Ryan Barton Lash Sues USA Over Occupy Arrest

Case 1:12-cv-02056-JDB Document 1 Filed 12/21/12 Page 1 of 12












Case 1:12-cv-02056-JDB Document 1-1 Filed 12/21/12 Page 1 of 2














UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

______________________________)

RYAN BARTON LASH, ))

Plaintiff, ))

v. ) Civil Action No. 12-0822 (JDB))

OFFICER JENNIFER LEMKE, )in her individual capacity, )United States Park Police )

)and )

)SERGEANT TODD REID, )in his individual capacity, )United States Park Police )

)Defendants. )

______________________________)

MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Defendants hereby move to dismiss this action, pursuant to

Rules 12(b)(1), (2), (4), (5) and (6) of the Federal Rules of

Civil Procedure, and on qualified immunity grounds.

Alternatively, the Court should enter summary judgment, pursuant

to Fed. R. Civ. P. 56, because there are no material issues of

fact and defendants are entitled to judgment as a matter of law.

The Court is respectfully referred to the accompanying

memorandum of points and authorities and statement of material


facts. A proposed Order is also attached.

Respectfully submitted,

RONALD C. MACHEN JR., DC Bar #447889United States Attorneyfor the District of Columbia

DANIEL F. VAN HORN, DC Bar #924092Chief, Civil Division

By: /s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL, D.C. BAR #416587

Assistant United States AttorneyU.S. Attorney’s Office555 4th Street, N.W. - Civil DivisionWashington, D.C. 20530(202) [email protected]

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______________________________)


Plaintiff, ))



)and )


)Defendants. )

______________________________)

DEFENDANTS’ STATEMENT OF MATERIAL FACTSAS TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Local Civil Rule 7(h), defendants hereby submit

their statement of material facts as to which there is no genuine

issue:

1. On January 29, 2012, plaintiff was participating in the

protest movement known as “Occupy D.C.” in McPherson Square in

Washington, D.C. Complaint (“Compl.”), ¶ 7.

2. On January 29, 2012, National Park Service (“NPS”)

officials and United States Park Police (“USPP”) officers began

distributing flyers in McPherson Square informing the individuals

located therein that “the United States Park Police will commence

enforcement of the long-standing National Park Service (NPS)


regulations that prohibit camping and the use of temporary

structures for camping in McPherson Square and Freedom Plaza.”

Comp., ¶¶ 8, 10; Declaration of Sergeant Todd Reid (“Reid

Decl.”), ¶ 2 & attached Ex. 1.

3. When the NPS officials and USPP officers began to

distribute the notices, some of the individuals in McPherson

Square became agitated, verbally harassed the officers and

interfered with NPS distribution efforts. Reid Decl., ¶ 6.

4. Plaintiff swore at USPP officers and removed some of the

notices and threw them in the trash. Compl., ¶¶ 12-13; Reid

Decl., ¶¶ 7, 9.

5. The officers approached plaintiff who tried to get away

from them. Ex. A (video entitled “D.C. Police Tase . . . .” of

plaintiff’s arrest); Ex. B (video entitled “Occupy DC – Police

Tase . . . .” of plaintiff’s arrest).

6. When the officers tried to arrest plaintiff, he refused

to cooperate and continued to try and get away from them,

swinging his arms against them. Reid Decl., ¶ 10; Exs. A & B.

7. The officers tried to wrestle plaintiff to the ground

but he continued to actively resist. Exs. A & B.

8. Officer Lemke then removed her taser from its holster

but did not immediately tase plaintiff. Reid Decl.,

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¶ 10; Exs. A & B. Plaintiff refused to stop his active

resistence, so Officer Lemke used her taser on him, which subdued

him. Id. at ¶¶ 10-11; Exs. A & B.

9. Plaintiff was not in handcuffs at the time. Reid Decl.,

¶ 11; Exs. A & B.

10. Plaintiff was taken to a patrol car but refused to

enter it. Reid Decl., ¶ 15; Exs. A & B.

11. A tense stand-off ensued between the USPP officers and

a group of demonstrators, who started to chant “We’re going to

start a riot.” Exs. A & B.

12. Plaintiff was subsequently put in a transport wagon and

taken to George Washington Hospital. Reid Decl., ¶¶ 15-16; Exs.

A & B.

13. USPP General Order 3605.06 authorizes the use of

electronic control devices “on individuals who are actively

resisting” arrest in order to “ensure the protection of the

public, the officer, and any arrestees.” Ex. C, attached.


RONALD C. MACHEN JR., DC Bar #447889United States Attorneyfor the District of Columbia

DANIEL F. VAN HORN, DC Bar #924092Chief, Civil Division

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By: /s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL, D.C. BAR #416587

Assistant United States AttorneyU.S. Attorney’s Office555 4th Street, N.W. - Civil DivisionWashington, D.C. 20530(202) [email protected]

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______________________________)


Plaintiff, ))



)and )


)Defendants. )

______________________________)

MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF DEFENDANTS’ MOTION TO DISMISS OR,IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff, Ryan Barton Lash, commenced this action against

United States Park Police (“USPP”) Officer Jennifer Lemke and

Sergeant Todd Reid, pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)

(“Bivens”), as a result of an incident which occurred on January

29, 2012, when plaintiff was arrested for disorderly conduct,

during which Officer Lemke used her taser on plaintiff. The

arrest occurred after plaintiff had interfered with the work of

USPP officers who were posting notices in McPherson Square about

the National Park Service’s (“NPS”) no-camping regulations and


NPS’s intent to begin enforcing those regulations. Plaintiff

removed certain notices posted by the officers and threw them in

the trash. As he was being arrested for these actions, he

actively resisted and attempted to get away from the officers.

Officer Lemke used her taser on him once, before he was

handcuffed, in order to stop his active resistence to the arrest.

A review of the allegations and the relevant case law

reveals that, notwithstanding plaintiff’s legal conclusions to

the contrary, plaintiff has failed to allege facts to support a

claim that his arrest violated any First or Fourth Amendment

right. Moreover, even if such a right were violated, the

contours of that right were not so clearly established that

plaintiff’s claims can withstand the defense of qualified

immunity. USPP officers are authorized under their General

Orders to use a taser on an individual actively resisting arrest.

Accordingly, plaintiff’s Bivens claims must fail.

Additionally, plaintiff’s claims against the

individually sued defendants are also subject to dismissal

because they have not been personally served with the Complaint.

I. FACTUAL BACKGROUND

On January 29, 2012, plaintiff was participating in the

protest movement known as “Occupy D.C.” in McPherson Square in

Washington, D.C. Complaint (“Compl.”), ¶ 7. On that day

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National Park Service (“NPS”) officials and USPP officers began

distributing flyers in McPherson Square informing the individuals

located therein that “the United States Park Police will commence

enforcement of the long-standing National Park Service (NPS)

regulations that prohibit camping and the use of temporary

structures for camping in McPherson Square and Freedom Plaza.”

Comp., ¶¶ 8, 10; Declaration of Sergeant Todd Reid (“Reid

Decl.”), ¶ 2 & attached Ex. 1. When the NPS officials and USPP

officers began to distribute the notices, “there were hundreds of

individuals filling McPherson Square, as well as temporary

structures, tents and shelters which concealed a large portion of

the individuals.” Reid Decl., ¶ 4. “Some of the individuals in

the square became agitated, verbally harassed the officers and

interfered with NPS distribution effort[s]. The situation was

very volatile . . . .” Id. at ¶ 6.

Plaintiff was one of the individuals verbally harassing

officers and interfering with the distribution of the NPS

notices. As the officers moved through McPherson Square posting

notices on tents, plaintiff began to remove certain notices and

throw them in the trash. Compl., ¶¶ 12-13; Reid Decl., ¶¶ 7, 9.

Sergeant Reid warned plaintiff that he was not allowed to remove

the notices, but he continued to do so. Reid Decl., ¶¶ 8-9. The

officers then decided to arrest plaintiff for disorderly conduct.

Id. at ¶ 9.

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The officers approached plaintiff who tried to get away from

them. Ex. A (video entitled “D.C. Police Tase . . . .” of

plaintiff’s arrest); Ex. B (video entitled “Occupy DC – Police

Tase . . . .” of plaintiff’s arrest). One of the officers,

Officer Tiffany Reed, advised plaintiff that he was under arrest

and directed him to put his hands behind his back. Reid Decl., ¶

9. Plaintiff refused to cooperate and continued to try and get

away from the officers, swinging his arms against them. Id. at

¶ 10; Exs. A & B. Plaintiff is physically bigger than two of the

three officers trying to arrest him. Exs. A & B. Plaintiff

continued to actively resist even after an officer grabbed him

from behind in an obvious effort to bring him under the officer’s

control. Exs. A & B. The officers tried to wrestle plaintiff to

the ground by knocking his foot out from under him, but he

continued to actively resist. Exs. A & B.

In response to plaintiff’s refusal to cooperate with the

officers making the arrest, and his active resistence to their

efforts to arrest him, Officer Lemke deployed her taser and

warned plaintiff to stop resisting or he would be arrested. Reid

Decl., ¶ 10. Plaintiff refused to stop his continued active

resistence, so Officer Lemke used her taser on him once, in a

five second burst. Id. at ¶¶ 10-11; Exs. 2 & 3. Plaintiff was

not in handcuffs at the time. Reid Decl., ¶ 11; Exs. 2 & 3.

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Plaintiff was taken to a patrol car but refused to enter it.

Reid Decl., ¶ 15. A tense stand-off ensued between the USPP

officers and a group of demonstrators, who started to chant

“We’re going to start a riot.” Exs. A & B. Plaintiff was

subsequently put in a transport wagon and taken to George

Washington Hospital. Reid Decl., ¶¶ 15-16.

II. ARGUMENT

For purposes of a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the well pled facts in a Complaint are taken as true.

See Wilson v. Libby, 535 F.3d 697, 701 (D.C. Cir. 2008). Legal

conclusions and opinions are not entitled to the same treatment.

See, e.g., City of Harper Woods Employees’ Retirement System v.

Olver, 589 F.3d 1292, 1300 (D.C. Cir. 2009); Boggs v. Bowron, 842

F. Supp. 542, 546 (D.D.C. 1993). Although defendants do not

agree with plaintiff’s factual account of what happened to his

possessions, for purposes of this motion the facts alleged must

be taken as true. Wilson, 535 F.3d at 701.

“In ruling upon a motion to dismiss, a court may ordinarily

consider only ‘the facts alleged in the complaint, documents

attached as exhibits or incorporated by reference in the

complaint, and matters about which the Court may take judicial

notice.’” Johnson v. Interstate Management Co., LLC, – F. Supp.2d

–; 2012 WL 2552777, *2 (D.D.C. July 3, 2012). See also, e.g.,

Fed. R. Evid. 201; EEOC v. St. Francis Xavier Parochial Sch., 117

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F.3d 621, 624 (D.C. Cir. 1997). Specifically, the Court may take

judicial notice of public documents without converting

Defendant’s Motion to Dismiss into a motion for summary judgment.

