City Desk

Remaining Pershing Park Plaintiffs Amp Up Legal Case

Peter Nickles

For D.C. Attorney General Peter Nickles, Pershing Park isn't over. Though the city's top lawyer had just settled a big lawsuit with 400 plaintiffs over the mass arrests that took place on Sept. 27, 2002, there is another, more stubborn suit sitting out there.

Attorneys in the Chang case represent just four plaintiffs. But these folks are serious: They were the first to file suit over Pershing Park in federal court, and they have already signaled that they won't be content with $18,000 bucks per plaintiff and a few stipulations that city lawyers will safeguard evidence in future cases.

Yesterday afternoon, Nickles met with the Chang principals in the hope of reaching a settlement. It was the first meeting between the parties, and Nickles had a lot riding on the outcome. If he could make a deal, he could save the District millions of dollars in attorney fees and court sanctions, and save his people from defending a tough set of facts at a trial scheduled to start in October 2010.

Could Nickles make Pershing Park go away for good?

No. The meeting was a brief one. Plaintiffs lawyer Jonathan Turley would not comment on the substance of the meeting but says a trial appears inevitable.

“It is unlikely that we will see a resolution of these issues without a trial and a verdict," Turley says. "We have assumed that a trial would occur in this case for years. All I can say is we continue to look forward to Oct. 2010, when we can put these witnesses and this evidence before a jury.”

Late last night, Turley and Co. filed a motion [PDF] in U.S. District Court that made their intentions all too clear.

The papers ask to amend the Chang complaint to include the allegations over the discovery abuses.

What does this mean? They want to put the destruction and alternation of evidence before a D.C. jury. It's possible that lawyers under Nickles and in the D.C. Police Department's general counsel office would be compelled to testify about how critical evidence went missing or was destroyed. Already, at least one official appears to have given a false affidavit.

The evidence problems range from the withholding of documents for years, to D.C. Police film and radio recordings containing mysterious gaps to the infamous missing running resume, the play-by-play documentation by the police concerning the mass arrests at Pershing Park.

At this point in the seven-year-old litigation, the discovery abuses have become way more than a sideshow. The plaintiffs' filing reads:

"These proposed amendments are obvious and represent a well-founded response to the flagrant efforts by the District defendants to obstruct both Plaintiffs' rights to recovery and the civil processes of this Court. While these discovery violations have arisen at every stage of this litigation, starting with the District Defendants' failure to preserve documents immediately after the arrests or even after the commencement of this litigation a month later, some of the most serious transgressions came to light only recently."

Plaintiffs reference the Sporkin Report and the allegation that the police department's general counsel withheld relevant documents for the past five years. They claim that the withholding of documents and discovery materials had been a tactic from the very beginning.

The plaintiffs lawyers quote from an e-mail in which Assistant Chief Peter Newsham wrote in the aftermath of the Sept. 27, 2002, Pershing Park arrests: "I am very reluctant to share our tactics and strategies with defense attorneys."

The plaintiffs attorneys go on to list some of the subsequent discovery problems aside from the missing running resume and faulty radio tapes:

*A witness testified in deposition that Chief Ramsey's computer was never searched for relevant documents and was destroyed or wiped clean when he left the department.

*In 2004, the District performed a very limited search of police e-mails.

*It was only after the discovery process ended that the District then produced more than 22,000 pages of relevant documents; they were only produced after Judge Emmet Sullivan slammed Nickles in open court. Even these documents contained gaps and unjustified redactions.

*Plaintiffs are still waiting for the District to turn over all relevant video footage. They write: "The District has produced only two unique videotapes that contain footage of the events on Sept. 27, 2002—both of which contain crucial gaps in the footage that correspond to the timing of the arrests at Pershing Park." Six cameras were designated to shoot footage of Pershing Park that day.

*Nickles has failed to live up to his promises to the court. The plaintiffs lawyers write: "Despite his stated commitment to do so, Attorney General Nickles has failed to undertake a comprehensive investigation of these discovery abuses."

When asked about the filing, Turley wrote in an e-mail to City Desk:

"The amended complaint describes growing evidence of the intentional effort of high-ranking District officials to destroy or alter evidence related to the unlawful arrests during September 2002.  The amended complaint would allow a jury to consider evidence of obstruction, spoliation, and perjury.  Regardless of whether the Court now refers this matter for criminal investigation in light of the Sporkin report and recent witness statements, we believe this matter should be put before a jury to render its judgment on the conduct of these officials."

*Photo by Darrow Montgomery.

*follow me on Twitter.

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  • Comrade Al Gonzales

    Excellent. Prof. Turley knows how to litigate. It looks like he's going to show the wimps who settled yesterday the right way to litigate a case of police brutality.

    Thanks for this encourage news. I'll go read the amended complaint now. I am confident that Prof. Turley put a solid case together in this amended complaint.

