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

3 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

, 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.

(b). For purposes of this Memorandum Opinion, the Court will

assume, but not decide, that the protesters were, at times, in violation of

. 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.

5 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.

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.

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.

Erdogan civilian

supporters and Turkish security forces chased the protesters and violently physically attacked

many of them.

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,

(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.

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.,

(D.C. Cir.

2018) (quoting Phoenix Consulting v. Republic of Angola,

(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.”

(quoting Phoenix Consulting,

).

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,

(1993); see also

. The FSIA provides “the sole basis for obtaining jurisdiction over a foreign state in

the courts of this country.” Nelson,

(quoting Argentine Republic v. Amerada

Hess Shipping Corp.,

(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,

(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,

(D.D.C. 2014), rev'd on other grounds

(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.”

(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,

(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,

(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.”

(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,

(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,

. 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.

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,

(D.D.C. 2002) (citing Faber v. United States,

(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.”

(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,

(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.”

(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,

(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,

(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,

. 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.”

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.”

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.”

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,

(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.

. In making this determination, the court addressed the

plaintiffs’ arguments that “Peru’s acts are criminal and thus cannot be discretionary.”

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.”

Citing approvingly of Letelier, the court

13 explained that “case law buttresses the proposition that a criminal act cannot be discretionary.”

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.”

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,

(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,

, 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,

(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,

(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.

; see also Liu v. Republic of

14 China,

(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,

(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,

.

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,

. A constitutional prescription “circumscribes the

government’s authority even on decisions that otherwise would fall within its lawful discretion.”

However, foreign sovereigns are not bound by the United States Constitution. See Naoko

Ohno v. Yuko Yasuma,

(9th Cir. 2013) (explaining that Japan is not bound by

15 the United States Constitution); United States v. Gecas,

(11th Cir. 1997) (en

banc) (providing limits of United States Constitution on foreign sovereigns); Flynn v. Shultz,

(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.”

.

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,

. 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.

.

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,

. 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

(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,

( quoting Red Lake Band of Chippewa Indians v. United States,

(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.”

. 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,

.

As was previously explained, the tortious acts exception is “directed primarily at the

problem of traffic accidents.” El-Hadad,

(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,

(E.D. Va. 2004); see also Cestonaro v. United States,

(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,

(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,

(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,

(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,

(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,

(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,

(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,

(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,

(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,

(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,

. 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.’”

at 89 (quoting Shuler v. United States,

(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,

(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.

, vacated

in part on other grounds in No. 15-1265,

(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.

. The court further found that the discretionary function rule did not apply.

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.,

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,

(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,

, rev’d on other grounds by

(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,

, *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,

(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,

. However, the court implied that if the complaint had

alleged “a mere scuffle with guards,” the decision may have been different.

Similarly, in

Alicog v. Kingdom of Saudi Arabia,

(S.D. Tex. 1994), the court explained that

the Defendant Saudi Arabia “would not be immune if the consular officers committed serious

physical abuse.”

. 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.”

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.

(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,

, 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,

(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,

(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

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

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.

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,

(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,

(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.”

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,

(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,

(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,

(D.D.C. 2013); see also Hilton v. Guyot,

(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,

(quoting

Mich. Community Servs., Inc. v. NLRB,

, 356 (6th Cir. 2002)). Comity serves to

protect amicable relations between countries and to ensure peace between nations. Oetjen v.

Central Leather Co.,

(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,

(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,

. 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.,

(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

33 remedy. See e.g., Laker Airways, Ltd. v. Sabena, Belgian World Airlines,

(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,

(7th Cir.

2011) (“Comity is a doctrine of deference based on respect for the judicial decisions of foreign

sovereigns.”); Dombeck,

(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

34 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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