Ryan Barton Lash Sues USA Over Occupy Arrest

Case 1:12-cv-02056-JDB Document 1 Filed 12/21/12 Page 1 of 12
Case 1:12-cv-02056-JDB Document 1-1 Filed 12/21/12 Page 1 of 2
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) RYAN BARTON LASH, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-0822 (JDB) ) OFFICER JENNIFER LEMKE, ) in her individual capacity, ) United States Park Police ) ) and ) ) SERGEANT TODD REID, ) in his individual capacity, ) United States Park Police ) ) Defendants. ) ______________________________) MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Defendants hereby move to dismiss this action, pursuant to Rules 12(b)(1), (2), (4), (5) and (6) of the Federal Rules of Civil Procedure, and on qualified immunity grounds. Alternatively, the Court should enter summary judgment, pursuant to Fed. R. Civ. P. 56, because there are no material issues of fact and defendants are entitled to judgment as a matter of law. The Court is respectfully referred to the accompanying memorandum of points and authorities and statement of material
facts.
A proposed Order is also attached. Respectfully submitted,
RONALD C. MACHEN JR., DC Bar #447889 United States Attorney for the District of Columbia DANIEL F. VAN HORN, DC Bar #924092 Chief, Civil Division By: /s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorney U.S. Attorneys Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 514-7226 Marina.Braswell@usdoj.gov
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) RYAN BARTON LASH, ) ) Plaintiff, ) ) v. ) ) OFFICER JENNIFER LEMKE, ) in her individual capacity, ) United States Park Police ) ) and ) ) SERGEANT TODD REID, ) in his individual capacity, ) United States Park Police ) ) Defendants. ) ______________________________)
Civil Action No. 12-0822 (JDB)
DEFENDANTS STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE Pursuant to Local Civil Rule 7(h), defendants hereby submit their statement of material facts as to which there is no genuine issue: 1. On January 29, 2012, plaintiff was participating in the
protest movement known as Occupy D.C. in McPherson Square in Washington, D.C. 2. Complaint (Compl.), 7.
On January 29, 2012, National Park Service (NPS)
officials and United States Park Police (USPP) officers began distributing flyers in McPherson Square informing the individuals located therein that the United States Park Police will commence enforcement of the long-standing National Park Service (NPS)
regulations that prohibit camping and the use of temporary structures for camping in McPherson Square and Freedom Plaza. Comp., 8, 10; Declaration of Sergeant Todd Reid (Reid Decl.), 2 & attached Ex. 1. 3. When the NPS officials and USPP officers began to
distribute the notices, some of the individuals in McPherson Square became agitated, verbally harassed the officers and interfered with NPS distribution efforts. 4. Reid Decl., 6.
Plaintiff swore at USPP officers and removed some of the Compl., 12-13; Reid
notices and threw them in the trash. Decl., 7, 9. 5.
The officers approached plaintiff who tried to get away Ex. A (video entitled D.C. Police Tase . . . . of
from them.
plaintiffs arrest); Ex. B (video entitled Occupy DC Police Tase . . . . of plaintiffs arrest). 6. When the officers tried to arrest plaintiff, he refused
to cooperate and continued to try and get away from them, swinging his arms against them. 7. Reid Decl., 10; Exs. A & B.
The officers tried to wrestle plaintiff to the ground Exs. A & B.
but he continued to actively resist. 8.
Officer Lemke then removed her taser from its holster Reid Decl.,
but did not immediately tase plaintiff.
10; Exs. A & B.
Plaintiff refused to stop his active
resistence, so Officer Lemke used her taser on him, which subdued him. Id. at 10-11; Exs. A & B. 9. Plaintiff was not in handcuffs at the time. Reid Decl.,
11; Exs. A & B. 10. enter it. 11. Plaintiff was taken to a patrol car but refused to Reid Decl., 15; Exs. A & B. A tense stand-off ensued between the USPP officers and
a group of demonstrators, who started to chant Were going to start a riot. 12. Exs. A & B.
Plaintiff was subsequently put in a transport wagon and Reid Decl., 15-16; Exs.
taken to George Washington Hospital. A & B. 13.
USPP General Order 3605.06 authorizes the use of
electronic control devices on individuals who are actively resisting arrest in order to ensure the protection of the public, the officer, and any arrestees. Ex. C, attached.
Respectfully submitted,
RONALD C. MACHEN JR., DC Bar #447889 United States Attorney for the District of Columbia DANIEL F. VAN HORN, DC Bar #924092 Chief, Civil Division
By:
/s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorney U.S. Attorneys Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 514-7226 Marina.Braswell@usdoj.gov
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) RYAN BARTON LASH, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-0822 (JDB) ) OFFICER JENNIFER LEMKE, ) in her individual capacity, ) United States Park Police ) ) and ) ) SERGEANT TODD REID, ) in his individual capacity, ) United States Park Police ) ) Defendants. ) ______________________________)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT INTRODUCTION Plaintiff, Ryan Barton Lash, commenced this action against United States Park Police (USPP) Officer Jennifer Lemke and Sergeant Todd Reid, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (Bivens), as a result of an incident which occurred on January 29, 2012, when plaintiff was arrested for disorderly conduct, during which Officer Lemke used her taser on plaintiff. The
arrest occurred after plaintiff had interfered with the work of USPP officers who were posting notices in McPherson Square about the National Park Services (NPS) no-camping regulations and
NPSs intent to begin enforcing those regulations.
Plaintiff
removed certain notices posted by the officers and threw them in the trash. As he was being arrested for these actions, he
actively resisted and attempted to get away from the officers. Officer Lemke used her taser on him once, before he was handcuffed, in order to stop his active resistence to the arrest.
A review of the allegations and the relevant case law reveals that, notwithstanding plaintiffs legal conclusions to the contrary, plaintiff has failed to allege facts to support a claim that his arrest violated any First or Fourth Amendment right. Moreover, even if such a right were violated, the
contours of that right were not so clearly established that plaintiffs claims can withstand the defense of qualified immunity. USPP officers are authorized under their General
Orders to use a taser on an individual actively resisting arrest. Accordingly, plaintiffs Bivens claims must fail. Additionally, plaintiffs claims against the individually sued defendants are also subject to dismissal because they have not been personally served with the Complaint. I. FACTUAL BACKGROUND
On January 29, 2012, plaintiff was participating in the protest movement known as Occupy D.C. in McPherson Square in Washington, D.C. Complaint (Compl.), 7. On that day
National Park Service (NPS) officials and USPP officers began distributing flyers in McPherson Square informing the individuals located therein that the United States Park Police will commence enforcement of the long-standing National Park Service (NPS) regulations that prohibit camping and the use of temporary structures for camping in McPherson Square and Freedom Plaza. Comp., 8, 10; Declaration of Sergeant Todd Reid (Reid Decl.), 2 & attached Ex. 1. When the NPS officials and USPP
officers began to distribute the notices, there were hundreds of individuals filling McPherson Square, as well as temporary structures, tents and shelters which concealed a large portion of the individuals. Reid Decl., 4. Some of the individuals in
the square became agitated, verbally harassed the officers and interfered with NPS distribution effort[s]. very volatile . . . . Id. at 6. The situation was
Plaintiff was one of the individuals verbally harassing officers and interfering with the distribution of the NPS notices. As the officers moved through McPherson Square posting
notices on tents, plaintiff began to remove certain notices and throw them in the trash. Compl., 12-13; Reid Decl., 7, 9.
Sergeant Reid warned plaintiff that he was not allowed to remove the notices, but he continued to do so. Reid Decl., 8-9. The
officers then decided to arrest plaintiff for disorderly conduct. Id. at 9.
The officers approached plaintiff who tried to get away from them. Ex. A (video entitled D.C. Police Tase . . . . of
plaintiffs arrest); Ex. B (video entitled Occupy DC Police Tase . . . . of plaintiffs arrest). One of the officers,
Officer Tiffany Reed, advised plaintiff that he was under arrest and directed him to put his hands behind his back. 9. Reid Decl.,
Plaintiff refused to cooperate and continued to try and get Id. at
away from the officers, swinging his arms against them. 10; Exs. A & B.
Plaintiff is physically bigger than two of the Exs. A & B. Plaintiff
three officers trying to arrest him.
continued to actively resist even after an officer grabbed him from behind in an obvious effort to bring him under the officers control. Exs. A & B. The officers tried to wrestle plaintiff to
the ground by knocking his foot out from under him, but he continued to actively resist. Exs. A & B.
In response to plaintiffs refusal to cooperate with the officers making the arrest, and his active resistence to their efforts to arrest him, Officer Lemke deployed her taser and warned plaintiff to stop resisting or he would be arrested. Decl., 10. Plaintiff refused to stop his continued active Reid
resistence, so Officer Lemke used her taser on him once, in a five second burst. Id. at 10-11; Exs. 2 & 3. Plaintiff was
not in handcuffs at the time.
Reid Decl., 11; Exs. 2 & 3.
Plaintiff was taken to a patrol car but refused to enter it. Reid Decl., 15. A tense stand-off ensued between the USPP
officers and a group of demonstrators, who started to chant Were going to start a riot. Exs. A & B. Plaintiff was
subsequently put in a transport wagon and taken to George Washington Hospital. Reid Decl., 15-16. II. ARGUMENT
For purposes of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the well pled facts in a Complaint are taken as true. See Wilson v. Libby, 535 F.3d 697, 701 (D.C. Cir. 2008). Legal
conclusions and opinions are not entitled to the same treatment. See, e.g., City of Harper Woods Employees Retirement System v. Olver, 589 F.3d 1292, 1300 (D.C. Cir. 2009); Boggs v. Bowron, 842 F. Supp. 542, 546 (D.D.C. 1993). Although defendants do not
agree with plaintiffs factual account of what happened to his possessions, for purposes of this motion the facts alleged must be taken as true. Wilson, 535 F.3d at 701.
In ruling upon a motion to dismiss, a court may ordinarily consider only the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice. Johnson v. Interstate Management Co., LLC, F. Supp.2d ; 2012 WL 2552777, *2 (D.D.C. July 3, 2012). See also, e.g.,
Fed. R. Evid. 201; EEOC v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997).
Specifically, the Court may take
judicial notice of public documents without converting Defendants Motion to Dismiss into a motion for summary judgment. Swierkiewicz v. Sorema, 534 U.S. 506 (2002). Federal courts
regularly take judicial notice of government documents and documents from other reliable sources. Id.; see also Yellow Taxi Co. of Minneapolis v. NLRB, 721 F.2d 366, 375 n.29 (D.C. Cir. 1983). With respect to a motion for summary judgment under Fed. R. Civ. P. 56, the facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). When
