COUNCIL OF THE DISTRICT OF COLUMBIA
WASHINGTON, D.C. 20004
KATHY PATTERSON
COUNCILMEMBER, WARD 3
CHAIRPERSON
COMMITTEE ON THE JUDICIARY
OFFICE: (202) 724-8062 FAX: (202) 724-8118
Councilmember Patterson's Statement on the Abbate v. Ramsey Settlement Agreement
January 24, 2005
I am pleased that one of the major Pershing Park cases
has reached settlement.
At the same time I deeply regret the actions of the
District of Columbia government in violating the liberty rights of so
many individuals. I regret that taxpayers are now paying for the
egregious actions of the government. And while I appreciate the findings
of the U.S. District Court, and Judge Sullivan's description of the
settlement as "historic," it is also regrettable that the
District government finds itself under the Court's oversight for another
three years, under the terms of the settlement.
And, finally, I am pleased that the D.C. Council took the
leadership to enact policies on behalf of the residents of the District
of Columbia in the First Amendment Rights and Police Standards Act of
2004 - landmark legislation that made today's settlement possible. The
legislation, approved by the Council in December and awaiting Mayor
Williams' signature this week, provides statutory guidelines for
handling political demonstrations and ensures the free speech and
assembly rights of residents and visitors to the nation's capital.
I look forward to Mayor Williams signing that
legislation, and I urge him to assume national leadership in promoting
consistent protection of civil liberties, through his role as president
of the National League of Cities.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JULIE ABBATE, et al., Plaintiffs, v. CHIEF CHARLES H. RAMSEY, et al., Defendants.
Civ. Action No. 03-00767 (EGS)
SETTLEMENT AGREEMENT BETWEEN DEFENDANTS THE DISTRICT OF COLUMBIA, CHIEF CHARLES H. RAMSEY, ASSISTANT CHIEF PETER J.
NEWSHAM AND PLAINTIFFS JULIE ABBATE, ALEXIS BADEN-MAYER, CHRISTOPHER DOWNES, ADAM EIDINGER, JOSEPH L. MAYER,
MINDI MORGAN, AND TOM ULRICH, COLLECTIVELY
Plaintiffs Julie Abbate, Alexis Baden-Mayer, Christopher
Downes, Adam Eidinger, Joseph L. Mayer, Mindi Morgan Mancuello, and Tom
Ulrich (collectively "Plaintiffs") sue defendants District of
Columbia and Charles H. Ramsey, (collectively the "District
Defendants") and Peter J. Newsham (collectively the
"Defendants"), in this matter, Julie Abbate, et. al, v. Chief
Charles H. Ramsey, et. al, 03CV00767 (EGS)(AK) asserting claims of
constitutional violations, pursuant to 42 U.S.C. Section 1983, and
common law tort claims, seeking damages, declaratory judgment, and
injunctive relief, costs, and attorney fees. The parties have engaged in
discovery, conducted motions practice, filed an interlocutory appeal and
cross-appeal, and participated in mediation and negotiations to resolve
this matter. Having done so, Plaintiffs and Defendants have agreed to
resolve this litigation, upon the following terms.
Scope of Settlement
Offer and Resultant Settlement
1. The Defendants' Settlement Offer
("Offer") and this resultant Settlement Agreement may only be
accepted jointly and collectively by all Plaintiffs in resolution and satisfaction of all claims that have been or could have
been brought by any of the Plaintiffs, their agents, heirs, and/or
assigns against any and all defendants in this case, to include any and
all persons who are or have been agents, employees, officers, or
officials of the District of Columbia. Plaintiffs' acceptance of the
Defendants' Offer and this Settlement Agreement are reflected by their
signatures upon this Settlement Agreement.
2. All defendants deny culpability
and/or liability for or upon any claim asserted by any and all
Plaintiffs. This Settlement Agreement, and/or any Order, Judgment,
and/or action taken pursuant to this Settlement Agreement shall have no
collateral estoppel or res judicata effect, whatsoever, or otherwise
preclude defendants from asserting any defense. Plaintiffs are not
prevailing parties.
Financial Consideration
3. The District of Columbia will pay the
"Settlement Amount" of a total of $425,000 to all Plaintiffs, jointly and collectively in
full satisfaction of all claims and potential claims for damages and
other monetary relief against all defendants encompassed by the Amended
Complaint or any subsequently-filed complaint, including claims for
attorneys fees and/or other costs incurred in prosecuting this action
through the date of the execution of this Settlement Agreement.
