the Metropolitan Police, 961 F.Supp.2d 91, (D.D.C. 2013). But, each of these cases involved a motion for summary judgment which was granted because the plaintiffs failed to present evidence demonstrating that the defendants touched or threatened to touch them. Hunter, 824 F.Supp.2d at 138-39; Chen, 808 F.Supp.2d at 258-59; Garabis, 961 F.Supp.2d at 100-103. Those cases are not persuasive to the Court's analysis as this case is only at the motion to dismiss stage. It is possible that each Plaintiff will not be able to produce evidence showing that they were assaulted by each Defendant. But, the absence or presence of such evidence is not the issue currently before the Court. What matters at this stage is whether or not Plaintiffs have alleged that they were assaulted by Defendants. And, the Court concludes that they have done so.

         Defendants also cite cases requiring Plaintiffs to establish that the Defendants' actions were intentional. In considering these cases, the Court concludes that Plaintiffs have alleged intentional conduct.

         In Collier, the court dismissed the plaintiff's assault claim because the plaintiff had not alleged that the defendant “intentionally threatened him or attempted to cause him harm.” 46 F.Supp.3d at 14. Instead, the plaintiff alleged only that the defendant was the proximate cause of his battery by another individual. Id. The court explained that, even if the defendant had proximately caused the plaintiff's harm through his ...