Usoyan v. Republic of Turk., Civil Action No. 18-1141 (CKK)

• Decision Date: 06 February 2020
• Docket Number: Civil Action No. 18-1141 (CKK)
• Citation: 438 F.Supp.3d 1
• Parties: Lusik USOYAN, et al., Plaintiffs v. REPUBLIC OF TURKEY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

438 F.Supp.3d 1

Lusik USOYAN, et al., Plaintiffs

v.REPUBLIC OF TURKEY, et al., Defendants.

Civil Action No. 18-1141 (CKK)

United States District Court, District of Columbia.

Filed February 6, 2020

Douglas Morton Bregman, Stephen J. Whelan, Bregman, Berbert, Schwartz & Gilday, LLC, Bethesda, MD, Steven Robert Perles, Edward B. MacAllister, Emily Amick, Perles Law Firm, PC, Washington, DC, for Plaintiffs.

Andreas N. Akaras, Bregman, Berbert, Schwartz & Gilday, LLC, Bethesda, MD, for Plaintiffs Lusik Usoyan and John Doe, II.

Cathy A. Hinger, Christopher M. Schafbuch, Mark E. Schamel, Victoria Ann Bruno, Womble Bond Dickinson (US) LLP, David S. Saltzman, Saltzman & Evinch, P.C., Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge Two separate but factually similar cases¹ deal with events that took place at a May 16, 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 Turkish security forces and civilian supporters of President Erdogan in two altercations outside the Turkish Ambassador's Residence and one altercation near the Turkish Embassy. These attacks form the basis of Plaintiffs' various claims against multiple Defendants who include the Republic of Turkey ("Turkey"), individual members of the Turkish security forces, and civilian Defendants. As is relevant to this Memorandum Opinion, Defendant Turkey has moved to dismiss all claims in both cases, arguing that this Court lacks subject matter jurisdiction over claims against Defendant Turkey due to Defendant Turkey's sovereign immunity. Because Defendant Turkey's Motions to Dismiss present nearly identical factual and legal issues, the Court will resolve both Motions in one Memorandum Opinion.

Upon consideration of the pleadings,² the relevant legal authorities, and the record as a whole, the Court DENIES WITHOUT PREJUDICE Defendant Turkey's Motion to Dismiss. The Court concludes that Defendant Turkey has failed to establish that it is entitled to sovereign immunity as to the claims stemming from the violent physical attacks on May 16, 2017, which includes three discrete altercations, the second of which is most heavily relied upon by the Court. Pursuant to the Foreign Sovereign Immunities Act ("FSIA"), Plaintiffs' supported allegations fit within the tortious acts exception to sovereign immunity. And, Defendant Turkey has failed to carry its burden of persuasion to show that its acts fall within the discretionary function rule. For these reasons, the Court finds that Defendant Turkey has not proven its entitlement to sovereign immunity at this time on this record.

I. BACKGROUND

The Court's approach to resolving the issue of sovereign immunity in these cases has been informed by the parties' briefing. Throughout its briefing, Defendant Turkey argued that it has blanket sovereign immunity for any and all of the acts which transpired on May 16, 2017. Defendant Turkey does not address immunity for specific claims. And, Defendant Turkey does not distinguish between immunity for the first and second altercations occurring outside the Turkish Ambassador's Residence, which will be further discussed below. Plaintiffs in both cases take a similar approach, arguing that Defendant Turkey is not immune for the injuries they incurred on May 16, 2017, without differentiating their arguments for separate claims or altercations. Considering the parties' arguments and approach, the Court has focused on the second altercation outside the Ambassador's Residence, using the first altercation as background to inform Defendant Turkey's actions during the second altercation. Sovereign immunity as to any specific claims, particularly any claims arising solely out of the first altercation, would require additional development of the record and additional argument from the parties.

The Court notes that in setting out the factual background, the Court has been aided by the abundance of video evidence filed as exhibits by both parties. While some of the videos are repeated, the Court was able to view the events at issue from multiple camera angles through the ample video evidence submitted by the parties. This video evidence supplemented the parties' factual descriptions of the altercations which occurred outside the Turkish Ambassador's Residence and, later, near the Turkish Embassy. The Court has viewed all the video evidence submitted. As much of the video evidence is repeated by the parties in each case, the Court has cited to the video exhibits submitted by Defendant Turkey in Usoyan v. The Republic of Turkey , No. 18-cv-1141-CKK.

On May 16, 2017, President Erdogan visited the White House in Washington, D.C. to meet with United States President Donald Trump. Usoyan Compl., ECF No. 1, ¶ 19; Kurd Am. Compl., ECF No. 63, ¶ 51. Certain individuals, including Plaintiffs in both cases, assembled outside the White House adjacent to Lafayette Square. Usoyan Compl., ECF No. 1, ¶ 19; Kurd Am. Compl., ECF No. 63, ¶ 53. These individuals were gathered to protest President Erdogan and his policies, especially as those policies relate to the Kurdish minority in Turkey. Usoyan Compl., ECF No. 1, ¶ 20; Kurd Am. Compl., ECF No. 63, ¶ 55. The protesters had a valid permit to protest, and the protest outside the White House was peaceful. Usoyan Compl., ECF No. 1, ¶¶ 21, 22; Kurd Am. Compl., ECF No. 63, ¶ 53, 55.

