A group of about 70 protesters who claim they were unlawfully arrested in 2005 while demonstrating in Washington's Adams Morgan neighborhood could each receive at least $2,000 in damages from the city, under a settlement agreement approved in Washington federal court.
U.S. District Court Judge Ellen Huvelle granted preliminary approval to the settlement on March 24, subject to final approval following a public fairness hearing scheduled for Aug. 1. The suit was supposed to go to trial on Feb. 1, but the settlement was hammered out in late January, according to court records. A copy of the settlement notice can be found here (PDF).
If approved, attorneys representing the class would receive $50,000 of the $250,000 settlement. The American Civil Liberties Union and two Washington firms, Gaffney & Schember and Kirkland & Ellis, represented the class, but since the ACLU and Kirkland & Ellis worked pro bono, they won’t be eligible for a share.
The class action stems from a demonstration that took place the night of Jan. 20, 2005. Following the inauguration of former president George W. Bush to a second term in office earlier in the day, a group of demonstrators opposed to the president’s re-election took to the streets in Adams Morgan; several class members claimed they were bystanders.
According to the complaint (PDF), the march was broken up when police arrived – the protesters did not have a permit, and some marchers were engaging in vandalism – and more than 70 participants and bystanders were arrested. Several class members claimed they were assaulted by police while they were being arrested, including one man who accused police of spraying pepper spray directly in his face. The class also questioned whether the police had the right to make arrests without first asking the crowd to disperse, and also whether parading without a permit was an offense that warranted arrest.
After Huvelle granted summary judgment for the class in 2008, the city appealed to the U.S. Court of Appeals for the D.C. Circuit. The judges sent the case back to federal court for further review, agreeing with the city that police are not always obligated to order a crowd to disperse before they start making arrests. In this case, the court noted that there were still disputed facts as to whether police had probable cause the night of the demonstrations to arrest any member of the crowd.
The five class representatives will split $5,000, and two class members who claimed they were assaulted in the course of the arrest will receive separate awards of $15,000 and $20,000. The entire class, which could be as many as 69 people, will split the remaining $160,000.
ACLU legal director Arthur Spitzer, one of the lead plaintiffs' counsel, said in a phone interview today that while the monetary settlement was important, the class members were especially pleased that the city agreed to expunge their arrest records. As part of the settlement, both sides also agreed to a statement acknowledging that police were "justified" in taking action to stop vandalism and protect bystanders, but that the city could not link any class member to those illegal acts.
"Most of them are young people, starting their careers, many of them foresee the possibility of needing security clearances or bar admittances in the future," Spitzer said. "We’re glad that the police department now recognizes that it can’t arrest a crowd for parading without a permit unless it first effectively informs the people that they have to disperse and gives them an opportunity to do so before making arrests."
Daniel Schember and Susan Dunham of Gaffney & Schember were named as lead counsel from that firm in the settlement agreement, along with Spitzer and attorneys from Kirkland & Ellis.
When reached by phone, Ariel Waldman, senior counsel to the city's attorney general, was glad that both sides could reach an agreement.
"The District of Columbia is pleased to avoid the burdens and expenses of further litigation on this matter," he said. He added that the city was also pleased with the inclusion of the statement regarding actions police took to stop vandalism and protect bystanders.
Updated 3/31 at 2:47 p.m. with additional reporting.