U.S. district court rejects Turkey motions, green lights Washington brawl case

(This article has been updated with the remarks by lawyer Andreas Akaras, who represents some of the victims in the case against the Turkish gov't)

A U.S. District Appeals Court on Tuesday rejected Turkish government motions to dismiss two separate lawsuits in Washington D.C. against the Republic of Turkey, allowing both cases to proceed.

The lawsuits stem from a violent brawl outside the Turkish ambassador to Washington's residence in 2017 that left anti-Turkish government protesters badly beaten.

In May 2017, Turkish President Recep Tayyip Erdoğan met with then U.S. President Donald J. Trump at the White House then returned to the Turkish ambassador's residence to meet with members of the Atlantic Council, a Washington-based think tank. As Erdoğan sat in his limousine at the residence, his security detail charged on a handful of protesters in Sheridan Circle, directly opposite the building. 

The Mainly Kurdish protesters decided to sue the Turkish government for their injuries in early 2019. Reports said that 11 people were injured and nine were taken to hospital after the security detail attacked protesters carrying the flag of the Kurdish Democratic Union Party (PYD).

In January, Turkish government lawyers appealed a lower U.S. court decision to proceed with the lawsuits, claiming diplomatic immunity, the political question doctrine and international comity. The D.C. appeals court rejected all three arguments, backing the lower court decision. 

 

Turkey claimed foreign sovereign immunity with respect to the entirety of both complaints and it also argued that all claims by the plaintiffs "were non-justifiable by virtue of the political question doctrine and international comity".

According to the ruling, Turkish lawyers argued that the Turkish security detail’s authority was grounded in “the international law about the relations between sovereigns”.

"In its brief, the United States declares that no source of positive law explicitly grants Turkey the authority to use physical force in the protection of diplomats on U.S. soil," the court said in the 29-page ruling.

In March of 2021, in a brief submitted by the U.S. Department of Justice (DoJ) in the same case, the Biden administration also sided with the plaintiffs and asserted that the Republic of Turkey is not immune from lawsuits for the attacks perpetrated by Erdoğan's bodyguards.

"If foreign security personnel attack civilians on U.S. territory when the use of force does not reasonably appear necessary to protect against bodily harm, they are acting outside any reasonable conception of the protective function and thus outside their legally protected discretion, and the discretionary function rule does not apply the foreign state accordingly is subject to suit under the Foreign Sovereign Immunities Act’s (FSIA) non-commercial tort exception,’’ the U.S. DoJ brief said.

Just before the U.S. DoJ weighed in with its assertion against the Turkish government arguments, prominent leaders in both chambers of the U.S. Congress sent a letter to the U.S. Secretary of State Antony Blinken, urging the administration against granting immunity to Turkish security officials.

In its ruling, the court said that the U.S. legal position was "well-reasoned and comports with the strong evidence that a sending state has a right in customary international law to protect diplomats and other high officials representing the sending state abroad.’’

The ruling went on to say that although the Turkish security detail had a right to protect Erdoğan, the plaintiffs’ argument that “Turkey did not have discretion to commit criminal assaults” had to be assessed.

“Turkey allegedly violated several District of Columbia laws, including assault with a dangerous weapon and aggravated assault... After reviewing the entire record, including video footage of the confrontations, we think it clear that the plaintiffs’ allegations are plausible,’’ the court said.

While the court also said it accepts that "Turkey has its own justification for responding vigorously to crowds that may endanger its president,’’ it added that "the specific attacks on the plaintiffs were “sufficiently separable from protected discretionary decisions”.’

Andreas Akaras, counsel from Bregman, Berbert, Schwartz & Gilday and lawyer for the plaintiffs, told Ahval that "while the wheels of justice may appear to be turning slowly, as Turkey seeks to evade and delay a reckoning in a court of law, it is becoming ever more clear that Turkey will be held accountable for its unlawful conduct."

Akaras said that the victims of this attack are pleased to see the court of appeals uphold the district court's decision and "welcomed very much the Biden administration's position that Turkey must be held accountable, and, so too, the demands of leading members of the House and Senate that Turkey face American justice".

Akaras also added that although it may take some more time, he believes that "Turkey will be held to account for its violent and oppressive actions carried-out on American soil."

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