Plaintiffs agree, jointly and severally, and on behalf of their
attorneys, as well as themselves, that under no circumstances may
Plaintiffs or their attorneys obtain any monetary relief and/or recovery
for the claims encompassed by this Offer in addition to this $425,000
from the District, or any official, officer, agent, or employee or any
person who is now or has been an official, officer, agent, or employee
of the District. This Settlement Amount is to be paid by check payable
to "Covington & Burling, Interest on Lawyer Trust
Account," within forty-five (45) days of the execution of this
Settlement Agreement; in the event that payment is not made within forty-five (45) days of the execution of this Settlement
Agreement, interest will accrue upon the Settlement Amount at the rate
provided for by 28 U.S.C. Section 1961 for interest upon judgments
commencing on the forty-sixth (46s`) day following the execution of this
Settlement Agreement. Plaintiffs agree on behalf of themselves and their
counsel to promptly execute such documents and to provide such
information as is reasonably and routinely necessary for the District to
issue payment of the Settlement Agreement. Payment shall be made to
Covington & Burling, which shall make an appropriate distribution to
the Plaintiffs and other counsel.
4. The Settlement Amount is payable only
from the funds of the District of Columbia and may not be collected from
any other defendant in this action or from any other person or entity.
5. Insofar as any order may result from
this Settlement Agreement, such order may not be docketed, recorded, or
reported for any purpose against any defendant other than the District
of Columbia.
Additional Relief to Abbate Plaintiffs
A. Expungement and Sealing of Arrest
Records
6. The District of Columbia will expunge
all records in the possession of its Executive Branch (including all
records in the possession of the Metropolitan Police Department, and the
Office of the Attorney General for the District of Columbia) pertaining
to the arrests of the Plaintiffs at Pershing Park on September 27, 2002
and will employ best efforts to procure the expungement of all records
in the possession of the United States Government (including but not
limited to the Federal Bureau of Investigation) and any other state or
local government pertaining to the arrests of the Plaintiffs at Pershing
Park on September 27, 2002.
7. The Defendants will not oppose a
motion, pursuant to District of Columbia Superior Court Rule of Criminal
Procedure Rule 118, seeking the sealing of the records of any Plaintiff
pertaining to his or her arrest at Pershing Park on September 27, 2002.
8. The District of Columbia will either
(1) procure the expungement or delivery to Plaintiffs' counsel of all
records in the possession of the United States government (including,
but not limited to the Federal Bureau of Investigation) and any other
state and local government pertaining to the arrest on September 27,
2002, or resulting detention or charge of any Plaintiff; or (2) if the
District is unable (in whole or in part) to procure this relief, inform
Plaintiffs in writing of the specific steps, and the results thereof,
taken by the District in an effort to procure it.
9. The Defendants will not oppose any
motion by any Plaintiff to the United States District Court for the
District of Columbia in this case seeking an order declaring his or her
arrest at Pershing Park on September 27, 2002 to be a nullity and/or
seeking an order allowing any Plaintiff to deny the occurrence of his or
her arrest at Pershing Park on September 27, 2002, without being subject
to any penalty of perjury, fraud or other offense premised upon
misrepresentation or deception, in response to any query, whether posed
orally or in writing.
B. Conciliatory Statement
10. Chief Ramsey will personally sign
the following conciliatory statement, addressed to each of the
Plaintiffs, and presented to them through their attorneys, within thirty
days after the Plaintiffs accept this Offer:
Dear [Name of Plaintiff]:
The District of Columbia government has carefully
examined the events of September 27 and 28, 2002, concerning arrests and
detentions that occurred on those days. Our investigation shows that our
handling of various aspects of those events was flawed. Our
investigation also shows that you should not have been arrested or detained. On my own behalf, and that of the
Government of the District of Columbia, we sincerely regret any hardship
that our mistakes of September 27 and 28, 2002 may have caused you or
persons close to you.
Through our review of those events, informed in part by
your testimony, the District government has identified and implemented
measures to prevent a recurrence of the events in question. To implement
these measures, Mayor Williams and I have worked hard with the
Metropolitan Police Department and the Office of the Attorney General
for the District of Columbia to assure that the District of Columbia
Government carries out its duty to ensure that persons may enjoy free
and open expression in this city with the utmost confidence that their
constitutional rights will be respected.
I hope that you will be comfortable in the future in
peaceably and lawfully exercising your First Amendment rights in the
Nation's Capital.
Sincerely,
CHARLES H. RAMSEY
Chief, Metropolitan Police Department
Washington, District of Columbia
C. Revisions to MPD Mass Demonstration
Policing
11. The District of Columbia will conduct its policing of
and related to mass demonstrations in a manner to achieve the following
objectives, which are identified as Objectives (a) through (k), below.
