Black Lives Matter District Columbia v. Trump

• Decision Date: 21 June 2021
• Docket Number: No. 20-cv-1542 (DLF),No. 20-cv-1469 (DLF), No. 20-cv-1622 (DLF), No. 20-cv-2163 (DLF),20-cv-1469 (DLF)
• Citation: 544 F.Supp.3d 15
• Parties: BLACK LIVES MATTER D.C., et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants. Radiya Buchanan, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants. Isabella Kavanagh, Plaintiff, v. Donald J. Trump, et al., Defendants. Ryan Roth, Plaintiff, v. Donald J. Trump, et al., Defendants.
• Court: U.S. District Court — District of Columbia

544 F.Supp.3d 15

BLACK LIVES MATTER D.C., et al., Plaintiffs,

v.Donald J. TRUMP, et al., Defendants.

Radiya Buchanan, et al., Plaintiffs,

v.Donald J. Trump, et al., Defendants.

Isabella Kavanagh, Plaintiff,

v.Donald J. Trump, et al., Defendants.

Ryan Roth, Plaintiff,

v.Donald J. Trump, et al., Defendants.

No. 20-cv-1469 (DLF)

No. 20-cv-1542 (DLF)

No. 20-cv-2163 (DLF)

No. 20-cv-1622 (DLF)

United States District Court, District of Columbia.

Signed June 21, 2021

As Amended August 25, 2021

John Arak Freedman, Sonia Tabriz, Thomas Dallas McSorley, Arnold & Porter Kaye Scholer LLP, Arthur B. Spitzer, Scott Michelman, Michael Krevans Perloff, American Civil Liberties Union of the District of Columbia, David Ryan Brody, Jon M. Greenbaum, Noah Baron, Kaitlin Rose Banner, Dennis A. Corkery, Washington Lawyers’ Committee for Civil Rights & Urban Affairs, Washington, DC, for Plaintiffs Black Lives Matter D.C., J.N.C.

David Edward Kouba, John Arak Freedman, Sonia Tabriz, Thomas Dallas McSorley, Arnold & Porter Kaye Scholer LLP, Arthur B. Spitzer, Scott Michelman, Michael Krevans Perloff, American Civil Liberties Union of the District of Columbia, David Ryan Brody, Jon M. Greenbaum, Dennis A. Corkery, Noah Baron, Kaitlin Rose Banner, Washington Lawyers’ Committee for Civil Rights & Urban Affairs, Washington, DC, for Plaintiffs Toni Sanders, Kishon McDonald, Garrett Bond, Keara Scallan.

David Edward Kouba, Sonia Tabriz, Arnold & Porter Kaye Scholer LLP, Arthur B. Spitzer, Scott Michelman, American Civil Liberties Union of the District of Columbia, David Ryan Brody, Noah Baron, Kaitlin Rose Banner, Wash.Lawyers’ CMTE for Civil Rights & Urb.Affairs, Washington, DC, for Plaintiff Lia Poteet.

David Edward Kouba, Arnold & Porter Kaye Scholer LLP, Arthur B. Spitzer, Scott Michelman, American Civil Liberties Union of the District of Columbia, Washington, DC, for Plaintiff Dustin Foley.

Arthur B. Spitzer, Scott Michelman, American Civil Liberties Union of the District of Columbia, Washington, DC, for Plaintiff E.X.F.

Amanda LeSavage, Pro Hac Vice, Anne M. Champion, Pro Hac Vice, Katherine Michelle Marquart, Pro Hac Vice, Mylan L. Denerstein, Pro Hac Vice, Orin Samuel Snyder, Pro Hac Vice, Randy M. Mastro, Pro Hac Vice, Lee Ross Crain, Pro Hac Vice, Gibson, Dunn & Crutcher, LLP, New York, NY, Matthew Guice Aiken, Naima Lillian Farrell, Greta B. Williams, Gibson, Dunn & Crutcher LLP, Washington, DC, for Plaintiffs Radiya Buchanan, Ann Dagrin, Lindsay Field.

Patrick Michael Regan, Regan Zambri & Long, PLLC, Washington, DC, for Plaintiffs Ryan Roth, Isabella Kavanagh.

David Gregory Cutler, John BlairFishwick Martin, Joseph Alfonso Gonzalez, U.S. Department of Justice, Washington, DC, for Defendants Cara Seiberling, Nicholas Jarmuzewski, Jeffrey Hendrickson, Sean Cox, Bryan Mcdonald, Lawrence Sinacore, Jonathan Daniels, Luis eliciano, Mark Adamchik in 20-cv-1469 (DLF).

James George Bartolotto, Sarah Elisabeth Whitman, United States Department of Justice, Civil Division, Washington, DC, for Defendants Russell Fennelly, Mark Adamchik in 20-cv-1542 (DLF), Fnu Seberling.

Daniel S. Crowley, Hannon Law Group, Washington, DC, for Defendant Thomas Locasico.

Christopher A. Zampogna, Zampogna, P.C., Washington, DC, for Defendant Sean Kellenberger.

Christopher Charles Hair, Sean Patrick Mahard, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants Donald J. Trump, Mark T. Esper, Gregory T. Monahan, James M. Murray, William J. Walker, Michael D. Carvajal, James C. McConville.

Christopher Charles Hair, Sean Patrick Mahard, U.S. Attorney's Office for the District of Columbia, David Gregory Cutler, John BlairFishwick Martin, Joseph Alfonso Gonzalez, U.S. Department of Justice, Washington, DC, for Defendant William P. Barr in 20-cv-1469 (DLF).

