case 1:21-cv-00116 document 1-1 filed 01/13/21 page 1 of 2 kelly-chung v... · 2021. 4. 22. ·...

CIVIL COVER SHEET JS-44 (Rev. 11/2020 DC)

I. (a) PLAINTIFFS

(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF _____________________ (EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT _____________________ (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED

(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) ATTORNEYS (IF KNOWN)

II. BASIS OF JURISDICTION(PLACE AN x IN ONE BOX ONLY)

III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX FOR PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY!

o 1 U.S. Government Plaintiff

o 2 U.S. Government Defendant

o 3 Federal Question (U.S. Government Not a Party)

o 4 Diversity(Indicate Citizenship of

Parties in item III)

Citizen of this State

Citizen of Another State

Citizen or Subject of a Foreign Country

PTF

o 1

o 2

o 3

DFT

o 1

o 2

o 3

Incorporated or Principal Place of Business in This State

Incorporated and Principal Place of Business in Another State

Foreign Nation

PTF

o 4

o 5

o 6

DFT

o 4

o 5

o 6

IV. CASE ASSIGNMENT AND NATURE OF SUIT(Place an X in one category, A-N, that best represents your Cause of Action and one in a corresponding Nature of Suit)

o A. Antitrust

410 Antitrust

o B. Personal Injury/ Malpractice

310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Medical Malpractice 365 Product Liability 367 Health Care/Pharmaceutical Personal Injury Product Liability 368 Asbestos Product Liability

o C. Administrative Agency Review

151 Medicare Act

Social Security 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))

Other Statutes 891 Agricultural Acts 893 Environmental Matters 890 Other Statutory Actions (If

Administrative Agency is Involved)

o D. Temporary Restraining Order/Preliminary Injunction

Any nature of suit from any category may be selected for this category of case assignment.

*(If Antitrust, then A governs)*

o E. General Civil (Other) OR o F. Pro Se General CivilReal Property

210 Land Condemnation 220 Foreclosure 230 Rent, Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

Personal Property 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage

Product Liability

Bankruptcy 422 Appeal 27 USC 158 423 Withdrawal 28 USC 157

Prisoner Petitions 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Conditions 560 Civil Detainee – Conditions

of Confinement

Property Rights 820 Copyrights 830 Patent 835 Patent – Abbreviated New Drug Application 840 Trademark 880 Defend Trade Secrets Act of

2016 (DTSA)

Federal Tax Suits 870 Taxes (US plaintiff or defendant) 871 IRS-Third Party 26 USC

7609

Forfeiture/Penalty 625 Drug Related Seizure of Property 21 USC 881 690 Other

Other Statutes 375 False Claims Act 376 Qui Tam (31 USC

3729(a)) 400 State Reapportionment 430 Banks & Banking 450 Commerce/ICC Rates/etc 460 Deportation 462 Naturalization

Application

465 Other Immigration Actions 470 Racketeer Influenced & Corrupt Organization 480 Consumer Credit 485 Telephone Consumer Protection Act (TCPA) 490 Cable/Satellite TV 850 Securities/Commodities/ Exchange 896 Arbitration 899 Administrative Procedure

Act/Review or Appeal of Agency Decision 950 Constitutionality of State

Statutes 890 Other Statutory Actions

(if not administrative agency review or Privacy Act)

Kian Kelley-Chung Acting Chief of Police Robert J. Contee, III; DC Metropolitan Police Dep't; District of Columbia; Lt. Jason Bagshaw; Officer S. McCloskey; Officer D.L. Brown; Officers & Officials John Does 1-10

Howard Cty.MD

Davis Wright Tremaine LLP1301 K Street, N.W.Suite 500Washington, DC 20005202-973-4200

Case 1:21-cv-00116 Document 1-1 Filed 01/13/21 of 2

o G. Habeas Corpus/ 2255 530 Habeas Corpus – General 510 Motion/Vacate Sentence 463 Habeas Corpus – Alien Detainee

o H. Employment Discrimination 442 Civil Rights – Employment (criteria: race, gender/sex, national origin, discrimination, disability, age, religion, retaliation)

*(If pro se, select this deck)*

o I. FOIA/Privacy Act 895 Freedom of Information Act 890 Other Statutory Actions (if Privacy Act)

*(If pro se, select this deck)*

o J. Student Loan 152 Recovery of Defaulted Student Loan (excluding veterans)

o K. Labor/ERISA (non-employment) 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 740 Labor Railway Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

o L. Other Civil Rights (non-employment) 441 Voting (if not Voting Rights Act) 443 Housing/Accommodations 440 Other Civil Rights 445 Americans w/Disabilities – Employment 446 Americans w/Disabilities – Other 448 Education

o M. Contract 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholder’s Suits 190 Other Contracts 195 Contract Product Liability 196 Franchise

o N. Three-Judge Court 441 Civil Rights – Voting (if Voting Rights Act)

V. ORIGIN

o 1 Original Proceeding

o 2 Removed from State Court

o 3 Remanded from Appellate Court

o 4 Reinstated or Reopened

o 5 Transferred from another district (specify)

o 6 Multi-district Litigation

o 7 Appeal to District Judge from Mag. Judge

o 8 Multi-district Litigation – Direct File

VI. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE.)

VII. REQUESTED IN COMPLAINT

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND $ JURY DEMAND:

Check YES only if demanded in complaint YES NO

VIII. RELATED CASE(S) IF ANY

(See instruction)

YES

NO

If yes, please complete related case form

DATE: _________________________

SIGNATURE OF ATTORNEY OF RECORD _________________________________________________________

INSTRUCTIONS FOR COMPLETING CIVIL COVER SHEET JS-44

Authority for Civil Cover Sheet

The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and services of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the cover sheet.

I. COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence: Use 11001 to indicate plaintiff if resident

of Washington, DC, 88888 if plaintiff is resident of United States but not Washington, DC, and 99999 if plaintiff is outside the United States.

III. CITIZENSHIP OF PRINCIPAL PARTIES: This section is completed only if diversity of citizenship was selected as the Basis of Jurisdiction under Section II.

IV. CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case will depend on the category you select that best represents the primary cause of action found in your complaint. You may select only one category. You must also select one corresponding nature of suit found under the category of the case.

VI. CAUSE OF ACTION: Cite the U.S. Civil Statute under which you are filing and write a brief statement of the primary cause.

VIII. RELATED CASE(S), IF ANY: If you indicated that there is a related case, you must complete a related case form, which may be obtained from

the Clerk’s Office. Because of the need for accurate and complete information, you should ensure the accuracy of the information provided prior to signing the form.

Civil rights action for violation of 42 USC 1998 & 2000aa-6(a), and 1st, 4th and 14 Amendments of U.S. Constitution

✘

✘

Case 1:21-cv-00116 Document 1-1 Filed 01/13/21 of 2

HarbJ

Stamp

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KIAN KELLEY-CHUNG 9576 Farewell Rd. Columbia, MD 21045

Plaintiff,

v.

ACTING CHIEF OF POLICE ROBERT J. CONTEE, III District of Columbia Metropolitan Police Department (in his official capacity) 300 Indiana Avenue, NW Washington, DC 20001

DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT 300 Indiana Avenue, NW Washington, DC 20001

DISTRICT OF COLUMBIA A Municipal Corporation 441 Fourth Street, N.W. Washington, DC 20001

LIEUTENANT JASON BAGSHAW District of Columbia Metropolitan Police Department (in his official and individual capacity) 300 Indiana Avenue, NW Washington, DC 20001

OFFICER S. McCLOSKEY District of Columbia Metropolitan Police Department (in his official and individual capacity) 300 Indiana Avenue, NW Washington, DC 20001

OFFICER D.L. BROWN District of Columbia Metropolitan Police Department (in his official and individual capacity) 300 Indiana Avenue, NW Washington, DC 20001

))))))))))))))))))))))))))))))))))))))))))

Case No. _______________

Case 1:21-cv-00116 Document 1 Filed 01/13/21 Page 1 of 30

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OFFICERS AND OFFICIALS JOHN DOE, 1-10 District of Columbia Metropolitan Police Department (in their official and individual capacities) 300 Indiana Avenue, NW Washington, DC 20001

SERVE: The Honorable Mayor Muriel Bowser Executive Office of the Mayor 1350 Pennsylvania Avenue, NW Washington, DC 20004

Karl A. Racine, Attorney General Office of the Attorney General for the District of Columbia 400 6th Street, NW Washington, DC 20001

Defendants.

)))))))))))))))))))))

COMPLAINT FOR DECLARATORY RULING, INJUNCTIVE RELIEF, ACTUAL DAMAGES, PUNITIVE DAMAGES, AND ATTORNEY’S FEES;

JURY TRIAL DEMANDED

KIAN KELLEY-CHUNG, by and through undersigned counsel, submits this Complaint

against Robert J. Contee, III, Acting Chief of the District of Columbia Metropolitan Police

Department; the District of Columbia Metropolitan Police Department; the District of Columbia;

District of Columbia Metropolitan Police Department Lieutenant Jason Bagshaw; District of

Columbia Metropolitan Police Department Police Officers S. McCloskey and D.L. Brown; and

District of Columbia Metropolitan Police Department Police Officers and Officials John Does 1-

10, whose identities Plaintiff anticipates discovering in connection with this action. In support of

his claims, Plaintiff alleges as follows:

INTRODUCTION

1. The First Amendment’s protections for freedom of speech and of the press give

journalists and citizens the right to take still or moving photographs from locations open to the


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public of events occurring in public settings, including any related police presence and activity.

This well-established legal principle has long been enshrined in police department policies across

the country – including those of the District of Columbia Metropolitan Police Department – but

sometimes, “[w]hen wrongdoing is underway, officials have great incentive to blindfold the

watchful eyes of the Fourth Estate.” Index Newspapers LLC v. City of Portland, --- F. Supp. 3d

---, 2020 WL 4883017, at *1 (D. Or. Aug. 20, 2020), emergency stay denied sub nom. Index

Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817 (9th Cir. 2020).

2. In too many instances, the police have swept up newsgatherers and photo-

journalists as part of dragnet arrests, typically made without probable cause, for purposes of

quelling legitimate protest activity, along with the press’ coverage of it. Journalists covering

public events – such as the protests over the killing of Mr. George Floyd and others by the

police, and of police brutality generally – have been subjected to arrest, seizures detention, and

physical mistreatment, simply for practicing their profession.

3. Courts have often had to remind the police that the “right to film government

officials, including law enforcement officers, in the discharge of their duties in a public space is a

basic, vital, and well-established liberty safeguarded by the First Amendment.” Glik v. Cuniffe,

655 F.3d 78, 85 (1st Cir. 2011). “Gathering information about government officials in a form

that can readily be disseminated to others serves a cardinal First Amendment interest in protect-

ing and promoting ‘the free discussion of governmental affairs.’” Id. at 82 (quoting Mills v.