12. Further, the District will perform
and demonstrate performance of its mass demonstration policing conduct
in accordance with the Objectives through objectively verifiable means
and methods. One such method will be the inclusion of certain provisions
governing MPD mass demonstration policing published in the MPD's Mass
Demonstration Handbook or other specified appropriate MPD publications.
Those provisions are the "Provisions Addressing Objectives"
("PAO's") which are set forth immediately following the
respective Objective to which each applies most directly.
13. In addition to or in lieu of PAO's
in the instances of some Objectives, the District will employ other
measures ("Measures") to achieve the Objectives. Those
Measures are reflected below immediately following the respective
Objective to which each applies most directly, either solely, or in
combination with one or more PAO's. Inclusion of these PAO's in the
MPD's Mass Demonstration Handbook or other specified MPD publication, as
identified to each respective Objective, coupled with performance in
accordance with the respective provision, and/or performance of the
Measure(s) immediately following each Objective (a) through (k) below
satisfies the respective Objective.
Objective (a)
(a) Before ordering or approving a mass arrest, the
commanding officer responsible for ordering or approving a mass arrest
must verify that all requirements of the law and MPD procedures for
effecting a valid mass arrest have been satisfied and verify that some
means exist to match each person to be arrested with a specific offense
which there is probable cause to believe that person committed.
PAO for Objective (a)
Objective (a) is satisfied by the inclusion in WD's Mass
Demonstration Handbook of the following PAO's, coupled with MPD's
compliance with this provision in responding to mass demonstrations.
a.1. Issuance of warnings should be made by the unit
commander or that commander's designee and made from stationery vantage
points that are observable to the crowd or to a large number of
participants.
a.2. Whenever possible, an official deeming it necessary
to issue warnings shall confer with the unit commander to explain the
official's basis for believing that a warning should be issued. The
commanding officer shall make any inquiries necessary to satisfy himself
or herself whether the issuance is justified and direct that the issuing
official act accordingly. This process is to be repeated as necessary
during the course of the demonstrations.
a.3. The issuing official shall recommend to the unit
commander whether arrests should be made. If the issuing official
recommends that a mass arrest be commenced, the unit commander shall
satisfy himself or herself that probable cause exists for the arrest of
all persons to be arrested. The unit commander should make the inquiries
reflected on the "Pre-Mass Arrest Checklist"1 in order
to verify that a mass arrest is proper and lawful. The
arrest of every person to be arrested must be supported by probable
cause. An issuing official shall not recommend the arrest of any person
unless he or she has probable cause to support the arrest of that
person. A unit commander shall not order the arrest of any person for
whom he or she has not verified the existence of probable cause to
arrest.
Objective (b)
(b) An assembly of persons will not be
arrested simply because the group does not possess a permit. Such an
arrest, if otherwise lawful, may only occur after an order to disperse
has been clearly communicated three times in a manner that is reasonably
calculated to be heard by each of the persons in the group and after
reasonable opportunity to disperse has been afforded, to the extent that
circumstances reasonably permit, without increasing the risk of injury
to persons or property through the actions of a substantial number of
the assembly of persons.
PAO for Objective (b)
Objective (b) is satisfied by the inclusion in MPD's Mass
Demonstration Handbook of the following PAO, coupled with MPD's
compliance with this provision in responding to mass demonstrations.
An assembly of persons will not be arrested simply
because the group does not possess a permit. Such an arrest may only
occur after an order to disperse has been clearly communicated three
times in a manner that is reasonably calculated to be heard by each of
the persons in the group and after reasonable opportunity to disperse
has been afforded, to the extent that circumstances reasonably permit, without increasing the risk of injury to persons or
property through the actions of a substantial number of the assembly of
persons.
Objective (c)
(c) All officers policing mass
demonstrations and all officers guarding persons arrested at a mass
demonstration shall be readily identifiable to demonstrators and
arrestees.
Measure and PAO for Objective (c)
Objective (c) is satisfied by the MPD's Measure of
reflecting the badge number of each officer by affixing, within 40 days,
each officer's badge number to the front of that officer's helmet,
immediately above the visor, and by MPD's inclusion in MPD's Mass
Demonstration Handbook of the following provision, coupled with MPD's
compliance with this provision and the helmet-numbering requirement in
responding to mass demonstrations.
