Ferris v. Dist. of Columbia
| Docket Number | 1:23-cv-481-RCL |
| Decision Date | 15 December 2023 |
| Parties | ELIZABETH FERRIS, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
In response to the murder of George Floyd in the summer of 2020 protests swept the District of Columbia. Four plaintiffs, who participated in these demonstrations, have filed this lawsuit against the District of Columbia and officers of the Metropolitan Police Department (MPD), including former Chief Peter Newsham, former Inspector Robert Glover, Sergeants Daniel Thau and Anthony Alioto, and Officers James Crisman Anthony Campanale, Stephen Chih, Justin Jordan, Michael Murphy, Gregory Rock, Nicholas Smith, Tara Tindall, and Eric Watson (the “Individual Defendants”). Plaintiffs allege that MPD deployed harmful, indiscriminate “less lethal” munitions against peaceful protestors, in violation of their First, Fourth, and Fifth Amendment rights and that both Individual Defendants and the District of Columbia are liable. They also claim the officers were negligent, and negligent per se based on violations of the District's First Amendment Assemblies Act (FAAA).
Defendants have moved to dismiss Plaintiffs' Amended Complaint. The question at this stage is not the propriety of MPD's handling of protests that summer. Instead, it is much narrower: Have these plaintiffs adequately pleaded their specific legal claims? The Court concludes that Plaintiffs' First Amendment claims against the Individual Defendants and the District of Columbia may proceed. But Plaintiffs have failed to adequately allege violations of their Fourth or Fifth Amendment rights. And while Plaintiffs' FAAA negligence per se claim survives, their negligence claims do not.
Accordingly, the Court will GRANT in part and DENY in part Defendants' Motion to Dismiss.
In deciding a motion to dismiss, the Court must “assume the truth of all material factual allegations in the complaint.” See Am. Nat. Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C. Cir. 2011). Although Defendants reference facts about police-related protests in the District during the summer of 2020, the Court will not consider that information at this stage.[1]
Plaintiffs' claims arise out of racial justice demonstrations that took place in the District in the summer of 2020 in response to the murder of George Floyd and other instances of police use of force. Plaintiffs allege that in four separate incidents, MPD officers used force against peaceful protesters, including the Plaintiffs, inflicting injury and “extreme pain.” Amend. Compl., ECF No. 16, ¶ 3. In particular, they allege that MPD “engaged in repressive and violent tactics including the authorized indiscriminate use of ‘less lethal' projectile weapons against peaceful protestors and bystanders, gratuitously and without notice or warning to intentionally retaliate against and inflict pain upon protestors challenging policing in our society.” Id. ¶ 1. Plaintiffs define a less lethal munition as “any munition that may cause bodily injury or death through the transfer of kinetic energy and blunt force trauma, including rubber or foam-covered bullets, stun grenades and sting ball munitions.” Id. ¶ 40. Some less lethal munitions are inherently indiscriminate. For instance, sting ball grenades launch hard rubber shrapnel toward people in all directions. Id. ¶¶ 15-17.
Plaintiffs' claims center on four specific events during the summer of 2020. Different sets of MPD officers were involved in the incidents, but in each case then-Inspector Robert Glover of MPD “authorized and directed the use of less lethal munitions against the respective crowds.” Amend. Compl. ¶ 31. And throughout the summer MPD's Chief of Police Peter Newsham “had full power, authority, and responsibility for the conduct, control, and discipline of the force,” and “had full decision-making authority for the MPD's day-to-day strategic and tactical decisions.” Id. ¶ 26; see also D.C. Code § 5-105.05 (2023) (). Plaintiffs allege that then-Chief Newsham “supervised, ordered, directed, authorized, and/or caused the violations alleged” in the Amended Complaint. Amend. Compl. ¶ 26. That is because “at each of the incidents” at issue, he “was in the command center or on the scene monitoring events and engaging in command supervision and directives,” id. ¶ 104, and he “directed and/or authorized the use of less lethal projectile weapons and was responsible for the officers' response on the scene,” id. ¶ 105.
Plaintiffs also allege that all four incidents “occurred as part of the standard practice or policy of the MPD of using unwarranted, excessive, unconstitutional force against individuals exercising their First Amendment rights to stand against police violence.” Id. ¶ 8. In particular, Plaintiffs allege that MPD' express policy authorized the use of less lethal weapons against groups including peaceful protestors without audible warnings or orders to disperse and even in the absence of any violence. Id. ¶¶ 72-83. Indeed, Plaintiffs cite a report by the District of Columbia Office of Police Complaints examined MPD's response to protests in 2017 and found MPD's standard operating procedure “permits the use of less than lethal weapons at First Amendment assemblies” but “is silent as to whether a warning is required in advance of deploying a less than lethal weapon.” Id. ¶ 68. As a result, less lethal weapons “appeared to be deployed as a means of crowd control, and not necessarily in response to an unlawful action.” Id.