Alabama, 384 U.S. 214, 218 (1966)).

4. The United States Department of Justice has reinforced this by filing “Statements

of Interest” in cases litigated in the D.C.-Baltimore metroplex as part of its responsibility to

enforce federal civil rights statutes that prohibit state and local law enforcement agencies from


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engaging in conduct that deprives persons of rights under the Constitution and laws of the United

States. It explained that “[t]he right to record police officers while performing duties in a public

place, as well as the right to be protected from the warrantless seizure and destruction of those

recordings, are not only required by the Constitution,” they “are consistent with our fundamental

notions of liberty, promote the accountability of our government officers, and instill public

confidence in the police officers who serve us daily.” Statement of Interest of the United States,

Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888-BEL (D. Md. Jan. 10, 2012) at 1

(www.justice.gov/crt/about/spl/documents/Sharp_SOI_1-10-12.pdf); see also Statement of In-

terest of the United States, Garcia v. Montgomery Cty., No. 8:12-cv-03592-TDC (D. Md. Mar. 4,

2013) (www.justice.gov/sites/default/files/crt/legacy/2013/03/20/garcia_SOI_3-14-13.pdf).

5. Interference with these rights is a matter of vital concern, because “without jour-

nalists and legal observers, there is only the government’s side of the story to explain why a

‘riot’ was declared and the public streets were ‘closed’ and whether law enforcement acted

properly in effectuating that order.” Index Newspapers LLC, 2020 WL 4883017, at *19.

6. This case involves the unlawful arrest, and seizure of photographic equipment and

images and recordings, of a photojournalist and documentarian who, while covering protest

activity in Washington, D.C.’s Adams Morgan neighborhood, was “kettled” with protesters in

mass arrests effectuated by District of Columbia Metropolitan Police Department (“MPD”)

officers. Mr. Kelley-Chung was swept up in the mass arrest despite his informing the police of

his press status, and that he was actively covering the protests. In connection with Mr. Kelley-

Chung’s arrest, officers seized his two cameras and their storage media, and his smartphone,

which he was actively using to cover the protest in his capacity as a journalist and

documentarian.


5

7. In taking these actions, MPD officers and officials consciously and deliberately

violated Plaintiff’s constitutional and statutory rights, detained him for nearly a full day, then

released him without pursuing any charges. The MPD compounded the problem by failing to

return Mr. Kelley-Chung’s equipment and the images and recordings they contained at the time

of his release, and further exacerbated the situation by holding his property for ten weeks, despite

repeated requests and efforts seeking its return. The Defendants’ violations of law caused Mr.

Kelley-Chung constitutional, personal, and economic injuries in multiple respects.

8. Accordingly, this civil rights action seeks redress for the violation of Mr. Kelley-

Chung’s rights under the United States Constitution, and federal and state law. It challenges the

MPD’s policy, custom and practice of obstructing First and Fourth Amendment rights of the

press to gather, record, and disseminate news and information about events of public interest and

of related police activity in public places. This case presents a disturbing example of the type of

police misconduct directed at photographers that courts and the Justice Department repeatedly

have condemned.

PARTIES

9. Plaintiff Kian Kelley-Chung is an independent journalist and documentarian who

most recently has actively covered public protests arising from the killing of George Floyd and

police brutality throughout the summer of 2020. Mr. Kelley-Chung is a National Press Photo-

graphers Association (“NPPA”) member whose work has appeared in such publications as the

Washington Post.

10. Defendant Robert J. Contee, III is the Acting Chief of Police for the District of

Columbia Metropolitan Police Department, a position he assumed on January 2, 2021 in

succeeding Peter Newsham, who was at all times herein Chief of Police for the MPD. Chief


6

Contee is responsible, and before him Chief Newsham was responsible, in whole and/or part, for

creating, implementing, promulgating, and enforcing the policies, practices and/or customs

complained of, including but not limited to those that prevented Mr. Kelley-Chung from

engaging in lawfully protected and peaceful journalistic activity. The actions of the Chief as

alleged in this Complaint were taken under color of the laws of the District of Columbia. He is

sued in his official capacity.

11. Defendant District of Columbia is a municipal corporation organized pursuant to

the laws of the United States with the authority to sue and be sued and is the local government

for the territory constituting the permanent seat of the federal government of the United States.

It is authorized by law to maintain a Police Department that acts through its Chief, Defendant

Robert J. Contee, III, currently serving in an acting capacity, and through the MPD officers and

officials that he oversees.

12. At all times relevant herein, Defendant District of Columbia among other things

was responsible for operation of the Defendant District of Columbia Metropolitan Police

Department, an agency of the local government, with the Defendant District of Columbia thus

responsible for the policies, procedures, rules, regulations, and customs set forth and utilized for

the supervision of the MPD and all MPD officers.

13. Defendant Jason Bagshaw at all times relevant to this complaint was a duly

appointed police officer with the MPD holding the rank of Lieutenant. His actions alleged in this

complaint were taken under color of the laws of the District of Columbia. He is sued in his

official and individual capacities.

14. Defendant S. McCloskey at all times relevant to this complaint was a duly

appointed police officer with the MPD. His actions alleged in this complaint were taken under


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color of the laws of the District of Columbia. He is sued in his official and individual capacities.

Plaintiff anticipates learning his full name through discovery in this action.

15. Defendant D.L. Brown at all times relevant to this complaint was a duly

appointed police officer with the MPD. His actions alleged in this complaint were taken under

color of the laws of the District of Columbia. He is sued in his official and individual capacities.