Swierkiewicz v. Sorema, 534 U.S. 506 (2002). Federal courts

regularly take judicial notice of government documents and

documents from other reliable sources. Id.; see also Yellow Taxi

Co. of Minneapolis v. NLRB, 721 F.2d 366, 375 n.29 (D.C. Cir.

1983).

With respect to a motion for summary judgment under Fed. R.

Civ. P. 56, “the facts must be viewed in the light most favorable

to the nonmoving party only if there is a ‘genuine’ dispute as to

those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “When

opposing parties tell different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version of the

facts for purposes of ruling on a motion for summary judgment.”

Id. Where a videotape of events exists, the court “should []

view[] the facts in the light depicted by the videotape.” Id. at

381. Here, the record includes two videotapes of plaintiff’s

arrest. See Exs. A & B.

Plaintiff raises Bivens claims against the unnamed defendant

employees of the Department of the Interior, presumably Park

Police officers, for allegedly violating his First and Fourth

Amendment rights. This Court must thus decide whether to

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recognize a right to proceed against the unnamed defendants under

Bivens, in the context of the particular actions challenged.

Wilkie v. Robbins, 551 U.S. 537, 550 (2007).

The Supreme Court has identified two circumstances that

preclude the creation of an implied right of action directly

under the Constitution. First, no Bivens remedy will lie where

“Congress has provided an alternative remedy which it explicitly

declared to be a substitute for recovery directly under the

Constitution and viewed as equally effective.” Carlson v. Green,

446 U.S. 14 18 (1980). Second, “even in absence of affirmative

action by Congress,” “special factors counseling hesitation,” may

preclude recognition of any judicially-created remedy for the

alleged constitutional violation. Bivens, 403 U.S. at 396;

Schweiker v. Chilicky, 487 U.S. 412 (1988). The Supreme Court

has since clarified that a Bivens remedy should be inferred only

if (1) there is no alternative, existing process for protecting a

constitutional interest, and (2) if there are no special factors

counseling hesitation against a judicially created remedy.

Wilkie, 537 U.S. at 550. See Minneci v. Pollard, 132 S. Ct. 617,

621 (2012).

With respect to the First Amendment, the Supreme Court in

Ashcroft v. Iqbal, 556 U.S. 662 (2009), stated:

Because implied causes of action are disfavored, theCourt has been reluctant to extend Bivens liability ‘toany new context or new category of defendants.’[citations omitted]. That reluctance might well have

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disposed of respondent's First Amendment claim ofreligious discrimination. For while we have allowed aBivens action to redress a violation of the equalprotection component of the Due Process Clause of theFifth Amendment [citation omitted], we have not foundan implied damages remedy under the Free ExerciseClause. Indeed, we have declined to extend Bivens to aclaim sounding in the First Amendment.

Id. at 675. See also Wilkie, 551 U.S. at 550. Although

defendants acknowledge that the Court of Appeals for this Circuit

in Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), cert. denied

438 U.S. 916 (1978), recognized a Bivens cause of action for a

First Amendment claim involving demonstrations, id. at 194-95, it

is unclear if that decision would survive Supreme Court scrutiny

in light of the above statements made by that Court in the more

recent decision in Iqbal.

Nonetheless, as demonstrated below, defendants did not

violate any of plaintiff’s clearly established constitutional

rights.

A. The Constitutional Claims Against theIndividual Defendants Should be DismissedOn The Grounds of Qualified Immunity.

It is well settled that federal defendants sued in their

individual capacity enjoy a qualified immunity from liability for

constitutional torts unless the plaintiff can establish that

defendants violated a “clearly established” constitutional right.

See, e.g., Cleavinger v. Saxner, 474 U.S. 193, 206 (1985); Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). Government officials

performing “discretionary functions” are shielded from liability

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for civil damages insofar as their conduct did not violate

“clearly established statutory or constitutional rights of which

a reasonable person would have known.” Safford Unified School

District v. Redding, 129 S. Ct. 2633, 2643 (2009); Harlow, 457

U.S. at 818; Wilson v. Layne, 523 U.S. 603, 609 (1999). As the

Court of Appeals for this Circuit has explained:

Qualified immunity shields officials from liability fordamages so long as their actions were objectivelyreasonable, as measured in light of the legal rulesthat were ‘clearly established’ at the time of theiractions.

Kalka v. Hawk, 215 F.3d 90, 94 (D.C. Cir. 2000), quoting Harlow,

457 U.S. at 818-19; Lederman v. United States, 291 F.3d 36, 47

(D.C. Cir. 2002).

The law in this circuit is clear that "[f]or purposes of

qualified immunity, it is not enough for a plaintiff to allege

that a defendant's conduct violated a right that is clearly

established in general terms." Harbury v. Deutch, 233 F.3d 596,

610 (D.C. Cir. 2000), rev’d in part on other grounds sub nom.

Christopher v. Harbury, 536 U.S. 403 (2002). Rather:

'the right the official is alleged to have violatedmust have been "clearly established" in a moreparticularized . . . sense: The contours of the rightmust be sufficiently clear that a reasonable officialwould understand that what he is doing violates thatright. This is not to say that an official action isprotected by qualified immunity unless the very actionin question has previously been held unlawful . . . butit is to say that in the light of pre-existing law theunlawfulness must be apparent.'

Id., quoting Anderson v. Creighton, 483 U.S. at 640 (citations

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omitted) (emphasis supplied)). As the Supreme Court recently

made clear, “the right allegedly violated must be established

‘“not as a general proposition”’ [citation omitted] but in a

‘particularized’ sense so that the ‘contours’ of the right are

clear to a reasonable official[.]” Reichle v. Howards, 132 S.

Ct. 2088, 2094 (2012). See also Saucier v. Katz, 533 U.S. 194,

208 (2001) ("The question is what the officer reasonably

understood his powers and responsibilities to be, when he acted,

under clearly established standards"); Kalka v. Hawk, 215 F.3d at

94 (same).

Importantly, as the Supreme Court recognized in Saucier v.

Katz:

The concern of the immunity inquiry is to acknowledgethat reasonable mistakes can be made as to the legalconstraints on particular police conduct. It issometimes difficult for an officer to determine how therelevant legal doctrine . . . will apply to the factualsituation the officer confronts.

Id. at 205. Consequently, “[i]f [an] officer’s mistake as to

what the law requires is reasonable . . . the officer is entitled

to the immunity defense.” Id. “This accommodation for

reasonable error exists because [law enforcement] should not err

always on the side of caution because they fear being sued.”

Hunter v. Bryant, 502 U.S. 224, 229) (1991) (per curiam)

(internal quotation marks and citations omitted).

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Moreover, as discussed above, under Harlow the determination

of whether a clearly established constitutional right has been

violated requires an objective, not subjective, analysis.

Wilson, 523 U.S. at 609; Crawford-El v. Brittin, 523 U.S. 574,

590 (1998). Plaintiff bears the burden of showing a “prima facie

case of defendant’s knowledge of impropriety, actual or

constructive.” Krohn v. United States, 742 F.2d 24, 31 (1st Cir.

1984); see also Davis v. Scherer, 468 U.S. 183, 191 (1984).

The protection of qualified immunity applies regardless of

whether the government official’s error is “a mistake of law, a

mistake of fact, or a mistake based on mixed questions of law and

fact.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting

Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J.,

dissenting)).

As to the "clearly established" inquiry, the defendants need

not demonstrate that "the law was established in [their] favor at

the time [they] acted." Instead, "[i]t is only necessary for

[defendants] to show that the law was unsettled . . . not . . .

that a Supreme Court opinion had specifically approved their

actions." Zweibon v. Mitchell, 720 F.2d 162, 173-74 n.19 (D.C.

Cir. 1983), cert. denied, 469 U.S. 880 (1984), reh. denied, 469

U.S. 1068 (1984). "[O]nce the trial judge determines the law was

not clearly established at the time the contested conduct

occurred, the inquiry ceases." Id. at 168 (citing Harlow,

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supra). Given Harlow's focus, it is irrelevant whether the Court

concludes that a complaint states a claim upon which relief may

be granted, or even that the plaintiff's rights were in fact

violated. "The decisive fact is not that a defendant's position

turned out to be incorrect, but that the question was open at the

time he acted." Mitchell v. Forsyth, 472 U.S. 511, 535 (1985).

The Court of Appeals recently in Bame v. Dillard, explained

that in looking to determine whether a constitutional right is

clearly established:

‘we look to cases from the Supreme Court and thiscourt, as well as to cases from other courts exhibitinga consensus view,’ Johnson v. District of Columbia, 528F.3d 969, 976 (D.C. Cir. 2008) – if there is one. Thefacts of such cases need not be ‘”materially similar” .. . but have only to show that “the state of the law[at the time of the incident] gave [the officer] fairwarning that [his alleged misconduct] . . . wasunconstitutional.’ Id. [remaining citation omitted]

id., 637 F.3d at 384.

Here, plaintiff alleges that defendants violated his First

Amendment rights by arresting him in retaliation for swearing at

the USPP Officers. Plaintiff also alleges that defendants

violated his Fourth Amendment rights by using excessive force –

i.e., use of the taser - during the course of his arrest.

Neither claim can withstand scrutiny.

1. The First Amendment Claim

As demonstrated above, supra at 7-8, as a matter of law no

Bivens remedy should lie for plaintiff’s First Amendment claim

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that but for his swearing at defendants on January 29, 2012,

during the course of his interactions with them, Compl., ¶¶ 12-

13, he would not have been arrested.

Nonetheless, it is undisputed that plaintiff was not just

swearing at federal officials and law enforcement officers. He

admits in his Complaint to interfering with their actions in

posting notices in McPherson Square about an upcoming law

enforcement action to compel compliance with NPS regulations and

abate a public nuisance. Compl., ¶¶ 12-13. Plaintiff also

admits that he removed notices placed on tents by federal

officials and put them in the trash. Id at ¶ 13. Plaintiff

does not allege that his actions resulted in a Fourth Amendment

unlawful arrest. See Count II.

Plaintiff’s claim that he was arrested in retaliation for

the exercise of his First Amendment activities is nothing more

than sheer speculation on his part and belied by the record. The

two videotapes show that during the course of plaintiff’s arrest

numerous individuals were swearing at the USPP officers but none

of them were arrested. Exs. A & B.

The facts alleged in the Complaint plainly show that

plaintiff was arrested for disorderly conduct, because he was

interfering with lawful government activity and destroying

government property by throwing away the notices being posted on

tents. There are no facts alleged, nor any evidence, that

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plaintiff’s First Amendment activities contributed toward his

arrest. Indeed, the Reid Declaration, the videotapes, and

plaintiff’s own recitation of facts in his Complaint demonstrate

to the contrary.

Moreover, “[w]hatever the officers’ motivation, [] the

existence of probable cause to arrest [the plaintiff] defeats her

First Amendment claim.” Dahl v. Holley, 312 F.3d 1228, 1236

(11th Cir. 2002). Accordingly, plaintiff’s arrest did not

violate plaintiff’s clearly established First Amendment rights.

