Kurd v. Republic of Turkey ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KASIM KURD, et al.,
Plaintiffs
v. Civil Action No. 18-1117 (CKK)
REPUBLIC OF TURKEY, et al.,
Defendants.
MEMORANDUM OPINION
(February 6, 2020)
Two separate but factually similar cases1 deal with events that took place at a May 16,
2017 protest over Turkish President Recep Erdogan’s visit to the District of Columbia. Plaintiffs
were protesting President Erdogan’s policies when they allege that they were attacked by Turkish
security forces and civilian supporters of President Erdogan in two altercations outside the
Turkish Ambassador’s Residence and one altercation near the Turkish Embassy. These attacks
form the basis of Plaintiffs’ various claims against multiple Defendants who include the Republic
of Turkey (“Turkey”), individual members of the Turkish security forces, and civilian
Defendants. As is relevant to this Memorandum Opinion, Defendant Turkey has moved to
dismiss all claims in both cases, arguing that this Court lacks subject matter jurisdiction over
claims against Defendant Turkey due to Defendant Turkey’s sovereign immunity. Because
Defendant Turkey’s Motions to Dismiss present nearly identical factual and legal issues, the
Court will resolve both Motions in one Memorandum Opinion.2
1
The other, related case is Usoyan v. The Republic of Turkey, No. 18-cv-1141-CKK.
2
The Memorandum Opinion filed in this case is the same as that filed in Usoyan, No. 18-cv-
1141-CKK, with one exception. The Court omitted discussion of the altercation involving Lacy
MacAuley which happened after the events discussed in this Memorandum Opinion. Discussion
of Ms. MacAuley has been omitted because she is not a plaintiff in this lawsuit and no Plaintiffs
from this lawsuit were involved in that later altercation.
1
Upon consideration of the pleadings, 3 the relevant legal authorities, and the record as a
whole, the Court DENIES WITHOUT PREJUDICE Defendant Turkey’s Motion to Dismiss. The
Court concludes that Defendant Turkey has failed to establish that it is entitled to sovereign
immunity as to the claims stemming from the violent physical attacks on May 16, 2017, which
includes three discrete altercations, the second of which is most heavily relied upon by the Court.
Pursuant to the Foreign Sovereign Immunities Act (“FSIA”), Plaintiffs’ supported allegations fit
within the tortious acts exception to sovereign immunity. And, Defendant Turkey has failed to
carry its burden of persuasion to show that its acts fall within the discretionary function rule. For
these reasons, the Court finds that Defendant Turkey has not proven its entitlement to sovereign
immunity at this time on this record.
I. BACKGROUND
The Court’s approach to resolving the issue of sovereign immunity in these cases has
been informed by the parties’ briefing. Throughout its briefing, Defendant Turkey argued that it
has blanket sovereign immunity for any and all of the acts which transpired on May 16, 2017.
3
The Court’s consideration has focused on the following documents in addition to the attached
exhibits:
• Kurd, Def. Republic of Turkey’s Mot. to Dismiss, ECF No. [90] (“Kurd, Def. Mot.”);
• Kurd Pls.’ Res. to Def. Republic of Turkey’s Mot. to Dismiss, ECF No. [105] (“Kurd
Pls.’ Res.”);
• Kurd, Def. Republic of Turkey’s Reply in Support of its Mot. to Dismiss, ECF No. [112]
(“Kurd, Def. Reply”);
• Usoyan, Def. Republic of Turkey’s Substitute Mot. to Dismiss, ECF No. [56] (“Usoyan,
Def. Mot.”);
• Usoyan Pls.’ Mem. of Points and Authorities in Opp’n to Def. Republic of Turkey’s Mot.
to Dismiss, ECF No. [70] (“Usoyan Pls.’ Opp’n”); and
• Usoyan, Def. Republic of Turkey’s Reply in Support of its Mot. to Dismiss, ECF No.
[79] (“Usoyan, Def. Reply”).
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
2
Defendant Turkey does not address immunity for specific claims. And, Defendant Turkey does
not distinguish between immunity for the first and second altercations occurring outside the
Turkish Ambassador’s Residence, which will be further discussed below. Plaintiffs in both cases
take a similar approach, arguing that Defendant Turkey is not immune for the injuries they
incurred on May 16, 2017, without differentiating their arguments for separate claims or
altercations. Considering the parties’ arguments and approach, the Court has focused on the
second altercation outside the Ambassador’s Residence, using the first altercation as background
to inform Defendant Turkey’s actions during the second altercation. Sovereign immunity as to
any specific claims, particularly any claims arising solely out of the first altercation, would
require additional development of the record and additional argument from the parties.
The Court notes that in setting out the factual background, the Court has been aided by
the abundance of video evidence filed as exhibits by both parties. While some of the videos are
repeated, the Court was able to view the events at issue from multiple camera angles through the
ample video evidence submitted by the parties. This video evidence supplemented the parties’
factual descriptions of the altercations which occurred outside the Turkish Ambassador’s
Residence and, later, near the Turkish Embassy. The Court has viewed all the video evidence
submitted. As much of the video evidence is repeated by the parties in each case, the Court has
cited to the video exhibits submitted by Defendant Turkey in Usoyan v. The Republic of Turkey,
No. 18-cv-1141-CKK.
On May 16, 2017, President Erdogan visited the White House in Washington, D.C. to
meet with United States President Donald Trump. Usoyan Compl., ECF No. 1, ¶ 19; Kurd Am.
Compl., ECF No. 63, ¶ 51. Certain individuals, including Plaintiffs in both cases, assembled
outside the White House adjacent to Lafayette Square. Usoyan Compl., ECF No. 1, ¶ 19; Kurd
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Am. Compl., ECF No. 63, ¶ 53. These individuals were gathered to protest President Erdogan
and his policies, especially as those policies relate to the Kurdish minority in Turkey. Usoyan
Compl., ECF No. 1, ¶ 20; Kurd Am. Compl., ECF No. 63, ¶ 55. The protesters had a valid permit
to protest, and the protest outside the White House was peaceful. Usoyan Compl., ECF No. 1, ¶¶
21, 22; Kurd Am. Compl., ECF No. 63, ¶ 53, 55.
Following his meeting with President Trump, President Erdogan visited the Turkish
Ambassador’s Residence located near Sheridan Circle in Washington, D.C. Kurd Am. Compl.,
ECF No. 63, ¶ 57. Ascertaining that the Ambassador’s Residence would likely be President
Erdogan’s next location, some of the protesters, including Plaintiffs from both cases, decided to
travel to the Ambassador’s Residence. Usoyan Compl., ECF No. 1, ¶ 23; Kurd Am. Compl.,
ECF No. 63, ¶ 58. The protesters outside the Ambassador’s Residence totaled approximately
twenty individuals. Usoyan Compl., ECF No. 1, ¶ 24; Kurd Am. Compl., ECF No. 63, ¶ 61. The
protesters were carrying signs, chanting, and had a bullhorn. Usoyan Compl., ECF No. 1, ¶ 24;
Kurd Am. Compl., ECF No. 63, ¶ 63.
The protesters initially gathered on the Sheridan Circle sidewalk across the street from
the Ambassador’s Residence. Kurd Am. Compl., ECF No. 63, ¶ 62. By the time the protesters
had arrived, many other individuals were already gathered on the sidewalk directly in front of the
Ambassador’s Residence, facing the protesters. Id. at ¶ 59. These individuals were gathered to
support President Erdogan and included civilians as well as Turkish security forces. Id. The pro-
Erdogan group greatly outnumbered the protesters and were standing in between the protesters
and the entrance to the Ambassador’s Residence. Usoyan Compl., ECF No. 1, ¶ 32; Kurd Am.