opposing parties tell different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. Id. Where a videotape of events exists, the court should [] Id. at
view[] the facts in the light depicted by the videotape. 381.
Here, the record includes two videotapes of plaintiffs See Exs. A & B.
arrest.
Plaintiff raises Bivens claims against the unnamed defendant employees of the Department of the Interior, presumably Park Police officers, for allegedly violating his First and Fourth Amendment rights. This Court must thus decide whether to
recognize a right to proceed against the unnamed defendants under Bivens, in the context of the particular actions challenged. Wilkie v. Robbins, 551 U.S. 537, 550 (2007). The Supreme Court has identified two circumstances that preclude the creation of an implied right of action directly under the Constitution. First, no Bivens remedy will lie where
Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. 446 U.S. 14 18 (1980). Carlson v. Green,
Second, even in absence of affirmative
action by Congress, special factors counseling hesitation, may preclude recognition of any judicially-created remedy for the alleged constitutional violation. Bivens, 403 U.S. at 396; The Supreme Court
Schweiker v. Chilicky, 487 U.S. 412 (1988).
has since clarified that a Bivens remedy should be inferred only if (1) there is no alternative, existing process for protecting a constitutional interest, and (2) if there are no special factors counseling hesitation against a judicially created remedy. Wilkie, 537 U.S. at 550. 621 (2012). With respect to the First Amendment, the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), stated: Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability to any new context or new category of defendants. [citations omitted]. That reluctance might well have 7 See Minneci v. Pollard, 132 S. Ct. 617,
disposed of respondent's First Amendment claim of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment [citation omitted], we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Id. at 675. See also Wilkie, 551 U.S. at 550. Although
defendants acknowledge that the Court of Appeals for this Circuit in Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), cert. denied 438 U.S. 916 (1978), recognized a Bivens cause of action for a First Amendment claim involving demonstrations, id. at 194-95, it is unclear if that decision would survive Supreme Court scrutiny in light of the above statements made by that Court in the more recent decision in Iqbal. Nonetheless, as demonstrated below, defendants did not violate any of plaintiffs clearly established constitutional rights. A. The Constitutional Claims Against the Individual Defendants Should be Dismissed On The Grounds of Qualified Immunity.
It is well settled that federal defendants sued in their individual capacity enjoy a qualified immunity from liability for constitutional torts unless the plaintiff can establish that defendants violated a clearly established constitutional right. See, e.g., Cleavinger v. Saxner, 474 U.S. 193, 206 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Government officials
performing discretionary functions are shielded from liability 8
for civil damages insofar as their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Safford Unified School
District v. Redding, 129 S. Ct. 2633, 2643 (2009); Harlow, 457 U.S. at 818; Wilson v. Layne, 523 U.S. 603, 609 (1999). Court of Appeals for this Circuit has explained: Qualified immunity shields officials from liability for damages so long as their actions were objectively reasonable, as measured in light of the legal rules that were clearly established at the time of their actions. Kalka v. Hawk, 215 F.3d 90, 94 (D.C. Cir. 2000), quoting Harlow, 457 U.S. at 818-19; Lederman v. United States, 291 F.3d 36, 47 (D.C. Cir. 2002). The law in this circuit is clear that "[f]or purposes of qualified immunity, it is not enough for a plaintiff to allege that a defendant's conduct violated a right that is clearly established in general terms." Harbury v. Deutch, 233 F.3d 596, As the
610 (D.C. Cir. 2000), revd in part on other grounds sub nom. Christopher v. Harbury, 536 U.S. 403 (2002). Rather:
'the right the official is alleged to have violated must have been "clearly established" in a more particularized . . . sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent.' Id., quoting Anderson v. Creighton, 483 U.S. at 640 (citations 9
omitted) (emphasis supplied)).
As the Supreme Court recently
made clear, the right allegedly violated must be established not as a general proposition [citation omitted] but in a particularized sense so that the contours of the right are clear to a reasonable official[.] Ct. 2088, 2094 (2012). Reichle v. Howards, 132 S.
See also Saucier v. Katz, 533 U.S. 194,
208 (2001) ("The question is what the officer reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards"); Kalka v. Hawk, 215 F.3d at 94 (same). Importantly, as the Supreme Court recognized in Saucier v. Katz: The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts. Id. at 205. Consequently, [i]f [an] officers mistake as to
what the law requires is reasonable . . . the officer is entitled to the immunity defense. Id. This accommodation for
reasonable error exists because [law enforcement] should not err always on the side of caution because they fear being sued. Hunter v. Bryant, 502 U.S. 224, 229) (1991) (per curiam) (internal quotation marks and citations omitted).
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Moreover, as discussed above, under Harlow the determination of whether a clearly established constitutional right has been violated requires an objective, not subjective, analysis. Wilson, 523 U.S. at 609; Crawford-El v. Brittin, 523 U.S. 574, 590 (1998). Plaintiff bears the burden of showing a prima facie
case of defendants knowledge of impropriety, actual or constructive. Krohn v. United States, 742 F.2d 24, 31 (1st Cir.
1984); see also Davis v. Scherer, 468 U.S. 183, 191 (1984). The protection of qualified immunity applies regardless of whether the government officials error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact. Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting
Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). As to the "clearly established" inquiry, the defendants need not demonstrate that "the law was established in [their] favor at the time [they] acted." Instead, "[i]t is only necessary for
[defendants] to show that the law was unsettled . . . not . . . that a Supreme Court opinion had specifically approved their actions." Zweibon v. Mitchell, 720 F.2d 162, 173-74 n.19 (D.C.
Cir. 1983), cert. denied, 469 U.S. 880 (1984), reh. denied, 469 U.S. 1068 (1984). "[O]nce the trial judge determines the law was
not clearly established at the time the contested conduct occurred, the inquiry ceases." Id. at 168 (citing Harlow,
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supra).
Given Harlow's focus, it is irrelevant whether the Court
concludes that a complaint states a claim upon which relief may be granted, or even that the plaintiff's rights were in fact violated. "The decisive fact is not that a defendant's position
turned out to be incorrect, but that the question was open at the time he acted." Mitchell v. Forsyth, 472 U.S. 511, 535 (1985).
The Court of Appeals recently in Bame v. Dillard, explained that in looking to determine whether a constitutional right is clearly established: we look to cases from the Supreme Court and this court, as well as to cases from other courts exhibiting a consensus view, Johnson v. District of Columbia, 528 F.3d 969, 976 (D.C. Cir. 2008) if there is one. The facts of such cases need not be materially similar . . . but have only to show that the state of the law [at the time of the incident] gave [the officer] fair warning that [his alleged misconduct] . . . was unconstitutional. Id. [remaining citation omitted] id., 637 F.3d at 384. Here, plaintiff alleges that defendants violated his First Amendment rights by arresting him in retaliation for swearing at the USPP Officers. Plaintiff also alleges that defendants
violated his Fourth Amendment rights by using excessive force i.e., use of the taser - during the course of his arrest. Neither claim can withstand scrutiny. 1. The First Amendment Claim
As demonstrated above, supra at 7-8, as a matter of law no Bivens remedy should lie for plaintiffs First Amendment claim
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that but for his swearing at defendants on January 29, 2012, during the course of his interactions with them, Compl., 1213, he would not have been arrested. Nonetheless, it is undisputed that plaintiff was not just swearing at federal officials and law enforcement officers. admits in his Complaint to interfering with their actions in posting notices in McPherson Square about an upcoming law enforcement action to compel compliance with NPS regulations and abate a public nuisance. Compl., 12-13. Plaintiff also He
admits that he removed notices placed on tents by federal officials and put them in the trash. Id at 13. Plaintiff
does not allege that his actions resulted in a Fourth Amendment unlawful arrest. See Count II.
Plaintiffs claim that he was arrested in retaliation for the exercise of his First Amendment activities is nothing more than sheer speculation on his part and belied by the record. The
two videotapes show that during the course of plaintiffs arrest numerous individuals were swearing at the USPP officers but none of them were arrested. Exs. A & B.
The facts alleged in the Complaint plainly show that plaintiff was arrested for disorderly conduct, because he was interfering with lawful government activity and destroying government property by throwing away the notices being posted on tents. There are no facts alleged, nor any evidence, that
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plaintiffs First Amendment activities contributed toward his arrest. Indeed, the Reid Declaration, the videotapes, and
plaintiffs own recitation of facts in his Complaint demonstrate to the contrary. Moreover, [w]hatever the officers motivation, [] the existence of probable cause to arrest [the plaintiff] defeats her First Amendment claim. (11th Cir. 2002). Dahl v. Holley, 312 F.3d 1228, 1236
Accordingly, plaintiffs arrest did not
violate plaintiffs clearly established First Amendment rights. 2. The Fourth Amendment Claim
It is settled law that, in making an arrest, an officer has the authority to use some degree of physical coercion or threat thereof to effect it. Graham v. Connor, 490 U.S. 386, 395-97 The test for what constitutes
(1989); Saucier, 533 U.S. at 208.
excessive force with respect to a Fourth Amendment claim was set forth by the Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985). While that case concerned the use of deadly force in
apprehending a fleeing unarmed suspected felon, Garner's reasonableness formulation has been extended to all claims of excessive force with respect to the Fourth Amendment. An officer will be found to have violated the Fourth Amendments prohibition on the use of excessive force in effecting an arrest only if the force used was so excessive that no reasonable officer could have believed in the lawfulness of
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his actions.