2. The Fourth Amendment Claim

It is settled law that, in making an arrest, an officer has

the authority to use “some degree of physical coercion or threat

thereof to effect it.” Graham v. Connor, 490 U.S. 386, 395-97

(1989); Saucier, 533 U.S. at 208. The test for what constitutes

excessive force with respect to a Fourth Amendment claim was set

forth by the Supreme Court in Tennessee v. Garner, 471 U.S. 1

(1985). While that case concerned the use of deadly force in

apprehending a fleeing unarmed suspected felon, Garner's

reasonableness formulation has been extended to all claims of

excessive force with respect to the Fourth Amendment.

An officer will be found to have violated the Fourth

Amendment’s prohibition on the use of excessive force in

effecting an arrest only “if the force used was so excessive that

no reasonable officer could have believed in the lawfulness of

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his actions.” Rogala v. District of Columbia, 161 F.3d 44, 54

(D.C. Cir. 1998); Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C.

Cir. 1993). “The ‘reasonableness’ of a particular use of force

must be judged from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396. The excessiveness of force is thus an

objective inquiry made based on the facts and circumstances of

the particular case. Id.

As the Court of Appeals recently held in Oberwetter v.

Hilliard, 639 F.3d 545 (D.C. Cir. 2011):

In general, police officers have authority to use ‘somedegree of physical coercion’ when subduing a suspect,Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865,104 L.Ed.2d 443 (1989), as long as the amount of forceused is reasonable. . . We determine the reasonablenessof force based on ‘the facts and circumstances of [the]particular case, including the severity of the crime atissue, whether the suspect pose[d] an immediate threatto the safety of the officers or others, and whether[s]he [wa]s actively resisting arrest or attempting toevade arrest by flight.” Graham, 490 U.S. at 396, 109S.Ct. 1865. “The calculus of reasonableness must embodyallowance for the fact that police officers are oftenforced to make split-second judgments—in circumstancesthat are tense, uncertain, and rapidly evolving—aboutthe amount of force that is necessary in a particularsituation.” Id. at 396–97, 109 S.Ct. 1865. Thus, forOberwetter's claim to prevail, “the excessiveness ofthe force [must be] so apparent that no reasonableofficer could have believed in the lawfulness of hisactions.” Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C.Cir. 1993).

Id. at 555; Martin v. Malhoyt, 830 F.2d 237, 261 (D.C. Cir. 1987)

("balancing test . . . accords a measure of respect to the

officer's judgment about the quantum of force called for in a

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quickly developing situation.”) Additionally, the Court of

Appeals has held that:

a defendant's motion for summary judgment is to bedenied only when, viewing the facts in the record andall reasonable inferences derived therefrom in thelight most favorable to the plaintiff, a reasonablejury could conclude that the excessiveness of the forceis so apparent that no reasonable officer could havebelieved in the lawfulness of his actions.

Wardlaw v. Pickett, 1 F.3d at 1303.

This is plainly not the case here. The two videos clearly

show a volatile situation to which the USPP officers responded in

measured fashion. Plaintiff aggressively attempted to evade

arrest and continued to try and break away from the officers

attempting to arrest him until the taser was used. Although the

officers attempted to wrestle plaintiff to the ground, as can be

seen in the videos, due to plaintiff’s own actions in vigorously

resisting arrest the officers were not able to handcuff plaintiff

until the taser was used. Plaintiff continued to resist when he

was taken to the patrol car, as can also be seen on the two

videos. The officers could not get him into the patrol car and

had to get a patrol wagon in order to transport plaintiff to the

hospital.

The use of the taser in these circumstances was not

excessive force, and it certainly was not excessive force that

any reasonable officer would have recognized as such.

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USPP General Order 3605 authorizes the use of electronic

control devices, also known as “tasers,” see Reid Decl., ¶ 10,

when needed in the aid of arrest. In particular, 3605.01 states:

Defensive equipment shall be used to gain control of anindividual or group of individuals, or to effect anarrest to ensure the protection of the public, theofficer, and any arrestees.

Reid Decl., Ex. 2 at 1.

Under General Order 3605.06(D)(1):

An ECD may be used when such force is legally justifiedand in accordance with General Order 3615 “Use ofForce.” ECDs may be used on individuals who areactively resisting and/or to prevent individuals fromharming themselves or others.

Id. at 7.

General Order 3615 provides that “[t]he reasonable use of

force refers to that level of force used by an officer to control

a situation based on the officer’s perception of the danger.”

Reid Decl., Ex. 3 at 3615.02. When an individual’s resistance

has escalated to active “physical defiance,” or confrontational

behavior that might inflict bodily harm, the officer must “gain

compliance and control” and, where appropriate, “use appropriate

physical action to immediately stop the aggression.” Id. at

3615.03(B)(2) & (3).

Here, the videos show that plaintiff was physically defying

the officers to the point that a reasonable officer could have

believed that plaintiff might inflict bodily harm on them. Even

with two officers with their hands on him, trying to arrest him,

17


plaintiff still swung his arms at the officers, pulled sharply

away from them, and resisted their attempts to bring him down to

the ground where they could gain control over him. Exs. A & B.

This was all happening in a very volatile environment where other

demonstrators or on-lookers in the park were crowding near the

officers and repeatedly yelling and swearing at them. The arrest

clearly needed to be effectuated quickly as the situation grew

more volatile and the on-lookers grew more numerous and hostile

to the officers. Exs. A & B.

Defense counsel could locate no caselaw in the Supreme Court

or this jurisdiction concerning the use of tasers in the context

of a Bivens claim of excessive force when continued substantial

resistence to arrest was present. In Bryan v. MacPherson, 630

F.3d 805 (9th Cir. 2010) (Wardlaw, J. concurring in the denial of

reh’g en banc), the Court identified numerous decisions in other

jurisdictions concerning the level of force associated with a

taser gun. Id. at 810-11. The Eleventh Circuit in an early

Bryan decision found the use of a taser to be excessive force

when the plaintiff was pulled over for a “‘minor seat belt

infraction, never attempted to flee, was clearly unarmed, and was

standing, without advancing in any direction, next to his vehicle

while Officer MacPherson was standing ‘approximately twenty feet

away observing [plaintiff] Bryan’s stationary, bizarre tantrum

with his X26 drawn and charged.’” Id. at 812, quoting Bryan v.

18


MacPherson, 608 F.3d 614, 628 (9th Cir. 2010). Nonetheless, the

Ninth Circuit upheld the grant of qualified immunity to the

officer for deploying his taser, due to the “dearth of prior

authority” regarding the circumstances under which the use of a

taser was appropriate. Bryan v. MacPherson, 608 F.3d at 629.

Of course, the facts here are nothing like those in Bryan.

Here, plaintiff was actively, physically, aggressively resisting

arrest while a hostile crowd began to form around the arresting

officers. Officer Lemke’s use of her taser to allow the officers

to subdue plaintiff in order to effect a quick arrest was

entirely appropriate under the circumstances.

Indeed, the Eleventh Circuit in Draper v. Reynolds,369 F.3d

1270 (11th Cir. 2004), considered whether excessive force was

used in connection with the discharge of a taser where the

plaintiff acted toward the officer in a belligerent, excited

manner in the context of a traffic stop. The Eleventh Circuit

concluded that:

In the circumstances of this case, Reynolds’ use of thetaser gun to effectuate the arrest of Draper wasreasonably proportionate to the difficult, tense anduncertain situation that Reynolds faced in this trafficstop, and did not constitute excessive force. . . .Draper was hostile, belligerent, and uncooperative. . .. Draper used profanity, moved around and paced inagitation, and repeatedly yelled at Reynolds. . . .

Id. at 1278. The Court observed that “[t]he single use of the

taser gun may well have prevented a physical struggle and serious

harm to either Draper or Reynolds.” Id.

19


Here, the officers were already engaged in a physical

struggle with plaintiff before the taser was used. But as the

Eleventh Circuit found in Draper, the use of the taser on

plaintiff here may well have prevented “serious harm” to

plaintiff or the officers, given plaintiff’s clear indication

that he was not prepared to cease his active, physical resistance

to arrest.

The foregoing demonstrates that the Complaint falls short of

alleging a claim that defendants violated plaintiff’s clearly

established specific First and/or Fourth Amendment rights. E.g.,

Ashcroft v. Iqbal, 556 U.S. at 678, 687; Taylor v. Reilly, 685

F.3d 1110, 1113-14 (D.C. Cir. 2012) (to be “clearly established,”

existing precedents “must have placed the statutory or

constitutional question beyond debate.”). And the record shows

there was no violation of plaintiff’s First or Fourth Amendment

rights. See Reid Decl. & Exs. A & B. Accordingly, qualified

immunity should insulate defendants from suit. See Wilson v.

Layne, 523 U.S. at 609.

B. Plaintiff’s Claims are also Subject to Dismissal for Failure to Properly Serve the Individually-Named Defendants.

This Court is also without personal jurisdiction over

defendants sued in their individual capacities in the absence of

proper service. It is well-established that, in an action

against a federal employee in an individual capacity, the

20


individually-sued defendant must be served with process in

accordance with Rule 4(e) of the Federal Rules of Civil

Procedure. See Simpkins v. District of Columbia Govt., 108 F.3d

366, 369 (D.C. Cir. 1997); Lawrence v. Acree, 79 F.R.D. 669, 670

(D.D.C. 1978); Delgado v. Bureau of Prisons, 727 F. Supp. 24

(D.D.C. 1989).

Rule 4(e) provides that service is effectuated by complying

with the laws of the state for such in which the district court

is located by delivering a copy of the summons and complaint to

the defendant (or his appointed agent) personally, or by leaving

copies thereof at the defendant’s dwelling house or usual place

of abode with some person of suitable age and discretion who

resides there. Fed. R. Civ. P. 4(e). Actual notice will not, of

course, substitute for technically proper service under Rule 4

and will not permit the Court to render a personal judgment

against an individually-sued defendant. See Stafford v. Briggs,

444 U.S. 527 (1980).

Service on the Attorney General of the United States or the

United States Attorney for the district in which the action is

brought, pursuant to the rules applicable to official capacity

suits, “does not obviate the requirement of personal service. .

.where the action is in substance against a federal official in

his individual capacity.” Lawrence, 79 F.R.D. at 670; Delgado,

727 F. Supp. at 27. To the extent that plaintiff seeks relief

21


against federal employees in an individual capacity, the Court

must acquire personal jurisdiction in order to enter a binding

judgment, and personal jurisdiction is only acquired by personal

service. E.g., Reuber v. United States, 750 F.2d 1039, 1049

(D.C. Cir. 1984).

In this case, the Complaint was filed May 22, 2012. Service

was made on Capt. Robert McLean, who is only authorized to accept

service of process for claims brought against officers in their

official capacities. See Declaration of Robert McLean, attached.