Compl., ECF No. 63, ¶ 61. Both the protesters and the pro-Erdogan groups engaged in yelling,
taunts, and threats. Usoyan, Def. Mot., Ex. 6, SC01, 0:35-0:45.
4
There is a dispute between the parties as to whether or not the protesters’ presence on the
sidewalk violated 18 U.S.C. § 112, which prohibits individuals from gathering within 100 feet of
diplomatic, consular, or residential premises used by foreign governments or foreign officials if
those individuals are gathered to or to attempt to intimidate, coerce, threaten, or harass the
foreign officials. 18 U.S.C. § 112(b). For purposes of this Memorandum Opinion, the Court will
assume, but not decide, that the protesters were, at times, in violation of 18 U.S.C. § 112. There
is video evidence that the protesters did not remain on the Sheridan Circle sidewalk prior to the
first altercation which resulted in violent physical attacks by both the protesters and pro-Erdogan
groups.
In an effort to maintain peaceful interactions, United States law enforcement, including
Metropolitan Police Department (“MPD”) officers, were gathered between the protesters and
pro-Erdogan groups. Despite the presence of law enforcement, at approximately 4:05 p.m.,
members of both groups engaged in a violent physical altercation. Usoyan Compl., ECF No. 1, ¶
33. During this first altercation, both groups were no longer standing on their respective
sidewalks and had, instead, gathered in the street which had previously been separating them.
Usoyan, Def. Mot., Ex. 6, SC01, 0:20-45. The parties dispute whether this initial altercation was
started by the protesters or by the pro-Erdogan group. However, the Court need not resolve this
dispute as it is not material to the Court’s resolution of the issue of sovereign immunity. What is
relevant, and is evident from video evidence, is that both sides engaged in physical violence and
that there were injuries on both sides. Usoyan, Def. Mot., Ex. 6, SC01, 0:45-1:02; SC02, 0:14-
1:30.
This first altercation lasted less than a minute. Following the first altercation, United
States law enforcement officers, including MPD officers, separated the groups. Kurd Am.
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Compl., ECF No. 63, ¶ 69. The protesters went back to the Sheridan Circle sidewalk across from
the Ambassador’s Residence. And, the pro-Erdogan group returned to the sidewalk directly in
front of the Ambassador’s Residence. Both sides were instructed to stay on their respective
sidewalks. Usoyan, Def. Mot., Ex. 6, SC03, 0:00-0:37; SC04, 0:00-0:05. United States law
enforcement officers, including MPD officers, lined up between the two groups, primarily facing
the pro-Erdogan group. Usoyan, Def. Mot., Ex. 6, SC05, 0:00-0:37; SC06, 0:00-0:32. The pro-
Erdogan group, including the Turkish security forces, repeatedly asked the United States law
enforcement officers, including MPD officers, to force the protesters to leave in anticipation of
President Erdogan’s arrival. Usoyan, Def. Mot., Ex. 6, SC09, 0:50-2:15; 2:40-3:10. During this
time, the shouting continued on both sides. Additionally, the protesters continued holding up
their signs and yelling through their bullhorn. While two of the protesters took one brief step
down from the curb, they both quickly stepped back up. Usoyan, Def. Mot., Ex. 6, SC07, 2:27-
2:42. Otherwise, the protesters remained in a crude line on the Sheridan Circle sidewalk across
from the Ambassador’s Residence. Id.
Sometime between 4:10 p.m. and 4:13 p.m., President Erdogan arrived at the entrance to
the Ambassador’s Residence in a black car. Usoyan Compl., ECF No. 1, ¶ 50. President Erdogan
remained sitting in his car for a limited period of time. Plaintiffs allege that President Erdogan
then ordered his security forces and his civilian supporters to launch a second attack on the
protesters. Usoyan Compl., ECF No. 1, ¶ 53; Kurd Am. Compl., ECF No. 63, ¶ 80. Defendant
Turkey denies this allegation. However, the Court need not resolve this dispute at this time as it
is not material to the Court’s resolution of the issue of sovereign immunity.
At approximately 4:13 p.m., about eight minutes after the first altercation, while
President Erdogan remained sitting in his car at the entrance to the Ambassador’s Residence, the
6
pro-Erdogan group, including Turkish security forces, launched an attack on the protesters. As
the video evidence shows, at the time the pro-Erdogan group attacked the protesters, all of the
protesters were standing on the Sheridan Circle sidewalk. Usoyan, Def. Mot., Ex. 6, SC02, 2:36-
2:40; SC08, 0:08-0:12; SC07, 2:27-3:45. In order to launch the attack, the pro-Erdogan group,
including Turkish security forces, rushed forward and broke through the United States law
enforcement line which had been separating the two groups. Usoyan, Def. Mot., Ex. 6, SC02,
2:36-2:50; SC09, 7:15-7:25. The video evidence shows that none of the protesters rushed
forward to meet the attackers. Id. Some of the protesters immediately fell to the ground. Once on
the ground, Erdogan civilian supporters and Turkish security forces continued to strike and kick
the protesters who were lying prone on the ground. Usoyan, Def. Mot., Ex. 6, SC02, 2:45-5:03;
SC08, 0:25-2:26; SC09, 7:29-7:40; SC10, 0:30-0:57. Other protesters attempted to run away
from the attackers and away from the Turkish Ambassador’s Residence. Id. Erdogan civilian
supporters and Turkish security forces chased the protesters and violently physically attacked
many of them. Id. It is uncontroverted that each of the Plaintiffs in both suits, except Plaintiff
Lacy MacAuley in Usoyan, No. 18-cv-1141-CKK, alleged injuries flowing from this altercation.
Sometime during the pendency of this second altercation, President Erdogan left his car
and walked into the Ambassador’s Residence. Usoyan, Def. Mot., Ex. 6, SC10, 0:00-1:52. The
attack lasted a couple of minutes. Eventually, United States law enforcement officers, including
MPD officers, were able to stop the attack. After the attack, Turkish security forces and other
Erdogan supporters ripped up the protesters’ signs. Usoyan, Def. Mot., Ex. 6, SC08, 1:41-1:45;
1:50-2:00. It is uncontroverted that the Turkish security forces did not detain, question, search, or
otherwise investigate any of the protesters before, during, or immediately after the attack.
7
II. LEGAL STANDARD
Turkey has filed its Motions to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction. Pursuant to Rule 12(b)(1), a party may move for
dismissal based on “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). When a foreign
sovereign defendant moves for dismissal under Rule 12(b)(1) on the grounds of sovereign
immunity, initially, the plaintiff bears the burden of overcoming the presumption of sovereign
immunity “by producing evidence that an [FSIA] exception applies.” Bell Helicopter Textron,
Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1183 (D.C. Cir. 2013). After the plaintiff has met
this initial burden of production, the foreign sovereign defendant bears the “ultimate burden of
persuasion” to show that the alleged exception to sovereign immunity does not apply. Id.
In resolving a motion to dismiss pursuant to Rule 12(b)(1), the court can, and often must,
go beyond the allegations in the complaint. “Where a motion to dismiss a complaint ‘present[s] a
dispute over the factual basis of the court’s subject matter jurisdiction … the court may not deny
the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and
disputed by the defendant.” Feldman v. Fed. Deposit Ins. Corp., 879 F.3d 347, 351 (D.C. Cir.
2018) (quoting Phoenix Consulting v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)).
Instead of merely relying on the truth of the facts alleged in the complaint, “the court must go
beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary
to a ruling upon the motion to dismiss.” Id. (quoting Phoenix Consulting, 216 F.3d at 40).