  • Truth Hurts

    There's a legal counter move that would moot the point plaintiffs hope to establish with their spoliation amendment. Let's see if DC's lawyers figure it out.

    .

  • Comrade Al Gonzales

    This is an excellent motion. It's good they're still trying to pin personal liability on Ramsey & the other police officials. From what the plaintiffs say in their motion, I see no holes in their cause of action for spoliation. Their argument on using the Sporkin Report is masterful.

    This is exactly what Mara & her group of plaintiffs should have done. Instead they took the cowards way out, & were foolish enough to accept a "Christmas offer". Defendants often make a low-ball offer just before Xmas because they know that plaintiffs would love to have some money just before Xmas, even if it's dimes for dollars. They had a trial date in October - to wait all these years & then cave a few months before trial is the epitome of weakness, both in spirit & in mind.

    Prof. Turley & Bryan Cave are doing an excellent job here. Kudos.

  • ArlingtonAaron

    Awesome. As one of the recently settled class, in my heart I would prefer that we were going ahead as well, aggressively pursuing the sort of massive, head-line grabbing judgment that would really get the city to take notice of both the civil-rights stuff, and the aftermath... but that's not what the class action side is really for, and anyway, the individual class plaintiffs don't get a vote. And the behavior modification stuff in lieu of cash is stuff we couldn't really get with a judgment, so that's fine... especially if/when the city screws it up, and we sue them again, and really cram it down their throats.

    It is interesting though, this idea that the city is now being sued specifically for their discovery abuses... if the judge lets it go forward that means more depositions, including attorneys. That should be interesting, especially since the accusations are criminal, and not just ethical in nature. Could we see Nickles and other AG office attorneys taking the fifth on questions in depositions? And what would mean for them politically... fun fun fun, and that's why I'm glad this group is going all the way.

  • Comrade Al Gonzales

    Aaron, any single member of a class action can refuse the settlement. You need some legal advice if you truly believe the BS you wrote here. No offense, but what you said here is total BS.

  • ArlingtonAaron

    Well Comrade, once I get the details of the settlement, I will be getting legal advice, so thanks for that advice. And if I can move over to the Turley group at this late stage, sure, I will.

    Will I refuse the 18,000 and start a new lawsuit at this late stage in some emotional scorched earth thing? Well, no, probably not...

  • Fish

    What makes these four different/better than the class? Why do they have Professor MSNBC and that big law firm instead of the Partnership? Were they not part of the class? Why do they deserve more than the class action plaintiffs?

  • Comrade Al Gonzales

    These plaintiffs are brave & have a good lawyer. The other plaintiffs aren't & don't. That's the difference.

    E.g., see Aaron above - he's a cheap whore. Give a few dollars to Aaron & you can beat the shit out of him, hogtie him, & make him whistle Dixie.

  • ArlingtonAaron

    They don't deserve more in the big picture I suppose, but aren't part of the class, haven't settled, and looks like they are continuing forward towards trial with this added idea of suing about the discovery abuses themselves: I think that this approach may be more effective in sending a strong message to the city... though I think the PCJ has done quite well.

  • Fish

    Not sure I want my tax dollars wasted on anything more to do with this lawsuit. The District has paid out 21 million on these cases. How much do these guys want? Seems to me that if it's good enough for classes of 600 and 400, it should be good enough for 4.

  • ArlingtonAaron

    Well Fish, if I was a tax-payer, I wouldn't be happy either... but its not the fault of the folks suing the city... they had their right's violated, they're in the right, and the more they can do to expose the corruption and abuses within the MPD and AG's office the better. If you want someone to be mad at, just read through Jason's articles on the whole thing... you'll have a long list soon enough.

  • Fish

    I've read Cherkis's columns. He clearly has a point of view on these cases, as he is entitled to. Not saying that people who have had their rights violated don't deserve appropriate compensation for that because they do. What I don't understand, though, is why these four plaintiffs expect more than the thousand other arrestees in the two cases that settled. Maybe someone can explain to me what makes them more special, but that's my question.

  • ArlingtonAaron

    I think that they don't think that the case has been fully pursued by the other suits... everyone else has settled for the arrests... they want to proceed with a suit about the arrests and the cover-up.

  • http://www.washingtoncitypaper.com Jason Cherkis

    Tonight, Nickles filed a motion to stay discovery ---meaning Turley and Co. shouldn't be allowed to depose gov. lawyers. And he filed to force Turley and Co. to accept the equitable settlement that the Barham plantiffs agreed to. Meaning, they can continue to argue money awards, but any changes they want to the system (i.e. OAG and MPD), they can't have.

    I'm just curious as to what the judge will say about the Sporkin Report. The mystery over the missing and/or destroyed evidence still fascinates me.

    Thursday's hearing should be interesting.