Accordingly, defendants have not been properly served with the

Complaint that is suing them in their individual capacities.

Nonetheless, the Court need not reach this issue based on

the arguments above.1

1 Defendants note, however, that the time to serve them hasexpired. See Fed. R. Civ. P. 4(m).

22


III. CONCLUSION

For the foregoing reasons, defendants respectfully request

that this Court grant their motion to dismiss or, in the

alternative, for summary judgment and dismiss this case against

them.

Respectfully Submitted,

RONALD C. MACHEN JR.D.C. BAR # 447889United States Attorneyfor the District of Columbia

DANIEL F. VAN HORN, D.C. BAR # 924092Chief, Civil Division

By: /s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL,

D.C. BAR #416587Assistant United States AttorneyU.S. Attorney’s Office555 4th Street, N.W. - Civil DivisionWashington, D.C. 20530(202) 514-7226 phone(202) 514-8780 [email protected]

23



______________________________)


Plaintiff, ))



)and )


)Defendants. )

______________________________)

ORDER

Upon consideration of defendants’ motion to dismiss or, in

the alternative, for summary judgment, plaintiff’s responding

opposition, and the entire record in this case, it is hereby

ORDERED that defendants’ motion is granted; and it is

further

ORDERED that this case is dismissed.

UNITED STATES DISTRICT JUDGE


1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RYAN BARTON LASH, )

) Plaintiff, )

) v. ) Civil Action No. 12-00822 JDB

) SERGEANT TODD REID, et al., )

) Defendants. )

____________________________________)

Declaration of Sergeant Todd Reid

I, Sergeant Todd Reid, declare the following to be true and correct:

1. I am a Detective Sergeant in the Criminal Investigations Branch of the United States

Park Police (USPP).

2. On or about January 27 – 29, 2012, National Park Service (NPS) personnel

distributed notices to individuals camped in McPherson Square in Washington, D.C.

The notice advised those individuals that camping and the use of temporary

structures to camp and house personal goods would no longer be permitted in the

square following noon on January 30, 2012. A true and correct copy of that notice

is attached hereto as Exhibit 1.

3. USPP provided assistance and protection to NPS personnel on the scene. I

supervised the USPP Officers on the scene on one of the days notices were

distributed. The mission on those days was to provide clear direction what the laws

and regulations were related to McPherson Square, and what was expected of the


2

individuals for them to be in compliance.

4. When NPS officials began distributing notices, there were hundreds of individuals

filling McPherson Square, as well as temporary structures, tents, and shelters which

concealed a large portion of the individuals.

5. The mission on the days identified in paragraph 2 above was only to provide clear

notice that the regulatory prohibition on camping and the use of temporary structures

would soon be enforced in the square.

6. Some of the individuals in the square became agitated, verbally harassed the officers,

and interfered with NPS distribution effort. The situation was very volatile, and

USPP was on high alert to deal with any situation which arose as a result.

7. As relevant here, on January 29, 2012, plaintiff Ryan Lash interfered with official

NPS’s distribution of the notices by removing some of the notices that NPS officials

had placed on several of the tents in McPherson Square.

8. Officer Lemke warned Mr. Lash several times that removing the notices was

prohibited. Mr. Lash was informed that if he took down any further notices he would

be arrested for disorderly conduct.

9. I witnessed Mr. Lash continue to remove the notices despite the USPP officers’

warnings. As a result, USPP Officers, including Officer Jennifer Lemke, Officer

Tiffany Reed, and Officer Frank Hilsher, attempted to arrest Mr. Lash for disorderly

conduct. Officer Tiffany Reed advised Mr. Lash that he was under arrest and

directed him to place his hands behind his back.

10. During the process of trying to arrest Mr. Lash, Mr. Lash refused to cooperate and


3

swung his arms in a violent manner, shoving the officers, and attempting to walk

away from them despite repeated verbal commands from the Officers to stand still.

In response to Mr. Lash’s violent actions, Officer Lemke deployed her electronic

control device (referred to as a “taser”) in a 5 second burst on Mr. Lash.

11. USPP used a taser on Mr. Lash only once and before the officers were able to put

handcuffs on him.

12. Tasers can be used when a subject resists arrest and the Officer believes that the

subject’s actions pose a potential threat. The use of tasers by USPP officers is

governed by General Order 3605.06 (“Defensive Equipment: Electronic Control

Devices (ECD)”). A true and correct copy of General Order 3605.06 is attached

hereto as Exhibit 2.

13. USPP Officers, in enforcing the laws of the United States, are required to make

judgments as to when the use of force is necessary. Officers are empowered to use

reasonable force based on the dynamics of the situation. The use of force by USPP

Officers is governed by General Order 3615 (“Use of Force”). A true and correct

copy of General Order 3615 is attached hereto as Exhibit 3.

14. I supervised Officer Lemke on the day of the incident and have evaluated her actions.

Officer Lemke’s use of a taser on Mr. Lash on January 29, 2012, complied fully with

General Order 3605.06 and 3615.



















RYAN BARTON LASH, )

) Plaintiff, )

) v. ) Civil Action No. 12-00822 JDB

) SERGEANT TODD REID, et al., )

) Defendants. )

____________________________________)

Declaration of Robert D. MacLean

I, Robert D. MacLean, declare the following to be true and correct:

1. I am the Deputy Chief, Commander of the Homeland Security Division, for the

United States Park Police (USPP).

2. In my regular course of duty, I accept service for summons and subpoenas on behalf

of USPP and USPP officers in their official capacity.

3. While I may accept service for officers named in their official capacity, I have not

and have never been authorized to accept service on an USPP Officers served in their

individual capacity.

4. I cannot and have never been authorized to accept service for Officer Jennifer Lemke

in her individual capacity.

5. I cannot and have never been authorized to accept service for Sergeant Todd Reid in

his individual capacity.

6. I signed for a court document served by the United States Marshals Service on July

25, 2012, but only in an official capacity as it related to USPP, and not for or on




______________________________)


Plaintiff, ))



)and )


)Defendants. )

______________________________)

NOTICE OF FILING OF EXHIBITS A AND B IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,

FOR SUMMARY JUDGMENT

Defendants hereby file Exhibits A and B in support if their

Motion to Dismiss or, in the Alternative, for Summary Judgment on

CD-ROM in the Clerk’s Office. The exhibits are not being filed

through the ECF system as attachments to Defendants’ dispositive

motion as they are videos that cannot be converted to PDF format.

A copy of the CD-ROM will be provided to Plaintiff’s Counsel

and Judge’s chambers.


/s/ Marina Utgoff Braswell MARINA UTGOFF BRASWELL, D.C. BAR #416587

Assistant United States AttorneyU.S. Attorney’s Office


555 4th Street, N.W. - Civil DivisionWashington, D.C. 20530(202) [email protected]

2


1


RYAN BARTON LASH, PLAINTIFF vs. OFFICER JENNIFER LEMKE, et al., DEFENDANTS

)

)

)

)

)

)

)

)

)

)

)

Civil Action No. 1:12-cv-822 (JDB)

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Plaintiff respectfully opposes Defendants’ Motion and accompanying Memorandum

of Points and Authorities in Support of Defendants’ Motion to Dismiss or, in the

Alternative, for Summary Judgment.

I. COUNTERSTATEMENT OF THE FACTS

Background on ECDs

Electronic Control Devices (ECDs) (also known as Electronic Control Weapons

(ECWs) or Conducted Energy Devices (CEDs)) are handheld weapons that deliver brief

bursts of rapidly pulsing electrical current. (Ex. 1.) ECDs cause intense pain and

incapacitating muscle contractions, either through two darts attached to wires or directly

from contact with exposed electrodes. (Ex. 1.)

Since TASER Intentional, Inc. captured the ECD market following the release of its

first high-power ECD, the Model M26, in November 1999, followed by its equally high-

power, but more compact Model X26 in 2003, there have been a growing number of


2

reports that the devices have been abused, or caused catastrophic injuries and death. (Ex.

1.) In a comprehensive report, Amnesty International identified 334 deaths associated

with TASER International products in the United States from June 2001 through August

2008, almost all cardiac arrests. (Ex. 1.) There are numerous risks of using ECDs

including a dart in the eye, ignition of flammable substances, fall-related trauma,

orthopedic fracture or dislocation, and cardiac arrest.

Both TASER Model M26 and X26 operate the same way. (Ex. 1.) A plastic

cartridge slips onto the front of the “barrel.” (Ex. 19.) Switching off the safety activates

a laser sight, the dot of light representing the target for the top dart. Pulling the trigger

fires two darts, each bearing a barbed point nine millimeters long, connected to wires

ranging in length from 15 to 35 feet. (Ex. 19.) The top dart travels straight while the

bottom dart angles downward so that the darts spread one foot for each seven feet

traveled. (Ex. 20.) The wider the spread, the more effective the electrical discharge will

be in causing muscle incapacitation. (Ex. 12.) Both the Model M26 and X26 are set to

cycle automatically for five seconds, accompanied by the audible clicking of the

electrical pulses. The cycle can be ended sooner, however, by engaging the safety, or it

can be prolonged by holding down the trigger longer than five seconds, continuing until

the release of the trigger. Five second cycles can be repeated with additional trigger pulls

and prolonged cycles continued until the device overheats or the batteries wear out, a

period of up to ten minutes depending on battery strength.

The effect of an ECD is like a debilitating, full-body seizure, complete with mental

disorientation and loss of bodily functions. It is extremely painful. (Ex. 1.) When

effective, the electrical current causes the skeletal muscles to contract severely


3

throughout the extremities, making the person stiffen and fall without means of self-

protection. (Ex. 1.) A person generally cannot comply with instructions while being

shocked, and contractions in the arms may make it difficult for officers to move them into

handcuffing position while the current is active, although TASER International trains this

tactic, calling it “handcuffing under power.” (Ex. 14.)

An independent peer-reviewed study of off-the-shelf M26 and X26 devices

determined that discharges to the chest of test animals resulted in cardiac capture. (Ex.

5.) When a test animal was given epinephrine to simulate the agitated state of an

individual being shocked during a confrontation with the police, a single ECD

administration produced ventricular fibrillation and cardiac arrest. (Ex. 5.) By 2005, the

link of multiple, repeated or prolonged ECD applications to a separate and distinct

mechanism for cardiac arrest became undeniable, and TASER eventually included

warnings cautioning users to make “[r]easonable efforts . . . to minimize the number of

ECD exposures. ECD users should use the lowest number of ECD exposures that are

objectively reasonable to accomplish lawful objectives and should reassess the subject’s

behaviors, reactions, and resistance level before initiating or continuing the exposure.”

(Ex. 2.) Metabolic acidosis, the build-up of lactic acid in the bloodstream from excessive

muscle contractions, is a known cause of cardiac arrest. (Ex. 6.) The relationship

between repeated ECD-induced muscle contractions and severe metabolic acidosis was

documented in a study sponsored by the United States Air Force, (Ex. 7) and in a series

of experiments conducted by independent researchers in Chicago (Ex. 8; Ex. 9; Ex. 10).