III. LEGAL FRAMEWORK
Under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602–1611, “a
foreign state is presumptively immune from the jurisdiction of United States courts,” and “unless
a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim
8
against a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); see also 28 U.S.C. §§
1604-1605. The FSIA provides “the sole basis for obtaining jurisdiction over a foreign state in
the courts of this country.” Nelson, 507 U.S. at 355 (quoting Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. 428, 443 (1989)). Because “subject matter jurisdiction in any
such action depends on the existence of one of the specified exceptions ... [a]t the threshold of
every action in a district court against a foreign state ... the court must satisfy itself that one of
the exceptions applies.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493-94 (1983).
“In other words, U.S. courts have no power to hear a case brought against a foreign sovereign
unless one of the exceptions applies.” Diag Human S.E. v. Czech Republic-Ministry of Health,
64 F. Supp. 3d 22, 30 (D.D.C. 2014), rev'd on other grounds 824 F.3d 131 (D.C. Cir. 2016).
As is relevant for purposes of this Memorandum Opinion, Plaintiffs in both cases claim
that the Court has subject matter jurisdiction over Defendant Turkey pursuant to the FSIA’s
tortious acts exception. Under the tortious acts exception, “[a] foreign state shall not be immune
from the jurisdiction of the courts of the United States … in any case … in which money
damages are sought against a foreign state for personal injury or death, or damage to or loss of
property, occurring in the United States and caused by the tortious act or omission of that foreign
state or of any official or employee of that foreign state while acting within the scope of his
office or employment.” 28 U.S.C. § 1605(a)(5). Legislative history indicates that the tortious acts
exception to sovereign immunity “is directed primarily at the problem of traffic accidents.” El-
Hadad v. United Arab Emirates, 216 F.3d 29, 35 (D.C. Cir. 2000) (quoting H.R. REP. NO. 94-
1487, at 20-21, U.S. Code Cong. & Admin. News 1976, at 6619). “[A]lthough cast in general
terms, the ‘tortious act’ exception was designed primarily to remove immunity for cases arising
from traffic accidents[,] … [and] the exception should be narrowly construed so as not to
9
encompass the farthest reaches of common law.” MacArthur Area Citizens Ass’n v. Republic of
Peru, 809 F.2d 918, 921 (D.C. Cir. 1987).
There are two qualifiers to the FSIA’s tortious acts exception to sovereign immunity. As
is relevant here, the exception shall not apply to “any claim based upon the exercise or
performance or the failure to exercise or perform a discretionary function regardless of whether
the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). When considering the discretionary
function rule, it is “the nature of the conduct, rather than the status of the actor, that governs
whether the discretionary function exception applies in a given case.” United States v. S.A.
Empresa De Viacao Aerea Rio Grandense, 467 U.S. 797, 813 (1984).
As the Court previously noted in the Legal Standard section, on a motion to dismiss, the
plaintiff bears the burden of overcoming the presumption of sovereign immunity “by producing
evidence that an [FSIA] exception applies.” Helicopter Textron, 734 F.3d at 1183. Once the
burden of production is met, the defendant foreign sovereign bears the burden of persuasion to
show that the claimed exception to sovereign immunity does not apply. Id. Additionally, when
the defendant foreign sovereign invokes the discretionary function rule to the tortious acts
exception, “[t]he burden of proof is on the defendant to demonstrate by a preponderance of the
evidence that the discretionary exception applies.” Maalouf v. Swiss Confederation, 208 F. Supp.
2d 31, 35 (D.D.C. 2002) (citing Faber v. United States, 56 F.3d 1122, 1124 (9th Cir. 1995)).
IV. ANALYSIS
The Court bases its conclusion that it has jurisdiction over Defendant Turkey on the
FSIA’s tortious acts exception. Under the tortious acts exception, “[a] foreign state shall not be
immune from the jurisdiction of the courts of the United States … in any case … in which
money damages are sought against a foreign state for personal injury or death, or damage to or
10
loss of property, occurring in the United States and caused by the tortious act or omission of that
foreign state or of any official or employee of that foreign state while acting within the scope of
his office or employment.” 28 U.S.C. § 1605(a)(5).
Defendant Turkey does not appear to dispute that the tortious acts exception applies in
these cases. And, the Court finds that the tortious acts exception is applicable on its face.
Plaintiffs in both cases seek money damages against a foreign state, the Republic of Turkey, for
personal injuries. The events leading to the claimed personal injuries all occurred in the United
States. Furthermore, the personal injuries were allegedly caused, in part, by the tortious acts of
officials or employees, specifically the presidential security forces, of Defendant Turkey. Finally,
those presidential security forces of Defendant Turkey were acting within the scope of their
employment. “Conduct of a servant is within the scope of employment if, but only if: (a) it is of
the kind he is employed to perform; (b) it occurs substantially within the authorized time and
space limits; (c) it is actuated, at least in part, by a purpose to serve the master; and (d) if force is
intentionally used by the servant against another, the use of force is not unexpectable by the
master.” Council on American Islamic Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir.
2006) (quoting Restatement (Second) of Agency § 228 (1958)). The events at issue, including
the use of force, occurred while the Turkish security forces were engaged in their employment of
providing security for President Erdogan. And, as security forces, the use of some degree of
force is not unexpected. Accordingly, the Court concludes that the tortious acts exception to
sovereign immunity applies to Defendant Turkey in these cases.
A. Discretionary Function Rule
Rather than disputing the applicability of the tortious acts exception, Defendant Turkey
relies on the discretionary function rule to argue that its sovereign immunity is preserved.
11
Pursuant to the discretionary function rule, the tortious acts exception shall not apply to “any
claim based upon the exercise or performance or the failure to exercise or perform a
discretionary function regardless of whether the discretion be abused.” 28 U.S.C. §
1605(a)(5)(A). As an initial matter, despite Plaintiffs’ arguments to the contrary, the Court
concludes that Defendant Turkey is not categorically barred from relying on the discretionary
function rule to maintain immunity. However, using the two-part discretionary function test
developed in Berkovitz by Berkovitz v. United States, 486 U.S. 531 (1988), the Court concludes
that Defendant Turkey cannot rely on the discretionary function rule to maintain its immunity
because Defendant Turkey’s exercise of discretion relating to the violent physical attack on the
protesters was not grounded in social, economic, or political policy and was not of a nature and
quality that Congress intended to shield from liability.
1. Categorical bar on discretionary function rule
Plaintiffs argue that the discretionary function rule categorically does not apply to
Defendant Turkey because their Complaints include allegations of serious crimes. In arguing that
Defendant Turkey is barred from relying on the discretionary function rule, Plaintiffs cite
primarily to Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980). In Letelier, survivors
of an assassinated Chilean dissident leader sued the Republic of Chile under the FSIA, alleging
that Chile had directed the assassination. Using the tortious acts exception, the district court
determined that the Chile was not immune from suit. The court further concluded that the
discretionary function rule was inapplicable because participation in an assassination was not a
discretionary act. Letelier, 488 F. Supp. at 673. In determining that participation in an
assassination was not a discretionary act, the court explained that “there is no discretion to
commit, or to have one's officers or agents commit, an illegal act.” Id. Specifically, the court
12
found that a foreign country “has no ‘discretion’ to perpetrate conduct designed to result in the
assassination of an individual or individuals, action that is clearly contrary to the precepts of
humanity as recognized in both national and international law.” Id. Plaintiffs interpret Letelier to
mean that the discretionary function rule does not apply where the foreign country has
committed a serious criminal act.
The Court is unpersuaded by Plaintiffs’ reliance on Letelier. As an initial matter, Letelier
is a 40-year old district court case which is not binding on this Court. Moreover, Letelier is
factually distinguishable from these cases. Letelier involved an assassination found to be “clearly
contrary to the precepts of humanity as recognized in both national and international law.” Id.