Plaintiff anticipates learning his full name through discovery in this action.

16. Defendants Does 1-5, who are sued in their official and individual capacities, are

duly licensed police officers and employees of the Defendant District of Columbia and the MPD,

and were such at all times relevant herein, and effectuated Plaintiff’s arrest and detention, and/or

the seizure and/or retention of his personal property. Plaintiff anticipates learning their identities

through discovery in this action.

17. Defendants Does 6-10, who are sued in their official and individual capacities, are

duly licensed police officers and employees of the Defendant District of Columbia and the MPD,

and were such at all times relevant herein, and are supervisory officials whose liability could

include their own culpable action or inaction in, or their acquiescence to, the constitutional

deprivations alleged here, and/or in conduct showing a reckless or callous indifference to the

rights of Plaintiff. Plaintiff anticipates learning their identities through discovery in this action.

JURISDICTION AND VENUE

18. This action is brought pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 2000aa-6(a), and

the First, Fourth, and Fourteenth Amendments to the United States Constitution. This Court has

subject matter jurisdiction over all federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3),

and supplemental jurisdiction over all state law claims pursuant to 28 U.S.C. § 1367.


8

19. All prerequisites to bringing suit, if any, including those imposed by District of

Columbia Code Ann. § 12-309, have been satisfied.

20. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because a sub-

stantial part of the events or omissions giving rise to the claims herein occurred in this District

and because all defendants reside in this District.

FACTS

21. On the evening of August 13, 2020, Mr. Kelley-Chung was in the Adams Morgan

neighborhood of Washington, D.C. gathering information for a documentary as part of his cover-

age of public protests arising from the killing of George Floyd and police brutality throughout

the summer of 2020. Mr. Kelley-Chung was at the time accompanied by Andrew Jasiura,

Plaintiff’s partner in producing, among other things, documentaries through their production

company, RXNIN LIFE, an independent artist collective that they operate.

22. In covering the protests and police presence related to them, Mr. Kelley-Chung

had in his possession and on his person professional photography equipment in the form of a

Nikon D7100 camera body with an SD card and an 18-140mm lens, and a Fuji XT3 camera body

with an SD card and 18-55mm lens, along with a black Samsung Galaxy S10e smartphone, all of

which were in his rightful possession. Both Mr. Kelley-Chung and Mr. Jasiura were wearing

identical shirts bearing the RXNIN LIFE logo and were both known from earlier protests as

members of the collective – i.e., the press – to MPD officers on the scene on August 13, 2020.

23. While Mr. Kelley-Chung was walking down the street filming and speaking with

some of the protesters, MPD officers rushed and tackled someone nearby, and several people

rushed in that direction, drawing Mr. Kelley-Chung’s attention. He hastened over to capture the

moment, only to be shoved by an MPD officer.


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24. MPD officers then began surrounding individuals near 18th and Willard Streets in

Adams Morgan, using a technique known as “kettling,” a law enforcement tactic employed as an

ostensible form of riot control that is specifically applied when police chose to criminalize the

presence of individuals in public spaces, by surrounding protesters and refusing to let them leave.

25. While MPD officers began making indiscriminate arrests of members of the

public they had “kettled,” Mr. Kelley-Chung continued documenting the scene, until he himself

also was detained and arrested, despite clearly identifying himself as a journalist to the officers.

This did not deter the officers from continuing with their arrest.

26. At the same time, MPD officers refrained from arresting or detaining Mr. Jasiura

because he was a member of the press covering the demonstration. Mr. Jasiura stated that Mr.

Kelley-Chung was also a member of the press, but to no avail.

27. In response to the repeated statements identifying Mr. Kelley-Chung as a journal-

ist, one nearby officer engaged in the kettling asked Mr. Jasiura if Mr. Kelley-Chung had a press

pass on him, claiming such passes operate like a driver’s license – i.e., if a journalist does not

have one on their person, they will not be treated as a member of the press – which is incorrect

both as a matter of MPD policy and First Amendment law.

28. Defendant Lieutenant Bagshaw was among the MPD officers on the scene of Mr.

Kelley-Chung’s arrest and, on information and belief, orchestrated the kettling of protestors, and

of Mr. Kelley-Chung.

29. Defendant Officer S. McCloskey grabbed Mr. Kelley-Chung and pushed him into

the “kettle” of persons being arrested.

30. Defendant D.L. Brown was Mr. Kelley-Chung’s arresting officer.


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31. Other John Doe MPD officers were involved in Mr. Kelley-Chung’s arrest and

resulting detention.

32. Mr. Kelley-Chung’s arrest was utterly baseless and without probable cause. The

arresting officers could not have had a reasonable belief held in good faith that their conduct was

lawful, nor any rational reason to believe Mr. Kelley-Chung was committing any crime or was

about to commit any crime, but they nonetheless placed him under arrest. The arrest was made

without a warrant or legal justification. Barham v. Ramsey, 434 F.3d 565 (D.C. Cir. 2006).

33. The MPD officers intended to confine Mr. Kelley-Chung and deprive him of his

liberty when they arrested and placed him in police custody without probable cause.

34. In connection with his arrest, and despite being informed of Mr. Kelley-Chung’s

status as a journalist, MPD officers seized his photography equipment, their storage media, and

the images and recordings they contained.

35. Mr. Kelley-Chung was transported to the MPD station for the 7th District, where

he was taken to holding and detained in MPD custody for over 18 hours before being released on

August 14, 2020.

