On July 27, 2021, the U.S. Court of Appeals for the District of Columbia Circuit allowed a civil suit to proceed against the Republic of Turkey for injuries caused when Turkish security forces clashed with protesters in Washington, D.C. (Usoyan v. Republic of Turkey, No. 20-7017, slip op. (D.C. Cir. July 27, 2021).)
Background to the Case
As the circuit court noted, “[m]any members of the Turkish expatriate community are strongly opposed to Turkey’s president, Recep Tayyip Erdogan.” (Slip op. at 2.) His visit to Washington on May 16, 2017, sparked several protests. Both anti- and pro-Erdogan groups were assembled outside the Turkish ambassador’s residence, where President Erdogan was expected to arrive. Members of the Turkish security detail protecting Erdogan and officers from the Metropolitan Police Department were also present. A police line separated the protesters and counter-protesters. President Erdogan had arrived at the residence and was sitting in his vehicle when members of the pro-Erdogan group together with members of the Turkish security detail crossed the police line and violently, physically attacked the anti-Erdogan protesters. The plaintiffs allege that President Erdogan had ordered his security forces to attack the protesters, though Turkey denies this.
The plaintiffs’ claims against Turkey relate to the physical and emotional injuries they suffered during the attack and violations of federal and local statutes. Turkey moved to dismiss all the claims, primarily arguing lack of subject matter jurisdiction on the basis of sovereign immunity. The district court denied the motion to dismiss and Turkey appealed.
Under the Foreign Sovereign Immunities Act (FSIA), codified at 28 U.S.C. § 1602 et seq., a foreign state is presumptively immune from the jurisdiction of United States courts unless an exception applies. One such exception is for tortious acts occurring in the U.S. caused by the foreign state or its employees. However, if the claim is based on the performance of a “discretionary function,” the tortious acts exception fails and sovereign immunity is preserved. 28 U.S.C. § 1605(a)(5)(A). Turkey argued that the “discretionary function” exception preserved its sovereign immunity from the jurisdiction of U.S. courts.
The U.S. Supreme Court has yet to interpret FSIA’s “discretionary function” provision; accordingly, in analyzing whether the “discretionary function” exception preserved Turkey’s sovereign immunity, courts rely on the Supreme Court’s interpretation of a similar “discretionary function” provision in the Federal Tort Claims Act (FTCA). Under that analysis, sovereign immunity is preserved if two conditions are satisfied:
1. There is no federal law that specifically prescribes an employee’s course of action (i.e., the act was the “product of independent judgment”).
2. The employee’s discretionary act was an act that the discretionary function exception was designed to protect (i.e., the act was grounded in public policy).
With respect to the first “discretionary function” condition, the circuit court agreed with Turkey that, under customary international law, a sending state has the right to use force in defending its diplomats and dignitaries abroad (a position also supported by the United States government). The court disagreed with the plaintiffs that Turkey’s violations of Washington, D.C. local law rendered its acts outside the bounds of the discretionary function exemption. Thus, the court determined that the first condition was satisfied.
With respect to the second condition, the court found that the acts of the Turkish security detail were not the kind of acts (grounded in economic, political, or social judgment) that the “discretionary function” exception was designed to shield. While the Turkish security force’s acts may have been justified under some circumstances, under the specific circumstances of this case, it could not be said that their acts were “plausibly grounded in considerations of security-related policy[.]” The second condition having not been satisfied, the court agreed that the suit against Turkey was not jurisdictionally barred on the basis of sovereign immunity. Accordingly, the circuit court affirmed the district court’s denial of Turkey’s motion to dismiss for lack of subject matter jurisdiction.The circuit court further considered two additional arguments that Turkey had raised in favor of dismissal that were based on the political question doctrine and international comity. The court rejected both of those arguments.