Federal Judge Orders Investigation of Missing Pershing Park Evidence
The BLT
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Calling the District of Columbia's alleged destruction of evidence in a long-running civil suit against the city "very troubling," a federal district judge in Washington today appointed a magistrate judge to find out what’s happened to missing video, audio and paper files.

The suit in the U.S. District Court for the District of Columbia stems from the arrest of one group of student protestors in 2002 in Pershing Park in Northwest Washington. The students were protesting against the International Monetary Fund and the World Bank. The city has already agreed to settle a related class action for about $8.25 million, which includes about $2.5 million in attorney fees and costs.

In the pending case, which is scheduled for trial in October, lawyers for the plaintiffs today squabbled with District government attorneys over whether the city still has video shot by police from rooftops and other locations at the time of the protest.

Judge Emmett Sullivan, who is presiding over both suits, tapped Magistrate Judge John Facciola to examine the alleged destruction of evidence, including the missing video. Sullivan granted Facciola the authority to call upon experts for the investigation. The judge expects Facciola to make recommendations to the court.

“The court’s never been reluctant to get to the bottom of what happened here,” Sullivan said from the bench. He also said, “We’re going to get to the bottom of this.”

On the other hand, Sullivan said he is reluctant at this point to refer the dispute to the Justice Department for a criminal investigation. But he said he is open to that possibility. “I’m not ruling that out at all,” he said.

Monique Pressley of the D.C. Attorney General’s Office said the city also wants to know what’s become of the missing video files. Pressley said the District is actively looking for those files. “To the extent that videotapes exist, we want them,” Pressley said in court. She rejected the notion the city intentionally destroyed the tapes.

The plaintiffs’ co-lead counsel, professor Jonathan Turley of George Washington University Law School, said the plaintiffs have asked for years for the city to produce any video. Turley, who represents the plaintiffs along with Bryan Cave partner Daniel Schwartz, accused the city of destroying or altering a “great library” of videotaped evidence.

The plaintiffs want to add a spoliation claim to the suit, a request that Sullivan has not ruled on. The city’s lawyers are opposed to allowing the plaintiffs to amend the complaint. Turley argued today that an amended complaint is necessary because an adverse ruling against the government could serve to deter future destruction of evidence.

Washington City Paper: Pershing Park Plaintiffs Speak Out On Settlement
Partnership For Civil Justice, Tuesday, December 15, 2009
By: Jason Cherkis
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On September 27, 2002, D.C. Police surrounded some 400 individuals in Pershing Park. Those individuals were rounded up without warning, arrested, and transferred to the police academy where they were hogtied for hours [See our Boss Hogtie cover story on the incident].

Sally Norton, a nurse in town for a conference at the nearby Marriott, had decided to check out the activity in the park on her walk back from breakfast with a colleague.

"It all looked very peaceful," she tells City Desk today. "We had about 10 minutes before the conference started. We went to leave...by then they had formed a perimeter and they wouldn’t let us leave. We pointed out that we are right here at the Marriott; it didn’t matter. We tried about six or seven other places. Please let us leave. They either said we couldn’t leave or they didn’t speak to us."

Norton would be arrested and detained for 12 hours. John Passacantando, 48, says on that morning he had wandered into the park to perhaps catch a speaker or listen to some music. He ended up being arrested and hogtied---cuffed right wrist to left ankle---on a gym mat for 17 hours.

"This was literally for being in the park," Passacantando recalls. "I swore to myself that when I got out of there I would find the best lawyers in the land and do everything I could to make sure this didn’t happen to anyone else.... It was my duty to fight back."

Passacantando, Norton, and hundreds of other citizens sought out the Partnership for Civil Justice, a local law firm that specializes in civil rights cases. Today, after more than seven years of litigation, the plaintiffs announced a settlement which includes an $8.25 million District payout and a series of stipulations concerning evidence storage that the Office of Attorney General must follow.

Norton and Passcantando say they are pleased with their case's resolution.

"I think good police officers see this all over the country and say, 'yeah we get it,'" Passacantando says. "D.C. made a big mistake that day."

Even in the moments after the arrest order was given, police officers questioned whether they were lawful. In a subsequent police investigation, U.S. Park Police Captain Rick Murphy stated that he told one police official "that he would not arrest the protesters in the park as their conduct did not meet the criteria for mass arrests."

After the arrests, District lawyers refused to prosecute a single case stemming from Pershing Park.

Within the next two years, the D.C. Council investigated Pershing Park and released their own scathing assessment. The Council concluded that then-Chief Charles Ramsey had lied, and police officials had engaged in a cover-up of the incident.

Eventually, the case became all about the cover up. A federal judge would slam the the Office of the Attorney General and the D.C. Police Department's general counsel for withholding thousands of pages of discovery documents. The police department's running resume, a moment-by-moment chronicling of police activity on Sept. 27, went missing. Radio dispatches turned over to plaintiffs contained mysterious gaps.

Through it all, the plaintiffs say they remained committed to seeing the case to a favorable conclusion.

“I wanted to know... that we extracted as much change as possible, that there really was going to be a price to pay for a police force to ever do this again," Passacantando says. "I feel like that’s what we accomplished.”

Norton, who is an associate professor of nursing at the University of Rochester, monitored the case online. She says the department's conduct in the case shocked her. “How do you systematically destroy all the running resumes? How do they all get lost? For them to sort of say first there was no record and then oh, we lost it, there’s no explanation for that," Norton says.

Those questions remain active and may be resolved with the one remaining Pershing Park case still active in federal court.

Looking back on the seven years since Pershing Park, Norton says the has experienced changed her.

“I have a lot less naivete about the process," Norton says. "I always gave the police the benefit of the doubt and I still do, but it’s not unquestioned anymore because of my experience in Washington, DC. It’s a sorry-ass day when you can’t walk across D.C. from a restaurant without being arrested and hogtied and detained illegally."

Pershing Park coverup

Pershing Park ressembles Watergate