A critical ruling and great victory
The federal government has tried to escape responsibility for its role in the shocking round-up of 400 persons in Pershing Park and to avoid accountability for the government and its high ranking official's role in the mass deprivation of constitutional rights.
The federal government filed to dismiss the claims against former U.S. Park Police Captain Richard Murphy - - who commanded the federal law enforcement forces which participated in the September 27, 2002 Pershing Park mass arrest.
The federal government argued that Murphy never intended to arrest anyone, and was just putting up police lines at the request of another agency, the DC MPD. The class plaintiffs argued that the Park Police constituted two lines of a box that surrounded and arrested everyone, and that they cannot escape responsibility by saying that their two lines viewed in isolation did not prevent movement in all directions. The box needed four sides, and the U.S. Park Police were two of them.
Further, the Partnership for Civil Justice uncovered and presented the Court with evidence that Murphy and the Park Police did intend to trap and arrest everyone. The PCJ referred the Court to police recorded radio communications with Murphy directing U.S. Park Police to "enclose the demonstrators up here in Pershing Park with Metropolitan Police" and reporting that "we’re going to keep the crowd inside Pershing Park." The Barham plaintiffs also presented their deposition of Murphy, in which he admitted to "containing" the class inside the Park.
The federal government also argued that Murphy had a legitimate interest in preventing movement of protestors towards the White House complex, which is located directly to the west of Pershing Park. Plaintiffs pointed out that Park Police lines were, however, on the north and south side of the park.
The federal government argued that it would be unfair to subject Murphy to liability where Park Police were responding to a request for police assistance from a high ranking MPD officer who advised that those within the park were being properly arresting for "failure to obey" a police order. The Court found that no reasonable officer could have believed that probable cause existed to arrest everyone in the park on that basis.
Ultimately, the Court accepted the reasoning presented by the Barham class. Judge Sullivan wrote,
"[T]he Park Police officers in Pershing Park were not merely innocent bystanders. They formed portions of two sides of a box of officers around Pershing Park that prevented hundreds of people from leaving. The Court agrees with plaintiffs that the federal defendants ‘caused’ Plaintiffs to be arrested when Park Police officers . . . encircled the park thereby restraining plaintiffs’ freedom to leave."
FBI Loses Motion to Dismiss
In another significant victory, the Court rejected the federal government’s motion to dismiss claims against the FBI. The Barham plaintiffs argued that the FBI used the mass arrest as a mass intelligence gathering operation, and has demanded that the FBI disgorge and expunge not only the standard arrest records but also all other records derived from the arrests, including all intelligence records.
The Court denied the FBI’s motion to dismiss and authorized discovery by plaintiffs against the FBI as to the scope of its intelligence and records collection, dissemination and use.
Read the full text of the Court's opinion here.