The Court will recount each incident in turn.
Katherine Crowder came to Washington, D.C. on May 30, 2020 to participate in protests “demanding an end to racist police violence.” Amend. Compl. ¶ 111. Around 10:00 PM, Ms. Crowder and fellow protesters came upon a line of MPD officers. Id. ¶ 117. Ms. Crowder reprimanded an MPD officer she had witnessed pepper spraying a protestor. Id. ¶¶ 121-23. Moments later, Sergeant Thau and Officers Crisman, Rock, and Tindall intentionally discharged less lethal weapons into the peaceful crowd. Id. ¶ 125. An unknown less lethal device exploded near Ms. Crowder, ejecting shrapnel or projectiles that cut and bruised her elbow. Id. ¶¶ 125-31, 151. As Ms. Crowder began to flee, another unknown device exploded near her. Id. ¶¶ 134-35. Ms. Crowder had been “non-threatening and peaceful and did not engage in any destructive activity.” Id. ¶ 141. According to the Amended Complaint, “[n]o orders or directives were issued to” Ms. Crowder and she was “given no warning or notice that munitions were about to be deployed at or near her.” Id. ¶¶ 136-40.
Elizabeth Ferris attended a peaceful march near Lafayette Park on May 31, 2020. Amend. Compl. ¶¶ 177-83. A line of MPD officers eventually blocked the crowd's progress. Id. ¶ 188. “Without warning, notice, or justification,” the officers confronted the protestors, with teams discharging indiscriminate sting ball munitions into the crowd. Id. ¶¶ 198-204, 215. Sergeant Thau and Officers Campanale, Chih, Crisman, Tindall, and Watson intentionally deployed a less lethal munition that exploded near Ms. Ferris. Id. ¶ 210. The munition sent projectiles flying. At least nine struck Ms. Ferris in the leg, causing pain, disorientation, and difficulty walking. Id. ¶¶ 214, 228, 229. MPD “issued no directives” or warning to Ms. Ferris. Id. ¶¶ 207-11.
On August 29, 2020, Hazie Crespo accompanied friends to a protest at “Black Lives Matter Plaza” (BLM Plaza), a stretch of 16th Street N.W. the District had set aside as a safe space for assembly and protest. Amend. Compl. ¶¶ 233-34, 239. Ms. Crespo had been given no directives from police or warning when Sergeants Alioto and Thau, and Officers Campanale, Crisman, Jordan, and Murphy launched sting ball munitions into the peaceful crowd. Id. ¶¶ 249-54, 271. One device exploded near Ms. Crespo, burning and wounding her leg. Id. ¶¶ 256-59. Ms. Crespo had received “no directive as to what she should do to avoid being subject to force” and “no warning or notice that munitions were about to be deployed at or near her.” Id. ¶¶ 252-53.
On August 30, Ms. Ferris participated in another protest, joining a march to “[a]bolish the police.” Amend. Compl. ¶¶ 282-83. By the early hours of August 31, Ms. Ferris and other protestors had ended up around BLM Plaza. Id. ¶ 286. Without issuing orders to Ms. Ferris or others in her vicinity, MPD officers launched smoke or gas devices into the crowd, causing Ms. Ferris to retreat from the police. Id. ¶¶ 289, 296. As she was doing so, Officers Campanale, Jordan, Rock, and Smith intentionally launched projectiles or sting ball grenades at or near Ms. Ferris, hitting her and causing injury and pain. Id. ¶¶ 297, 301, 307. Ms. Ferris was “given no directive as to what she should do to avoid being subject to force” and “was given no warning or notice that munitions were about to be deployed at or near her.” Id. ¶¶ 304-05.
Plaintiffs brought suit in this Court against the District of Columbia and the Individual Defendants on February 22, 2023. See Compl., ECF No. 1. On April 28, 2023, they filed an Amended Complaint. See Amend. Compl. The Amended Complaint alleges thirteen counts: a 42 U.S.C. § 1983 claim by Ms. Crowder against the District of Columbia for violation of Ms. Crowder's First Amendment rights by unconstitutionally restricting and chilling ...
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