36. The cell in which the MPD held Mr. Kelley-Chung, at the height of the

coronavirus 19 pandemic, lacked soap, and he was denied access to hand sanitizer for several

hours, until his constant requests during that time resulted in access. Mr. Kelley-Chung was kept

in a small cell with another detainee who lacked a mask and was not provided one by the MPD.

37. Mr. Kelley-Chung later learned that the ostensible basis for his arrest was “felony

rioting,” a charge for which there was no arguable basis or probable cause.


11

38. Upon release from MPD custody, Mr. Kelley-Chung was given a “No Paper/No

Charges” slip indicating he had been arrested for felony rioting, but that no charges were being

pursued. A copy of the “No Paper/No Charges” slip is Exhibit 1 to this Complaint.

39. Despite his release, Mr. Kelley-Chung’s photographic equipment, and their con-

tents, were not returned to him, but rather were retained by the MPD.

40. The MPD refused even to provide Mr. Kelley-Chung an inventory of his property

seized in connection with his arrest. Mr. Kelley-Chung requested such an inventory, but was

told directly by an officer on duty that MPD would not make out such an inventory for him.

41. Mr. Kelley-Chung made repeated inquiries to the MPD in an effort to locate and

recover his seized equipment and its contents, but they yielded neither a substantive response nor

the return of his cameras or phone (or their storage media).

42. Beginning on August 20, 2020, Mickey H. Osterreicher, NPPA’s general counsel,

attempted to intervene with the MPD on NPPA-member Kelley-Chung’s behalf, to seek return of

his cameras, phone, and the storage media within and the images and recordings they contained.

Mr. Osterreicher made protracted efforts over the course of the next several weeks attempting to

gain the return of Mr. Kelley-Chung’s property.

43. On August 27, 2020, in response to one of Mr. Osterreicher’s attempts to secure

the return of Mr. Kelley-Chung’s property, MPD CID Commander Leslie Parsons stated that

while no update on the progress of return of the equipment was available, search warrants “ha[d]

been submitted to the USAO and are under review.” Astonished, Mr. Osterreicher replied that:

“If indeed the MPD plans to pursue a search of the work product belonging to a journalist, … in

the application someone [must] advise[] the magistrate that the material being sought is such and

[is] protected by the Privacy Protection Act of 1980 (42 U.S.C. § 2000aa et seq.) ….” He also


12

asked MPD to explain the basis for its assumption that it could seize and retain a journalist’s

equipment or to seek a search warrant, but received no response. A copy of Mr. Osterreicher’s

exchanges with MPD is Exhibit 2 to this Complaint.

44. Mr. Osterreicher and Mr. Kelley-Chung also received no response when the

former wrote MPD on September 4, 2020, to mark 20 days of their having deprived Mr. Kelley-

Chung of his equipment, storage media, and the recordings and images. In fact, after the reve-

lation regarding the search warrants, there were no further communications from the MPD.

45. After more than a month of silence, on October 6, 2020, Assistant U.S. Attorney

(“AUSA”) Paul V. Courtney of the United States Department of Justice sent a letter (directly to

Mr. Kelley-Chung, without copying Mr. Osterreicher), stating that Mr. Kelley-Chung’s equip-

ment had been “recovered,” and requesting that Mr. Kelley-Chung “voluntarily turn over the

data” in the cameras that the MPD had seized from him and continued to retain. A copy of the

AUSA letter is Exhibit 3 to this Complaint.

46. Undersigned counsel for Mr. Kelley-Chung responded to Mr. Courtney and

confirmed that Mr. Kelley-Chung did not consent to any search or review of information or

images on his cameras or phone, and that he would oppose any subpoena or other legal process

seeking to obtain government access to the devices. A copy of counsel’s correspondence to the

AUSA is Exhibit 4 to this Complaint.

47. Counsel’s response to the AUSA also explained that Mr. Kelley-Chung had been

illegally arrested while photographing a public protest and police activity, and that his cameras

and phone were seized at that time, and had since been retained, all in violation of his rights

under the First, Fourth, and Fourteenth Amendments to the United States Constitution, and in

violation of the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa (“PPA”).


13

48. Mr. Kelley-Chung not only declined the AUSA’s request for access to data, but

counsel demanded on his behalf return of his cameras, smartphone, and other property without

further delay. He also requested that the AUSA and MPD provide the chain of custody of the

seized equipment and property, and confirmation that there had been no search of the cameras

and smartphone, or of their contents or storage media.

49. On October 22, 2020, the AUSA replied to confirm that his Office “and the MPD

have been … investigat[ing] events that occurred in and around Adams Morgan … on August

13-14, 2020,” and to express a “belief” that Mr. Kelley-Chung’s equipment “may contain infor-

mation relevant to” the investigation. Nevertheless, the AUSA’s reply also enclosed a letter to

MPD indicating that DOJ had no objection to “disposition of Mr. Kelley-Chung’s property in

accordance with District of Columbia Code,” and that he could thus pick up his seized equipment

and its contents from MPD’s Evidence Control Branch. The AUSA’s reply provided no chain of

custody or confirmation that no search had occurred despite Mr. Kelley-Chung’s requests on

these points; those requests were met with complete silence. A copy of the AUSA’s reply is

Exhibit 5 to this Complaint.

50. However, the AUSA’s reply did “formally request the preservation, pending

potential legal process and until further written notice, of all photographs, videos, audio record-

ings, and other evidence, created or captured on August 13-14, 2020” as stored in Mr. Kelley-

Chung’s equipment or “any removable media contained therein.” The reply offered no legal

basis for this request, or for Mr. Kelley-Chung’s obligation to comply with it.