While the Court in no way intends to minimize the violent physical acts alleged by Plaintiffs,
those acts do not rise to the level of an assassination. And, Plaintiffs have produced no evidence
that Defendant Turkey’s actions are contrary to the precepts of humanity.
Perhaps recognizing that Letelier provides inadequate support, Plaintiffs further rely on
statements from the United States Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) in MacArthur Area Citizens Association v. Republic of Peru, 809 F.2d 918 (D.C. Cir.
1987). In MacArthur, the D.C. Circuit determined that the discretionary function rule served to
make Peru immune from claims that it had used as its chancery a building which was zoned for
residential occupancy. 809 F.2d at 922. In making this determination, the court addressed the
plaintiffs’ arguments that “Peru’s acts are criminal and thus cannot be discretionary.” Id. at 922
n.4. Rejecting this argument, the court noted that the plaintiffs had failed to establish that Peru
violated any criminal law and that, even if Peru had violated a criminal law based on zoning
requirements, such a violation would likely not be sufficient to “automatically prevent
designation of Peru’s acts as discretionary.” Id. Citing approvingly of Letelier, the court
13
explained that “case law buttresses the proposition that a criminal act cannot be discretionary.”
Id. However, the court noted that the criminal acts in Letelier which were found to be
categorically non-discretionary were “of a rather different character and order.” Id.
Like Letelier, MacArthur lends support to the proposition that some serious criminal
violations are categorically non-discretionary. However, neither case provides a set of standards
for determining when a criminal act is of a character and order sufficient to bar invocation of the
discretionary function rule. MacArthur did not definitively answer the question of “whether a
clear violation of jus cogens[, meaning norms of international law,] would bar a finding that a
defendant acted within the scope of his authority.” Belhas v. Ya’alon, 515 F.3d 1279, 1293 (D.C.
Cir. 2008) (Williams, J., concurring). Even if MacArthur had definitively answered that question,
MacArthur did not establish a standard for determining whether or not a criminal act constitutes
a violation of jus cogens, thus barring the application of the discretionary function rule. See
Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48, 81 n.4 (D.D.C. 2013)
(acknowledging that there are “unresolved questions regarding the scope of a sovereign foreign
state’s ability to engage in discretionary tortious conduct for political purposes in the United
States”); Doe v. Federal Democratic Republic of Ethiopia, 189 F. Supp. 3d 6, 27-28 (D.D.C.
2016) (explaining that the discretionary function rule does not apply to “serious violations of
U.S. criminal law,” but drawing no conclusion as to whether or not the foreign sovereign’s
actions constituted a serious criminal act); Risk v. Halvorsen, 936 F.2d 393, 397 (9th Cir. 1991)
(“it cannot be said that every conceivably illegal act is outside the scope of the discretionary
function exception”). And, it does not appear to the Court that the actions of Defendant Turkey
alleged in these cases are of the same nature or order as the assassination which was previously
been found to be non-discretionary in Letelier. 488 F. Supp. at 673; see also Liu v. Republic of
14
China, 892 F.2d 1419, 1431 (9th Cir. 1989) (finding that Defendant China’s alleged acts
involving murder were non-discretionary).
Looking beyond FSIA cases, as further support for a categorical bar on Defendant
Turkey’s use of the discretionary function rule, Plaintiffs also rely on cases involving the Federal
Tort Claims Act (“FTCA”). Specifically, Plaintiffs rely on a line of cases concluding that the
discretionary function rule does not apply when plaintiffs allege conduct which violates a
constitutional prescription. See e.g., Loumiet v. United States, 828 F.3d 935, 942-46 (D.C. Cir.
2016) (holding that “the FTCA’s discretionary-function exception [does not] shield[] the Untied
States from common-law tort liability … when the otherwise discretionary conduct the plaintiff
challenges exceeds constitutional limits on the government’s authority to act”). Because
Plaintiffs allege that Defendant Turkey’s acts infringed on their First Amendment right to free
speech and their Fourth Amendment right against unreasonable seizure, Plaintiffs argue that
Defendant Turkey cannot rely on the discretionary function rule.
“[G]uidance on what acts should be deemed discretionary for FSIA purposes can be
drawn from decisions construing the Federal Tort Claims Act.” MacArthur, 809 F.2d at 921.
However, in these cases, the Court finds Plaintiffs’ reliance on the cited line of FTCA cases
unpersuasive. Plaintiffs rely on FTCA cases holding that there is no discretion for United States
officials to commit unconstitutional acts. This proposition is reasonable when applied to United
States officials because the Constitution places limits on the power of the United States
government. See Loumiet, 828 F.3d at 944. A constitutional prescription “circumscribes the
government’s authority even on decisions that otherwise would fall within its lawful discretion.”
Id. However, foreign sovereigns are not bound by the United States Constitution. See Naoko
Ohno v. Yuko Yasuma, 723 F.3d 984, 993 (9th Cir. 2013) (explaining that Japan is not bound by
15
the United States Constitution); United States v. Gecas, 120 F.3d 1419, 1430 (11th Cir. 1997) (en
banc) (providing limits of United States Constitution on foreign sovereigns); Flynn v. Shultz, 748
F.2d 1186, 1197 (7th Cir. 1984) (“Obviously, the Mexican government is not bound by the
requirements of our Constitution.”). And, Plaintiffs have cited no case in which a foreign
government has been found liable for violating the constitutional rights of an individual. For this
reason, the Court concludes that FTCA cases finding violations of constitutional prescriptions by
United States officials to be non-discretionary are not persuasive to the Court’s analysis of
Defendant Turkey’s sovereign immunity under the FSIA.
In summary, it does not appear to the Court that the conduct alleged by Plaintiffs rises to
the level of that in Letelier, which involved an act, assassination, “that is clearly contrary to the
precepts of humanity as recognized in both national and international law.” 488 F. Supp. at 673.
Additionally, it does not appear to the Court that allegations that Defendant Turkey infringed on
Plaintiffs’ constitutional rights would be relevant to the sovereign immunity analysis under the
FSIA. However, the Court need not determine whether or not the acts alleged by Plaintiffs rise to
the level of being categorically non-discretionary. Instead, the Court will assume for purposes of
this Memorandum Opinion that they are not categorically non-discretionary. And, the Court will
engage in the Berkovitz discretionary function test which Defendant Turkey agrees applies to the
actions in these cases. Kurd, Def. Mot., ECF No. 90, 38; Usoyan, Def. Mot., ECF No. 56, 39.
2. Berkovitz test for discretionary functions
In order to determine whether or not the discretionary function rule applies, the United
States Supreme Court developed a two-part test. Berkovitz, 486 U.S. at 536. Under this two-part
test, immunity is preserved over a discretionary act where (1) there is no statute, regulation, or
policy specifically prescribing the official’s conduct and the action is a product of judgment or
16
choice, and where (2) the exercise of discretion is grounded in social, economic, or political
policy and is of a nature and quality that Congress intended to shield from liability. Id. at 536-37.
Reviewing both parts of the test, the Court finds that Defendant Turkey has failed to meet its
burden of persuasion to show that its exercise of discretion was grounded in social, economic, or
political policy and was of a nature and quality that Congress intended to shield from liability.
a. Prescription by federal statute, regulation, or policy
First, the discretionary function rule will not apply “when a federal statute, regulation, or
policy specifically prescribes a course of action for an employee to follow.” Berkovitz, 486 U.S.
at 536. The Court finds that there was no federal statute, regulation, or policy specifically
prescribing Defendant Turkey’s actions during the events at issue in these cases.