Rogala v. District of Columbia, 161 F.3d 44, 54
(D.C. Cir. 1998); Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993). The reasonableness of a particular use of force
must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Graham, 490 U.S. at 396. The excessiveness of force is thus an
objective inquiry made based on the facts and circumstances of the particular case. Id.
As the Court of Appeals recently held in Oberwetter v. Hilliard, 639 F.3d 545 (D.C. Cir. 2011): In general, police officers have authority to use some degree of physical coercion when subduing a suspect, Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), as long as the amount of force used is reasonable. . . We determine the reasonableness of force based on the facts and circumstances of [the] particular case, including the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether [s]he [wa]s actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396, 109 S.Ct. 1865. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgmentsin circumstances that are tense, uncertain, and rapidly evolvingabout the amount of force that is necessary in a particular situation. Id. at 39697, 109 S.Ct. 1865. Thus, for Oberwetter's claim to prevail, the excessiveness of the force [must be] so apparent that no reasonable officer could have believed in the lawfulness of his actions. Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993). Id. at 555; Martin v. Malhoyt, 830 F.2d 237, 261 (D.C. Cir. 1987) ("balancing test . . . accords a measure of respect to the officer's judgment about the quantum of force called for in a 15
quickly developing situation.) Appeals has held that:
Additionally, the Court of
a defendant's motion for summary judgment is to be denied only when, viewing the facts in the record and all reasonable inferences derived therefrom in the light most favorable to the plaintiff, a reasonable jury could conclude that the excessiveness of the force is so apparent that no reasonable officer could have believed in the lawfulness of his actions. Wardlaw v. Pickett, 1 F.3d at 1303. This is plainly not the case here. The two videos clearly
show a volatile situation to which the USPP officers responded in measured fashion. Plaintiff aggressively attempted to evade
arrest and continued to try and break away from the officers attempting to arrest him until the taser was used. Although the
officers attempted to wrestle plaintiff to the ground, as can be seen in the videos, due to plaintiffs own actions in vigorously resisting arrest the officers were not able to handcuff plaintiff until the taser was used. Plaintiff continued to resist when he
was taken to the patrol car, as can also be seen on the two videos. The officers could not get him into the patrol car and
had to get a patrol wagon in order to transport plaintiff to the hospital. The use of the taser in these circumstances was not excessive force, and it certainly was not excessive force that any reasonable officer would have recognized as such.
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USPP General Order 3605 authorizes the use of electronic control devices, also known as tasers, see Reid Decl., 10, when needed in the aid of arrest. In particular, 3605.01 states:
Defensive equipment shall be used to gain control of an individual or group of individuals, or to effect an arrest to ensure the protection of the public, the officer, and any arrestees. Reid Decl., Ex. 2 at 1. Under General Order 3605.06(D)(1): An ECD may be used when such force is legally justified and in accordance with General Order 3615 Use of Force. ECDs may be used on individuals who are actively resisting and/or to prevent individuals from harming themselves or others. Id. at 7. General Order 3615 provides that [t]he reasonable use of force refers to that level of force used by an officer to control a situation based on the officers perception of the danger. Reid Decl., Ex. 3 at 3615.02. When an individuals resistance
has escalated to active physical defiance, or confrontational behavior that might inflict bodily harm, the officer must gain compliance and control and, where appropriate, use appropriate physical action to immediately stop the aggression. 3615.03(B)(2) & (3). Here, the videos show that plaintiff was physically defying the officers to the point that a reasonable officer could have believed that plaintiff might inflict bodily harm on them. Even Id. at
with two officers with their hands on him, trying to arrest him, 17
plaintiff still swung his arms at the officers, pulled sharply away from them, and resisted their attempts to bring him down to the ground where they could gain control over him. Exs. A & B.
This was all happening in a very volatile environment where other demonstrators or on-lookers in the park were crowding near the officers and repeatedly yelling and swearing at them. The arrest
clearly needed to be effectuated quickly as the situation grew more volatile and the on-lookers grew more numerous and hostile to the officers. Exs. A & B.
Defense counsel could locate no caselaw in the Supreme Court or this jurisdiction concerning the use of tasers in the context of a Bivens claim of excessive force when continued substantial resistence to arrest was present. In Bryan v. MacPherson, 630
F.3d 805 (9th Cir. 2010) (Wardlaw, J. concurring in the denial of rehg en banc), the Court identified numerous decisions in other jurisdictions concerning the level of force associated with a taser gun. Id. at 810-11. The Eleventh Circuit in an early
Bryan decision found the use of a taser to be excessive force when the plaintiff was pulled over for a minor seat belt infraction, never attempted to flee, was clearly unarmed, and was standing, without advancing in any direction, next to his vehicle while Officer MacPherson was standing approximately twenty feet away observing [plaintiff] Bryans stationary, bizarre tantrum with his X26 drawn and charged. Id. at 812, quoting Bryan v.
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MacPherson, 608 F.3d 614, 628 (9th Cir. 2010).
Nonetheless, the
Ninth Circuit upheld the grant of qualified immunity to the officer for deploying his taser, due to the dearth of prior authority regarding the circumstances under which the use of a taser was appropriate. Bryan v. MacPherson, 608 F.3d at 629.
Of course, the facts here are nothing like those in Bryan. Here, plaintiff was actively, physically, aggressively resisting arrest while a hostile crowd began to form around the arresting officers. Officer Lemkes use of her taser to allow the officers
to subdue plaintiff in order to effect a quick arrest was entirely appropriate under the circumstances. Indeed, the Eleventh Circuit in Draper v. Reynolds,369 F.3d 1270 (11th Cir. 2004), considered whether excessive force was used in connection with the discharge of a taser where the plaintiff acted toward the officer in a belligerent, excited manner in the context of a traffic stop. concluded that: In the circumstances of this case, Reynolds use of the taser gun to effectuate the arrest of Draper was reasonably proportionate to the difficult, tense and uncertain situation that Reynolds faced in this traffic stop, and did not constitute excessive force. . . . Draper was hostile, belligerent, and uncooperative. . . . Draper used profanity, moved around and paced in agitation, and repeatedly yelled at Reynolds. . . . Id. at 1278. The Court observed that [t]he single use of the The Eleventh Circuit
taser gun may well have prevented a physical struggle and serious harm to either Draper or Reynolds. 19 Id.
Here, the officers were already engaged in a physical struggle with plaintiff before the taser was used. But as the
Eleventh Circuit found in Draper, the use of the taser on plaintiff here may well have prevented serious harm to plaintiff or the officers, given plaintiffs clear indication that he was not prepared to cease his active, physical resistance to arrest. The foregoing demonstrates that the Complaint falls short of alleging a claim that defendants violated plaintiffs clearly established specific First and/or Fourth Amendment rights. E.g.,
Ashcroft v. Iqbal, 556 U.S. at 678, 687; Taylor v. Reilly, 685 F.3d 1110, 1113-14 (D.C. Cir. 2012) (to be clearly established, existing precedents must have placed the statutory or constitutional question beyond debate.). And the record shows
there was no violation of plaintiffs First or Fourth Amendment rights. See Reid Decl. & Exs. A & B. Accordingly, qualified See Wilson v.
immunity should insulate defendants from suit. Layne, 523 U.S. at 609. B.
Plaintiffs Claims are also Subject to Dismissal for Failure to Properly Serve the Individually-Named Defendants.
This Court is also without personal jurisdiction over defendants sued in their individual capacities in the absence of proper service. It is well-established that, in an action
against a federal employee in an individual capacity, the
20
individually-sued defendant must be served with process in accordance with Rule 4(e) of the Federal Rules of Civil Procedure. See Simpkins v. District of Columbia Govt., 108 F.3d
366, 369 (D.C. Cir. 1997); Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C. 1978); Delgado v. Bureau of Prisons, 727 F. Supp. 24 (D.D.C. 1989). Rule 4(e) provides that service is effectuated by complying with the laws of the state for such in which the district court is located by delivering a copy of the summons and complaint to the defendant (or his appointed agent) personally, or by leaving copies thereof at the defendants dwelling house or usual place of abode with some person of suitable age and discretion who resides there. Fed. R. Civ. P. 4(e). Actual notice will not, of
course, substitute for technically proper service under Rule 4 and will not permit the Court to render a personal judgment against an individually-sued defendant. 444 U.S. 527 (1980). Service on the Attorney General of the United States or the United States Attorney for the district in which the action is brought, pursuant to the rules applicable to official capacity suits, does not obviate the requirement of personal service. . .where the action is in substance against a federal official in his individual capacity. 727 F. Supp. at 27. Lawrence, 79 F.R.D. at 670; Delgado, See Stafford v. Briggs,
To the extent that plaintiff seeks relief
21
against federal employees in an individual capacity, the Court must acquire personal jurisdiction in order to enter a binding judgment, and personal jurisdiction is only acquired by personal service. E.g., Reuber v. United States, 750 F.2d 1039, 1049
(D.C. Cir. 1984). In this case, the Complaint was filed May 22, 2012. Service
was made on Capt. Robert McLean, who is only authorized to accept service of process for claims brought against officers in their official capacities. See Declaration of Robert McLean, attached.
Accordingly, defendants have not been properly served with the Complaint that is suing them in their individual capacities. Nonetheless, the Court need not reach this issue based on the arguments above.1
Defendants note, however, that the time to serve them has expired. See Fed. R. Civ. P. 4(m). 22
III.
CONCLUSION
For the foregoing reasons, defendants respectfully request that this Court grant their motion to dismiss or, in the alternative, for summary judgment and dismiss this case against them. Respectfully Submitted, RONALD C. MACHEN JR. D.C. BAR # 447889 United States Attorney for the District of Columbia DANIEL F. VAN HORN, D.C. BAR # 924092 Chief, Civil Division By: /s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorney U.S. Attorneys Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 514-7226 phone (202) 514-8780 fax Marina.Braswell@usdoj.gov