Each CDU Commander shall instruct such subordinate
officials and officers as is appropriate under the circumstances that
all uniformed, sworn personnel are to be inspected to ensure that they
are properly wearing their badges and nameplates and that the badge
numbers and names are not to be concealed, damaged, or tampered with, so
as to interfere with the ability of the officer to be identified. When
officers are directed to don CDU protective gear, including helmets, the
officers are to affix their badge numbers to their helmets. Further,
officers are prohibited from removing or tampering with their badges or
nameplates and are required to verbally identify themselves when asked
their identities.
Objective (d)
(c) The official responsible for
ordering or approving a mass arrest must have successfully completed
training within the previous year regarding the circumstances under
which a mass arrest is legally permitted. Such training shall include
discussion of the proper response(s) to the arrest scenarios presented
in Dellums v. Powell and Abbate v. Ramsey.
Measure for Objective (d)
Objective (d) is satisfied by the MPD's measure of
providing to event officials who may reasonably be anticipated to
command a situation presenting circumstances that may give rise to a
mass arrest, training within the year preceding the event regarding the
circumstances under which a mass arrest is legally permitted. Such
training shall include discussion of the proper response(s) to the
arrest scenarios presented in Dellums v. Powell and Abbate v. Ramsey.
Objective (e)
(e) Persons arrested in a mass arrest
shall, as soon as reasonably possible following their arrests, be
informed of their rights to contact an attorney and/or family member or
friend and their rights regarding citation release, post and forfeit or
court appearance, and the meaning and consequences of each.
POA's and Measures for Objective (e)
Objective (e) is satisfied by MPD's measure of providing
arrestees access to phones at processing centers from which the
arrestees may place a call to contact an attorney and/or family member
or friend, combined with the inclusion of the following provisions in
MPD's Mass Demonstration Handbook, coupled with MPD's compliance with
these provisions in responding to mass demonstrations.
e.1. When all arrestees have boarded the transport
vehicle, are safely seated and the transport vehicle has commenced its
travel from the arrest location to the prisoner processing center, a
member of the department is to read or play a recording of the text of
the "Notification of Rights" form in a manner audible to all
persons in the vehicle. Once at the prisoner-processing center, as
arrestees are initially removed for processing the arrestee shall be
provided a copy of the form to read. In addition, the text of the form
is to be reflected on large signs that are to be placed conspicuously
throughout the processing area.
The text of the "Notification of Rights" to be
presented verbally, on large signs, and in the "Notification of
Rights" form, will contain the following text:
e.2. Option 1 - YOU MAY ELECT TO "POST AND
FORFEIT"
If you choose to "Post and Forfeit," you will
pay a certain amount of money and you will be released immediately and
the charges against you will be dropped. You will never have to appear
in court to answer the charges against you. You will also never have an
opportunity to appear in court to contest the charges against you. You
are required to prove your identity. A "post and forfeit" is
not an admission of guilt, and you will have no criminal record on these
charges. But you will have an arrest record on these charges.
If you are interested in the post and forfeit option, you
will be provided with a list showing the amount you must pay depending
on the charge for which you were arrested.
Your decision to post and forfeit is final unless you (or
your attorney) file a "Motion To Set Aside Forfeiture" within
90 days of your arrest. Such a motion is not automatically granted. If
it is granted, the charges against you will be reinstated and you will
have to appear in court to answer them.
e3. Option 2 - YOU MAY ELECT TO BE RELEASED ON CITATION
("CITE OUT")
You are eligible for citation release if you are arrested
for a misdemeanor offense that does not involve domestic violence and
there are no outstanding warrants for your arrest. You are not required
to post any amount of money for citation release but you are required to
prove your identity.
If you elect citation release, you will be given a
citation (similar to a traffic ticket), requiring you to appear in D.C.
Superior Court to answer the charges against you. Failure to appear in
court in response to the citation is a criminal offense. If you fail to
appear in court on the date specified in the citation, a warrant will be
issued for your arrest.
When you appear in court, the government may dismiss the
charges against you or may proceed to trial. If the government chooses
to proceed to trial, you will have a right to be represented by an
attorney and if you cannot afford an attorney one will be provided for
you. The government will bear the burden of proving beyond a reasonable
doubt that you committed the offense with which you have been charged.
If you are convicted, you will have a criminal record in addition to
your arrest record. If you are acquitted, you will not have a criminal
record but you will still have an arrest record unless you are later
able to get it sealed or expunged by proving to the court that you did
not commit any crime.
e.4. Option 3 - YOU MAY ELECT TO POST BOND ("POST
AND TRIAL")
If you are not eligible for citation release, you may
still be eligible to post bond. If so, you may post a cash bond amount
assigned to the charge, or a licensed bondsman may agree to post the
bond for you in return for a 10% fee. You are required to prove your
identity. You will be provided with a list showing the amount you must
post depending on the charge for which you were arrested.