The risks posed by the introduction of ECDs were documented in the most thorough

etymological study to date. Independent researchers from the University of California,


4

San Francisco, School of Medicine determined that in-custody deaths increased six-fold

during the year following the first deployments of TASER International products in the

surveyed California law-enforcement agencies. (Ex. 11.)

Beginning in September 2009, TASER International training and warning materials

include the following: “Law enforcement personnel are called upon to deal with

individuals in crises [who] are often physiologically or metabolically compromised and

may be susceptible to arrest-related death . . . . Any physiologic or metabolic change may

cause or contribute to death or serious injury.” (Ex. 2.) TASER Intentional warning

material includes the following: “Neurocardiogenic Response (Fainting). A person may

experience an exaggerated response to an ECD exposure, or threatened exposure, which

may result in a person fainting or falling with possible secondary injury.” (Ex. 2.)

Vasovagal syncope (fainting) resulting from TASER exposure has been documented in

the scientific literature. (Ex. 15.) Ventricular fibrillation caused by ECD application may

result in loss of consciousness and/or cardiac arrest. (Ex. 16.) A single five-second

deployment of a TASER in probe mode, when directed at an otherwise healthy subject’s

back, can cause significant pain and spinal injury, even in the absence of a fall. (Ex. 3.)

The pain may be severe enough to trigger a vasovagal reaction. (Ex. 3.)

Because of the danger posed by the use of TASERs, many law enforcement

jurisdictions place ECD use just below lethal force in their use of force continuum. See

e.g., Parker v. Gerrish, 547 F.3d 1, 6 (1st Cir. 2008). TASER training materials state:

“ONLY USE TO STOP A THREAT. NEVER USE FOR PHYSICAL COERCION.”

(Ex. 13.) A 2009 report by the Maryland Attorney General advised that “[b]y allowing

their officers to use ECWs against individuals who are ‘actively resisting’ without any


5

imminent risk of harm, these agencies are authorizing their officers to use ECWs solely as

a device to coerce compliance with the officer’s orders. The risks associated with ECW

usage, from the potential for death or injury to straining police-community relationships,

should preclude the use of ECWs as a device to merely achieve compliance.” (Ex. 4 at

29)(emphasis in original). As an example, the report instructed, “an officer would not be

justified to use an ECW on an individual who was merely . . . moving evasively to avoid

being handcuffed, but who otherwise did not threaten physical harm. In this situation, the

risks associated with the ECW are disproportionate to the risk of harm posed on the

officer or others.” (Ex. 4 at 31.) Further, “officers should attempt to determine whether

the individual actually received and understood the officer’s commands.” (Ex. 4 at 31.)

Use of ECD against Plaintiff

On January 29, 2012, the Plaintiff, Mr. Ryan Lash, was in McPherson Square

participating in the Occupy DC vigil. (Compl. ¶ 7; Lash Decl. ¶ 3.) A group of Park

Police officers approached the tent in which Plaintiff was located and stated that they

were posting notices. (Compl. ¶ 8; Lash Decl. ¶ 4.) Plaintiff responded that he already

had received plenty of notices. (Compl. ¶ 8; Lash Decl. ¶ 4.) A Park Police officer then

threw a notice into the tent where Plaintiff was located. (Compl. ¶ 9; Lash Decl. ¶ 5.)

Plaintiff threw the notice out of a corner of the tent. (Compl. ¶ 9; Lash Decl. ¶ 5.) A

Park Police officer threw another notice to the tent where Plaintiff was located. (Compl.

¶ 9; Lash Decl. ¶ 5.) The notices being handed out by the Park Police officers concerned

the government’s intent to enforce the no-camping regulations in the coming days.

(Compl. ¶ 10.)


6

Plaintiff emerged from the tent and told the group of Park Police officers that he

would be participating in a “sleep strike” and would not be going to sleep for days.

(Compl. ¶ 11; Lash Decl. ¶ 6.) The group of Park Police officers then walked away.

(Compl. ¶ 11; Lash Decl. ¶ 6.) Plaintiff then started chanting “Fuck your notices,” and

removed two notices from other tents. (Compl. ¶ 12; Lash Decl. ¶ 7.) Officer Jennifer

Lemke informed Plaintiff that if he took down another notice, he would be arrested for

disorderly conduct. (Compl. ¶ 12; Lash Decl. ¶ 7.) After this warning, Plaintiff ceased

taking down the notices and walked away. (Compl. ¶ 12; Lash Decl. ¶ 7.) As Plaintiff

was walking away, he said to a group of Park Police officers, “You want us to clean up

the trash in the park, right? Well here’s your fucking trash you fucking pigs.” (Compl. ¶

13; Lash Decl. ¶ 8.) Plaintiff then crumpled up the notices he had removed and placed

them in the trash. (Compl. ¶ 13; Lash Decl. ¶ 8.)

Although Plaintiff was complying with Officer Lemke’s order not to remove any

more notices, Officers Jennifer Lemke, Frank Hilsher, and Tiffany Reed began to

approach Plaintiff as he was standing on a paved area in the southern side of McPherson

Square. (Compl. ¶ 14; Lash Decl. ¶ 9.) Sgt. Todd Reid was also present. (Compl. ¶ 14;

Lash Decl. ¶ 9.) Plaintiff did not know why the group of Park Police officers were

coming up to him so he said “Why are you coming at me?” and began walking around

the park. (Compl. ¶ 15; Lash Decl. ¶ 10.) Plaintiff was scared because he had seen Park

Police assault protesters before. (Compl. ¶ 15; Lash Decl. ¶ 10.) Although Plaintiff was

walking around the park, he did not attempt to run away or escape. (Compl. ¶ 15; Lash

Decl. ¶ 10.)

The Park Police officers did not explain to Plaintiff why they were approaching

him. (Compl. ¶ 16; Lash Decl. ¶ 11.) Plaintiff did not think that the Park Police were

going to place him under arrest because he had complied with the order not to take down


7

any more notices. (Compl. ¶ 16; Lash Decl. ¶ 11.) However, had the Park Police simply

told Plaintiff that he was going to be arrested, he would have put his arms behind his

back. (Compl. ¶ 16; Lash Decl. ¶ 11.) Plaintiff was walking away because he thought

that would help defuse the situation. (Compl. ¶ 16; Lash Decl. ¶ 11.)

When Officers Lemke, Hilsher, and Reed, and Sergeant Reid got close to

Plaintiff, Plaintiff put his hands in the air and said “I’ve done nothing wrong.” (Compl. ¶

17; Lash Decl. ¶ 12.) Officer Reed approached Plaintiff from behind and, without

warning, grabbed his arms and pulled them behind his back. (Compl. ¶ 18; Lash Decl. ¶

13.) Neither Officer Reed nor any of the other law enforcement officials present told

Plaintiff at any time during the incident in the park that he was under arrest or asked him

to put his hands behind his back. (Compl. ¶ 18; Lash Decl. ¶ 13.) Startled, Plaintiff

moved his arms forward. (Compl. ¶ 19; Lash Decl. ¶ 14.) Because he was being grabbed

from behind, Plaintiff did not know who was touching him. (Compl. ¶ 19; Lash Decl. ¶

14.) Officer Reed then grabbed Plaintiff’s neck and left arm while Officer Hilsher

grabbed Plaintiff’s right arm. (Compl. ¶ 19; Lash Decl. ¶ 14.) When Plaintiff noticed it

was Park Police officers grabbing him, he allowed the officers to place his arms behind

his back. (Compl. ¶ 20; Lash Decl. ¶ 15.)

While Officers Reed and Hilsher were holding onto Plaintiff, Officer Lemke

approached Plaintiff from behind and pulled the trigger on her Taser, resulting in two

probes becoming implanted into Plaintiff’s back and a charge being carried to Plaintiff’s

body, causing neuromuscular incapacitation. (Compl. ¶ 21; Lash Decl. ¶ 16.) Officer

Lemke’s use of the Taser caused Plaintiff to fall to the ground and experience vasovagal

syncope (fainting). (Compl. ¶ 22; Lash Decl. ¶ 17.) While Plaintiff was on the ground,

Officers Reed and Hilsher handcuffed Plaintiff. (Compl. ¶ 23; Lash Decl. ¶ 18.) Officer

Lemke TASEd Plaintiff again after he was on the ground in handcuffs. (Compl. ¶ 24;


8

Lash Decl. ¶ 19.) Plaintiff knew that Officer Lemke was using the TASER a second time

after he was in handcuffs because he could hear the clicking of the TASER and could feel

its effects on him. (Lash Decl. ¶ 20; Pl. Ex. 17 at 5:40.)

As he regained consciousness, Officers Reed and Hilsher lifted Plaintiff up to his

feet and walked him to a patrol car. (Compl. ¶ 25; Lash Decl. ¶ 21.) Plaintiff asked to be

transported to the hospital in an ambulance, but Officers Lemke and Hilsher refused and

tried to force Plaintiff into the back of a patrol car. (Compl. ¶ 26; Lash Decl. ¶ 22.) After

unsuccessfully trying to maneuver Plaintiff into the patrol car, Officer Hilsher moved

Plaintiff behind the patrol car and bent him over the trunk. (Compl. ¶ 27; Lash Decl. ¶

23.) Plaintiff was feeling woozy and dizzy. (Compl. ¶ 27; Lash Decl. ¶ 23.) The shocks

from the Taser made Plaintiff feel like he was going to defecate. (Compl. ¶ 27; Lash

Decl. ¶ 23.)

Plaintiff then experienced another episode of vasovagal syncope and fell to the

ground where his body began convulsing. (Compl. ¶ 28; Lash Decl. ¶ 24.) Plaintiff had

never experienced seizures before. (Compl. ¶ 28; Lash Decl. ¶ 24.) As Plaintiff fell, he

landed on his right hand, still in handcuffs, causing searing pain. (Compl. ¶ 28; Lash

Decl. ¶ 24.) While Plaintiff was unconscious, Officers Lemke and Reed lifted Plaintiff to

his feet. (Compl. ¶ 29; Lash Decl. ¶ 24.) As Plaintiff regained consciousness, Officer

Lemke and an unknown Park Police officer walked Plaintiff to a transport wagon and

placed him inside. (Compl. ¶ 30; Lash Decl. ¶ 25.) The handcuffs on Plaintiff were very

tight and Plaintiff loudly asked for the handcuffs to be eased. (Compl. ¶ 30; Lash Decl. ¶

25.) The pain caused Plaintiff to cry. (Compl. ¶ 30; Lash Decl. ¶ 25.)

Plaintiff was then transported to George Washington Hospital where he fainted in

the hotel lobby. (Compl. ¶ 31; Lash Decl. ¶ 26.) At the hospital, the Taser probes were

removed from Plaintiff’s back and he was instructed to return to the hospital if he was


9

experiencing chest pain. (Compl. ¶ 32; Lash Decl. ¶ 27.) Plaintiff had the sensation of

“pins and needles” along his right thumb and down to his wrist. (Compl. ¶ 33.; Lash

Decl. ¶ 28.) He told one of the nurses at the hospital about this sensation. (Compl. ¶ 33.;

Lash Decl. ¶ 28.)