23
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) RYAN BARTON LASH, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-0822 (JDB) ) OFFICER JENNIFER LEMKE, ) in her individual capacity, ) United States Park Police ) ) and ) ) SERGEANT TODD REID, ) in his individual capacity, ) United States Park Police ) ) Defendants. ) ______________________________) ORDER Upon consideration of defendants motion to dismiss or, in the alternative, for summary judgment, plaintiffs responding opposition, and the entire record in this case, it is hereby ORDERED that defendants motion is granted; and it is further ORDERED that this case is dismissed.
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RYAN BARTON LASH, ) ) Plaintiff, ) ) v. ) ) SERGEANT TODD REID, et al., ) ) Defendants. ) ____________________________________)
Civil Action No. 12-00822 JDB
Declaration of Sergeant Todd Reid
I, Sergeant Todd Reid, declare the following to be true and correct: 1. I am a Detective Sergeant in the Criminal Investigations Branch of the United States Park Police (USPP). 2. On or about January 27 29, 2012, National Park Service (NPS) personnel distributed notices to individuals camped in McPherson Square in Washington, D.C. The notice advised those individuals that camping and the use of temporary structures to camp and house personal goods would no longer be permitted in the square following noon on January 30, 2012. is attached hereto as Exhibit 1. 3. USPP provided assistance and protection to NPS personnel on the scene. supervised the USPP Officers on the scene on one of the days notices were distributed. The mission on those days was to provide clear direction what the laws I A true and correct copy of that notice
and regulations were related to McPherson Square, and what was expected of the 1
individuals for them to be in compliance. 4. When NPS officials began distributing notices, there were hundreds of individuals filling McPherson Square, as well as temporary structures, tents, and shelters which concealed a large portion of the individuals. 5. The mission on the days identified in paragraph 2 above was only to provide clear notice that the regulatory prohibition on camping and the use of temporary structures would soon be enforced in the square. 6. Some of the individuals in the square became agitated, verbally harassed the officers, and interfered with NPS distribution effort. The situation was very volatile, and
USPP was on high alert to deal with any situation which arose as a result. 7. As relevant here, on January 29, 2012, plaintiff Ryan Lash interfered with official NPSs distribution of the notices by removing some of the notices that NPS officials had placed on several of the tents in McPherson Square. 8. Officer Lemke warned Mr. Lash several times that removing the notices was prohibited. Mr. Lash was informed that if he took down any further notices he would be arrested for disorderly conduct. 9. I witnessed Mr. Lash continue to remove the notices despite the USPP officers warnings. As a result, USPP Officers, including Officer Jennifer Lemke, Officer Tiffany Reed, and Officer Frank Hilsher, attempted to arrest Mr. Lash for disorderly conduct. Officer Tiffany Reed advised Mr. Lash that he was under arrest and
directed him to place his hands behind his back. 10. During the process of trying to arrest Mr. Lash, Mr. Lash refused to cooperate and
swung his arms in a violent manner, shoving the officers, and attempting to walk away from them despite repeated verbal commands from the Officers to stand still. In response to Mr. Lashs violent actions, Officer Lemke deployed her electronic control device (referred to as a taser) in a 5 second burst on Mr. Lash. 11. USPP used a taser on Mr. Lash only once and before the officers were able to put handcuffs on him. 12. Tasers can be used when a subject resists arrest and the Officer believes that the subjects actions pose a potential threat. The use of tasers by USPP officers is governed by General Order 3605.06 (Defensive Equipment: Electronic Control Devices (ECD)). hereto as Exhibit 2. 13. USPP Officers, in enforcing the laws of the United States, are required to make judgments as to when the use of force is necessary. Officers are empowered to use The use of force by USPP A true and correct A true and correct copy of General Order 3605.06 is attached
reasonable force based on the dynamics of the situation.
Officers is governed by General Order 3615 (Use of Force). copy of General Order 3615 is attached hereto as Exhibit 3. 14.
I supervised Officer Lemke on the day of the incident and have evaluated her actions. Officer Lemkes use of a taser on Mr. Lash on January 29, 2012, complied fully with General Order 3605.06 and 3615.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RYAN BARTON LASH, ) ) Plaintiff, ) ) v. ) ) SERGEANT TODD REID, et al., ) ) Defendants. ) ____________________________________)
Civil Action No. 12-00822 JDB
Declaration of Robert D. MacLean
I, Robert D. MacLean, declare the following to be true and correct: 1. I am the Deputy Chief, Commander of the Homeland Security Division, for the United States Park Police (USPP). 2. In my regular course of duty, I accept service for summons and subpoenas on behalf of USPP and USPP officers in their official capacity. 3. While I may accept service for officers named in their official capacity, I have not and have never been authorized to accept service on an USPP Officers served in their individual capacity. 4. I cannot and have never been authorized to accept service for Officer Jennifer Lemke in her individual capacity. 5. I cannot and have never been authorized to accept service for Sergeant Todd Reid in his individual capacity. 6. I signed for a court document served by the United States Marshals Service on July 25, 2012, but only in an official capacity as it related to USPP, and not for or on
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) RYAN BARTON LASH, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-0822 (JDB) ) OFFICER JENNIFER LEMKE, ) in her individual capacity, ) United States Park Police ) ) and ) ) SERGEANT TODD REID, ) in his individual capacity, ) United States Park Police ) ) Defendants. ) ______________________________) NOTICE OF FILING OF EXHIBITS A AND B IN SUPPORT OF DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Defendants hereby file Exhibits A and B in support if their Motion to Dismiss or, in the Alternative, for Summary Judgment on CD-ROM in the Clerks Office. The exhibits are not being filed
through the ECF system as attachments to Defendants dispositive motion as they are videos that cannot be converted to PDF format. A copy of the CD-ROM will be provided to Plaintiffs Counsel and Judges chambers. Respectfully submitted,
/s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorney U.S. Attorneys Office
555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 514-7226 Marina.Braswell@usdoj.gov
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RYAN BARTON LASH, vs. PLAINTIFF ) ) ) ) ) ) ) ) ) ) )
Civil Action No. 1:12-cv-822 (JDB)
OFFICER JENNIFER LEMKE, et al., DEFENDANTS
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Plaintiff respectfully opposes Defendants Motion and accompanying Memorandum of Points and Authorities in Support of Defendants Motion to Dismiss or, in the Alternative, for Summary Judgment. I. COUNTERSTATEMENT OF THE FACTS
Background on ECDs Electronic Control Devices (ECDs) (also known as Electronic Control Weapons (ECWs) or Conducted Energy Devices (CEDs)) are handheld weapons that deliver brief bursts of rapidly pulsing electrical current. (Ex. 1.) ECDs cause intense pain and incapacitating muscle contractions, either through two darts attached to wires or directly from contact with exposed electrodes. (Ex. 1.) Since TASER Intentional, Inc. captured the ECD market following the release of its first high-power ECD, the Model M26, in November 1999, followed by its equally highpower, but more compact Model X26 in 2003, there have been a growing number of 1
reports that the devices have been abused, or caused catastrophic injuries and death. (Ex. 1.) In a comprehensive report, Amnesty International identified 334 deaths associated with TASER International products in the United States from June 2001 through August 2008, almost all cardiac arrests. (Ex. 1.) There are numerous risks of using ECDs including a dart in the eye, ignition of flammable substances, fall-related trauma, orthopedic fracture or dislocation, and cardiac arrest. Both TASER Model M26 and X26 operate the same way. (Ex. 1.) A plastic cartridge slips onto the front of the barrel. (Ex. 19.) Switching off the safety activates a laser sight, the dot of light representing the target for the top dart. Pulling the trigger fires two darts, each bearing a barbed point nine millimeters long, connected to wires ranging in length from 15 to 35 feet. (Ex. 19.) The top dart travels straight while the bottom dart angles downward so that the darts spread one foot for each seven feet traveled. (Ex. 20.) The wider the spread, the more effective the electrical discharge will be in causing muscle incapacitation. (Ex. 12.) Both the Model M26 and X26 are set to cycle automatically for five seconds, accompanied by the audible clicking of the electrical pulses. The cycle can be ended sooner, however, by engaging the safety, or it can be prolonged by holding down the trigger longer than five seconds, continuing until the release of the trigger. Five second cycles can be repeated with additional trigger pulls and prolonged cycles continued until the device overheats or the batteries wear out, a period of up to ten minutes depending on battery strength. The effect of an ECD is like a debilitating, full-body seizure, complete with mental disorientation and loss of bodily functions. It is extremely painful. (Ex. 1.) When effective, the electrical current causes the skeletal muscles to contract severely
throughout the extremities, making the person stiffen and fall without means of selfprotection. (Ex. 1.) A person generally cannot comply with instructions while being shocked, and contractions in the arms may make it difficult for officers to move them into handcuffing position while the current is active, although TASER International trains this tactic, calling it handcuffing under power. (Ex. 14.) An independent peer-reviewed study of off-the-shelf M26 and X26 devices determined that discharges to the chest of test animals resulted in cardiac capture. (Ex. 5.) When a test animal was given epinephrine to simulate the agitated state of an individual being shocked during a confrontation with the police, a single ECD administration produced ventricular fibrillation and cardiac arrest. (Ex. 5.) By 2005, the link of multiple, repeated or prolonged ECD applications to a separate and distinct mechanism for cardiac arrest became undeniable, and TASER eventually included warnings cautioning users to make [r]easonable efforts . . . to minimize the number of ECD exposures. ECD users should use the lowest number of ECD exposures that are objectively reasonable to accomplish lawful objectives and should reassess the subjects behaviors, reactions, and resistance level before initiating or continuing the exposure. (Ex. 2.) Metabolic acidosis, the build-up of lactic acid in the bloodstream from excessive muscle contractions, is a known cause of cardiac arrest. (Ex. 6.) The relationship between repeated ECD-induced muscle contractions and severe metabolic acidosis was documented in a study sponsored by the United States Air Force, (Ex. 7) and in a series of experiments conducted by independent researchers in Chicago (Ex. 8; Ex. 9; Ex. 10). The risks posed by the introduction of ECDs were documented in the most thorough etymological study to date. Independent researchers from the University of California,
