438 F.Supp.3d 1
D.D.C.2020Background
- On May 16, 2017, about 20 permitted protesters opposed to President Erdogan gathered near the Turkish Ambassador’s Residence and later near the Turkish Embassy in Washington, D.C.; counter‑pro‑Erdogan groups (including Turkish security personnel) were present and outnumbered them.
- Three physical altercations occurred; the opinion focuses on the second altercation outside the Ambassador’s Residence where Turkish security and civilian supporters crossed a U.S. police line, attacked protesters standing on a public sidewalk, and continued attacking some who were prone or fleeing.
- Plaintiffs allege personal injuries from those attacks (and a separate incident at the Embassy involving Plaintiff MacAuley); substantial video evidence was submitted by both sides.
- Turkey moved to dismiss under Fed. R. Civ. P. 12(b)(1), asserting sovereign immunity under the Foreign Sovereign Immunities Act (FSIA), principally invoking the discretionary function exception to the FSIA’s tortious‑acts exception.
- The district court concluded Plaintiffs met the FSIA tortious‑acts exception on its face and held Turkey failed to carry its burden to show the discretionary‑function exception applied; the court denied Turkey’s motions to dismiss without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA's tortious‑acts exception (28 U.S.C. §1605(a)(5)) permits suit against Turkey | Tortious‑acts exception applies: Plaintiffs seek money damages for personal injuries in the U.S. allegedly caused by Turkish officials acting within scope of employment. | Turkey did not dispute the exception's facial application. | Held: Exception applies on its face; plaintiffs made requisite initial showing. |
| Whether the discretionary‑function exception to §1605(a)(5) shields Turkey from suit | Turkey’s conduct was not protected because it amounted to intentional violent attacks, not policy‑based discretionary acts. | Turkey contends security decisions are discretionary and grounded in policy (protecting the president) and so immune. | Held: Turkey failed to prove by preponderance that actions were grounded in social/economic/political policy; discretionary exception does not apply (narrow, fact‑specific ruling). |
| Whether the political‑question doctrine bars adjudication | Plaintiffs: immunity question is justiciable and separable from foreign‑policy judgments. | Turkey: deciding immunity would implicate foreign‑policy and executive branch prerogatives. | Held: Political‑question doctrine not implicated; court can decide FSIA issues without resolving Turkey’s national policies. |
| Whether international comity warrants dismissal | Plaintiffs: U.S. law applies to injurious acts on U.S. soil; comity does not bar adjudication. | Turkey: comity and deference to foreign sovereigns counsel dismissal. | Held: Comity does not require dismissal here; FSIA assigns judges the immunity determination and no foreign forum or judgment provides an alternative remedy. |
Key Cases Cited
- Berkovitz v. United States, 486 U.S. 531 (two‑part test for whether discretionary‑function exception applies)
- S.A. Empresa De Viacao Aerea Rio Grandense v. United States, 467 U.S. 797 (nature of conduct, not actor status, governs discretionary‑function analysis)
- Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (FSIA provides sole basis for jurisdiction over foreign states; courts must find an exception to immunity)
- Saudi Arabia v. Nelson, 507 U.S. 349 (FSIA presumption of immunity and exceptions framework)
- Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175 (plaintiff’s burden to produce evidence that an FSIA exception applies; defendant’s ultimate burden of persuasion)
- Feldman v. Federal Deposit Ins. Corp., 879 F.3d 347 (courts may resolve factual disputes on Rule 12(b)(1) jurisdictional motions)
- MacArthur Area Citizens Ass’n v. Republic of Peru, 809 F.2d 918 (discretionary‑function exception and limits where alleged acts may be criminal)
- Letelier v. Republic of Chile, 488 F. Supp. 665 (assassination held non‑discretionary; cited on limits of discretionary immunity)
- Miango v. Democratic Republic of Congo, 288 F. Supp. 3d 117 (tortious‑acts exception applied; discretionary exception held inapplicable to alleged security‑force beatings)
- Rendall‑Speranza v. Nassim, 942 F. Supp. 621 (assaults by officials held not grounded in policy and thus not discretionary)