  • ArlingtonAaron

    How can Chang plaintiffs know if the abuses in discovery are satisfactorily addressed by the equitable settlement if they haven't been able to depose the people who would be able to answer questions about the discovery abuses? If I were being deliberately obtuse/ a lawyer, that would seem contradictory?

    Can't wait to hear about the hearing.

  • JUSTICE4DC

    Still waiting for DOJ criminal investigation and Grand Jury for obvious criminal acts committed by MPD and OAG.

    OAG Attorney Koger, who was involved in these cases received a monetary bonus this year from DC Govt. WTF!

  • Sally

    I wonder how much collusion there is between Turley and Cheh since both hate Nickels and both are GWU Law School professors?

  • Comrade Al Gonzales

    Turley said he expected to go to trial all along. Nickles may have big balls, but he can't force a settlement. Stopping discovery is also not going to happen. Of course if Sullivan rules against the plaintiff's on all of their motions, it will make it more difficult for them, but they are still entitled to their days in court - including up & down to/from the appeals court once or twice - unless they puss out like Aaron & his cheap whore friends.

    What makes these plaintiffs "special"? They are brave. They have good lawyers. The questions should be, "why did the other plaintiffs puss out? Why were the other plaintiffs so shitty?"

    If the plaintiffs in Brown v. Bd. of Educ. had been the cunts that Aaron & his friends are, there'd still be "colored" schools in Arkansas. What made the Brown plaintiffs "special"?

  • Truth Hurts

    Cherkis, your comment #14 suggests maybe Nickles read comment # 2. He's not quite there yet, though. Still has some moves on the chess board. See if he spots them.

  • Angry Al Gonzales

    Fred, in the Brown v Bd. of Educ. case, if they gave one plaintiff a few dollars for his "colored" school, but the others held out for an end to the apartheid in the Arkansas school system, would that make them bad for "expecting more"? You sound like Nickles's butt buddy - no one is as obtuse as you pretend to be, you cocksucker.

  • Angry Al Gonzales

    Truth Hurts cites his comment for Nickles's motivation. Bullshitting cocksucker - especially since you're just spinning bullshit.

    "You have a problem I see, but I'm not going to tell you." Fuck you, you unreconstructed hillbilly cocksucker. You're so full of shit you have dung beetles crawling out of your eye sockets.

  • Comrade Al Gonzales

    Bullshit, TH, you lying piece of cocksucking shit. You attempt to be "cute" & then pat yourself on the back is despicable. You're just a lying cocksucker. Why don't you go crawl back under the rock whence you came.

    Stupid fucking unreconstructed asshole. French kiss my dog's asshole, you son of a bitch.

  • Truth hurts

    Al, are you off your meds again? See, these are the kinds of foul mouthed insults that make people hate you. Not me, though, I know you can't control yourself.

    As for saying my earlier comment motivated Nickles to be creative and smart, I suspect most people understood my last posting was tongue in cheek. I'm rooting for the plaintiffs. Otherwise, I'd be coaching Nickles rather than teasing him. Try and relax.

  • 1intheKnow

    I tend to agree that the remaining plaintiffs should be ordered to accept similar settlements. Reasons?

    1. Although I have respected Prof. Turley, he is now a media figure more than a professor, and he is showing off for his own aggrandizement. Or a bigger payoff to himself personally. Remember, in all of these cases the plaintiffs' attorneys have walked away with the lion's share of the settlement money.

    2. The city is trying its hardest to concede that it erred, to minimize further financial losses to the citizens/tsaxpayers, and to put all of this behind us. The actions that formed the bases of these protest cases took place years ago. The principals responsible for policy and decision-making (e.g., Police Chief, Mayor) are no longer in authority, and legally untouchable.

    One more thing really troubles me: All of these horrible cases - and, don't get me wrong, I totally agree that MPD acted wrongly - arose out of situations where outside folks came into DC to protest an entity that is not part of DC (the US Government's war activities, the World Bank, etc.) Why should MPD have to put itself on the hook - at the risk of huge liability, as shown by these cases - for combatting these protests? It seems to me that, in these situations, the feds should have to pony up the law enforcement, via the National Guard or whatever it takes.

  • Jacob

    @1intheKnow

    No, the city is not "trying its hardest to concede that it erred" which is exactly why the case needs to proceed. The city, as it has been all along is trying admit as little wrongdoing as possible and protect the officials who are responsible for this debacle. If the city were trying to do the right thing they would fully and publicly disclose all the relevant details, fire Nickles, Lainer and anyone else who helped cause either the initial wrongdoing or the attempted cover up and refer the responsible parties for disbarment and/or criminal prosecution where appropriate. If the city did these things I would agree that the case should be settled but as long as the settlement remains an offer to pay out tax dollars as want amounts to hush money to protect the city's image and the individuals who are ultimately responsible I applaud Turley and his clients for standing up for justice even though it will cost me (as a DC taxpayer) money.

  • JUSTICE4DC

    Well stated, Jacob.

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