Christopher Charles Hair, Sean Patrick Mahard, U.S. Attorney's Office for the District of Columbia, David Gregory Cutler, Kelly Elizabeth Heidrich, U.S. Department of Justice, Washington, DC, for Defendant William P. Barr in 20-cv-1622 (DLF), 20-cv-2163 (DLF).

Christopher Charles Hair, Sean Patrick Mahard, U.S. Attorney's Office for the District of Columbia, James George Bartolotto, Sarah Elisabeth Whitman, United States Department of Justice, Civil Division, Washington, DC, for Defendants William P. Barr in 20-cv-1542 (DLF), Mark T. Esper, William J. Walker, Gregory T. Monahan, James M. Murray.

Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant Michael Carvajal.

Brendan Russell Heath, Duane Gordon Blackman, Richard P. Sobiecki, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants Peter Newsham, Anthony Alioto, S. Buchanan, First Name Unknown Hargrove, C.W. Meyer, C.J. Murphy, T.C. Payne, First Name Unknown Taylor, Daniel M. Thau, Anthony A. Willis, Jeffery Carroll, Fnu Hargrove, Clifton Murphy, Thomas Payne, Fnu Taylor, Daniel Thau.

Brendan Russell Heath, Duane Gordon Blackman, Richard P. Sobiecki, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant Jeffery Carroll.

MinhChau Nguyen Corr, Ryan Carson Samuel, Office of the County Attorney, Arlington, VA, for Defendants Wayne Vincent, Ryan Black, Ryan Allen.

Brendan Russell Heath, Office of the Attorney General for the District of Columbia, Public Interest Division, Washington, DC, for Defendant John Roes 1-50.

Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant John Does.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge These lawsuits arise out of the law enforcement response to protests in Lafayette Square on June 1, 2020. In these related cases, four sets of plaintiffs bring various constitutional and statutory claims against federal and state officials and agencies, including former President Trump, seeking both damages and injunctive relief. Before the Court are fifteen motions to dismiss. For the reasons that follow, the Court will grant the motions in part and deny the motions in part.

I. BACKGROUND

A. Factual Allegations

Though the parties dispute various facts as alleged in the complaints, in deciding these motions to dismiss, the Court must accept as true all material factual allegations in the complaints. See Am. Nat. Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011). At this stage of the proceedings, the Court will not accept the defendants’ invitation to consider facts not explicitly alleged in the complaints.¹

The plaintiffs² allege that "peaceful protesters assembled in historic Lafayette Park across from the White House" to protest racial injustice after the death of George Floyd and other Black people at the hands of law enforcement. See Buchanan Am. Compl. ¶ 1 ("FAC"), Dkt. 29 (No. 1542). They further allege that, in response to the peaceful protest, "officials, wielding batons, sprayed the crowd with tear gas, flash-bang grenades, smoke bombs, and rubber bullets." Id. To the extent that any of the plaintiffs allege that the law enforcement officers provided warnings before dispersing the crowd, see, e.g., id. ¶ 56, they allege that these warnings were "futile and inadequate," id. , because they were given "via a megaphone approximately 50 yards away from the closest protestors," id. , and were "barely audible," id.

Though the plaintiffs urge the Court to consider the defendants’ changing justifications for clearing Lafayette Square, see id. ¶¶ 89–95, according to the Black Lives Matter ("BLM") plaintiffs, the "professed purpose" of this law enforcement response was "to clear the area to permit the President to walk to a photo opportunity at a nearby church," BLM Third Amended Complaint ¶ 4 ("TAC"), Dkt. 52 (No. 1469). Indeed, after Lafayette Square was cleared, President Trump, "the President's Chief of Staff, the Attorney General, the Secretary of Defense, the President's daughter, and senior advisors walked from the White House to St. John's Church on Lafayette Square," id. ¶ 203, where the President gave brief remarks and paused for a photo, id. The plaintiffs also catalog statements that former President Trump made both before and after the events of June 1—in public tweets and in private discussions with governors—that allegedly show hostility to racial justice protestors. See, e.g. , FAC ¶ 51 (quoting former President Trump instructing state governors: "You have to dominate. If you don't dominate, you're wasting your time.").

The plaintiffs further allege that "[t]he Department of Justice has officially acknowledged that Defendant Barr ordered Lafayette Square cleared minutes before the assault started." TAC ¶ 5; see also FAC ¶ 55 ("Barr personally ordered law enforcement personnel to extend the security perimeter around the White House and clear the streets around Lafayette Park."). "United States Park Police Major Mark Adamchik was the incident commander during this event and gave directives to and had authority over other officers present." FAC ¶ 55 (internal quotation marks omitted). In addition to U.S. Park Police officers, U.S. Secret Service agents, Federal Bureau of Prisons officials, Arlington County Police Department officers, and members of the District of Columbia National Guard helped clear Lafayette Square. Id. ¶ 4. The Buchanan plaintiffs also allege that District of Columbia Metropolitan Police Department (MPD) Officers assisted in the Square.³ Id.

"The unprovoked violence caused what news reports described as a blind panic" as the crowd dispersed from Lafayette Square. Id. ¶ 58 (internal quotation marks omitted). The crowd fled Lafayette Square to be met by additional District of Columbia MPD officers who deployed tear gas on the fleeing crowd. See TAC ¶¶ 100–04. The plaintiffs allege that they suffered injuries, both physical and psychological, as a result of the law enforcement response to the protest. For example, Isabella Kavanagh suffered second-degree chemical burns on her legs as a result of a chemical...