Goodwin v. Dist. of Columbia

579 F.Supp.3d 159

Pamela GOODWIN, et al., Plaintiffs,

v.DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 21-cv-806 (BAH)

United States District Court, District of Columbia.

Signed January 13, 2022

Gemma Donofrio, Jennifer I. Klar, Kali Schellenberg, Gabriel Diaz, Tara K. Ramchandani, Relman, Dane & Colfax PLLC, Washington, DC, for Plaintiffs.

Amanda Catherine Pescovitz, Philip Alexander Medley, Matthew Dennis Trout, Office of the Attorney General for the District of Columbia, Civil Litigation Division, Washington, DC, for Defendant District of Columbia.

Amanda Catherine Pescovitz, Matthew Dennis Trout, Office of the Attorney General for the District of Columbia, Civil Litigation Division, Washington, DC, for Defendants Peter Newsham, Robert Glover, Andrew Horos, Carlos Mejia, James Crisman, Steven Quarles.

Amanda Catherine Pescovitz, Office of the Attorney General for the District of Columbia, Civil Litigation Division, Washington, DC, for Defendant John Doe Officers 1-50.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Eight individual plaintiffs, who participated in the summer 2020 demonstrations protesting police brutality and misconduct in the District of Columbia ("District") in the wake of George Floyd's murder, have filed the instant lawsuit against the District and officers of the Metropolitan Police Department ("MPD"), including former Chief Peter Newsham, Supervisory Officer Robert Glover, Lieutenants Andrew Horos and Carlos Mejia, Officers James Crisman and Steven Quarles, and fifty yet-to-be-identified John Doe MPD Officers ("Doe Officers"), claiming alleged violations of plaintiffs’ First and Fourth Amendment rights, pursuant to 42 U.S.C. § 1983, and common law assault and battery and a statutory claim of negligence per se under the D.C. Code. First Am. Compl. ("Am. Compl.") ¶¶ 1, 26-28, ECF No. 39. Citing the District's policies, practices, and customs for handling public demonstrations, plaintiffs allege that defendants responded to their peaceful protest activities with excessive force in retaliation for plaintiffs’ rallying against police brutality and misconduct. Id. ¶¶ 3, 6.

Defendants now move, under Federal Rule of Civil Procedure 12(b)(6), to dismiss three of the four counts in the amended complaint for failure to state a claim. See Defs.’ Mot. for Partial Dismissal Am. Compl. ("Defs.’ Mot."), ECF No. 24; Defs.’ Mem. Support of Mot. for Partial Dismissal ("Defs.’ Mem.") at 1, ECF No. 24. For the reasons explained below, defendants’ partial motion to dismiss is denied.

I. BACKGROUND

The relevant factual background and procedural history is summarized below.

A. Factual Background

The facts underlying plaintiffs’ claims from the original complaint filed in this case have been previously outlined, see Goodwin v. District of Columbia , No. 21-cv-806 (BAH), 2021 WL 1978795 (D.D.C. May 18, 2021), and are summarized again below based on the amended complaint.

1. Plaintiffs Join Demonstrations Around the District of Columbia

On June 1, 2020, plaintiffs separately convened with other demonstrators in different parts of the District peaceably to protest police brutality following the deaths of George Floyd in Minnesota and Tony McDade, a Black transgender man killed by police officers in Florida. Am. Compl. ¶¶ 26-30. Six of the plaintiffs—Pamela Goodwin, Allison Lane, Jenny Lazo, Sebastian Medina-Tayac, Jesse Pearlmutter, and Priyanka Surio—joined a demonstration near the White House, id. ¶ 29, while plaintiffs Osea Remick and Eliana Troper first attended a vigil at Dupont Circle in memory of Tony McDade, id. ¶¶ 28, 30. After attending the vigil, Remick and Troper headed towards the demonstration near the White House. Id. ¶ 30. While attending these demonstrations, plaintiffs "did not engage in any violent or destructive behavior ... nor did they witness any such behavior from other demonstrators," id. ¶¶ 29, 30.

Once the demonstration at the White House dissipated, all plaintiffs, along with other protesters, headed northwest to return to "their respective homes or to continue their protest activities." Id. ¶ 31. Plaintiffs allege that "Defendant Newsham and other District law enforcement officials under his direction, including Defendants Glover, Horos, and Mejia, monitored" them and the other demonstrators "as the group continued to walk" following the White House demonstration. Id. ¶ 32. For the duration of the evening's demonstrations, Supervisory Officer Glover was specifically "responsible for setting up the command post and coordinating the actions of the other Defendants on the ground," whereas Lieutenants Horos and Mejia "facilitated the execution of ... Glover's commands." Id. ¶ 34.