Plaintiffs rely on 18 U.S.C. § 112(d) to argue that Defendant Turkey’s choice of actions
was prohibited by federal law. But, Section 112(d) neither mandates nor forbids specific actions
by a foreign sovereign. Instead, Section 112 is designed to protect foreign officials. As was
previously explained, Section 112(b) makes it a crime to or to attempt to intimidate, coerce,
threaten, or harass a foreign official or foreign guest. § 112(b)(1)-(2). It is also a crime to
congregate within 100 feet of diplomatic, consular, or residential premises with the intent to
violate Section 112(b). § 112(b)(3). The portion of the statute relied on by Plaintiffs states that
“[n]othing contained in this section shall be construed or applied so as to abridge the exercise of
rights guaranteed under the first amendment to the Constitution of the United States.” § 112(d).
While this portion of the statute ensures that potential violators of the statute will not be
sanctioned for exercising their First Amendment rights, it does not mandate specific conduct by
foreign sovereigns. As such, Plaintiffs’ reliance on this provision is misplaced. And, Plaintiffs do
not cite another statute, regulation, or policy specially prescribing Defendant Turkey’s conduct.
17
Plaintiffs further argue that the conduct of the Turkish security forces was not the product
of judgment or choice. Plaintiffs argue that “someone” ordered the Turkish security forces to
attack the protesters standing on the Sheridan Circle sidewalk. In their Complaints, Plaintiffs
allege that it was President Erdogan who ordered the Turkish security forces to attack. Usoyan
Compl., ECF No. 1, ¶ 53; Kurd Am. Compl., ECF No. 63, ¶ 80. Plaintiffs further argue that the
Turkish agents engaged in the attack in a coordinated manner that did not leave room for choice
or discretion.
Even if the Court were to assume the truth of Plaintiffs’ allegation that the Turkish
security forces were ordered to attack, such an order would not prevent the individual agents
from exercising choice and discretion in their method of attack. “The discretionary function
exception shields the government from liability for those decisions which involve a measure of
policy judgment, and immunizes as well the execution of such decisions in specific instances by
subordinates, even those at the operational level, if they must exercise such judgment too.”
MacArthur, 809 F.2d at 922( quoting Red Lake Band of Chippewa Indians v. United States, 800
F.2d 1187, 1196 (D.C. Cir. 1986)). Plaintiffs’ allegation that the Turkish security forces did not
exercise discretion because they attacked at the same time in a coordinated fashion is
speculative. Moreover, Defendant Turkey has introduced evidence that security forces make
split-second decisions and are “trained on how to identify perceived threats on the ground as they
unfold in real time, and how to respond in time to mitigate the perceived risk.” Kurd, Def. Reply,
Ex. 13, ECF No. 112-1, ¶¶ 10-11. Furthermore, video evidence supports the contention that, even
if the security forces were ordered to attack and attacked in a coordinated manner, each agent
made his or her own individual choice as to whom to attack and in what manner to attack.
Usoyan, Def. Mot., Ex. 6, SC02, 2:45-5:03; SC08, 0:25-2:26; SC09, 7:29-7:40; SC10, 0:30-0:57.
18
Accordingly, the Court concludes that there was no federal statute, regulation, or policy
specifically prescribing Defendant Turkey’s actions during the events at issue in these cases.
b. Grounding in social, economic, or political policy
The Court now moves to the second part of the Berkovitz test. The Court considers
whether the foreign sovereign’s exercise of discretion is “grounded in social, economic, or
political policy” and is “of the kind that the discretionary function exception was designed to
shield.” 486 U.S. at 536-37. The Court finds that Defendant Turkey’s exercise of discretion in
these cases was not grounded in social, economic, or political policy and was not “of the nature
and quality that Congress intended to shield from tort liability.” S.A. Empresa De Viacao Aerea
Rio Grandense, 467 U.S. at 813.
As was previously explained, the tortious acts exception is “directed primarily at the
problem of traffic accidents.” El-Hadad, 216 F.3d at 35 (quoting H.R. REP. NO. 94-1487, at 20-
21, U.S. Code Cong. & Admin. News 1976, at 6619). While the tortious acts exception is drafted
in general terms, courts have cautioned that the “discretionary function exception should not be
applied too broadly immunizing almost all governmental activity.” Hawes v. United States, 322
F. Supp. 2d 638, 645 (E.D. Va. 2004); see also Cestonaro v. United States, 211 F.3d 749, 755
(3d Cir. 2000) (explaining that the discretionary function rule should not be a “toothless standard
that the government can satisfy merely by associating a decision with a regulatory concern”).
The Court concludes that Defendant Turkey, who bears the burden of persuasion on this issue,
has presented no evidence that Congress intended to provide immunity for acts such as those
alleged by Plaintiffs in these cases.
In attempting to show that its acts were grounded in social, economic, or political policy
and were of a nature and quality that Congress intended to shield from liability, Defendant
19
Turkey cites to a myriad of cases applying the discretionary function rule. However, these cases
are not persuasive to the Court. Almost all of the cases relied on by Defendant Turkey involve
claims of governmental negligence or claims that the United States or a foreign government
created a danger and negligently failed to warn or protect individuals from that danger. See e.g.,
Allen v. United States, 816 F.2d 1417, 1421-24 (10th Cir. 1987) (applying the discretionary
function rule to a lawsuit alleging a failure to monitor and a failure to warn concerning the
implementation of open-air atomic bomb tests); Macharia v. United States, 334 F.3d 61, 65-68
(D.C. Cir. 2003) (applying the discretionary function rule to a lawsuit alleging negligence related
to the security of a United States embassy); Sledge v. United States, 883 F. Supp. 2d 71, 82-88
(D.D.C. 2012) (applying the discretionary function rule to a lawsuit alleging that the United
States failed to prevent or stop an attack on an inmate); Singh v. South Asian Society of George
Washington University, 572 F. Supp. 2d 11, 13-14 (D.D.C. 2008) (applying the discretionary
function rule to a lawsuit alleging negligent selection, retention and supervision of security
providers on public lands); Haygan v. United States, 627 F. Supp. 749, 750-51 (D.D.C. 1986)
(applying the discretionary function rule to a lawsuit alleging negligence after plaintiff’s car was
taken from a government-owned parking lot by a third party); Dalehite v. United States, 346 U.S.
15, 33-43 (1953) (applying the discretionary function rule to a lawsuit alleging negligence in
United States’ plan for producing and distributing fertilizer); Monarch Insurance Company of
Ohio v. District of Columbia, 353 F. Supp. 1249, 1256-61 (D.D.C. 1973) (applying the
discretionary function rule to a lawsuit alleging negligence in carrying out a riot prevention
plan); Shuler v. United States, 531 F.3d 930, 933-36 (D.C. Cir. 2008) (applying the discretionary
function rule to a lawsuit alleging negligence in failing to protect and conceal the identity of an
informant). In contrast to actions for negligence and the like, here, Plaintiffs’ claims involve
20
intentional conduct by Defendant Turkey which directly caused the complained-of injuries.
Moreover, Defendant Turkey’s alleged actions were sudden and spur-of-the-moment as opposed
to the longer-developed policies and plans which were challenged in the cited cases.
Defendant Turkey further attempts to rely on another case, Olaniyi v. District of
Columbia, 763 F. Supp. 2d 70 (D.D.C. 2011). In that case, the plaintiff sued the United States
pursuant to the FTCA alleging, among other common law claims, false arrest and imprisonment.
The court found that the plaintiff’s claims of detention and false arrest were barred by the
discretionary function rule. Olaniyi, 763 F. Supp. 2d at 88. In making this determination, the
court relied on precedent holding that “[d]ecisions regarding the timing of arrests are the kind of
discretionary government decisions, rife with considerations of public policy, that Congress did
not want the judiciary ‘second guessing.’” Id. at 89 (quoting Shuler v. United States, 531 F.3d
930, 934 (D.C. Cir. 2008)). Here, it is uncontroverted that Defendant Turkey did not detain,
question, search, or otherwise investigate the protesters before, during, or immediately following
the events in question. Moreover, Plaintiffs’ claims are not based on false arrest or detention.