You will be required to appear in D.C. Superior Court to
answer the charges against you. Failure to appear in court is a criminal
offense. If you fail to appear in court on the date specified, a warrant
will be issued for your arrest.
When you appear in court, the government may dismiss the
charges against you or may proceed to trial. If the government chooses
to proceed to trial, you will have a right to be represented by an
attorney and if you cannot afford an attorney one will be provided for
you. The government will bear the burden of proving beyond a reasonable
doubt that you committed the offense with which you have been charged.
If you are convicted, you will have a criminal record in addition to
your arrest record. If you are acquitted, you will not have a criminal
record but you will still have an arrest record unless you are later
able to get it sealed or expunged by proving to the court that you did
not commit any crime.
Objective (f)
(f) The MPD shall, as expeditiously as possible, process any
person arrested in a Mass Arrest to determine whether the person is
eligible for release pursuant to a lawful release option and shall
promptly release any person so eligible who opts for the release. The
MPD shall also promptly release any person arrested in a Mass Arrest,
who, it is subsequently determined, should not be charged with any
offense.
PAO for Objective (f)
Objective (f) is satisfied by the inclusion in MPD's Mass
Demonstration Handbook of the following PAO's, coupled with MPD's
compliance with this provision in responding to mass demonstrations.
f.1. The MPD shall, as expeditiously as
possible, process any person arrested in a Mass Arrest to determine
whether the person is eligible for release pursuant to a lawful release
option and shall promptly release any person so eligible who opts for
the release. The MPD shall also promptly release any person arrested in
a Mass Arrest, who, it is subsequently determined, should not be charged
with any offense.
Objective (g)
(g) No upgrades or other maintenance of computer systems
necessary for processing arrestees shall be scheduled to occur on days
for which a plan for processing persons arrested in a mass arrest is in
effect unless automated prisoner processing cannot be accomplished
without performance of repairs or a remedial upgrade because of computer
malfunction.
POA for Objective (g)
Objective (g) is satisfied by the inclusion in MPD's Mass
Demonstration Handbook of the following provision, coupled with MPD's
compliance with this provision in responding to mass demonstrations.
g.1. No upgrades or other maintenance of computer systems
necessary for processing arrestees shall be scheduled to occur or be
performed on days for which a plan for processing persons arrested in a
mass arrest is in effect unless automated prisoner processing cannot be
accomplished without performance of repairs or a remedial upgrade
because of computer malfunction. Where automated prisoner processing
cannot be accomplished without performance of repairs or a remedial
upgrade, the Prisoner Processing Center(s) shall switch to manual backup
processing procedures to accomplish prisoner processing.
Objective (h)
(h) Manual backup procedures for
processing arrestees shall be available on days for which a plan for
processing persons arrested in a mass arrest is in effect.
POA for Objective (h)
Objective (h) is satisfied by the inclusion in MPD's Mass
Demonstration Handbook of the following provision, coupled with MPD's
compliance with this provision in responding to mass demonstrations.
h.1. Manual backup procedures for processing arrestees
shall be available on days for which a plan for processing persons
arrested in a mass arrest is in effect.
Objective (i)
(i) MPD shall only use such restraints in the transporting,
processing, and detention of persons as the Chief of Police or his
designee determines to be reasonably necessary to maintain the safety of
the arrestees and of MPD arresting, transporting, and/or processing
personnel, and to prevent escape.
POA for Objective (i)
i.1. Objective (i) is satisfied by the inclusion in MPD's Mass
Demonstration Handbook of the following provision, coupled with MPD's
compliance with this provision in responding to mass demonstrations.
MPD shall only use such restraints in the transporting,
processing, and detention of persons as the Chief of Police or his
designee determines to be reasonably necessary to maintain the safety of
the arrestees and of MPD arresting, transporting, and/or processing
personnel, and to prevent escape.
Objective (k)
(k) Handcuffs and flexi-cuffs shall not
be applied in a manner that is excessively tight.