San Francisco, School of Medicine determined that in-custody deaths increased six-fold during the year following the first deployments of TASER International products in the surveyed California law-enforcement agencies. (Ex. 11.) Beginning in September 2009, TASER International training and warning materials include the following: Law enforcement personnel are called upon to deal with individuals in crises [who] are often physiologically or metabolically compromised and may be susceptible to arrest-related death . . . . Any physiologic or metabolic change may cause or contribute to death or serious injury. (Ex. 2.) TASER Intentional warning material includes the following: Neurocardiogenic Response (Fainting). A person may experience an exaggerated response to an ECD exposure, or threatened exposure, which may result in a person fainting or falling with possible secondary injury. (Ex. 2.) Vasovagal syncope (fainting) resulting from TASER exposure has been documented in the scientific literature. (Ex. 15.) Ventricular fibrillation caused by ECD application may result in loss of consciousness and/or cardiac arrest. (Ex. 16.) A single five-second deployment of a TASER in probe mode, when directed at an otherwise healthy subjects back, can cause significant pain and spinal injury, even in the absence of a fall. (Ex. 3.) The pain may be severe enough to trigger a vasovagal reaction. (Ex. 3.) Because of the danger posed by the use of TASERs, many law enforcement jurisdictions place ECD use just below lethal force in their use of force continuum. See e.g., Parker v. Gerrish, 547 F.3d 1, 6 (1st Cir. 2008). TASER training materials state: ONLY USE TO STOP A THREAT. NEVER USE FOR PHYSICAL COERCION. (Ex. 13.) A 2009 report by the Maryland Attorney General advised that [b]y allowing their officers to use ECWs against individuals who are actively resisting without any
imminent risk of harm, these agencies are authorizing their officers to use ECWs solely as a device to coerce compliance with the officers orders. The risks associated with ECW usage, from the potential for death or injury to straining police-community relationships, should preclude the use of ECWs as a device to merely achieve compliance. (Ex. 4 at 29)(emphasis in original). As an example, the report instructed, an officer would not be justified to use an ECW on an individual who was merely . . . moving evasively to avoid being handcuffed, but who otherwise did not threaten physical harm. In this situation, the risks associated with the ECW are disproportionate to the risk of harm posed on the officer or others. (Ex. 4 at 31.) Further, officers should attempt to determine whether the individual actually received and understood the officers commands. (Ex. 4 at 31.)
Use of ECD against Plaintiff On January 29, 2012, the Plaintiff, Mr. Ryan Lash, was in McPherson Square participating in the Occupy DC vigil. (Compl. 7; Lash Decl. 3.) A group of Park Police officers approached the tent in which Plaintiff was located and stated that they were posting notices. (Compl. 8; Lash Decl. 4.) Plaintiff responded that he already had received plenty of notices. (Compl. 8; Lash Decl. 4.) A Park Police officer then threw a notice into the tent where Plaintiff was located. (Compl. 9; Lash Decl. 5.) Plaintiff threw the notice out of a corner of the tent. (Compl. 9; Lash Decl. 5.) A Park Police officer threw another notice to the tent where Plaintiff was located. (Compl. 9; Lash Decl. 5.) The notices being handed out by the Park Police officers concerned the governments intent to enforce the no-camping regulations in the coming days. (Compl. 10.)
Plaintiff emerged from the tent and told the group of Park Police officers that he would be participating in a sleep strike and would not be going to sleep for days. (Compl. 11; Lash Decl. 6.) The group of Park Police officers then walked away. (Compl. 11; Lash Decl. 6.) Plaintiff then started chanting Fuck your notices, and removed two notices from other tents. (Compl. 12; Lash Decl. 7.) Officer Jennifer Lemke informed Plaintiff that if he took down another notice, he would be arrested for disorderly conduct. (Compl. 12; Lash Decl. 7.) After this warning, Plaintiff ceased taking down the notices and walked away. (Compl. 12; Lash Decl. 7.) As Plaintiff was walking away, he said to a group of Park Police officers, You want us to clean up the trash in the park, right? Well heres your fucking trash you fucking pigs. (Compl. 13; Lash Decl. 8.) Plaintiff then crumpled up the notices he had removed and placed them in the trash. (Compl. 13; Lash Decl. 8.) Although Plaintiff was complying with Officer Lemkes order not to remove any more notices, Officers Jennifer Lemke, Frank Hilsher, and Tiffany Reed began to approach Plaintiff as he was standing on a paved area in the southern side of McPherson Square. (Compl. 14; Lash Decl. 9.) Sgt. Todd Reid was also present. (Compl. 14; Lash Decl. 9.) Plaintiff did not know why the group of Park Police officers were coming up to him so he said Why are you coming at me? and began walking around the park. (Compl. 15; Lash Decl. 10.) Plaintiff was scared because he had seen Park Police assault protesters before. (Compl. 15; Lash Decl. 10.) Although Plaintiff was walking around the park, he did not attempt to run away or escape. (Compl. 15; Lash Decl. 10.) The Park Police officers did not explain to Plaintiff why they were approaching him. (Compl. 16; Lash Decl. 11.) Plaintiff did not think that the Park Police were going to place him under arrest because he had complied with the order not to take down 6
any more notices. (Compl. 16; Lash Decl. 11.) However, had the Park Police simply told Plaintiff that he was going to be arrested, he would have put his arms behind his back. (Compl. 16; Lash Decl. 11.) Plaintiff was walking away because he thought that would help defuse the situation. (Compl. 16; Lash Decl. 11.) When Officers Lemke, Hilsher, and Reed, and Sergeant Reid got close to Plaintiff, Plaintiff put his hands in the air and said Ive done nothing wrong. (Compl. 17; Lash Decl. 12.) Officer Reed approached Plaintiff from behind and, without warning, grabbed his arms and pulled them behind his back. (Compl. 18; Lash Decl. 13.) Neither Officer Reed nor any of the other law enforcement officials present told Plaintiff at any time during the incident in the park that he was under arrest or asked him to put his hands behind his back. (Compl. 18; Lash Decl. 13.) Startled, Plaintiff moved his arms forward. (Compl. 19; Lash Decl. 14.) Because he was being grabbed from behind, Plaintiff did not know who was touching him. (Compl. 19; Lash Decl. 14.) Officer Reed then grabbed Plaintiffs neck and left arm while Officer Hilsher grabbed Plaintiffs right arm. (Compl. 19; Lash Decl. 14.) When Plaintiff noticed it was Park Police officers grabbing him, he allowed the officers to place his arms behind his back. (Compl. 20; Lash Decl. 15.) While Officers Reed and Hilsher were holding onto Plaintiff, Officer Lemke approached Plaintiff from behind and pulled the trigger on her Taser, resulting in two probes becoming implanted into Plaintiffs back and a charge being carried to Plaintiffs body, causing neuromuscular incapacitation. (Compl. 21; Lash Decl. 16.) Officer Lemkes use of the Taser caused Plaintiff to fall to the ground and experience vasovagal syncope (fainting). (Compl. 22; Lash Decl. 17.) While Plaintiff was on the ground, Officers Reed and Hilsher handcuffed Plaintiff. (Compl. 23; Lash Decl. 18.) Officer Lemke TASEd Plaintiff again after he was on the ground in handcuffs. (Compl. 24; 7
Lash Decl. 19.) Plaintiff knew that Officer Lemke was using the TASER a second time after he was in handcuffs because he could hear the clicking of the TASER and could feel its effects on him. (Lash Decl. 20; Pl. Ex. 17 at 5:40.) As he regained consciousness, Officers Reed and Hilsher lifted Plaintiff up to his feet and walked him to a patrol car. (Compl. 25; Lash Decl. 21.) Plaintiff asked to be transported to the hospital in an ambulance, but Officers Lemke and Hilsher refused and tried to force Plaintiff into the back of a patrol car. (Compl. 26; Lash Decl. 22.) After unsuccessfully trying to maneuver Plaintiff into the patrol car, Officer Hilsher moved Plaintiff behind the patrol car and bent him over the trunk. (Compl. 27; Lash Decl. 23.) Plaintiff was feeling woozy and dizzy. (Compl. 27; Lash Decl. 23.) The shocks from the Taser made Plaintiff feel like he was going to defecate. (Compl. 27; Lash Decl. 23.) Plaintiff then experienced another episode of vasovagal syncope and fell to the ground where his body began convulsing. (Compl. 28; Lash Decl. 24.) Plaintiff had never experienced seizures before. (Compl. 28; Lash Decl. 24.) As Plaintiff fell, he landed on his right hand, still in handcuffs, causing searing pain. (Compl. 28; Lash Decl. 24.) While Plaintiff was unconscious, Officers Lemke and Reed lifted Plaintiff to his feet. (Compl. 29; Lash Decl. 24.) As Plaintiff regained consciousness, Officer Lemke and an unknown Park Police officer walked Plaintiff to a transport wagon and placed him inside. (Compl. 30; Lash Decl. 25.) The handcuffs on Plaintiff were very tight and Plaintiff loudly asked for the handcuffs to be eased. (Compl. 30; Lash Decl. 25.) The pain caused Plaintiff to cry. (Compl. 30; Lash Decl. 25.) Plaintiff was then transported to George Washington Hospital where he fainted in the hotel lobby. (Compl. 31; Lash Decl. 26.) At the hospital, the Taser probes were removed from Plaintiffs back and he was instructed to return to the hospital if he was 8
experiencing chest pain. (Compl. 32; Lash Decl. 27.) Plaintiff had the sensation of pins and needles along his right thumb and down to his wrist. (Compl. 33.; Lash Decl. 28.) He told one of the nurses at the hospital about this sensation. (Compl. 33.; Lash Decl. 28.) After leaving the hospital and being transported to District 1, Plaintiff began experiencing sharp chest pain and feeling dizzy. (Compl. 34; Lash Decl. 29.) Plaintiff felt woozy, his chest felt tight, and he had a hard time breathing. (Compl. 34; Lash Decl. 29.) Plaintiff asked to be taken back to the hospital. (Compl. 34; Lash Decl. 29.) Plaintiff then lost consciousness again. (Compl. 34; Lash Decl. 29.) When he awoke, he was told by a police officer that he had been unconscious for about three to four minutes. (Compl. 35; Lash Decl. 30.) Plaintiff was confused about who he was and what was going on. (Compl. 35; Lash Decl. 30.) Plaintiff was diagnosed with chest pain, unspecified. (Compl. 36; Lash Decl. 31.) Plaintiff told a nurse that he could not feel anything behind his right thumb. (Compl. 37; Lash Decl. 32.) He still does not have any feeling from right below the fingernail of his right thumb to his wrist area. (Compl. 37; Lash Decl. 32.) Plaintiff continues to this day to feel ghost pains on his back where he was shocked and around his right wrist along the thumb where it is still numb. (Compl. 38; Lash Decl. 33.) Plaintiff sometimes gets the sensation of pins and needles along his right thumb down to his wrist. (Compl. 38; Lash Decl. 33.) Plaintiff sometimes hears non-existent clicks and feels pain where the Taser probes had attached to him. (Compl. 38; Lash Decl. 33.) Sometimes Plaintiff is unable to even hold conversations with people due to the physical and mental trauma of being tasered. (Compl. 38; Lash Decl. 33.) Plaintiff often suffers from panic attacks when he talks about the incident. (Compl. 38; Lash Decl. 33.) 9