51. On October 23, 2020, Mr. Kelley-Chung retrieved his equipment from the MPD –

10 full weeks after the MPD seized it.


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52. The property envelope containing Mr. Kelley-Chung’s equipment that he received

upon its retrieval reaffirmed that the “charges placed in connection with the property” involved

alleged “Felony Rioting,” but further noted MPD’s admission that the charges also were based

on “First Amendment Assembly.” A copy of the property envelop is Exhibit 6 to this Com-

plaint.

53. The Defendants’ illegal conduct toward Mr. Kelley-Chung resulted from MPD

policies and/or customs that disregard clearly established rights such as those held by journalists

like Mr. Kelley-Chung, from MPD indifference to misconduct by MPD officers and officials,

and/or failures of training and supervision to require the police to follow the law and established

departmental policies.

54. One policy Defendants should have followed was MPD’s General Order on Video

Recording, Photographing, and Audio Recording of Metropolitan Police Department Members,

GO-304.19, effective July 19, 2012 (the “Video Recording General Order”), which ostensibly

covers situations like that involving Mr. Kelley-Chung. The policy was not followed here even

though Mr. Kelley-Chung clearly identified himself as a journalist prior to his arrest.

55. The Video Recording General Order recognizes the “First Amendment right to

video record, photograph, and/or audio record MPD members … conducting official business or

while acting in an official capacity in any public space, unless such recordings interfere with

police activity,” and that such activities are “common and lawful activities in Washington D.C.”

56. The Video Recording General Order states that “[a]s long as the photographing or

recording takes place in a setting at which the individual has a legal right to be present and does

not interfere with [officer] safety, members [of the police force] shall not … [d]emand that

person’s identification” or “[d]etain that person” (emphasis original). Even if photographing or


15

recording impedes or interferes with police duties, officers “may direct the person to move to a

position that will not interfere” but “shall not order the person to stop photographing or

recording.”

57. The Video Recording General Order further provides that “[i]f a member has

probable cause to believe that a camera or other recording device contains images or sounds that

are evidence of criminal acts,” officers “shall request that the person either … [v]oluntarily

provide the device or recording medium … or … voluntarily transmit the images or sounds via

text message or electronic mail to the member’s official government electronic mail account”

(emphases added). The General Order emphasizes that “[c]onsent to take possession of a

recording device or medium must be given voluntarily” and that officers “shall not, implicitly or

explicitly, coerce consent to take possession of any recording device or any information thereon”

(emphases added).

58. The Video Recording General Order specifies as to recording devices and media

that “[w]arrantless seizure is permissible only when … [t]here is probable cause to believe that

the property holds contraband or evidence of a crime and … exigencies of the circumstances

demand it or some other recognized exception to the warrant requirement is present” (emphasis

added). “Absent exigent circumstances, members shall obtain a search warrant before viewing

photographs or listening to recordings on a camera or on a memory chip that has been seized.”

Determinations of “exigent circumstances” are supposed to be made by the Watch Commander

of MPD’s Civil Investigations Division (CID).

59. Another policy relevant to Mr. Kelley-Chung’s circumstance is MPD’s General

Order governing “Media,” GO-204.01, effective April 13, 2001 (the “Media General Order”),

which governs treatment of the press at “events” where “multiple arrests may occur, such as a


16

protest.” The Media General Order requires officials in command of such events to “[e]stablish

a perimeter around the event” that nonetheless provides “news media with maximum access to

the scene, without disrupting Department operations.” Similarly, MPD rules governing “Public

Information During First Amendment Assemblies and Mass Demonstrations” under its Standard

Operating Procedures for “Handling First Amendment Assemblies and Mass Demonstrations”

(“First Amendment Assembly SOP”) requires “allow[ing] media representatives reasonable

access to all areas where First Amendment assemblies occur” and “reasonable accommodations

to allow media representatives to use photographic, video, or other equipment … relating to their

reporting of a First Amendment assembly.”

60. At the time of Mr. Kelley-Chung’s unlawful arrest, Defendants Bagshaw,

McCloskey and Brown, and the other Defendant John Doe Officers and Officials, failed to apply

these MPD policies. Instead, they arrested Mr. Kelley-Chung rather than treating him as a

journalist, which would have entailed giving him reasonable access to the protest with

reasonable accommodation to allow use of his photographic and video equipment, and/or

removing him to the perimeter established (if any) under the Media General Order.

61. Policies and/or customs of the MPD also factored into violation of Mr. Kelley-

Chung’s constitutional rights under its directive on “Recording, Handling and Disposition of

Property Coming into the Custody of the Department,” GO-601.1, effective April 30, 1992 (the

“Property General Order”), which among other things, requires that, “when the decision is made

not to paper a case,” as was the situation with Mr. Kelley-Chung, it requires issuance of a “PD

Form 81-C releasing the property” seized from the arrestee. While the Property General Order

allows classifying property as “evidence,” it states that “when cases are disposed of in court …

by dismissal of the charges,” the standard procedure is to “advise the claimant(s) to make


17

arrangements for the return of the property.” The MPD’s “Records Retention” rules under its

First Amendment Assembly SOP require the same.

62. Not only does the Property General Order not require any special care with regard

to seized property comprised of implements or outputs of First Amendment activity, based on

the MPD’s retention of Mr. Kelley-Chung’s photographic equipment and images and recordings,

and its tacit (and potentially explicit) agreement to defer return until receiving approval from

officials like AUSA Courtney, it is District of Columbia and MPD policy to seize and retain

cameras and recording media based simply on a “belief” that they might contain information

relevant to any investigation.