POA for Objective (k)
Objective (k) is satisfied by the inclusion in MPD's Mass
Demonstration Handbook of the following provision, coupled with MPD's
compliance with this provision in responding to mass demonstrations.
k.1. All arrestees are to be secured in accordance with
MPD G.O.502.01. Where flex-cuff restraints are used to secure an
arrestee's hands or arms, the officer applying the flex-cuffs must
always check restraint tightness. To avoid injuries that may be caused
by overtightening the restraints, when applying the flex-cuff, the
officer is to draw the strap up only until the strap comes in contact with the arrestee's skin at
all points. The officer is then to attempt to insert his or her index
finger between the strap and the arrestee's wrist. If the officer cannot
readily place his or her index finger between the strap and the
arrestee's wrist, the officer is to immediately remove the flex-cuff and
properly apply a new flex-cuff to prevent escape but no tighter.
k.2. Officers are to give prompt
attention to complaints that the cuffs are too tight. Even after using
the precautionary measures indicated above to prevent overtightening of
flex-cuffs, if the restrained person complains that the cuffs are too
tight the officer should stop (if reasonably possible) and check the
tightness of the cuffs. Even if the cuffs are properly applied the
person could still have placed pressure on the cuffs or the person could
have turned their hand within the cuff and caused constriction on part
of the hand. If upon checking the cuffs the officer finds that the cuffs
are too tight, the officer is to remove the flex-cuffs as soon as
reasonably possible and replace them with flex-cuffs applied to fit
properly. Further, if upon checking the officer finds that the
flex-cuffs are at the appropriate tightness and there does not appear to
be a problem, the officer need not loosen the cuffs. However, the
officer should document in his/her report that upon complaint the cuffs
were checked and found not to be too tight.
Enforcement Provisions and Mechanisms
14. Upon execution of this Settlement
Agreement by all Plaintiffs and counsel for the Defendants, the parties
will notify the Court of this Settlement. The parties will move the
Court to dismiss this case with prejudice pursuant to the attached
proposed Consent Order Dismissing Case With Prejudice And Retaining
Jurisdiction For Purpose Of Enforcing Settlement Order under Fed. R. Civ.
P. 41(a)(2) that provides for the Court to retain jurisdiction over this
matter to make such orders as are necessary to remedy systemic material
breaches of this Settlement Agreement pursuant to the procedures defined
below or to entertain any of the motions to this Court described in
paragraph 9. The Court will refer any motion brought pursuant to this
Settlement Agreement to Magistrate Judge Alan Kay for final resolution
pursuant to Fed. R. Civ. P. 73.
15. Pursuant to this Settlement, the
PAO's and Measures, when complied with and performed, satisfy the
various Objectives. Accordingly, pursuant to this Settlement, any
provision to be reflected in the MPD Mass Demonstration Handbook or
other MPD publication as demonstrating MPD's obligations in satisfaction
of an agreed-upon Objective, and every Measure constituting partial or
complete satisfaction of an Objective, will remain in the Mass
Demonstration Handbook and in effect for at least six months from the
acceptance of this Settlement Offer. Following that six-month period,
the District of Columbia will notify the Legal Director of the ACLU of
the National Capitol Area (this individual being the "ACLU"
for purposes of the provisions below) and the Chair of the D.C. Chapter
of the National Lawyers Guild (this individual being the
"Guild" for purposes of the provisions below) at least
forty-five (45) days before adopting any changes to the language and/or
measures provided for by the Settlement, and will confer with the ACLU
and the Guild, as counsel for the Plaintiffs, regarding any such changes. The District of Columbia,
nevertheless, may adopt such changes without the consent or approval of
the ACLU, the Guild, or the Plaintiffs. Neither the ACLU, the Guild, nor
the Plaintiffs may unreasonably withhold their consent or approval, but
the District Defendants may assert any such unreasonable withholding of
consent only as a defense to an enforcement action under paragraph 16
below, and not as the basis for any affirmative claim for relief. In the
event that a majority of the Plaintiffs object to such changes, they may
seek relief pursuant to the enforcement mechanism set forth in the
Enforcement and Sunset Provision in paragraph 16, below.
16. The following Enforcement and Sunset
Provision shall govern the enforcement of the Settlement:
The Court shall retain jurisdiction over this matter to
make such orders as are necessary to remedy systemic material breaches
of this Settlement Agreement pursuant to the procedures defined below or
to entertain any of the motions to this Court described in paragraph 9.
The Plaintiffs, personally, or through Plaintiffs'
attorneys, shall have standing to enforce the terms of this Settlement
Agreement according to the procedures set out below.
Before the Plaintiffs move the Court to enforce the
Settlement, they shall give the District of Columbia written notice of
and ninety (90) days to cure defendant's alleged systemic deficiencies
that the Plaintiffs contend constitute a systemic material breach of the
Settlement, unless the alleged material breach is the proposed adoption
of a change or changes to the language and/or measures provided for by
the Settlement, in which case the notice and cure period shall be
forty-five (45) days. During the cure period, District Defendants shall
have the opportunity to cure the deficiencies that the Plaintiffs
contend constitute a material breach of the Settlement. The opportunity
to cure shall also include good faith negotiations in face to face
meetings between the District of Columbia and the Plaintiffs seeking
enforcement of this Settlement or their attorneys to resolve their
differences without the need for Court intervention. The Plaintiffs may
not seek enforcement of the Settlement without satisfying the foregoing
notice and cure provision.
