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“Truly Historic Settlement” Approved in Pershing Park Class Action

Judge says attorneys worked to “protect future generations of protesters.”

U.S. Federal Judge Emmet G. Sullivan issued final approval to an $8.25 million class action settlement of an eight-year-long and hard-fought litigation battle over the mass arrests of nearly 400 people in Pershing Park in Washington, D.C., in September 2002. Judge Sullivan stated, “By all accounts, this has been a long and historic journey and this can only be viewed as a truly historic settlement.”

“This historic settlement closes the door on a period when engaging in protest in Washington, D.C., meant risking being snatched up by the police without notice or warning, being hog-tied wrist-to-ankle in a contorted stress-and-duress position, and left in that painful and sleep-deprived position for hours and overnight without any chance for release,” stated Carl Messineo, attorney with the PCJF.

Discussing what he called “critical” and “substantial reform,” Judge Sullivan stated that the attorneys had worked to “protect future generations of protesters.”

“The reforms established through litigation and legislation have completely changed the landscape for protest in the nation’s capital. Repeated lawsuits by the Partnership for Civil Justice, legislative intervention by the D.C. Council, the steadfast commitment of the Class Representatives to these lawsuits, and thoughtful and careful judicial oversight have all together worked to produce this historic outcome,” stated Mara Verheyden-Hilliard, attorney with the PCJF. “The results of these constitutional rights lawsuits also send a message nationwide, that there will be a significant price to pay for violations of fundamental free speech rights,” stated Verheyden-Hilliard.

Almost exactly eight years ago, on the morning of September 27, 2002, the D.C. police department under then Police Chief Charles H. Ramsey, working with the U.S. Park Police, encircled Pershing Park, refused to let anyone leave and then arrested and hog-tied peaceful demonstrators, tourists, passers-by and legal observers. Many were held bound wrist-to-ankle on a police gym floor for upwards of 24 hours.

The class-action lawsuit brought by the Partnership for Civil Justice Fund on behalf of nearly 400 demonstrators and passersby has led to major and substantive reform in police policies and practices in the handling of mass demonstrations in Washington, D.C. During the litigation, the PCJF successfully fought to end the D.C. police’s “trap-and-detain” arrest tactic whereby the police would use police lines to suddenly surround and arrest entire groups of people in proximity to free speech activities.

As a result of document loss and destruction uncovered by the PCJF attorneys during the litigation, the case has also led to significant changes in record retention practices and the creation of an “audit trail” for documents in the police department and the Office of Attorney General, and has spawned further investigation by the federal court that may lead to referral for criminal prosecution of involved persons.

The $8.25 million settlement will provide for eligible arrestees to receive nearly $16,000 each. The PCJF and the District also recently reached a $13.7 million settlement involving a class action lawsuit on behalf of nearly 700 persons mass arrested in April 2000, the settlement of which was lauded by U.S. Federal Judge Paul L. Friedman as “historic” and an achievement for “future generations.”

These settlements, totaling $22 million, are the largest protest settlements in the history of the United States. Lead counsel on the class action cases are Carl Messineo and Mara Verheyden-Hilliard, co-founders of the PCJF.

The Pershing Park case received national and international media attention after it was revealed by the PCJF attorneys that the District had engaged in widespread destruction, loss and withholding of evidence. In the course of extensive litigation and discovery, PCJF attorneys uncovered and exposed that the running resume, which is a comprehensive log of police activity on the day of the arrest, had been destroyed. The destruction included not only the database and electronic backup but at least a dozen hard copies of the information. PCJF attorneys also uncovered that segments of taped audio transmissions, known as radio runs, appear to have been erased. The data missing was from the time the arrests were being ordered and executed.

Presiding U.S. District Court Judge Emmet G. Sullivan called the discovery misconduct in this matter the “civil equivalent of the Ted Stevens case.”

The District itself commissioned an investigation by former Federal Judge Stanley Sporkin whose report expressed being “particularly disturbed” by the purging of evidence and stated, “We have no way of knowing whether this was an act of intentional mischief or reflects a benign action. We do not believe it was the latter.”

Equitable Relief

In addition to the monetary terms, the District will change certain policies and practices as part of the settlements of these two class actions, Barham, et al. v. Ramsey, et al. (Case No. 02-CV-2283) (the September 2002 Pershing Park mass arrest case) and Becker, et al. v. District of Columbia, et al. (Case No. 01-CV-811) (the April 2000 mass arrest case).

Equitable relief provisions include: The MPD and OAG are required to centrally index and log all materials collected and reviewed in demonstration cases, a measure calculated to create an audit trail that will prevent future acts of evidence destruction; funding is established for document management software to be used to log and index evidence; new mandatory requirements for the preservation, indexing and maintenance of the integrity of the command center running resume, radio runs and video recorded evidence; and ongoing obligations to report to PCJF attorneys every six months for the next three years on the implementation of these measures. There are additional training and accountability requirements for police personnel, including requirements for training on lawful standard operating procedures in the context of First Amendment protected assemblies and mass demonstrations, and additional obligations when the MPD obtains the assistance of outside law enforcement agencies for demonstration related duties. The records of the over 1,000 persons falsely arrested in these two class actions will be expunged and the arrests declared null and void.

The equitable relief from this settlement is in addition to the relief secured through the enactment of the First Amendment Rights and Police Standards Act of 2004. The FARPSA granted by statute nearly all of the injunctive relief demanded by the Barham class. The Act proscribes the use of police lines to surround demonstrations; restricts police authority to order dispersal of protests; prohibits arrests for “parading” or demonstrating without a permit; prohibits wrist-to-ankle hog-tying; establishes a standard for release within four hours of protest-arrests; mandates provision of food and water to arrestees; and requires police give arrestees written disclosure of their rights to speedy release from police custody; among other things.

Claims against the Federal Defendants remain pending in the Barham class action and may result in additional recovery and relief for the class.

The Partnership for Civil Justice Fund (PCJF) is a not-for-profit legal and educational organization which, among other things, seeks to ensure constitutional accountability within police practices and government transparency in operations. The PCJF won a unanimous ruling at the D.C. Circuit Court of Appeals finding the MPD’s unprecedented military-style police checkpoint program unconstitutional. It is counsel on the Barham and Becker class action cases in which more than 1,000 persons were falsely arrested during protests in Washington, D.C., resulting in settlements totaling $22 million. The PCJF previously uncovered and disclosed that the D.C. police employed an unlawful domestic spying and agent provocateur program in which officers were sent on long-term assignments posing as political activists and infiltrated lawful and peaceful groups.