In a Gerstein affidavit, Officer Lemke swore under penalty for making a false statement that Plaintiff shoved Officers Reed and Hilsher, and that Officer Lemke said stop resisting or I will tase you. (Compl. 39.) In truth and in fact, Plaintiff did not shove Officers Reed and Hilsher. (Compl. 40; Lash Decl. 34.) In truth and in fact, Officer Lemke never said stop resisting or I will tase you and never warned Plaintiff that he should stop resisting or that he was about to be tased. (Compl. 41; Lash Decl. 35) Officer Lemke made the foregoing false statements in order to cover up the use of excessive force. (Compl. 42.) At the times Officer Lemke tased Plaintiff, Plaintiff was not posing a threat to law enforcement or anyone else. (Compl. 43; Lash Decl. 36.) Plaintiff was unarmed and surrounded by police officers. (Compl. 43; Lash Decl. 36.) Officer Lemke tased Plaintiff in an attempt to make it easier for officers to handcuff him and not because Plaintiff posed a threat to her or anyone else. (Compl. 44.) Taser training materials, with which, on information and belief, both Officer Lemke and Sergeant Reid were familiar, state: ONLY USE TO STOP A THREAT. NEVER USE FOR PHYSICAL COERCION. (Compl. 45; Ex. 13.) Sergeant Reid was the lead officer in charge at the time that Officer Lemke tased Plaintiff. As the lead officer in the field, Sergeant Reid was responsible for proper command and control. (Compl. 46.) Sergeant Reid failed to instruct or deploy in any meaningful way Officer Lemke or the other officers involved in apprehending Plaintiff. (Compl. 47.) Sergeant Reid failed to intercede on Plaintiffs behalf despite the fact that Sergeant Reid had ample opportunity to stop Officer Lemke from tasering Plaintiff both the first and second times. (Compl. 48.) II. STANDARD OF ADJUDICATION 10
a. Motion to dismiss under 12(b)(6) A complaint need only provide a short and plain statement of the claim showing that the pleader is entitled to relief in order to survive a motion to dismiss. Fed. R. Civ. P. Rule 8(a)(2). A complaint must give the defendants notice of the claims and the grounds upon which they rest, but specific facts are not necessary. Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Id. A court may not grant a motion to dismiss for failure to state a claim even if it strikes a savvy judge that recovery is very remote and unlikely. Id. So long as the pleadings suggest a plausible scenario to show that the pleader is entitled to relief, a court may not dismiss. Id.
b. Summary judgment under Rule 56 Summary judgment may only be granted if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. Rule 56(a). Additionally, the evidence must be viewed in the light most favorable to the party opposing the motion, all reasonable inference must be drawn in the nonmovants favor, and the court must eschew making credibility determinations or weighing the evidence. Figueroa v. D.C. Metro. Police Dept, 633 F.3d 1129, 1131-32 (D.C. Cir. 2011).
c. Qualified immunity
11
In resolving questions of qualified immunity, courts engage in a two-part inquiry. The first threshold question is: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001). If the court finds a violation of a constitutional right, the next, sequential step is to ask whether the right was clearly established . . . in light of the specific context of the case. Id. It is no longer required that a court resolve a qualified immunity claim by answering the questions in that particular order. Pearson v. Callahan, 555 U.S. 223, 237 (2009).
III.
OBJECTION TO DEFENDANTS EXHIBITS AND STATEMENT OF FACTS
Under Fed. R. Civ. Pro. 56(c)(1)(A) a party may support its position that a fact cannot be genuinely disputed by citing to particular parts of materials in the record, including . . . affidavits or declarations[.] However, an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Fed. R. Civ. Pro. 56(c)(4). Plaintiff objects that the Reid Declaration is not made entirely on personal knowledge and does not show that Sgt. Reid is competent to testify on the matters stated. Although the Reid Declaration asserts that Sgt. Reid personally witnessed certain events, such as Mr. Lash removing notices, it sets forth no foundation as to other events from which the court can determine he has personal knowledge. For example, it is unclear how Sgt. Reid determined that Officer Lemke
12
deployed her TASER in only a single five-second burst, or the basis of his claim that Mr. Lash was medically evaluated and found to have not sustained lasting physical injuries. Plaintiff further objects that the materials cited do not establish the absence . . . of a genuine dispute[.] Fed. R. Civ. Pro. 56(c)(1)(B). Specifically, the videos submitted by Defendants as Exhibits A & B do not support the characterizations of Plaintiffs actions as described in Defendants motion and statement of facts. Mr. Lash did not swing his arms against the officers (Def. Statement of Facts 6)(emphasis added), did not actively resist (Def. Statement of Facts 7,8), was not physically defying the officers to the point that a reasonable officer could have believed that plaintiff might inflict bodily harm on them (Def. Mem. of Points and Authorities at 17), and did not aggressively attempt[] to evade arrest[.] (Def. Mem. of Points and Authorities at 16.) Further, numerous statements made by Defendants in their Memorandum of Points and Authorities are completely lacking in any support from the record or misstate the record evidence. Defendants assert that Sergeant Reid warned plaintiff that he was not allowed to remove the notices, but he continued to do so. Reid Decl., 8-9. (Def. Mem. of Points and Authorities at 3.) However, paragraph 8 of the Reid Declaration states that it was Officer Lemke, not Sgt. Reid, who warned Mr. Lash that removing the notices was prohibited. Similarly, Defendants assert, Officer Lemke deployed her taser and warned plaintiff to stop resisting or he would be arrested. Reid Decl., 10. However, paragraph 10 of the Reid Declaration states only that the officers gave repeated verbal commands to Mr. Lash to stand still, not that Officer Lemke warned Mr. Lash to stop resisting or he would be arrested.
13
Defendants also refer to facts which occurred after the TASERing of Mr. Lash and are therefore irrelevant to whether the decision to TASER Mr. Lash was reasonable. For example, a protester saying, Were going to start a riot (Def. Mem. of Points and Authorities at 5) after witnessing police officers wrongfully TASERing Mr. Lash could not possibly be relevant as evidence that it was reasonable for the police officers to TASER Mr. Lash. Further, any alleged acts of resistance by Mr. Lash when he was already at the patrol car (Def. Mem. of Points and Authorities at 5) are irrelevant to a determination of whether a decision to TASER Mr. Lash several minutes earlier was reasonable.
IV.
ARGUMENT a. Defendants are not entitled to qualified immunity on Plaintiffs Fourth Amendment claim arising out of the unlawful use of excessive force against him.
Defendants argument appears to be that if they use certain key words to describe Mr. Lashs conduct (e.g., physical defiance, vigorously resisting arrest, and actively, physically, aggressively resisting arrest), their conduct will be deemed in compliance with an internal Park Police policy and therefore no liability can attach under the Fourth Amendment. This is not how the Fourth Amendment analysis works. The Supreme Court has explained that [d]etermining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individuals Fourth Amendment interests. Graham v. Connor, 490 U.S. 386, 396 (1989)(internal quotation marks omitted). The test of reasonableness under the Fourth Amendment is not capable
14
of precise definition or mechanical application. Bell v. Wolfish, 441 U.S. 520, 559 (1979). Instead, a court should consider several factors in determining reasonableness, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396. The initial deployment 1 of Officer Lemkes TASER against Mr. Lash was an intrusive use of force. A TASER shock is extremely painful, disorienting, incapacitating, and potentially lethal. See Bryan v. MacPherson, 630 F.3d 805, 825, 826 n.7 (9th Cir. 2010)( We recognize, however, that like any generally non-lethal force, the taser is capable of being employed in a manner to cause the victims death . . . . The physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that the X26 and similar devices are a greater intrusion than other nonlethal methods of force we have confronted.) The deployment of a TASER intrudes upon the victim's physiological functions and physical integrity in a way that other nonlethal uses of force do not. Id. at 825. None of the three Graham factors suggest that deployment of Officer Lemkes TASER was reasonable under these circumstances. First, the crime which Mr. Lash was accused of committing, disorderly conduct, a misdemeanor, is relatively minor and Defendants do not argue otherwise.
1
Defendants do not even argue that the second TASER deployment, which occurred after Plaintiff was in handcuffs, was justified. See e.g., Beaver v. City of Fed. Way, 507 F. Supp. 2d 1137, 1145-46 (W.D. Wash. 2007)(multiple TASER deployments were unreasonable), affd, 301 Fed. Appx. 704 (9th Cir. 2008). Instead, they simply argue that there was no second TASER deployment. Plaintiff has submitted evidence of a second TASER deployment and at this stage of the proceedings, the evidence must be taken in the light most favorable to him. A copy of the TASERs dataport readout would likely be able to settle this dispute. (See Pl. Ex. 18.) 15
Second, Mr. Lash did not pose any immediate threat to the safety of officers or others. He was unarmed, and as he was wearing pajamas, it should have been apparent that he was unarmed. Further, taking the facts in the light most favorable to Mr. Lash, he obeyed the only order given to him, which was Officer Lemkes instruction not to take down any further notices. None of the officers would have had any reason to believe that Mr. Lash would not obey any further order given to him. While Mr. Lash used crude language to refer to the officers and had been vocal earlier, there is no evidence that he threatened the officers or anyone else, that he was in a fighting stance, or that he posed an immediate threat to anyone. The videos show Mr. Lash walking away from the officers and bystanders, rather than advancing towards them, suggesting that Mr. Lash had no assaultive intent. The final Graham factor also supports a finding that the initial TASER deployment was unreasonable. Whether Mr. Lashs conduct is properly characterized as resistance, and if so, whether it should be described as active or passive, are not the proper questions to ask. See Bryan, 630 F.3d at 830 (We must eschew ultimately unhelpful blanket labels and evaluate the nature of any resistance in light of the actual facts of the case.) The actual facts of this case, taken in the light most favorable to Mr. Lash, suggest that the movement of his arms from being startled did not justify the use of significant force against him. According to Mr. Lashs declaration, which is confirmed by the videos, he was not told prior to the deployment of the TASER that he was under arrest or that he should put his hands behind his back. He was grabbed from behind such that he could not see who was grabbing him. The officers should not have been surprised that after they grabbed an individual from behind without warning him or identifying