A "systemic material breach" is either (a) the
occurrence of conduct prohibited by the Objectives caused by
implementation and/or enforcement of an MPD policy, or the decision of a
District policymaker, which violates one or more Objectives in a manner
causing injury in fact to one or more persons, or (b) adoption of any
changes to the agreed-upon PAO's or Measures that are not reasonably
likely to comply with the respective Objective(s). The terms
"policy" and "policymaker" shall be defined as those
terms are used for purposes of 42 U.S.C. Section 1983 as contemplated by
Monell v. Department of Social Servs., 436 U.S. 658 (1978); Jett v.
Dallas Indep. School Dist., 491 U.S. 701 (1989); and St. Louis v.
Praprotnik, 485 U.S. 112 (1988).
Plaintiffs understand that the MPD may include a
provision in any PAO, Measure, General Order, Special Order, teletype,
guideline or other written MPD directive that officers refrain from
engaging demonstrators in conversation. Plaintiffs agree that such a
provision would not constitute a violation of this Settlement Agreement.
Defendants understand that Plaintiffs are not approving or endorsing
such a provision.
The terms of this Settlement shall remain in effect for
exactly three years following the date of the Plaintiffs' acceptance of
this Offer, immediately after which time this agreement shall become
null and void and the jurisdiction of the Court to enforce this
Settlement will lapse except to the extent that a matter timely and
properly presented to the Court pursuant to the Enforcement and Sunset
Provision is still pending before the Court.
17. The Parties agree that multiple
originals of this Settlement Agreement may be executed. The Parties'
signatures need not appear on the same signature page.
ACCEPTED FOR PLAINTIFFS BY:
JULIE ABBATE
ALEXIS BADEN-MAYER
CHRISTOPHER DOWNES
ADAM EIDINGER
JOSEPH L. MAYER
MINDI MORGAN MANCUELLO and
TOM ULRICH
ACCEPTED FOR DEFENDANTS BY:
Thomas L. Koger
Assistant Attorney General
Office of the Attorney General for the District of
Columbia
Counsel for District of Columbia and Charles H. Ramsey
Robert E. Deso
Counsel for Peter J. Newsham
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JULIE ABBATE, et al., Plaintiffs, v. CHIEF CHARLES H. RAMSEY, et al., Defendants.
Civ. Action No. 03-00767 (EGS)
CONSENT ORDER DISMISSING CASE WITH PREJUDICE AND
RETAINING JURISDICTION FOR PURPOSE OF ENFORCING SETTLEMENT
Pursuant to Fed. R. Civ. P. 41(a)(2), plaintiffs Julie
Abbate, Alexis Baden-Mayer, Christopher Downes, Adam Eidinger, Joseph L.
Mayer, Mindi Morgan, and Tom Ulrich (collectively
"Plaintiffs") and defendants District of Columbia and Charles
H. Ramsey, and Peter J. Newsham (collectively the
"Defendants"), have entered into a Settlement Agreement
resolving this matter (a copy of which is attached as Attachment A).
That Settlement Agreement provides for the performance of a number of
tasks and contemplates the potential for continued interaction and
continuing obligations between the parties. The Settlement Agreement
also contemplates that this Court will retain jurisdiction over this
matter solely for purposes of enforcing the Settlement Agreement as
expressly provided for by its terms, and the parties have moved this
Court to dismiss this matter with prejudice, except to the extent of
retaining jurisdiction pursuant to the Settlement Agreement for purposes
of enforcing the Settlement Agreement.
This Court having duly considered the joint motion of
Plaintiffs and Defendants and the interests of justice, it is this _____
day
of January 2005,
ORDERED that the joint motion of the Plaintiffs and
Defendants is hereby GRANTED; and it is further
ORDERED that this matter is dismissed with prejudice,
except that this Court retains jurisdiction over this matter to
entertain any of the motions to this Court described in paragraph 9 of
the Settlement Agreement and, further, to make such orders as are
necessary to remedy systemic material breaches of this Settlement
Agreement pursuant the following procedures:
The Plaintiffs, personally, or through Plaintiffs'
attorneys, shall have standing to enforce the terms of this Settlement
Agreement according to the procedures set out below.