Instead, they are based on Defendant Turkey’s alleged violent physical attacks. As such, the
court’s reasoning in Olaniyi is not relevant to this Court’s resolution of the issue of Defendant
Turkey’s sovereign immunity.
The Court further notes that Defendant Turkey failed to cite any case in which allegations
of a violent physical attack, involving battery and assault, were found to fall under the
discretionary function rule and be entitled to immunity. While the parties do not cite and the
Court could not find any case directly analogous to that currently before the Court, there are
cases which support the Court’s conclusion that Defendant Turkey’s use of its discretion in
21
violently physically attacking Plaintiffs was not grounded in social, economic, or political policy
and was not of a nature and quality that Congress intended to shield from liability.
First, the Court considers Miango v. Democratic Republic of Congo, 288 F. Supp. 3d 117
(D.D.C. 2018). In Miango, the plaintiffs alleged that they were participating in protests across
the street from the hotel where the President of the Democratic Republic of the Congo was
staying when they were beaten by the Congo’s security forces. 288 F. Supp. 3d at 120, vacated
in part on other grounds in No. 15-1265, 2019 WL 2191806 (D.D.C. 2019). The court found that
it had jurisdiction over the plaintiff’s claims based on the tortious acts exception to the FSIA. Id.
at 124-26. The court further found that the discretionary function rule did not apply. Id. at 126
n.3.
Defendant Turkey argues that the Court should not be persuaded by the decision in
Miango because the case was decided by default judgment and because the discussion of the
discretionary function rule occurs only in a footnote citing Letelier. But, even on a motion for
default judgment, the court must still assure itself of its jurisdiction under the FSIA. Verlinden
B.V., 461 U.S. at 498 n. 20 (“Under the [FSIA], subject-matter jurisdiction turns on the existence
of an exception to foreign sovereign immunity. Accordingly, even if the foreign state does not
enter an appearance to assert an immunity defense, a district court still must determine that
immunity is unavailable under the Act.” (internal citation omitted)). The Miango court’s
discussion of the discretionary function rule is admittedly short. But, the Miango court’s ultimate
decision that the Congo did not have sovereign immunity for its violent physical attack on
protesters remains relevant to the Court’s decision due to the factual similarities between Miango
and the cases currently before the Court.
22
The Court is further persuaded by another FSIA case finding that allegations involving
sudden, violent, physical acts are not grounded in social, economic, or political policy and are
not of a nature and quality that Congress intended to shield from liability. In Rendall-Speranza v.
Nassim, 942 F. Supp. 621 (D.D.C. 1996), the plaintiff sued a director of the International Finance
Corporation (“IFC”) for assault and battery. Employees of the IFC “enjoy the same immunity
from suit and every form of judicial process as is enjoyed by foreign governments.” Rendall-
Speranza, 942 F. Supp. at 626, rev’d on other grounds by 107 F.3d 913 (D.C. Cir. 1997) (quoting
22 U.S.C. § 288a(b)). As such, the court addressed the defendant’s sovereign immunity pursuant
to the FSIA. The court explained that, in attacking the plaintiff, the defendant “was acting in his
official duties by taking steps to protect the employee's offices from trespass and to protect the
employee's files from tampering or theft.” Id. However, the court decided that the defendant’s
alleged acts, grabbing the plaintiff’s wrists, twisting her arm behind her back, and kicking her
shin, were not discretionary because “it was not a decision grounded in social, economic, or
political policy.” Id. at 627. Accordingly, the court found that allegations involving a violent
physical attack did not involve the type of discretion that Congress intended to immunize. See
also Kalasho v. Republic of Iraq, No. 06-11030, 2007 WL 2683553, *7 (E.D. Mich. Sept. 7,
2007) (explaining that “[d]iscretionary functions are limited to legitimate diplomatic functions”
and do not include allegations such as assault and battery).
The Court further notes persuasive language in other cases implying that the violent
physical acts alleged here are not protected by the discretionary function rule. In Morgan v.
International Bank for Reconstruction and Development, 752 F. Supp. 492 (D.D.C. 1990), the
court found that the defendant World Bank was immune from the plaintiff’s allegation of false
imprisonment based on the discretionary function rule. The court based its decision on evidence
23
that the defendant had engaged in “a continuous process of investigation into missing money
which involved the participation of higher level World Bank security and Ethics Department
officials.” Morgan, 752 F. Supp. at 495. However, the court implied that if the complaint had
alleged “a mere scuffle with guards,” the decision may have been different. Id. Similarly, in
Alicog v. Kingdom of Saudi Arabia, 860 F. Supp. 379 (S.D. Tex. 1994), the court explained that
the Defendant Saudi Arabia “would not be immune if the consular officers committed serious
physical abuse.” 860 F. Supp. at 384. The court ultimately concluded that the plaintiffs had failed
to present evidence of serious physical abuse. The court explained that the plaintiffs failed to
produce “hospital records, pictures, scars, or testimony from others about the extent of harm.” Id.
Conversely, in these cases, the Court has been presented with video evidence of Defendant
Turkey’s actions and its effect on some Plaintiffs as well as uncontroverted allegations of serious
injuries.
The Court also considers related decisions in the context of the FTCA. The Court
acknowledges that the FTCA treats allegations of intentional torts, such as assault and battery,
against United States officials differently than does the FSIA. Under the FTCA, claims of assault
and battery by law enforcement officers are explicitly exempted from the United States’
sovereign immunity defense. 28 USC § 2680(h). Courts have struggled with how to read this
explicit exemption for some intentional torts in congruence with the discretionary function rule
which maintains immunity for discretionary acts. Nguyen v. United States, 556 F.3d 1244, 1257-
58 (11th Cir. 2009) (explaining circuit split as to whether or not the United States can maintain
discretionary immunity for intentional torts by law enforcement). However, the Court notes that
in FTCA cases, courts have determined that Congress intended to allow claims for battery and
assault against United States law enforcement officials even when the allegations relate to those
24
law enforcement officials performing security functions. See Garcia v. United States, 826 F.2d
806, 809 (9th Cir. 1987) (finding the discretionary function rule inapplicable in FTCA case for
assault and shooting by United States law enforcement); Beran v. United States, 759 F. Supp.
886, 892 (D.D.C. 1991) (finding allegations of assault and battery against United States law
enforcement non-discretionary, based in part on § 2680(h)).
Based on its review of caselaw concerning the discretionary function rule, the Court
concludes that Defendant Turkey’s alleged actions, particularly those involving a violent
physical attack during the second altercation outside the Ambassador’s Residence, were not
grounded in social, economic, or political policy and were not of a nature and quality that
Congress intended to shield from liability.
Prior to the second altercation, the approximately 20 protesters, including Plaintiffs, were
standing and remaining on the Sheridan Circle sidewalk which had been designated for
protesting by United states law enforcement. Usoyan, Def. Mot., Ex. 6, SC02, 2:36-2:40; SC08,
0:08-0:12; SC07, 2:27-3:45. As previously stated, for purposes of this Memorandum Opinion,
the Court assumes without deciding that the protesters were, at times, within 100 feet of the
Turkish Ambassador’s Residence and engaging in conduct which violated 18 U.S.C. § 112.4
However, in the time preceding the second altercation, the protesters remained standing on the
designated sidewalk. Turkish security forces and other pro-Erdogan individuals then crossed a
police line to attack the protesters. The protesters did not rush to meet the attack. Instead, the
protesters either fell to the ground, where Turkish security forces continued to kick and hit them,
or ran away, where Turkish security forces continued to chase and otherwise attack them.