Following his meeting with President Trump, President Erdogan visited the Turkish Ambassador's Residence located near Sheridan Circle in Washington, D.C. Kurd Am. Compl., ECF No. 63, ¶ 57. Ascertaining that the Ambassador's Residence would likely be President Erdogan's next location, some of the protesters, including Plaintiffs from both cases, decided to travel to the Ambassador's Residence. Usoyan Compl., ECF No. 1, ¶ 23; Kurd Am. Compl., ECF No. 63, ¶ 58. The protesters outside the Ambassador's Residence totaled approximately twenty individuals. Usoyan Compl., ECF No. 1, ¶ 24; Kurd Am. Compl., ECF No. 63, ¶ 61. The protesters were carrying signs, chanting, and had a bullhorn. Usoyan Compl., ECF No. 1, ¶ 24; Kurd Am. Compl., ECF No. 63, ¶ 63.

The protesters initially gathered on the Sheridan Circle sidewalk across the street from the Ambassador's Residence. Kurd Am. Compl., ECF No. 63, ¶ 62. By the time the protesters had arrived, many other individuals were already gathered on the sidewalk directly in front of the Ambassador's Residence, facing the protesters. Id. at ¶ 59. These individuals were gathered to support President Erdogan and included civilians as well as Turkish security forces. Id. The pro-Erdogan group greatly outnumbered the protesters and were standing in between the protesters and the entrance to the Ambassador's Residence. Usoyan Compl., ECF No. 1, ¶ 32; Kurd Am. Compl., ECF No. 63, ¶ 61. Both the protesters and the pro-Erdogan groups engaged in yelling, taunts, and threats. Usoyan, Def. Mot., Ex. 6, SC01, 0:35-0:45.

There is a dispute between the parties as to whether or not the protesters' presence on the sidewalk violated 18 U.S.C. § 112, which prohibits individuals from gathering within 100 feet of diplomatic, consular, or residential premises used by foreign governments or foreign officials if those individuals are gathered to or to attempt to intimidate, coerce, threaten, or harass the foreign officials. 18 U.S.C. § 112(b). For purposes of this Memorandum Opinion, the Court will assume, but not decide, that the protesters were, at times, in violation of 18 U.S.C. § 112. There is video evidence that the protesters did not remain on the Sheridan Circle sidewalk prior to the first altercation which resulted in violent physical attacks by both the protesters and pro-Erdogan groups.

In an effort to maintain peaceful interactions, United States law enforcement, including Metropolitan Police Department ("MPD") officers, were gathered between the protesters and pro-Erdogan groups. Despite the presence of law enforcement, at approximately 4:05 p.m., members of both groups engaged in a violent physical altercation. Usoyan Compl., ECF No. 1, ¶ 33. During this first altercation, both groups were no longer standing on their respective sidewalks and had, instead, gathered in the street which had previously been separating them. Usoyan, Def. Mot., Ex. 6, SC01, 0:20-45. The parties dispute whether this initial altercation was started by the protesters or by the pro-Erdogan group. However, the Court need not resolve this dispute as it is not material to the Court's resolution of the issue of sovereign immunity. What is relevant, and is evident from video evidence, is that both sides engaged in physical violence and that there were injuries on both sides. Usoyan, Def. Mot., Ex. 6, SC01, 0:45-1:02; SC02, 0:14-1:30.

This first altercation lasted less than a minute. Following the first altercation, United States law enforcement officers, including MPD officers, separated the groups. Kurd Am. Compl., ECF No. 63, ¶ 69. The protesters went back to the Sheridan Circle sidewalk across from the Ambassador's Residence. And, the pro-Erdogan group returned to the sidewalk directly in front of the Ambassador's Residence. Both sides were instructed to stay on their respective sidewalks. Usoyan, Def. Mot., Ex. 6, SC03, 0:00-0:37; SC04, 0:00-0:05. United States law enforcement officers, including MPD officers, lined up between the two groups, primarily facing the pro-Erdogan group. Usoyan, Def. Mot., Ex. 6, SC05, 0:00-0:37; SC06, 0:00-0:32. The pro-Erdogan group, including the Turkish security forces, repeatedly asked the United States law enforcement officers, including MPD officers, to force the protesters to leave in anticipation of President Erdogan's arrival. Usoyan, Def. Mot., Ex. 6, SC09, 0:50-2:15; 2:40-3:10. During this time, the shouting continued on both sides. Additionally, the protesters continued holding up their...