After leaving the hospital and being transported to District 1, Plaintiff began

experiencing sharp chest pain and feeling dizzy. (Compl. ¶ 34; Lash Decl. ¶ 29.)

Plaintiff felt woozy, his chest felt tight, and he had a hard time breathing. (Compl. ¶ 34;

Lash Decl. ¶ 29.) Plaintiff asked to be taken back to the hospital. (Compl. ¶ 34; Lash

Decl. ¶ 29.) Plaintiff then lost consciousness again. (Compl. ¶ 34; Lash Decl. ¶ 29.)

When he awoke, he was told by a police officer that he had been unconscious for

about three to four minutes. (Compl. ¶ 35; Lash Decl. ¶ 30.) Plaintiff was confused

about who he was and what was going on. (Compl. ¶ 35; Lash Decl. ¶ 30.) Plaintiff was

diagnosed with chest pain, unspecified. (Compl. ¶ 36; Lash Decl. ¶ 31.) Plaintiff told a

nurse that he could not feel anything behind his right thumb. (Compl. ¶ 37; Lash Decl. ¶

32.) He still does not have any feeling from right below the fingernail of his right thumb

to his wrist area. (Compl. ¶ 37; Lash Decl. ¶ 32.)

Plaintiff continues to this day to feel “ghost pains” on his back where he was

shocked and around his right wrist along the thumb where it is still numb. (Compl. ¶ 38;

Lash Decl. ¶ 33.) Plaintiff sometimes gets the sensation of “pins and needles” along his

right thumb down to his wrist. (Compl. ¶ 38; Lash Decl. ¶ 33.) Plaintiff sometimes hears

non-existent clicks and feels pain where the Taser probes had attached to him. (Compl. ¶

38; Lash Decl. ¶ 33.) Sometimes Plaintiff is unable to even hold conversations with

people due to the physical and mental trauma of being tasered. (Compl. ¶ 38; Lash Decl.

¶ 33.) Plaintiff often suffers from panic attacks when he talks about the incident.

(Compl. ¶ 38; Lash Decl. ¶ 33.)


10

In a Gerstein affidavit, Officer Lemke swore under penalty for making a false

statement that Plaintiff shoved Officers Reed and Hilsher, and that Officer Lemke said

“stop resisting or I will tase you.” (Compl. ¶ 39.) In truth and in fact, Plaintiff did not

shove Officers Reed and Hilsher. (Compl. ¶ 40; Lash Decl. ¶ 34.) In truth and in fact,

Officer Lemke never said “stop resisting or I will tase you” and never warned Plaintiff

that he should stop resisting or that he was about to be tased. (Compl. ¶ 41; Lash Decl. ¶

35) Officer Lemke made the foregoing false statements in order to cover up the use of

excessive force. (Compl. ¶ 42.)

At the times Officer Lemke tased Plaintiff, Plaintiff was not posing a threat to law

enforcement or anyone else. (Compl. ¶ 43; Lash Decl. ¶ 36.) Plaintiff was unarmed and

surrounded by police officers. (Compl. ¶ 43; Lash Decl. ¶ 36.) Officer Lemke tased

Plaintiff in an attempt to make it easier for officers to handcuff him and not because

Plaintiff posed a threat to her or anyone else. (Compl. ¶ 44.) Taser training materials,

with which, on information and belief, both Officer Lemke and Sergeant Reid were

familiar, state: “ONLY USE TO STOP A THREAT. NEVER USE FOR PHYSICAL

COERCION.” (Compl. ¶ 45; Ex. 13.)

Sergeant Reid was the lead officer in charge at the time that Officer Lemke tased

Plaintiff. As the lead officer in the field, Sergeant Reid was responsible for proper

command and control. (Compl. ¶ 46.) Sergeant Reid failed to instruct or deploy in any

meaningful way Officer Lemke or the other officers involved in apprehending Plaintiff.

(Compl. ¶ 47.) Sergeant Reid failed to intercede on Plaintiff’s behalf despite the fact that

Sergeant Reid had ample opportunity to stop Officer Lemke from tasering Plaintiff both

the first and second times. (Compl. ¶ 48.)

II. STANDARD OF ADJUDICATION


11

a. Motion to dismiss under 12(b)(6)

A complaint need only provide “a short and plain statement of the claim showing that

the pleader is entitled to relief” in order to survive a motion to dismiss. Fed. R. Civ. P.

Rule 8(a)(2). “A complaint must give the defendants notice of the claims and the grounds

upon which they rest, but specific facts are not necessary.” Atherton v. D.C. Office of the

Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009).

When ruling on a motion to dismiss, the court “must accept as true all of the factual

allegations contained in the complaint.” Id. A court “may not grant a motion to dismiss

for failure to state a claim even if it strikes a savvy judge that recovery is very remote and

unlikely.” Id. So long as “the pleadings suggest a plausible scenario to show that the

pleader is entitled to relief, a court may not dismiss.” Id.

b. Summary judgment under Rule 56

Summary judgment may only be granted if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. Rule 56(a). Additionally, the evidence must be viewed in the light most

favorable to the party opposing the motion, all reasonable inference must be drawn in the

nonmovant’s favor, and the court must eschew making credibility determinations or

weighing the evidence. Figueroa v. D.C. Metro. Police Dep’t, 633 F.3d 1129, 1131-32

(D.C. Cir. 2011).

c. Qualified immunity


12

In resolving questions of qualified immunity, courts engage in a two-part inquiry.

The first “threshold question” is: “Taken in the light most favorable to the party asserting

the injury, do the facts alleged show the officer's conduct violated a constitutional right?”

Saucier v. Katz, 533 U.S. 194, 201 (2001). If the court finds a violation of a

constitutional right, “the next, sequential step is to ask whether the right was clearly

established . . . in light of the specific context of the case.” Id. It is no longer required

that a court resolve a qualified immunity claim by answering the questions in that

particular order. Pearson v. Callahan, 555 U.S. 223, 237 (2009).

III. OBJECTION TO DEFENDANTS’ EXHIBITS AND STATEMENT OF FACTS

Under Fed. R. Civ. Pro. 56(c)(1)(A) a party may support its position that a fact cannot

be genuinely disputed by “citing to particular parts of materials in the record, including .

. . affidavits or declarations[.]” However, “an affidavit or declaration used to support or

oppose a motion must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is competent to testify on

the matters stated.” Fed. R. Civ. Pro. 56(c)(4). Plaintiff objects that the Reid Declaration

is not made entirely on personal knowledge and does not show that Sgt. Reid is

competent to testify on the matters stated. Although the Reid Declaration asserts that Sgt.

Reid personally witnessed certain events, such as Mr. Lash removing notices, it sets forth

no foundation as to other events from which the court can determine he has personal

knowledge. For example, it is unclear how Sgt. Reid determined that Officer Lemke


13

deployed her TASER in only a single five-second burst, or the basis of his claim that Mr.

Lash was medically evaluated and found to have not sustained lasting physical injuries.

Plaintiff further objects that “the materials cited do not establish the absence . . . of a

genuine dispute[.]” Fed. R. Civ. Pro. 56(c)(1)(B). Specifically, the videos submitted by

Defendants as Exhibits A & B do not support the characterizations of Plaintiff’s actions

as described in Defendants’ motion and statement of facts. Mr. Lash did not “swing his

arms against” the officers (Def. Statement of Facts ¶ 6)(emphasis added), did not

“actively resist” (Def. Statement of Facts ¶¶ 7,8), was not “physically defying the officers

to the point that a reasonable officer could have believed that plaintiff might inflict bodily

harm on them” (Def. Mem. of Points and Authorities at 17), and did not “aggressively

attempt[] to evade arrest[.]” (Def. Mem. of Points and Authorities at 16.)

Further, numerous statements made by Defendants in their Memorandum of Points

and Authorities are completely lacking in any support from the record or misstate the

record evidence. Defendants assert that “Sergeant Reid warned plaintiff that he was not

allowed to remove the notices, but he continued to do so. Reid Decl., ¶¶ 8-9.” (Def.

Mem. of Points and Authorities at 3.) However, paragraph 8 of the Reid Declaration

states that it was Officer Lemke, not Sgt. Reid, who warned Mr. Lash that removing the

notices was prohibited. Similarly, Defendants assert, “Officer Lemke deployed her taser

and warned plaintiff to stop resisting or he would be arrested. Reid Decl., ¶ 10.”

However, paragraph 10 of the Reid Declaration states only that the officers gave repeated

verbal commands to Mr. Lash to stand still, not that Officer Lemke warned Mr. Lash to

stop resisting or he would be arrested.


14

Defendants also refer to facts which occurred after the TASERing of Mr. Lash and

are therefore irrelevant to whether the decision to TASER Mr. Lash was reasonable. For

example, a protester saying, “We’re going to start a riot” (Def. Mem. of Points and

Authorities at 5) after witnessing police officers wrongfully TASERing Mr. Lash could

not possibly be relevant as evidence that it was reasonable for the police officers to

TASER Mr. Lash. Further, any alleged acts of resistance by Mr. Lash when he was

already at the patrol car (Def. Mem. of Points and Authorities at 5) are irrelevant to a

determination of whether a decision to TASER Mr. Lash several minutes earlier was

reasonable.

IV. ARGUMENT

a. Defendants are not entitled to qualified immunity on Plaintiff’s Fourth Amendment claim arising out of the unlawful use of excessive force against him.

Defendants argument appears to be that if they use certain key words to describe Mr.

Lash’s conduct (e.g., “physical defiance,” “vigorously resisting arrest,” and “actively,

physically, aggressively resisting arrest”), their conduct will be deemed in compliance

with an internal Park Police policy and therefore no liability can attach under the Fourth

Amendment. This is not how the Fourth Amendment analysis works.

The Supreme Court has explained that “[d]etermining whether the force used to

effect a particular seizure is reasonable under the Fourth Amendment requires a careful

balancing of the nature and quality of the intrusion on the individual’s Fourth

Amendment interests.” Graham v. Connor, 490 U.S. 386, 396 (1989)(internal quotation

marks omitted). The test of reasonableness under the Fourth Amendment is “not capable


15

of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559

(1979). Instead, a court should consider several factors in determining reasonableness,

including “the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

The initial deployment1 of Officer Lemke’s TASER against Mr. Lash was an

intrusive use of force. A TASER shock is extremely painful, disorienting, incapacitating,

and potentially lethal. See Bryan v. MacPherson, 630 F.3d 805, 825, 826 n.7 (9th Cir.

2010)(“ We recognize, however, that like any generally non-lethal force, the taser is

capable of being employed in a manner to cause the victim’s death . . . . The

physiological effects, the high levels of pain, and foreseeable risk of physical injury lead

us to conclude that the X26 and similar devices are a greater intrusion than other non-

lethal methods of force we have confronted.”) The deployment of a TASER “intrudes

upon the victim's physiological functions and physical integrity in a way that other non-

lethal uses of force do not.” Id. at 825.

