438 F.Supp.3d 69
D.D.C.2020Background
- Two related suits arise from May 16, 2017 protests in Washington, D.C., against Turkish President Erdoğan; plaintiffs allege they were beaten in three altercations (two outside the Ambassador’s Residence and one near the Embassy).
- Plaintiffs rely heavily on video evidence showing that during the second altercation Turkish security forces and pro‑Erdogan civilians crossed a U.S. police line, attacked protesters who were on the sidewalk, and continued to strike some who had fallen.
- Defendant Republic of Turkey moved to dismiss under Fed. R. Civ. P. 12(b)(1), asserting sovereign immunity under the Foreign Sovereign Immunities Act (FSIA).
- Plaintiffs invoked the FSIA tortious‑acts exception (28 U.S.C. § 1605(a)(5)); Turkey argued the discretionary‑function exception preserved immunity and also invoked political‑question and comity arguments.
- The court viewed the parties’ videos, treated the tortious‑acts exception as facially applicable, and concluded Turkey failed to carry its burden that the discretionary‑function exception applied; it denied Turkey’s motion to dismiss without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA tortious‑acts exception (§1605(a)(5)) defeats sovereign immunity | Tortious‑acts exception covers injuries caused by Turkish security forces acting within scope of employment | Turkey did not dispute facial applicability but argued other exceptions preserve immunity | Court: tortious‑acts exception applies on the record — plaintiffs met burden of production and the exception is facially satisfied |
| Whether the discretionary‑function exception bars jurisdiction | Plaintiffs: violent assaults are not protected discretionary acts (analogous to assassination/non‑discretionary crimes) | Turkey: security decisions are discretionary, tied to policy of protecting the president, so immunity remains | Court: Berkovitz two‑part test — no statute prescribed conduct; but Turkey failed to show the acts were grounded in social/economic/political policy or of the quality Congress intended to shield; discretionary‑function exception does not apply |
| Political question doctrine | Plaintiffs: adjudication of FSIA exceptions is a judicial function; adjudication won’t require policy judgments about Turkey | Turkey: deciding immunity implicates foreign‑policy discretion and risks executive branch conflict | Court: political‑question factors (Baker) not implicated; other branches have publicly criticized the conduct and the immunity question is justiciable |
| International comity | Plaintiffs: U.S. courts should adjudicate torts occurring in U.S. | Turkey: comity and respect for foreign sovereigns counsel dismissal | Court: comity inapplicable or insufficient here; FSIA tasks courts with immunity determinations and no foreign proceedings or judgments provide alternate remedy |
Key Cases Cited
- Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175 (D.C. Cir. 2013) (plaintiff bears initial production burden on FSIA exceptions; defendant bears ultimate persuasion)
- Berkovitz v. United States, 486 U.S. 531 (1988) (two‑part test for discretionary‑function exception)
- Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983) (FSIA is sole basis for jurisdiction over foreign states)
- Saudi Arabia v. Nelson, 507 U.S. 349 (1993) (foreign state presumptively immune absent an FSIA exception)
- MacArthur Area Citizens Ass'n v. Republic of Peru, 809 F.2d 918 (D.C. Cir. 1987) (tortious‑act exception should be narrowly construed)
- Miango v. Democratic Republic of Congo, 288 F. Supp. 3d 117 (D.D.C. 2018) (denying immunity where foreign security forces beat protesters)
- Rendall‑Speranza v. Nassim, 942 F. Supp. 621 (D.D.C. 1996) (physical assault by officials not grounded in social/economic/political policy for discretionary immunity)
- Feldman v. Federal Deposit Ins. Corp., 879 F.3d 347 (D.C. Cir. 2018) (trial court may resolve disputed facts when deciding FSIA jurisdictional motions)
Disposition: Court DENIED WITHOUT PREJUDICE Turkey’s motions to dismiss for lack of subject‑matter jurisdiction under FSIA; tortious‑acts exception applies and discretionary‑function exception not shown on this record.