U.S. sides with court against Turkey over 2017 Washington brawl

The U.S. government has sided with a lower court ruling against the Turkish government over a brawl between President Recep Tayyip Erdogan’s security detail and protesters in Sheridan Circle in Washington D.C. in 2017, saying Turkey is not immune to lawsuits started by plaintiffs. 

Protesters who were assaulted by Erdoğan's security officers and supporters in May 2017 have brought two civil lawsuits to courts in the United States.

The Turkish government’s lawyers in Washington had appealed against an intitial court ruling in favour of plaintiffs in February last year. The decision stated that violent acts by Turkish security officials and pro-Erdoğan supporters against demonstrators were not protected under the Foreign Sovereign Immunities Act (FSIA). 

https://ahval.io/sites/default/files/2021-03/Ahval-Amicus-Brief-%281%29-1.pdf

A U.S. Department of State and Justice Department (DoJ) brief signed by Acting Assistant Attorney General Brian M.Boynton and Counsel of State Department Acting Legal Adviser Richard C. Visek, on Tuesday sided with the court’s ruling:

"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 brief backed the district court ruling after officials reviewed an extensive body of evidence, including a number of videos, finding that Turkish security personnel 'violently' attacked civilian protesters, including by 'strik[ing] and kick[ing]' protesters who had fallen to the ground, with no reasonable basis for perceiving a threat to President Erdoğan“.

The government concluded in the brief that the “conduct cannot reasonably be regarded as an exercise of the agents’ protective function”.

Foreign nations have the authority to protect their diplomats and senior officials in the United States. That authority includes the discretion to use force against civilians on U.S. territory when foreign security personnel reasonably believe that the use of force is necessary to protect diplomats and senior officials from threats of bodily harm, the U.S. government said.

However, it cited the district court’s prior account of the events, saying that ”the facts establish that Turkish security personnel used force in a manner outside any reasonable conception of their protective function and therefore are not protected by the FSIA’s discretionary function rule”.

The U.S. government said that there were two reasons why the FSIA did not apply to the Turkish protective detail.

Firstly, at the time of the principal altercation between plaintiffs and the Turkish security personnel, plaintiffs - along with other protesters - “were standing and remaining on the Sheridan Circle sidewalk which had been designated for protesting by United [S]tates law enforcement”, it said.

“Both the Turkish agents (along with supporters of President Erdoğan) and U.S. law enforcement separated the protesters from the Ambassador’s Residence at which President Erdoğan had arrived.”

Yet the Turkish agents “crossed [the] police line” separating them from the protesters in order “to attack the protesters”, “violently”, and they took that aggressive action without any indication (according to the district court) “that an attack by the protesters was imminent”, the brief stated.

There were no findings by the district court of any other reasonable basis for perceiving a threat to President Erdoğan, the government said. There was also no basis in the district court’s account of the facts to regard the attack by Turkish agents as protective in nature, it said.

Many protesters were already on the ground or running away, the government said. Yet the Turkish agents, “continued to strike and kick the protesters who were lying prone on the ground” and they “chased ... and violently physically attacked" many of the protesters who were running away from the scene, it said.

The government concluded that “none of those actions could reasonably be regarded as protective in character”.

A Bipartisan letter signed by Senate Foreign Relations Committee Chairman Robert Menendez and Ranking Member James E. Risch, as well as House Committee on Foreign Affairs member Gregory W.Meeks and Ranking Member Michael T. McCaul, this week called on U.S. Secretary of State Antony Blinken not to protect the Turkish government in the two civilian lawsuits.

An appeals court will review and make a ruling on the lower court’s decision. How long it will take for the three-judge panel to reach a decision is unknown.

This week’s statement weighing against the Turkish government is legally significant. According to legal experts who spoke with Ahval, the document provides a strong signal that the appellate court will decide against the Turkish government. Turkey then has the option to take its appeal to the Supreme Court.

Should the three-judge panel rule against Turkey, it will mean that there will be a judgment entered against the Turkish government in the U.S. judicial system. Plaintiffs can then seek to use Turkey’s attachable assets in the United States to secure compensation, one legal expert said.

The opinions expressed in this column are those of the author and do not necessarily reflect those of Ahval.
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