63. On information and belief, at all times relevant to this complaint, the District of

Columbia has had a policy, custom and practice of failing to supervise and discipline officers

who obstruct and/or prevent members of the media and public from recording public events and

associated police activity conducted in public view, despite its awareness that these violations

happen.

64. On information and belief, repeated failure to supervise and discipline shows the

District of Columbia’s and the MPD’s deliberate indifference to the First Amendment rights of

the press and public to record police conduct in public.

65. The District of Columbia’s and the MPD’s policy of retaining press-member

arrestees’ photographic equipment and storage media post-release shows deliberate indifference

to the constitutional rights surrounding property that consists of implements and outputs of First

Amendment activity.

66. The constitutional violations Mr. Kelley-Chung suffered at the hands of the MPD

and its officers were caused by (a) the District of Columbia’s unconstitutional practices and


18

policy; (b) the District of Columbia’s failure to enforce the training it provides its officers about

the First Amendment right of the press and public to record public events and associated police

activity from public locations, and about the rights held in implements and outputs of First

Amendment activity; and (c) the District of Columbia’s failure to supervise and discipline

officers to prevent them from improperly and unlawfully obstructing and/or preventing

individuals from recording public events and associated police activity in public locations.

67. The Defendant MPD Officers and Officials callously disregarded Mr. Kelley-

Chung’s rights – and their own sworn obligation to uphold the law – and knowingly deprived

him of his First Amendment rights as a journalist, as well as his rights to due process and to be

free from unreasonable search and seizure.

68. As a direct result of the illegal arrest and seizure of his equipment, Mr. Kelley-

Chung was forced to replace his cameras and related equipment in order to continue in his

occupation as a photojournalist, at a cost to him of several thousand dollars. Additionally, Mr.

Kelley-Chung was forced to purchase two new cell phones, and to outlay costs for prepaid cell

phone plans, in connection with which he has had to twice change the phone numbers assigned

to them, as a precaution against improper MPD searches of his personal data. Additionally, Mr.

Kelley-Chung was rendered unable to license any of the images or recordings on the seized

cameras and their storage for a period over two months, at which time their timeliness and news-

worthiness were greatly diminished. All of these disruptions directly affected Mr. Kelley-

Chung’s income as a freelance journalist and infringed his First and Fourth Amendment rights.

69. The seizure of Mr. Kelley-Chung’s photographic equipment and cellphone, and

their contained storage media, and the failure to promptly return that property upon his release

from custody, was undertaken maliciously without due process or probable cause.


19

70. As a result of his arrest and detention, Mr. Kelley-Chung suffered psychological

trauma, increased anxiety, flashbacks, and weeks of nightmares.

COUNT I

Section 1983 Claim for Violation of Plaintiff’s First and Fourteenth Amendment Rights (ALL DEFENDANTS)

71. Mr. Kelley-Chung repeats and realleges the allegations in the foregoing

Paragraphs as if fully set forth herein.

72. Observing and recording police activity in public is fully protected by the free

speech and free press clauses of the First Amendment to the United States Constitution, as

applied to the District of Columbia under the Fourteenth Amendment.

73. By arresting Mr. Kelley-Chung without probable cause, and thereafter detaining

him, while he was recording protest and police activity in public, the Defendant MPD Officers

violated Mr. Kelley-Chung’s clearly established First Amendment rights.

74. The seizure of and prolonged failure to return Mr. Kelley-Chung’s photography

equipment, storage media, and images and recordings they contained violated Mr. Kelley-

Chung’s clearly established First Amendment rights.

75. The Defendant MPD Officers and Officials violated a clearly established consti-

tutional right of which all MPD police officers knew, or of which reasonable law enforcement

officers should have known, rendering them liable to Mr. Kelley-Chung under 42 U.S.C. § 1983.

76. The Officers acted with reckless and callous indifference to Mr. Kelley-Chung’s

First Amendment rights.

77. The denial of constitutional rights is irreparable injury per se, and Mr. Kelley-

Chung is entitled to declaratory and injunctive relief.


20

78. As a direct and proximate result of the actions of the MPD Officers and Officials,

Mr. Kelley-Chung suffered psychological trauma, increased anxiety, flashbacks, and weeks of

nightmares, as well as economic and professional injuries.

79. As a direct and proximate result of all of the violations of Mr. Kelley-Chung’s

First Amendment rights, he suffered damages, including:

a. Damage to his personal and professional reputation;

b. Loss of earnings and earning capacity;

c. Psychological and emotional injury, past and future; and

d. Degradation, humiliation, mental anguish, suffering and embarrassment.

COUNT II Section 1983 Claim for Violation of Plaintiff’s Fourth and Fourteenth Amendment Rights

(ALL DEFENDANTS)



81. Under the Fourth Amendment to the United States Constitution, as applied to

the District of Columbia under the Fourteenth Amendment, Mr. Kelley-Chung has a right to be

free from unreasonable searches and seizures.

82. The Defendant MPD Officers violated Mr. Kelley-Chung’s clearly established

Fourth Amendment right to be free from unreasonable seizures by arresting and detaining Mr.

Kelley-Chung, and by seizing his photography equipment, storage media, and images and

recordings they contained, without probable cause to believe Mr. Kelley-Chung was engaged in

any criminal activity. Robbins v. City of Des Moines, --- F.3d ---, 2021 WL 28091 (8th Cir. Jan.

5, 2021).