4
The Court notes that whether or not the protesters were within 100 feet of the Turkish
Ambassador’s Residence and whether or not the protesters were engaging in conduct violative of
18 U.S.C. § 112 and outside the protection the First Amendment continues to be disputed.
25
Usoyan, Def. Mot., Ex. 6, SC02, 2:45-5:03; SC08, 0:25-2:26; SC09, 7:29-7:40; SC10, 0:30-0:57.
The Turkish security forces violently physically attacked the protesters.
Defendant Turkey argues that President Erdogan was within range of a possible handgun,
improvised explosive device, or chemical weapon attack. Even if the Court assumes this to be
true, at the time of the second attack, the protesters were merely standing on the Sheridan Circle
sidewalk. Defendant Turkey points to no indication that an attack by the protesters was
imminent. Moreover, it is uncontroverted that the Turkish security forces did not detain,
question, search, or otherwise investigate the protesters before, during, or immediately following
the altercation as would be expected if they thought the protesters were armed with serious
weapons. Instead, the Turkish security forces chased and violently physically attacked the
protesters, many of whom had fallen to the ground and no longer posed a threat. Id. Defendant
Turkey’s decision to engage in this violent physical attack was not grounded in social, economic,
or political policy and was not of a nature and quality that Congress intended to shield from
liability.
In reaching the conclusion that Defendant Turkey’s acts do not fall within the
discretionary function rule, the Court makes a very narrow, fact-specific decision. The Court
acknowledges that providing security for a president is extremely challenging and often requires
split-second decision making. These challenges are especially fraught when providing security
for a leader such as President Erdogan who has been the victim of multiple assassination threats
and attempts.5
5
Defendant Turkey has provided evidence that Plaintiff Kheirabadi had a flag supporting the
YPG, or the People’s Protection Unit, while protesting outside the White House prior to the
altercations at issue. See Usoyan, Def. Mot., ECF No. 56, Ex. 8. The parties dispute whether or
not the YPG, which the United States does not recognize as a terrorist organization, is an alter
ego of the PKK, the Kurdistan Workers’ Party, which is a designated foreign terrorist
26
The Court further recognizes that those charged with the security of a president in a
foreign country are often required to use their discretion to successfully perform their duties. The
United States Secret Service requires this same degree of discretion when protecting the United
States President during visits to foreign countries.
In exercising their discretion to make these life or death decisions, presidential security
forces may sometimes make the wrong decision. The discretionary function rule protects this
possibility of error by retaining immunity for foreign nations even when “the discretion be
abused.” 28 U.S.C. 1605(a)(5)(A). Had the facts of these cases differed slightly, the Court’s
decision as to Defendant Turkey’s sovereign immunity may have differed as well. The Turkish
security forces had the discretion to protect their president. They even had the discretion to err, to
some degree, in their determination as to the nature of force required to protect President
Erdogan. However, the Turkish security forces did not have the discretion to violently physically
attack the protesters, with the degree and nature of force which was used, when the protesters
were standing, protesting on a public sidewalk. And, Turkish security forces did not have the
discretion to continue violently physically attacking the protesters after the protesters had fallen
to the ground or otherwise attempted to flee.
For these reasons, the Court concludes that the discretionary function rule does not apply
to Defendant Turkey. Without the protection of the discretionary function rule, Defendant
Turkey is subject to the tortious acts exception to sovereign immunity under the FSIA.
organization. The Court need not resolve this dispute because the dispute is not material to the
Court’s resolution of the issue of sovereign immunity.
27
B. Political Question Doctrine
Defendant Turkey further argues that the Court’s consideration of whether or not its
sovereign immunity is abrogated by the tortious acts exception is barred by the political question
doctrine. The Court disagrees.
“In general, the Judiciary has a responsibility to decide cases properly before it, even
those it would gladly avoid.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194 (2012)
(internal quotation marks omitted). The political question doctrine works as a narrow exception
to this general rule. The Court confronts a nonjusticiable political question where any one of the
following six factors is present: “[1] a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable
standards for resolving it; or [3] the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s
undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or [5] an unusual need for unquestioning adherence to a political
decision already made; or [6] the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.” Baker v. Carr, 369 U.S. 186, 217
(1962). “Unless one of [the Baker factors] is inextricable from the case at bar, there should be no
dismissal for non-justiciability on the ground of a political question’s presence.” Id. Here, the
Court finds that no Baker factor is inextricable from the Court’s application of the tortious acts
exception or of the discretionary function rule.
First, Defendant Turkey argues that Baker factors 1 and 6 are implicated because
“[s]peaking on behalf of the federal government regarding a foreign state’s perceived national
policies is a function constitutionally committed to the Executive Branch.” Kurd, Def. Mot., ECF
28
No. 90, 52; see also Usoyan, Def. Reply, ECF No. 79, 56-57. Defendant Turkey is correct that
Plaintiffs’ Complaints contain allegations relating to Turkey’s perceived national policies.
However, these allegations are not inseparable from the issue of sovereign immunity currently
before the Court. In determining that the tortious acts exception applies and that Defendant
Turkey did not have discretion to commit the acts alleged, the Court makes no determination or
assumption as to Turkey’s national policies. The Court further makes no judgment as to the
morality or rightfulness of Turkey’s national policies, including Turkey’s policies towards
Kurdish people. As such, the Court is not infringing on the executive branch’s role in directing
foreign relations or risking inconsistency with the executive branch’s public statements regarding
relations between the United States and Turkey.
Moreover, the Court notes that both of the other branches of government have already
spoken out concerning the acts which are at issue in these cases. Some United States Senators
have openly expressed condemnation of Defendant Turkey’s attack on the protesters. See May
18, 2027 Letter from Dianne Feinstein, United States Senator, and John McCain, United States
Senator, to Recep Erdogan, President of Turkey, https://www.feinstein.senate.gov/public/index
.cfm/press-releases?ID=1019B0F4-1AB5-469E-9032-E33155E58EA0 (last visited February 5,
2020) (“[t]he violent response of your security detail to peaceful protestors is wholly
unacceptable”). Additionally, the United States House of Representatives unanimously passed a
Resolution stating that “the Turkish security forces acted in an unprofessional and brutal
manner” and requesting “the waiver of immunity of any Turkish security detail official engaged
in assault” and that Turkish security forces “should be charged and prosecuted under United
States law.” Condemning the violence against peaceful protesters outside the Turkish
Ambassador's residence on May 16, 2017, and calling for the perpetrators to be brought to
29
justice and measures to be taken to prevent similar incidents in the future, H. Res. 354, 115th
Congress (2017). And, immediately following the altercations, the United States Department of
State issued a statement communicating concern to the Turkish government regarding the actions
at issue and stating that violence was not an appropriate response to free speech. Tracy
Wilkinson, State Department protests Turkish guards’ beating of demonstrators in Washington,
Los Angeles Times (May 17, 2017), https://www.latimes.com/ nation/la-fg-turkey-us-protests-
20170517-story.html. Moreover, there are four pending criminal indictments against Turkish
security forces in the Superior Court of the District of Columbia. See Kurd Res., Ex. 9, ECF No.
105-9 (indictments). The risk of embarrassment from multifarious pronouncements is
accordingly lower.
Second, Defendant Turkey argues that Baker factor 2 is implicated because “[t]here are
no judicially discoverable and manageable standards for resolving Plaintiffs’ allegations that
Turkey has a long history of discrimination against and oppression of the Kurdish people.” Kurd,
Def. Mot., ECF No. 90, 54 (internal quotation marks omitted); see also Usoyan, Def. Reply, ECF
No. 79, 57-58. The Court need not resolve the issue as to whether or not there are judicially
manageable standards for analyzing Plaintiffs’ allegations of discrimination and oppression
against Kurdish people. Any allegations of Turkey’s history of discrimination and oppression
against Kurdish people are separable from the issue of sovereign immunity currently before the
Court. Again, in concluding that the tortious acts exception applies and that Defendant Tukey did
not have discretion to commit the violent physical acts alleged, the Court has no need to make
any determination as to Turkey’s alleged history of discrimination and oppression.