None of the three Graham factors suggest that deployment of Officer Lemke’s

TASER was reasonable under these circumstances. First, the crime which Mr. Lash was

accused of committing, disorderly conduct, a misdemeanor, is relatively minor and

Defendants do not argue otherwise.

1 Defendants do not even argue that the second TASER deployment, which occurred after Plaintiff was in handcuffs, was justified. See e.g., Beaver v. City of Fed. Way, 507 F. Supp. 2d 1137, 1145-46 (W.D. Wash. 2007)(multiple TASER deployments were unreasonable), aff’d, 301 Fed. Appx. 704 (9th Cir. 2008). Instead, they simply argue that there was no second TASER deployment. Plaintiff has submitted evidence of a second TASER deployment and at this stage of the proceedings, the evidence must be taken in the light most favorable to him. A copy of the TASER’s dataport readout would likely be able to settle this dispute. (See Pl. Ex. 18.)


16

Second, Mr. Lash did not pose any immediate threat to the safety of officers or others.

He was unarmed, and as he was wearing pajamas, it should have been apparent that he

was unarmed. Further, taking the facts in the light most favorable to Mr. Lash, he obeyed

the only order given to him, which was Officer Lemke’s instruction not to take down any

further notices. None of the officers would have had any reason to believe that Mr. Lash

would not obey any further order given to him. While Mr. Lash used crude language to

refer to the officers and had been vocal earlier, there is no evidence that he threatened the

officers or anyone else, that he was in a fighting stance, or that he posed an immediate

threat to anyone. The videos show Mr. Lash walking away from the officers and

bystanders, rather than advancing towards them, suggesting that Mr. Lash had no

assaultive intent.

The final Graham factor also supports a finding that the initial TASER deployment

was unreasonable. Whether Mr. Lash’s conduct is properly characterized as “resistance,”

and if so, whether it should be described as “active” or “passive,” are not the proper

questions to ask. See Bryan, 630 F.3d at 830 (“We must eschew ultimately unhelpful

blanket labels and evaluate the nature of any resistance in light of the actual facts of the

case.”) The actual facts of this case, taken in the light most favorable to Mr. Lash,

suggest that the movement of his arms from being startled did not justify the use of

significant force against him. According to Mr. Lash’s declaration, which is confirmed

by the videos, he was not told prior to the deployment of the TASER that he was under

arrest or that he should put his hands behind his back. He was grabbed from behind such

that he could not see who was grabbing him. The officers should not have been surprised

that after they grabbed an individual from behind without warning him or identifying


17

themselves, the individual might instinctively pull away, as Mr. Lash did. See York v.

City of Las Cruces, 523 F.3d 1205, 1209, 1211 (10th Cir. 2008)(denying qualified

immunity where police officer grabbed individual who cursed in public without telling

him that he was under arrest, the suspect reflexively pulled his arm away, and another

officer TASERed the suspect). The officers would not have had any reason to think that

the individual’s response was voluntary. Additionally, once Mr. Lash pulled away, he

was not told to stop resisting or that he was going to be TASERed if he continued

resisting. See Vathekan v. Prince George's County, 154 F.3d 173, 179-80 (4th Cir.

1998)(lack of warning before releasing police dog was objectively unreasonable); Deorle

v. Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001)(“the giving of a warning or the failure

to do so is a factor to be considered in applying the Graham balancing test.”) The

officers had no reason to believe that Mr. Lash would not have obeyed an order from one

of them and they had ample opportunity to warn him given that he was not engaged in

head-long flight or charging at them, but was simply pacing around the park. Finally, the

presence of numerous and experienced officers at the scene, including some who were at

least as large as Mr. Lash, militates against a finding that the deployment of the TASER

was reasonable.

Turning to the second prong of the qualified immunity inquiry, it was clearly

established on January 29, 2012 that it would violate the Fourth Amendment to use a

“Taser to control a target without having any reason to believe that a lesser amount of

force— or a verbal command—could not exact compliance.” See Casey v. City of

Federal Heights, 509 F.3d 1278, 1286 (10th Cir. 2007)(denying qualified immunity).

See also Mattos v. Agarano, 661 F.3d 433, 451 (9th Cir. 2011) (“When Aikala


18

encountered slight difficulty in arresting Troy because Jayzel was between the two men,

Aikala tased her without warning. Considering the totality of these circumstances, we

fail to see any reasonableness in the use of a taser in dart-mode against Jayzel”); York,

523 F.3d at 1209, 1211.

The D.C. Circuit also held, somewhat more generally, that “An officer’s act of

violence violates the Fourth Amendment’s prohibition against unreasonable seizures if it

furthers no governmental interest, such as apprehending a suspect or protecting an officer

or the public. . . . [A] police officer must have some justification for the quantum of force

he uses . . . . Force without reason is unreasonable.” Johnson v. District of Columbia,

528 F.3d 969, 976-77, 381 U.S. App. D.C. 351 (D.C. Cir. 2008). The proper inquiry is

whether “[a]ll of the officers’ actions were reasonably calculated toward the goal of

securing [the suspect] and placing him in handcuffs, while minimizing his opportunity to

escape.” Scott v. District of Columbia, 101 F.3d 748, 760, 322 U.S. App. D.C. 75 (D.C.

Cir. 1996).

Here, it cannot be said that all of the officers’ actions2 were reasonably calculated to

advance a legitimate governmental interest. There was no legitimate reason to refrain

from giving Mr. Lash any warnings, telling him that he was under arrest, or issuing any

verbal orders, and then to TASER him after he was grabbed from behind and

involuntarily pulled away. Defendants do not contend that such acts or omissions would

have been reasonable, but instead argue that Mr. Lash was warned and given orders.

2 Although Officer Lemke may not have been able to control the actions of the other officers who grabbed Mr. Lash, Sgt. Reid was in such a position as the ranking official at the scene. His failure to adequately plan and direct the execution of the arrest of Mr. Lash caused the situation that led to Officer Lemke TASERing Mr. Lash.


19

However, the facts must be taken in Mr. Lash’s favor at this stage of the proceedings, and

the defendants accordingly cannot prevail.

b. Defendants are not entitled to qualified immunity on Plaintiff’s First Amendment retaliatory use of force claim.

Mr. Lash has alleged violation of his First Amendment rights under two theories:

retaliatory arrest and retaliatory use of force. (Compl. ¶¶ 50, 51.) After the filing of the

Complaint in this case, the Supreme Court decided Reichle v. Howards, ___ U.S. ___

(June 4, 2012), which held that it was not clearly established that retaliatory arrests

supported by probable cause would violate the First Amendment. In light of Reichle, Mr.

Lash concedes that his retaliatory arrest claim cannot proceed.

However, Mr. Lash’s First Amendment right to be free from the chilling effect of

excessive force by police officers at a protest was well-established in January 2012. See

Washington Mobilization Committee v. Cullinane, 566 F.2d 107, 127 (D.C. Cir.

1977)(“excessive force may deter peaceful and law-abiding citizens from exercising their

first amendment rights, especially if they cannot be confident that they will be given a

chance to disperse before . . . police beatings take place.”) Although retaliation is not

expressly referred to in the Constitution, it is nonetheless actionable because retaliatory

actions may tend to chill an individual’s exercise of constitutional rights. See Perry v.

Sindermann, 408 U.S. 593, 597 (1972).

In Hartman v. Moore, 547 U.S. 250, 256 (2006), the Supreme Court explained that

“[o]fficial reprisal for protected speech offends the Constitution because it threatens to

inhibit exercise of the protected right, and the law is settled that as a general matter the


20

First Amendment prohibits government officials from subjecting an individual to

retaliatory actions, including criminal prosecutions, for speaking out . . . . When the

vengeful officer is federal, he is subject to an action for damages on the authority of

Bivens.” (internal brackets, quotaions, and citations omitted.) The Court held, however,

that a First Amendment retaliatory prosecution claim cannot succeed unless lack of

probable cause is also alleged and proven. Id. at 252. Thus, Hartman reaffirmed the

viability of a Bivens cause of action for retaliation in violation of the First Amendment,

provided the claim is properly pled and proven.

Defendants do not challenge Mr. Lash’s First Amendment retaliatory use of force

theory, and given that it is properly pled and supported by evidence in the record, the

court should not sua sponte dismiss it.

c. If the Court finds that Defendants were not properly served, an extension

of time should be granted to effect service.

Mr. Lash is proceeding in forma pauperis in this action and therefore is dependent on

the U.S. Marshals Service to effect service of process on the defendants. See Fed. R. Civ.

Pro. Rule 4(c)(3); 28 U.S.C. § 1915(d). A plaintiff proceeding in forma pauperis is

entitled to rely on the United States Marshals Service to effect proper service. Dumaguin

by Rivera v. Secretary of Health & Human Servs., 28 F.3d 1218, 1221 (D.C. Cir. 1994).

Under Fed. R. Civ. Pro. Rule 4(m), “if the plaintiff shows good cause for the failure

[to effect service of process], the court must extend the time for service for an appropriate

period.” Courts have generally held that the failure of the U.S. Marshals Service to effect

service of process on behalf of a plaintiff proceeding in forma pauperis is automatically


21

good cause under Rule 4(m). See e.g., Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir.

1995). Thus, the appropriate remedy is not dismissal of the action, but the grant of

additional time to effect service.

V. CONCLUSION

For the foregoing reasons, Mr. Lash respectfully requests that the Court deny the

defendants’ motion to dismiss or, in the alternative, for summary judgment.

Dated: December 7, 2012


__/s/ Jeffrey Light_______________ Jeffrey L. Light D.C. Bar #485360 1712 Eye St., NW Suite 915 Washington, DC 20006 (202)277-6213 [email protected] Counsel for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that this 7th day of December, 2012, I have served a copy of the

foregoing MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT on counsel for Defendants via CM/ECF.

__/s/ Jeffrey Light_______________ Jeffrey L. Light D.C. Bar #485360 1712 Eye St., NW Suite 915


22

Washington, DC 20006 (202)277-6213 [email protected] Counsel for Plaintiff


1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RYAN BARTON LASH,

PLAINTIFF

vs.

OFFICER JENNIFER LEMKE, et al.,

DEFENDANTS

) ) ) ) ))))))


DECLARATION OF RYAN BARTON LASH

I, Ryan Barton Lash, state as follows:

1. I am the plaintiff in the above-captioned action.

2. The DVD labeled “Ex. 17 to Plaintiff’s Opposition to Defendants’ Motion

to Dismiss or, in the Alternative, for Summary Judgment” is a fair and accurate depiction

of the events of January 29, 2012 which are the subject of this suit.

3. On January 29, 2012, I was in McPherson Square participating in the

Occupy DC vigil.

4. A group of Park Police officers approached the tent in which I was located

and stated that they were posting notices. I responded that I had already received plenty

of notices.