As they approached 14^th Street NW, plaintiffs were first confronted by MPD officers. Id. ¶ 35. The officers deployed "aggressive intimidation tactics to try to prevent [plaintiffs] from engaging in their protest activities," such as driving police cars behind the protesters during their march to frighten the demonstrators "by suddenly speeding up ... and trying to drive through the group." Id.

Later, near the intersection of 14^th Street with Florida Avenue, MPD officers in police cars surrounded plaintiffs and their fellow protesters "without warning and without issuing commands to disperse or return home," and blocked the nearby side streets, effectively creating a police perimeter blocking plaintiffs and other demonstrators from leaving. Id. ¶ 36. Chanting "Hands Up, Don't Shoot" alongside other demonstrators, plaintiffs sought peacefully to continue walking up 14^th Street within this police perimeter, but allege that MPD officers, again without warning, detonated flash grenades and deployed pepper spray at some protestors.

Id. ¶¶ 37-39. Plaintiffs aver that the officers’ use of flash grenades and pepper stray was directed and authorized by then-Chief Newsham, who was responsible for overseeing the officers on scene as he monitored the demonstrations. Id. ¶ 40. Plaintiffs further allege that they "had not engaged in any violent or destructive behavior prior to MPD Officers detonating flash grenades and spraying demonstrators with pepper spray, nor had they observed any other demonstrator engaging in such behavior." Id. ¶ 41.

Shortly thereafter, plaintiffs and the larger group were forced by MPD officers "to turn west down Florida Avenue, south down 15^th Street NW, and then onto a side street, Swann Street NW, between 14^th and 15^th Streets." Id. ¶ 42.

2. Defendants’ Alleged Use of Kettling and Excessive Force on Swann Street

Once the demonstrators, including plaintiffs, were herded onto Swann Street, MPD officers, without giving any orders to disperse, physically surrounded and enclosed the group, preventing anyone from leaving. Id. ¶¶ 42-44. This is a "controversial" policing technique, referred to as "kettling," which plaintiffs allege is "an express policy MPD follows to confine individuals engaged in protected speech activities." Id. ¶ 44. The kettling was effectuated by groups of officers on bicycles and on foot from "MPD's specialized unit for handling demonstrations" after being called to the scene by Lieutenants Horos and Mejia upon the instruction of Supervisory Officer Glover. Id. ¶ 46. Restrained from leaving Swann Street and uncertain as to what would occur next, many demonstrators "cried and begged to leave," including plaintiff Goodwin, who unsuccessfully pleaded with an MPD officer to be released from the kettle because she had a young child awaiting at home. Id. ¶ 48. Plaintiffs aver that, in accordance with "the District's kettling policy and/or the directives of Defendant Newsham, Defendant Glover ordered and authorized the kettling and confinement of protestors on Swann Street." Id. ¶ 46.

A new group of officers, "dressed in riot gear and armed with shields, batons, pepper spray and other weapons," then arrived on Swann Street to replace the first set of MPD officers responsible for forming the kettle. Id. ¶ 50. "[A]lmost immediately, and without warning," these officers "brandished their shields and batons and began swinging them toward Plaintiffs and other demonstrators[,]" while yelling "move back" in unison and using their batons to enclose plaintiffs and demonstrators "in an increasingly smaller space." Id. ¶ 51. At this point, Supervisory Officer Glover authorized the MPD officers on scene to use force "[p]ursuant to the District's policies, practices, and customs for responding to demonstrations, and Newsham's directives." Id.

A ruckus ensued. While confined within the kettle, which made any movement difficult for plaintiffs and other demonstrators, id. ¶ 53, including any movement to comply with any police dispersal orders had such orders been given, MPD officers "attacked Plaintiffs and others within the kettle by deploying excessive amounts of pepper spray at them," id. ¶ 54, in their faces or on or near their bodies, and caused plaintiffs to experience "intense burning sensations in their lungs, eyes, faces, throats, and chests; severe coughing and difficulty breathing; and disorientation," id. ¶ 57. The complaint specifically alleges that Officer Crisman, among other officers, pepper sprayed plaintiffs Goodwin, Lane, Lazo, and Troper, and that Lieutenant Horos, among other officers, pepper sprayed plaintiff Pearlmutter. Id. ¶ 58.

Plaintiffs further allege that MPD's use of force went beyond the deployment of chemical agents to involve "violent physical force," id. ¶ 61, with MPD officers "hit[ting] demonstrators, prodd[ing] and shov[ing] them with batons, knock[ing] them to the ground, and pinn[ing] them against cars and trees," id. ¶ 62. For instance, around the same time that plaintiffs were pepper sprayed, Officer Quarles allegedly struck plaintiff Surio with his police shield "even though [plaintiff] had done nothing to warrant the physical force that he used against her." Id. ¶ 52. A different officer "suddenly and violently pushed another person" against plaintiff Medina-Tavac,...