16
themselves, the individual might instinctively pull away, as Mr. Lash did. See York v. City of Las Cruces, 523 F.3d 1205, 1209, 1211 (10th Cir. 2008)(denying qualified immunity where police officer grabbed individual who cursed in public without telling him that he was under arrest, the suspect reflexively pulled his arm away, and another officer TASERed the suspect). The officers would not have had any reason to think that the individuals response was voluntary. Additionally, once Mr. Lash pulled away, he was not told to stop resisting or that he was going to be TASERed if he continued resisting. See Vathekan v. Prince George's County, 154 F.3d 173, 179-80 (4th Cir. 1998)(lack of warning before releasing police dog was objectively unreasonable); Deorle v. Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001)(the giving of a warning or the failure to do so is a factor to be considered in applying the Graham balancing test.) The officers had no reason to believe that Mr. Lash would not have obeyed an order from one of them and they had ample opportunity to warn him given that he was not engaged in head-long flight or charging at them, but was simply pacing around the park. Finally, the presence of numerous and experienced officers at the scene, including some who were at least as large as Mr. Lash, militates against a finding that the deployment of the TASER was reasonable. Turning to the second prong of the qualified immunity inquiry, it was clearly established on January 29, 2012 that it would violate the Fourth Amendment to use a Taser to control a target without having any reason to believe that a lesser amount of force or a verbal commandcould not exact compliance. See Casey v. City of Federal Heights, 509 F.3d 1278, 1286 (10th Cir. 2007)(denying qualified immunity). See also Mattos v. Agarano, 661 F.3d 433, 451 (9th Cir. 2011) (When Aikala
17
encountered slight difficulty in arresting Troy because Jayzel was between the two men, Aikala tased her without warning. Considering the totality of these circumstances, we fail to see any reasonableness in the use of a taser in dart-mode against Jayzel); York, 523 F.3d at 1209, 1211. The D.C. Circuit also held, somewhat more generally, that An officers act of violence violates the Fourth Amendments prohibition against unreasonable seizures if it furthers no governmental interest, such as apprehending a suspect or protecting an officer or the public. . . . [A] police officer must have some justification for the quantum of force he uses . . . . Force without reason is unreasonable. Johnson v. District of Columbia, 528 F.3d 969, 976-77, 381 U.S. App. D.C. 351 (D.C. Cir. 2008). The proper inquiry is whether [a]ll of the officers actions were reasonably calculated toward the goal of securing [the suspect] and placing him in handcuffs, while minimizing his opportunity to escape. Scott v. District of Columbia, 101 F.3d 748, 760, 322 U.S. App. D.C. 75 (D.C. Cir. 1996). Here, it cannot be said that all of the officers actions 2 were reasonably calculated to advance a legitimate governmental interest. There was no legitimate reason to refrain from giving Mr. Lash any warnings, telling him that he was under arrest, or issuing any verbal orders, and then to TASER him after he was grabbed from behind and involuntarily pulled away. Defendants do not contend that such acts or omissions would have been reasonable, but instead argue that Mr. Lash was warned and given orders.
Although Officer Lemke may not have been able to control the actions of the other officers who grabbed Mr. Lash, Sgt. Reid was in such a position as the ranking official at the scene. His failure to adequately plan and direct the execution of the arrest of Mr. Lash caused the situation that led to Officer Lemke TASERing Mr. Lash. 18
However, the facts must be taken in Mr. Lashs favor at this stage of the proceedings, and the defendants accordingly cannot prevail.
b. Defendants are not entitled to qualified immunity on Plaintiffs First Amendment retaliatory use of force claim. Mr. Lash has alleged violation of his First Amendment rights under two theories: retaliatory arrest and retaliatory use of force. (Compl. 50, 51.) After the filing of the Complaint in this case, the Supreme Court decided Reichle v. Howards, ___ U.S. ___ (June 4, 2012), which held that it was not clearly established that retaliatory arrests supported by probable cause would violate the First Amendment. In light of Reichle, Mr. Lash concedes that his retaliatory arrest claim cannot proceed. However, Mr. Lashs First Amendment right to be free from the chilling effect of excessive force by police officers at a protest was well-established in January 2012. See Washington Mobilization Committee v. Cullinane, 566 F.2d 107, 127 (D.C. Cir. 1977)(excessive force may deter peaceful and law-abiding citizens from exercising their first amendment rights, especially if they cannot be confident that they will be given a chance to disperse before . . . police beatings take place.) Although retaliation is not expressly referred to in the Constitution, it is nonetheless actionable because retaliatory actions may tend to chill an individuals exercise of constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 597 (1972). In Hartman v. Moore, 547 U.S. 250, 256 (2006), the Supreme Court explained that [o]fficial reprisal for protected speech offends the Constitution because it threatens to inhibit exercise of the protected right, and the law is settled that as a general matter the
19
First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out . . . . When the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens. (internal brackets, quotaions, and citations omitted.) The Court held, however, that a First Amendment retaliatory prosecution claim cannot succeed unless lack of probable cause is also alleged and proven. Id. at 252. Thus, Hartman reaffirmed the viability of a Bivens cause of action for retaliation in violation of the First Amendment, provided the claim is properly pled and proven. Defendants do not challenge Mr. Lashs First Amendment retaliatory use of force theory, and given that it is properly pled and supported by evidence in the record, the court should not sua sponte dismiss it.
c. If the Court finds that Defendants were not properly served, an extension of time should be granted to effect service. Mr. Lash is proceeding in forma pauperis in this action and therefore is dependent on the U.S. Marshals Service to effect service of process on the defendants. See Fed. R. Civ. Pro. Rule 4(c)(3); 28 U.S.C. 1915(d). A plaintiff proceeding in forma pauperis is entitled to rely on the United States Marshals Service to effect proper service. Dumaguin by Rivera v. Secretary of Health & Human Servs., 28 F.3d 1218, 1221 (D.C. Cir. 1994). Under Fed. R. Civ. Pro. Rule 4(m), if the plaintiff shows good cause for the failure [to effect service of process], the court must extend the time for service for an appropriate period. Courts have generally held that the failure of the U.S. Marshals Service to effect service of process on behalf of a plaintiff proceeding in forma pauperis is automatically
20
good cause under Rule 4(m). See e.g., Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995). Thus, the appropriate remedy is not dismissal of the action, but the grant of additional time to effect service.
V.
CONCLUSION
For the foregoing reasons, Mr. Lash respectfully requests that the Court deny the defendants motion to dismiss or, in the alternative, for summary judgment.
Dated: December 7, 2012 Respectfully submitted, __/s/ Jeffrey Light_______________ Jeffrey L. Light D.C. Bar #485360 1712 Eye St., NW Suite 915 Washington, DC 20006 (202)277-6213 Jeffrey.Light@yahoo.com Counsel for Plaintiff CERTIFICATE OF SERVICE I hereby certify that this 7th day of December, 2012, I have served a copy of the foregoing MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT on counsel for Defendants via CM/ECF. __/s/ Jeffrey Light_______________ Jeffrey L. Light D.C. Bar #485360 1712 Eye St., NW Suite 915 21
Washington, DC 20006 (202)277-6213 Jeffrey.Light@yahoo.com Counsel for Plaintiff
22
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
RYAN BARTON LASH, PLAINTIFF vs. OFFICER JENNIFER LEMKE, et al., DEFENDANTS
) ) ) Civil Action No. 1:12-cv-822 (JDB) ) ) ) ) ) ) )
DECLARATION OF RYAN BARTON LASH
I, Ryan Barton Lash, state as follows: 1. 2. I am the plaintiff in the above-captioned action. The DVD labeled Ex. 17 to Plaintiffs Opposition to Defendants Motion
to Dismiss or, in the Alternative, for Summary Judgment is a fair and accurate depiction of the events of January 29, 2012 which are the subject of this suit. 3. On January 29, 2012, I was in McPherson Square participating in the
Occupy DC vigil. 4. A group of Park Police officers approached the tent in which I was located
and stated that they were posting notices. I responded that I had already received plenty of notices. 5. A Park Police officer then threw a notice into the tent where I was located.
I threw the notice out of a corner of the tent. A Park Police officer, who on information and belief, was Sgt. Reid, through another notice back into the tent where I was located. 6. I emerged from the tent and told the group of Park Police officers that I
would be participating in a sleep strike and would not be going to sleep for days. The group of Park Police officers then walked away. 1
7.
I started chanting Fuck your notices and removed two notices from
other tents. Officer Jennifer Lemke informed me that if I took down another notice, I would be arrested for disorderly conduct. After this warning, I ceased taking down the notices and walked away. 8. As I was walking away, I said to a group of Park Police officers, You
want us to clean up the trash in the park, right? Well heres your fucking trash you fucking pigs. I then crumpled up the notices that I had removed and placed them in the trash. 9. Although I was complying with Officer Lemkes order not to remove any
more notices, Officers Jennifer Lemke, Frank Hilsher, and Tiffany Reed began to approach me as I was standing on a paved area in the southern side of McPherson Square. Sergeant Todd Reid was also present. 10. I did not know why the group of Park Police officers were coming up to
him so I said Why are you coming at me? and began walking around the park. I was scared because I had seen Park Police assault protesters before. Although I was walking around the park, I did not attempt to run away or escape. 11. The Park Police officers did not explain to me why they were approaching
me. I did not think that the Park Police were going to place me under arrest because I had complied with the order not to take down any more notices. However, had the Park Police simply told me that I was going to be arrested, I would have put my arms behind my back. I was walking away because I thought that would help defuse the situation. 12. When Officers Lemke, Hilsher, and Reed, and Sergeant Reid got close to