5. A Park Police officer then threw a notice into the tent where I was located.

I threw the notice out of a corner of the tent. A Park Police officer, who on information

and belief, was Sgt. Reid, through another notice back into the tent where I was located.

6. I emerged from the tent and told the group of Park Police officers that I

would be participating in a “sleep strike” and would not be going to sleep for days. The

group of Park Police officers then walked away.


2

7. I started chanting “Fuck your notices” and removed two notices from

other tents. Officer Jennifer Lemke informed me that if I took down another notice, I

would be arrested for disorderly conduct. After this warning, I ceased taking down the

notices and walked away.

8. As I was walking away, I said to a group of Park Police officers, “You

want us to clean up the trash in the park, right? Well here’s your fucking trash you

fucking pigs.” I then crumpled up the notices that I had removed and placed them in the

trash.

9. Although I was complying with Officer Lemke’s order not to remove any

more notices, Officers Jennifer Lemke, Frank Hilsher, and Tiffany Reed began to

approach me as I was standing on a paved area in the southern side of McPherson Square.

Sergeant Todd Reid was also present.

10. I did not know why the group of Park Police officers were coming up to

him so I said “Why are you coming at me?” and began walking around the park. I was

scared because I had seen Park Police assault protesters before. Although I was walking

around the park, I did not attempt to run away or escape.

11. The Park Police officers did not explain to me why they were approaching

me. I did not think that the Park Police were going to place me under arrest because I had

complied with the order not to take down any more notices. However, had the Park

Police simply told me that I was going to be arrested, I would have put my arms behind

my back. I was walking away because I thought that would help defuse the situation.

12. When Officers Lemke, Hilsher, and Reed, and Sergeant Reid got close to

me, I put my hands the air and said “I’ve done nothing wrong.”

13. Officer Reed approached me from behind and, without warning, grabbed

my arms and pulled them behind my back. Neither Officer Reed nor any of the other law


3

enforcement officials present told me at any time during the incident in the park that I

was under arrest or asked me to put my hands behind my back.

14. Startled, I moved my arms forwards. Because I was being grabbed from

behind, I did not know who was touching me. Officer Reed then grabbed my neck and

left arm while Officer Hilsher grabbed my right arm.

15. When I noticed it was Park Police officers grabbing him, I allowed the

officers to place my arms behind my back.

16. While Officers Reed and Hilsher were holding onto me, Officer Lemke

approached me from behind and pulled the trigger on her TASER, resulting in two probes

becoming implanted into my back and a charge being carried to my body, causing

neuromuscular incapacitation.

17. I then fell to the ground and fainted.

18. While I was on the ground, Officers Reed and Hilsher handcuffed me.

19. Officer Lemke deployed her TASER on me again after I was on the

ground in handcuffs.

20. I know that Officer Lemke used her TASER a second time after I was in

handcuffs because I could hear the clicking of the TASER and could feel its effects on

me. The clicking of the second TASER deployment can be heard on the video (Pl. Ex.

17) at approximately 5:40.

21. Officers Reed and Hilsher lifted me up to my feet and then walked me to a

patrol car.

22. I asked to be transported to the hospital in an ambulance, but Officers

Lemke and Hilsher refused and tried to force me into the back of a patrol car.


4

23. After unsuccessfully trying to maneuver me into the patrol car, Officer

Hilsher moved me behind the patrol car and bent me over the trunk. I was feeling woozy

and dizzy. The shocks from the TASER made me feel like I was going to defecate.

24. I then fainted again and fell to the ground where my body began

convulsing. I had never experienced seizures before. As I fell, I landed on my right

hand, still in handcuffs, causing searing pain.

25. As I regained consciousness, Officer Lemke and an unknown Park Police

officer walked me to a transport wagon and placed me inside. The handcuffs on me were

very tight and I loudly asked for the handcuffs to be eased. The pain caused me to cry.

26. I was then transported to George Washington Hospital. I passed out in the

hospital lobby.

27. At the hospital, the TASER probes were removed from my back and I was

instructed to return to the hospital if I experienced chest pain.

28. I had the sensation of “pins and needles” along my right thumb and down

to his wrist. I told one of the nurses at the hospital about this sensation.

29. After leaving the hospital and being transported to District 1, I began

experiencing sharp chest pain and feeling dizzy. I felt woozy, my chest felt tight, and I

had a hard time breathing. I asked to be taken back to the hospital. I then fainted again.

30. When I awoke, I was told by a police officer that I had been unconscious

for about three to four minutes. I was confused about who I was and what was going on.

31. I was diagnosed with chest pain, unspecified.

32. I told a nurse that he could not feel anything behind my right thumb. I still

do not have any feeling from right below the fingernail of my right thumb to my wrist

area.


5

33. I continue to this day to feel “ghost pains” on my back where I was

shocked and around my right wrist along the thumb where it is still numb. I sometimes

get the sensation of “pins and needles” along my right thumb down to my wrist. I

sometimes hear non-existent clicks and feel pain where the TASER probes had attached

to me. Sometimes I am unable to even hold conversations with people due to the

physical and mental trauma of being TASERed. I often suffer from panic attacks when I

talk about the incident.

34. At no point did I shove Officers Reed and Hilsher.

35. Officer Lemke never said “stop resisting or I will tase you” and never

warned me that I should stop resisting or that I was about to be TASERed.

36. At the times Officer Lemke TASERed me, I was not posing a threat to law

enforcement or anyone else. I was unarmed and surrounded by police officers.

37. I have reviewed the Declaration of Sergeant Todd Reid submitted in the

above-captioned case. The declaration contains numerous inaccuracies.

a) In paragraph 4, Sgt. Reid states that when NPS officials began

distributing notices, there were hundreds of individuals filling

McPherson Square. However, on January 27, 2012 when the NPS

began distributing notices, there were only approximately 80-90

individuals in McPherson Square.

b) In paragraph 8, Sgt. Reid states that Officer Lemke warned me

“several times” that removing the notices was prohibited. However,

Officer Lemke only warned me one time about removing the notices.

c) In paragraph 9, Sgt. Reid states that he “witnessed Mr. Lash continue

to remove the notices despite the USPP officers’ warnings.” However,

I did not continue removing notices after the warning from Officer


6

Lemke and no other officers warned me. All I did at that point was to

place in the trash the two notices that I had previously taken down

before the warning.

d) Also in paragraph 9, Sgt. Reid states that “Officer Tiffany Reed

advised Mr. Lash that he was under arrest and directed him to place his

hands behind his back.” However, neither Officer Tiffany Reed nor

any other officer directed me to place my hands behind my back. The

only time I was told by any of the officers that I was under arrest was

by Officer Hilsher after I was already at the police cruiser. There was

no wind or commotion that would have prevented me from hearing

any directions that were given to me until after I was TASERed.

e) In paragraph 10, Sgt. Reid states that “During the process of trying to

arrest Mr. Lash, Mr. Lash refused to cooperate and swung his arms in

a violent manner, shoving the officers, and attempting to walk away

from them despite repeated verbal commands from the Officers to

stand still.” However, although I did swing my arm, it was not in a

violent manner, and was simply the result of me being startled by

being grabbed from behind, as can be seen in the video. I did not see

who was grabbing me at first, but had the officers stated that I was

under arrest or that I should put my hands behind my back, I would

have complied. I could not have “refused to cooperate” because I was

not given any orders with which to cooperate. I did not shove any of

the officers at any time. I did walk away from the officers at one

point, but none of them issued any verbal commands to me to stand

still. In fact, none of them issued any verbal commands at all, except



1


RYAN BARTON LASH, PLAINTIFF vs. OFFICER JENNIFER LEMKE, et al., DEFENDANTS

)

)

)

)

)

)

)

)

)

)

)


STATEMENT OF MATERIAL FACTS AS TO WHICH THERE EXISTS A

GENUINE DISPUTE

1. Mr. Lash did not refuse to cooperate when he was being arrested, but instead

swung his arms forward simply because he was startled at being grabbed from behind

without warning by a person who he could not see. (Lash Decl. ¶ 37(e).)

2. Mr. Lash did not actively resist and did not refuse to stop his alleged active

resistance. (Def. Ex. A & B; Pl. Ex. 17.)

3. Officer Lemke deployed her TASER twice against Mr. Lash, and Mr. Lash was in

handcuffs at the time of the second TASER deployment. (Pl. Ex. 17; Lash Decl. ¶¶ 19-

20.)

4. Officer Lemke only warned Mr. Lash once to cease removing notices. (Lash

Decl. ¶ 37(b).)

5. Mr. Lash did not continue removing notices after being warned by Officer Lemke

to stop removing notices. (Lash Decl. ¶ 37(c).)

6. At no point did Officer Tiffany Reed or any other officer direct Mr. Lash to place

his hands behind his back. (Lash Decl. ¶¶ 13, 37(c); Def. Ex A & B; Pl. Ex 17.)


2

7. The only time Mr. Lash was told that he was under arrest was by Officer Hilsher

after Mr. Lash was already in the police cruiser. (Lash Decl. ¶ 37(c); Def. Ex A & B; Pl.

Ex 17.)

8. During the entire encounter, Mr. Lash was never violent and never posed a risk of

harm to anyone. (Lash Decl. ¶ 37(c); Def. Ex A & B; Pl. Ex 17.)

9. Officer Lemke did not comply fully with General Order 3605.06(D)(5), which

requires that the officer using an ECD shall give an audible verbal warning, because she

did not give any verbal warnings. (Lash Decl. ¶ 37(c); Def. Ex A & B; Pl. Ex 17.)

__/s/ Jeffrey Light_______________ Jeffrey L. Light D.C. Bar #485360 1712 Eye St., NW Suite 915 Washington, DC 20006 (202)277-6213 [email protected] Counsel for Plaintiff


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RYAN BARTON LASH, PLAINTIFF vs. JENNIFER LEMKE, et al. DEFENDANTS

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Case No. 1:12-cv-822 (JDB)

ORDER

UPON CONSIDERATION of Defendants’ Motion to Dismiss, or in the Alternative,

for Summary Judgment, it is hereby ORDERED that the motion is DENIED.

___ ______________ Hon. John D. Bates

District Judge


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RYAN BARTON LASH, PLAINTIFF vs. JENNIFER LEMKE, et al. DEFENDANTS

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Case No. 1:12-cv-822 (JDB)

NOTICE OF FILING

PLEASE TAKE NOTICE that Exhibit 17 in support of Plaintiff’s Memorandum of

Points and Authorities in Opposition to Defendants’ Motion to Dismiss or, in the

Alternative, for Summary Judgment has been filed on DVD with the Clerk’s Office. The

exhibit is not being filed through ECF because it is a video not capable of being

converted to PDF.

A copy of the DVD will be provided to Defendants’ counsel and Judge’s chambers.

Respectfully Submitted, ___/s/ Jeffrey Light______________ Jeffrey L. Light D.C. Bar #485360 1712 Eye St., NW Suite 915 Washington, DC 20006 (202)277-6213 [email protected] Counsel for Plaintiff


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