Also relying on the second Baker factor, Defendant Turkey further contends that this
Court is “not equipped to judge a presidential security team in the discharge of sensitive
30
executive functions.” Kurd, Def. Mot., ECF No. 90, 57; see also Usoyan, Def. Reply, ECF No.
79, 57-58. In rendering its decision, the Court is not making a value judgment as to whether or
not the Turkish security forces discharged their functions well or poorly. Instead, the Court is
only concluding the alleged acts, including allegations of battery and assault, were not grounded
in social, economic, or political policy and were not of a nature and quality that Congress
intended to shield from liability. Moreover, courts regularly hear and adjudicate claims against
the United States Secret Service, which provides presidential security, as well as against a variety
of other law enforcement officials performing security functions. See e.g. generally United States
v. Schatzle, 901 F.2d 252 (2d Cir. 1990) (affirming conviction of a special agent of the United
States Secret Service, for using excessive force on an individual near a presidential candidate’s
motorcade); Mick v. Brewer, 76 F.3d 1127 (10th Cir. 1996) (in part, affirming denial of qualified
immunity for law enforcement officer assisting with security for Russian President Boris
Yeltsin’s visit to the United States who was accused of beating the plaintiff who was near
Yeltsin’s motorcade).
Third, Defendant Turkey argues that Baker factors 4 and 5 are implicated because “[t]he
Court cannot decide issues of Turkey’s national policies without running afoul of [the] prudential
principle” that the judiciary should not conflict with the other two branches of government on
issues of foreign relations. Kurd, Def. Mot., ECF No. 90, 58; see also Usoyan, Def. Reply, ECF
No. 79, 57-58. For the reasons that have already been given, in resolving the issue of sovereign
immunity, the Court need not make any determinations as to Turkey’s national policies or as to
Turkey’s relationship with the United States. Any allegations in Plaintiffs’ Complaints
concerning the morality or the wisdom of Turkey’s national policies are extricable from the issue
of sovereign immunity. The Court’s decision is narrow and limited to the determination that
31
Defendant Turkey’s alleged actions, particularly those involving a violent physical attack on
protesters during the second altercation outside the Turkish Ambassador’s Residence, were not
grounded in social, economic, or political policy and were not of a nature and quality that
Congress intended to shield from liability.
Accordingly, the Court concludes that none of the Baker factors are inextricable from the
issues at bar in this Memorandum Opinion. As such, the political question doctrine is not
implicated.
C. Comity
Finally, Defendant Turkey argues that the doctrine of international comity favors
dismissal in these cases. Comity “is a doctrine of deference based on respect for the decisions of
foreign sovereigns.” United States v. One Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d 1, 8
(D.D.C. 2013); see also Hilton v. Guyot, 159 U.S. 113, 164 (1895) (explaining that comity is
“the recognition which one nation allows within its territory to the legislative, executive or
judicial acts of another nation”). Comity is based on “a ‘golden rule among nations—that each
must give the respect of the laws, policies and interests of others that it would have others give to
its own in the same or similar circumstances.’” One Gulfstream, 941 F. Supp. 2d at 8 (quoting
Mich. Community Servs., Inc. v. NLRB, 309 F.3d 348, 356 (6th Cir. 2002)). Comity serves to
protect amicable relations between countries and to ensure peace between nations. Oetjen v.
Central Leather Co., 246 U.S. 297, 303-04 (1918). However, “[t]he case law of this circuit
makes it clear that ‘comity’ is rarely employed to justify the dismissal of viable claims that are
otherwise properly before the court.” Northwest Forest Resource Council v. Dombeck, 107 F.3d
897, 901 (D.C. Cir. 1997).
32
As an initial matter, it appears to the Court that the doctrine of comity is not applicable in
these cases. Comity defines the “extent to which the law of one nation, as put in force within its
territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to
operate within the dominion of another nation.” Hilton, 159 U.S. at 163. Here, the Court is
applying United States law to actions which occurred in the United States. Defendant Turkey has
cited no case in which comity principles justified dismissal in circumstances such as these.
However, even if the doctrine of comity was available, the Court does not find it to be
ground for dismissal in these circumstances. First, in this Memorandum Opinion, the Court
addresses only sovereign immunity, not the merits of the claims against Defendant Turkey.
Congress passed the FSIA for the express purpose of allowing the judicial branch to make
determinations on the sovereign immunity of foreign governments. Verlinden B.V., 461 U.S. at
488 (explaining that Congress passed the FSIA and charged the courts with determining
sovereign immunity “in order to free the Government from the case-by-case diplomatic
pressures, to clarify the governing standards, and to assur[e] litigants that ... decisions are made
on purely legal grounds and under procedures that insure due process” (internal quotation marks
omitted)). The Court is reluctant to find that comity principles prevent it from exercising its
duties directly set forth by Congress. Second, both the legislative and executive branches have
previously issued statements expressing concern regarding the actions of Defendant Turkey
during the events at issue here. See Supra Sec. IV.B. Insofar as Defendant Turkey argues that a
decision denying sovereign immunity could chill otherwise amicable relations with Turkey, it
seems that the statements from both the legislative and executive branches would already have
led to this threatened harm. Third, courts most often dismiss cases on principles of comity where
there is an existing judgment or a pending proceeding which could provide an alternative
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remedy. See e.g., Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937
(D.C. Cir. 1984) (explaining that comity requires that “the decisions of foreign tribunals should
be given effect in domestic courts”); United States v. Kashamu, 656 F.3d 679, 683 (7th Cir.
2011) (“Comity is a doctrine of deference based on respect for the judicial decisions of foreign
sovereigns.”); Dombeck, 107 F.3d at 901 (explaining that “we have sometimes held that comity
may warrant dismissal of an action where there is a case pending in another jurisdiction
involving the same parties, issues, and subject matter”). And, here, there is no other judgment or
pending proceeding which could provide Plaintiffs an alternative remedy.
Again, in declining to dismiss these cases on principles of comity, the Court in no way
intends to understate the importance of granting discretion to presidential security forces
operating in foreign countries. In order to conduct diplomacy, world leaders must often travel
abroad. While in foreign countries, these leaders need to know that their security forces have
discretion to take the steps necessary to ensure security. Recognizing this need, the United States
grants discretion to security forces when foreign leaders are in our country, and the United States
expects this same grant of discretion when our leaders travel abroad. While discretion is
necessary to protect those engaging in international diplomacy, such discretion is not unbounded.
And, here, Plaintiffs have alleged acts by Defendant Turkey which were not grounded in social,
economic, or political policy and were not of a nature and quality that Congress intended to
shield from liability.
V. CONCLUSION
For the reasons explained above, the Court concludes that Defendant Turkey has not met
its burden of persuasion to show that it is immune from suit in these cases. Plaintiffs’ allegations
fall within the tortious acts exception to immunity under the FSIA. Defendant Turkey has failed
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to show that its exercise of discretion was grounded in social, economic, or political policy and
was of a nature and quality that Congress intended to shield from liability. Accordingly, the
Court DENIES WITHOUT PREJUDICE Defendant Turkey’s Motions to Dismiss on the ground
of sovereign immunity.
Because the Court has concluded that the FSIA’s tortious acts exception provides the
Court with jurisdiction, the Court need not, and will not, examine whether or not jurisdiction
would be appropriate under the Justice Against Sponsors of Terrorism Act (“JASTA”) exception
or under a theory of waiver.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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