Before the Plaintiffs move the Court to enforce the
Settlement, they shall give the District of Columbia written notice of
and ninety (90) days to cure defendant's, alleged systemic deficiencies
that the Plaintiffs contend constitute a systemic material breach of the
Settlement, unless the alleged material breach is the proposed adoption
of a change or changes to the language and/or measures provided for by
the Settlement, in which case the notice and cure period shall be
forty-five (45) days. During the cure period, District Defendants shall
have the opportunity to cure the deficiencies that the Plaintiffs
contend constitute a material breach of the Settlement. The opportunity
to cure shall also include good faith negotiations in face to face
meetings between the District of Columbia and the Plaintiffs seeking
enforcement of this Settlement or their attorneys to resolve their
differences without the need for Court intervention. The Plaintiffs may
not seek enforcement of the Settlement without satisfying the foregoing
notice and cure provision.
A "systemic material breach" is either (a) the
occurrence of conduct prohibited by the Objectives caused by
implementation and/or enforcement of an MPD policy, or the decision of a
District policymaker, which violates one or more Objectives in a manner
causing injury in fact to one or more persons, or (b) adoption of any
changes to the agreed-upon PAO's or Measures that are not reasonably
likely to comply with the respective Objective(s). The terms
"policy" and "policymaker" shall be defined as those
terms are used for purposes of 42 U.S.C. Section 1983 as contemplated by
Monell v. Department of Social Servs., 436 U.S. 658 (1978); Jett v.
Dallas Indep. School Dist., 491 U.S. 701 (1989); and St. Louis v.
Praprotnik, 485 U.S. 112 (1988).
The terms of this Settlement shall remain in effect for
exactly three years following the date of the Plaintiffs' acceptance of
this Offer, immediately after which time this agreement shall become
null and void and the jurisdiction of the Court to enforce this
Settlement will lapse except to the extent that a matter timely and
properly presented to the Court pursuant to the Enforcement and Sunset
Provision is still pending before the Court; and it is further
ORDERED that any motion brought pursuant to this
Settlement Agreement shall be referred to Magistrate Judge Alan Kay for
final resolution pursuant to Fed. R. Civ. P. 73.
EMMETT G. SULLIVAN
United States District Judge
Serve:
Thomas L. Koger
Lori S. Parris
Office of the Attorney General for the District of Columbia
441 4th St., N.W., Sixth
Floor South
Washington, D.C. 20001
Jarrett A. Williams, Esquire
COVINGTON & BURLING
1201
Pennsylvania Avenue, NW
Washington, D.C. 20004-2401
Arthur B. Spitzer
AMERICAN CIVIL LIBERTIES UNION OF THE CAPITAL AREA
1400 20th Street, N.W. #119
Washington, D.C. 20036
Daniel M. Schember, Esquire
Susan B. Dunham, Esquire
Gaffney & Schember, P.C.
1666 Connecticut Avenue, N.W., Ste. 225
Washington, D.C.
20009
Robert E. Deso, Esquire
DESO, BUCKLEY & STIEN, P.C.
1828 L Street, N.W.,
Suite 600
Washington, DC 20036
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1. The Mass Arrest Checklist provides as follows:
Has the Official recommending a mass arrest articulated
justification for a mass arrest on these bases?
What actions by the persons to be arrested require the
proposed mass arrest? Has anyone been injured? Who? What was the cause of the
injury? Has property been damaged? What? What was the cause of
the damages?
Will an effort to arrest likely cause more injuries than
alternative police action?
Will an effort to arrest likely cause more property
damage than alternative police action? Will an effort to arrest likely
cause greater disruption of traffic flow (or potentially block
evacuation routes) than alternative police action?
What are the offenses committed/to be charged?
What evidence provides probable cause for the arrest upon
those charges as to each person? You must have articulable probable
cause to make any arrest.
If the offense is incommoding, unlawful assembly,
parading without a permit, and/or failure to obey a police order:
How many orders to disperse were given?
How were the orders communicated?
When was each given?
Who gave each order to disperse?
Were audio and/or video recordings made of the warnings?
Is there another way to gain control of the situation? Is
there a viable alternative to a mass arrest?
Is dispersal of the crowd and arrest of a smaller number
of persons for observed offenses as the group disperses reasonable?
Is extraction of a limited number of offenders for
observed offenses reasonable?
Has the JOCC [Joint Operations Command Center) confirmed
(or have you independently determined) that there are sufficient
resources available to safely make number of arrests anticipated?
How do other circumstances weigh in favor of or against
ordering a mass arrest?