me, I put my hands the air and said Ive done nothing wrong. 13. Officer Reed approached me from behind and, without warning, grabbed
my arms and pulled them behind my back. Neither Officer Reed nor any of the other law 2
enforcement officials present told me at any time during the incident in the park that I was under arrest or asked me to put my hands behind my back. 14. Startled, I moved my arms forwards. Because I was being grabbed from
behind, I did not know who was touching me. Officer Reed then grabbed my neck and left arm while Officer Hilsher grabbed my right arm. 15. When I noticed it was Park Police officers grabbing him, I allowed the
officers to place my arms behind my back. 16. While Officers Reed and Hilsher were holding onto me, Officer Lemke
approached me from behind and pulled the trigger on her TASER, resulting in two probes becoming implanted into my back and a charge being carried to my body, causing neuromuscular incapacitation. 17. 18. 19. I then fell to the ground and fainted. While I was on the ground, Officers Reed and Hilsher handcuffed me. Officer Lemke deployed her TASER on me again after I was on the
ground in handcuffs. 20. I know that Officer Lemke used her TASER a second time after I was in
handcuffs because I could hear the clicking of the TASER and could feel its effects on me. The clicking of the second TASER deployment can be heard on the video (Pl. Ex. 17) at approximately 5:40. 21. patrol car. 22. I asked to be transported to the hospital in an ambulance, but Officers Officers Reed and Hilsher lifted me up to my feet and then walked me to a
Lemke and Hilsher refused and tried to force me into the back of a patrol car.
23.
After unsuccessfully trying to maneuver me into the patrol car, Officer
Hilsher moved me behind the patrol car and bent me over the trunk. I was feeling woozy and dizzy. The shocks from the TASER made me feel like I was going to defecate. 24. I then fainted again and fell to the ground where my body began
convulsing. I had never experienced seizures before. As I fell, I landed on my right hand, still in handcuffs, causing searing pain. 25. As I regained consciousness, Officer Lemke and an unknown Park Police
officer walked me to a transport wagon and placed me inside. The handcuffs on me were very tight and I loudly asked for the handcuffs to be eased. The pain caused me to cry. 26. hospital lobby. 27. At the hospital, the TASER probes were removed from my back and I was I was then transported to George Washington Hospital. I passed out in the
instructed to return to the hospital if I experienced chest pain. 28. I had the sensation of pins and needles along my right thumb and down
to his wrist. I told one of the nurses at the hospital about this sensation. 29. After leaving the hospital and being transported to District 1, I began
experiencing sharp chest pain and feeling dizzy. I felt woozy, my chest felt tight, and I had a hard time breathing. I asked to be taken back to the hospital. I then fainted again. 30. When I awoke, I was told by a police officer that I had been unconscious
for about three to four minutes. I was confused about who I was and what was going on. 31. 32. I was diagnosed with chest pain, unspecified. I told a nurse that he could not feel anything behind my right thumb. I still
do not have any feeling from right below the fingernail of my right thumb to my wrist area.
33.
I continue to this day to feel ghost pains on my back where I was
shocked and around my right wrist along the thumb where it is still numb. I sometimes get the sensation of pins and needles along my right thumb down to my wrist. I sometimes hear non-existent clicks and feel pain where the TASER probes had attached to me. Sometimes I am unable to even hold conversations with people due to the physical and mental trauma of being TASERed. I often suffer from panic attacks when I talk about the incident. 34. 35. At no point did I shove Officers Reed and Hilsher. Officer Lemke never said stop resisting or I will tase you and never
warned me that I should stop resisting or that I was about to be TASERed. 36. At the times Officer Lemke TASERed me, I was not posing a threat to law
enforcement or anyone else. I was unarmed and surrounded by police officers. 37. I have reviewed the Declaration of Sergeant Todd Reid submitted in the
above-captioned case. The declaration contains numerous inaccuracies. a) In paragraph 4, Sgt. Reid states that when NPS officials began distributing notices, there were hundreds of individuals filling McPherson Square. However, on January 27, 2012 when the NPS began distributing notices, there were only approximately 80-90 individuals in McPherson Square. b) In paragraph 8, Sgt. Reid states that Officer Lemke warned me several times that removing the notices was prohibited. However, Officer Lemke only warned me one time about removing the notices. c) In paragraph 9, Sgt. Reid states that he witnessed Mr. Lash continue to remove the notices despite the USPP officers warnings. However, I did not continue removing notices after the warning from Officer 5
Lemke and no other officers warned me. All I did at that point was to place in the trash the two notices that I had previously taken down before the warning. d) Also in paragraph 9, Sgt. Reid states that Officer Tiffany Reed advised Mr. Lash that he was under arrest and directed him to place his hands behind his back. However, neither Officer Tiffany Reed nor any other officer directed me to place my hands behind my back. The only time I was told by any of the officers that I was under arrest was by Officer Hilsher after I was already at the police cruiser. There was no wind or commotion that would have prevented me from hearing any directions that were given to me until after I was TASERed. e) In paragraph 10, Sgt. Reid states that During the process of trying to arrest Mr. Lash, Mr. Lash refused to cooperate and swung his arms in a violent manner, shoving the officers, and attempting to walk away from them despite repeated verbal commands from the Officers to stand still. However, although I did swing my arm, it was not in a violent manner, and was simply the result of me being startled by being grabbed from behind, as can be seen in the video. I did not see who was grabbing me at first, but had the officers stated that I was under arrest or that I should put my hands behind my back, I would have complied. I could not have refused to cooperate because I was not given any orders with which to cooperate. I did not shove any of the officers at any time. I did walk away from the officers at one point, but none of them issued any verbal commands to me to stand still. In fact, none of them issued any verbal commands at all, except 6
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RYAN BARTON LASH, vs. PLAINTIFF ) ) ) ) ) ) ) ) ) ) )
Civil Action No. 1:12-cv-822 (JDB)
OFFICER JENNIFER LEMKE, et al., DEFENDANTS
STATEMENT OF MATERIAL FACTS AS TO WHICH THERE EXISTS A GENUINE DISPUTE 1. Mr. Lash did not refuse to cooperate when he was being arrested, but instead swung his arms forward simply because he was startled at being grabbed from behind without warning by a person who he could not see. (Lash Decl. 37(e).) 2. Mr. Lash did not actively resist and did not refuse to stop his alleged active resistance. (Def. Ex. A & B; Pl. Ex. 17.) 3. Officer Lemke deployed her TASER twice against Mr. Lash, and Mr. Lash was in handcuffs at the time of the second TASER deployment. (Pl. Ex. 17; Lash Decl. 1920.) 4. Officer Lemke only warned Mr. Lash once to cease removing notices. (Lash Decl. 37(b).) 5. Mr. Lash did not continue removing notices after being warned by Officer Lemke to stop removing notices. (Lash Decl. 37(c).) 6. At no point did Officer Tiffany Reed or any other officer direct Mr. Lash to place his hands behind his back. (Lash Decl. 13, 37(c); Def. Ex A & B; Pl. Ex 17.) 1
7. The only time Mr. Lash was told that he was under arrest was by Officer Hilsher after Mr. Lash was already in the police cruiser. (Lash Decl. 37(c); Def. Ex A & B; Pl. Ex 17.) 8. During the entire encounter, Mr. Lash was never violent and never posed a risk of harm to anyone. (Lash Decl. 37(c); Def. Ex A & B; Pl. Ex 17.) 9. Officer Lemke did not comply fully with General Order 3605.06(D)(5), which requires that the officer using an ECD shall give an audible verbal warning, because she did not give any verbal warnings. (Lash Decl. 37(c); Def. Ex A & B; Pl. Ex 17.)
__/s/ Jeffrey Light_______________ Jeffrey L. Light D.C. Bar #485360 1712 Eye St., NW Suite 915 Washington, DC 20006 (202)277-6213 Jeffrey.Light@yahoo.com Counsel for Plaintiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RYAN BARTON LASH, vs. PLAINTIFF ) ) ) Case No. 1:12-cv-822 (JDB) ) ) ) ) ) ) ) ORDER UPON CONSIDERATION of Defendants Motion to Dismiss, or in the Alternative, for Summary Judgment, it is hereby ORDERED that the motion is DENIED.
JENNIFER LEMKE, et al. DEFENDANTS
___ ______________ Hon. John D. Bates District Judge
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RYAN BARTON LASH, vs. PLAINTIFF ) ) ) Case No. 1:12-cv-822 (JDB) ) ) ) ) ) ) ) NOTICE OF FILING PLEASE TAKE NOTICE that Exhibit 17 in support of Plaintiffs Memorandum of Points and Authorities in Opposition to Defendants Motion to Dismiss or, in the Alternative, for Summary Judgment has been filed on DVD with the Clerks Office. The exhibit is not being filed through ECF because it is a video not capable of being converted to PDF. A copy of the DVD will be provided to Defendants counsel and Judges chambers.
JENNIFER LEMKE, et al. DEFENDANTS
Respectfully Submitted, ___/s/ Jeffrey Light______________ Jeffrey L. Light D.C. Bar #485360 1712 Eye St., NW Suite 915 Washington, DC 20006 (202)277-6213 Jeffrey.Light@yahoo.com Counsel for Plaintiff

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A proposed Order is also attached. Respectfully submitted,

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Civil Action No. 12-0822 (JDB)

On January 29, 2012, National Park Service (NPS)

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notices and threw them in the trash. Decl., 7, 9. 5.

The officers tried to wrestle plaintiff to the ground Exs. A & B.

but he continued to actively resist. 8.

but did not immediately tase plaintiff.

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10; Exs. A & B.

Plaintiff refused to stop his active

taken to George Washington Hospital. A & B. 13.

USPP General Order 3605.06 authorizes the use of

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NPSs intent to begin enforcing those regulations.

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officers then decided to arrest plaintiff for disorderly conduct. Id. at 9.

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Plaintiff refused to cooperate and continued to try and get Id. at

Plaintiff is physically bigger than two of the Exs. A & B. Plaintiff

three officers trying to arrest him.

not in handcuffs at the time.

Reid Decl., 11; Exs. 2 & 3.

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F.3d 621, 624 (D.C. Cir. 1997).

Specifically, the Court may take

view[] the facts in the light depicted by the videotape. 381.

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Second, even in absence of affirmative

Schweiker v. Chilicky, 487 U.S. 412 (1988).

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performing discretionary functions are shielded from liability 8