Appeals Court Says No Sovereign Immunity For Turkish Security Forces Who Attacked DC Protesters

Legal Issues

from the stick-to-thugging-on-your-own-turf dept

In 2016, Turkish president Recep Erdogan visited the United States, bringing with him his security team, as most foreign dignitaries do. That much of the visit was normal. What wasn’t so normal was his team’s decision to attack protesters, critics, and journalists on US soil — something that really wasn’t necessary considering Washington DC’s Metro police were already on the scene, keeping protesters away from Erdogan and the Turkish ambassador’s residence.

After a face-off between pro- and anti-Erdogan protesters, peace was restored with the assistance of the Metro PD. Then violence broke out. And recordings of the incident indicate Erdogan’s security personnel were the aggressors. Here’s how the DC Appeals Court describes it in its review [PDF] of the Turkish government’s attempt to have a lawsuit against it dismissed.

At approximately 4:10 p.m., President Erdogan’s vehicle arrived at the residence. What happened next is disputed. The plaintiffs claim that President Erdogan spoke with his head of security and ordered an attack on the protesters. Defendant Turkey denies this. What neither side disputes, however, is that the pro-Erdogan group—including the Turkish security detail—moved decisively against the protesters. The attack commenced at approximately 4:13 p.m., while President Erdogan remained sitting in his vehicle near the entrance to the residence.

The district court described it this way while ruling the lawsuit brought by the attacked protesters could proceed:

[T]he protesters remained standing on the designated sidewalk. Turkish security forces and other proErdogan individuals then crossed a police line to attack the protesters. The protesters did not rush to meet the attack. Instead, the protesters either fell to the ground, where Turkish security forces continued to kick and hit them, or ran away, where Turkish security forces continued to chase and otherwise attack them. The Turkish security forces violently physically attacked the protesters.

Erdogan’s team attempted to justify its actions by claiming the protesters were close enough to harm the Turkish president if they had chosen to attack him. The lower court said that, even if it bought this explanation, by the time Erdogan’s security team decided to attack the protesters, they were standing peacefully on a sidewalk across the street from Erdogan’s vehicle and the residence he was visiting.

The Turkish government attempted to dodge this lawsuit by claiming foreign sovereign immunity. The district court rejected this defense, prompting this appeal. The Appeals Court doesn’t find this argument any more persuasive than the lower court did. It agrees that foreign security forces have an obligation to protect officials and diplomats, but that doesn’t mean these forces are free to do whatever they want to achieve those ends. The local laws apply, so it’s usually a better idea to turn security over to the locals.

A sending state’s right to use force in defense of its officials, however, does not necessarily follow from the right of those officials to carry out their business unmolested. As the United States notes, “[t]here is good reason to assign receiving states the primary responsibility for protecting visiting foreign government officials.” We made a similar point when faced with a First Amendment challenge brought by individuals who sought to demonstrate outside the Nicaraguan embassy: “Peace and dignity would be destroyed outright” if “the task of repulsing invasions of the embassy and its grounds would be left largely to the foreign nation’s security forces.” In sum, the inviolability of diplomats suggests, but does not affirmatively establish, that a sending state has the right to use force in the defense of diplomats.

The court says it appears Erdogan’s security guards broke the law.

Turkey allegedly violated several District of Columbia laws, including assault with a dangerous weapon and aggravated assault, see D.C. Code §§ 22-402, 404.01. After reviewing the entire record, including video footage of the confrontations, we think it clear that the plaintiffs’ allegations are plausible. We also note that fifteen members of the Turkish security detail were subsequently indicted by the United States on criminal assault charges.

Even that’s not enough on its own to strip sovereign immunity. Security forces have leeway to exercise their discretion when performing their duties. But in this case, there was no perceivable justification for Erdogan’s security team to engage in an unprovoked attack on protesters standing several feet away from the visiting president.

The nature of the challenged conduct was not plausibly related to protecting President Erdogan, which is the only authority Turkey had to use force against United States citizens and residents.

And even if Turkey can come up with a justification for these actions, it likely won’t be able to find one that clears its personnel of wrongdoing in this case. Stripping it of immunity in this case won’t harm Turkey foreign policy. It will only punch it lightly in the back pocket.

As explained, the immunity inquiry turns not on whether Turkey’s use of force was reasonable but whether it was the result of political, social or economic policy analysis. We can accept that Turkey has its own justification for responding vigorously to crowds that may endanger its President but nonetheless conclude that the specific attacks on the plaintiffs were “sufficiently separable from protected discretionary decisions.”

Notwithstanding Turkey’s attempted resort to its own foreign relations and antiterrorism policies as a basis for us to find a non-justiciable political question, this case is not about Turkey’s foreign relations. Instead, it is about its liability vel non for the actions of its own security officers. And that liability, if any, will not impinge on anything but Turkey’s fisc.

The lawsuit can continue. The defendants may still find some way to escape accountability for their actions, but they won’t be able to exit the lawsuit early. The US court has jurisdiction to hear this case and the allegations — now more than a half-decade old — will move forward.

Filed Under: attacks, recep erdogan, security, sovereign immunity