83. The MPD Doe Officials violated Mr. Kelley-Chung’s clearly established Fourth

Amendment right to be free from unreasonable seizures by retaining after his release from


21

custody Mr. Kelley-Chung’s photography equipment, storage media, and images and recordings

they contained, without probable cause or legal justification to retain the property; this unlawful

retention of Mr. Kelley-Chung’s property endured for a period of 10 full weeks.

84. The conduct of the Officers and Officials violated clearly established constitu-

tional rights of which all MPD police officers knew, or of which reasonable police officers

should have known, rendering them liable to Mr. Kelley-Chung under 42 U.S.C. § 1983.

85. The Officers and Officials acted with reckless and callous indifference to Mr.

Kelley-Chung’s First and Fourth Amendment rights.

86. The denial of constitutional rights is irreparable injury per se, and Mr. Kelley-

Chung is entitled to declaratory and injunctive relief.

87. As a direct and proximate result of the actions of the MPD Officers and Officials,

Mr. Kelley-Chung suffered psychological trauma, increased anxiety, flashbacks, and weeks of

nightmares, as well as economic and professional injuries.

88. As a direct and proximate result of all of the violations of Mr. Kelley-Chung’s

Fourth Amendment rights, he suffered damages, including:





COUNT III Section 1983 Monell Claim

(DEFENDANT DISTRICT OF COLUMBIA)




22

90. In arresting Mr. Kelley-Chung while he was filming protest and police activity in

public, and seizing and retaining his photography equipment, storage media, and images and

recordings they contained, the Defendant MPD Officers and Officials violated Mr. Kelley-

Chung’s clearly established rights under the First, Fourth, and Fourteenth Amendments to the

United States Constitution.

91. At all times relevant to this complaint, the Officers and Officials were acting

under color of the laws of the District of Columbia.

92. At the time of Mr. Kelley-Chung’s unlawful arrest, the MPD’s “official” policy

required MPD officers to allow photography and recording in settings in which an individual has

a legal right to be present so long as it does not interfere with police officer safety. Detention of

such individuals, or demands that they produce identification are not permitted.

93. At the time of Mr. Kelley-Chung’s unlawful arrest, the MPD’s “official” policy

for “events” such as the George Floyd and police-brutality protests was to establish a perimeter

but to allow the news media “maximum access” that is reasonably possible.

94. Nonetheless, the Defendant Officers interfered with and prevented Mr. Kelley-

Chung’s activities as a journalist and documentarian by arresting him and by confiscating his

photography equipment, storage media, and images and recordings they contained.

95. At all times relevant to this complaint, notwithstanding its written policies on the

subject, the District of Columbia had a custom and practice of allowing MPD officers to obstruct

and/or prevent members of the media and public from recording protest and police activity in

public locations, in violation of the First Amendment, as evidenced by the actions of Defendants

Bagshaw, McCloskey and Brown, and of the Defendant John Doe Officers, whose conduct the

MPD effectively sanctioned and endorsed.


23

96. On information and belief, the District of Columbia failed to supervise and

discipline its officers for unlawfully interfering with the First Amendment right of the public and

press to record public scenes of police activity, displaying deliberate indifference to its citizens’

constitutional rights.

97. At the time of Mr. Kelley-Chung’s unlawful arrest, the MPD’s “official” policy in

its Video Recording General Order prohibited the warrantless seizure of property such as Mr.

Kelley-Chung’s photography equipment, storage media, and the images and recordings they

contained, unless there was probable cause to believe the property holds contraband or evidence

of a crime and either the exigencies of the circumstances, or some other recognized exception to

the warrant requirement, demands seizure of the property.

98. Otherwise, if officers have probable cause to believe a camera or other device

contains images or sounds are evidence of criminal acts, they may only request the voluntary

surrender of the device or recording medium, or that the owner transmit the images or sounds to

the officer. Such consent must be given voluntarily and officers may not force the surrender of

possession of any recording device or any information thereon. Absent exigent circumstances,

determinations of which must be made by the CID Watch Commander, officers must obtain a

search warrant before viewing photographs or listening to recordings on a camera or memory

chip that has been seized.

99. The MPD’s “official” policy also requires that when a decision is made to not

paper a case, as with Mr. Kelley-Chung, personal property of the arrestee is to be returned.

100. The MPD’s policy makes no accommodation for seized property that comprises

implements or outputs of First Amendment activity, and despite its “official” policy, the MPD’s

custom and practice allows such First Amendment-protected property to be retained for months,


24

notwithstanding that doing so prevents its owner’s use in exercising free speech and press rights

protected by the United States Constitution.

101. Despite official MPD policies, in connection with Mr. Kelley-Chung’s arrest, the

Defendant Officers seized his photography equipment, storage media, and images and recordings

they contained, and the Defendant Police Officials retained that property for 10 weeks after Mr.

Kelley-Chung’s release.

102. At all times relevant to this complaint, notwithstanding its written policies on the

subject, the District of Columbia had a custom and practice of allowing MPD officers to seize

such equipment and recordings, in violation of the First Amendment, as evidenced by the actions

of Defendants Bagshaw, McCloskey and Brown, and of the Defendant John Doe Officers, whose

conduct the MPD effectively sanctioned and endorsed.

103. On information and belief, the District of Columbia failed to adequately train its

officers in its Video Recording General Order, in its Property General Order or with respect to

the First and Fourth Amendment rights of the public and press in their photography equipment,

storage media and audiovisual recordings, displaying deliberate indifference to its citizens’ con-

stitutional rights.

104. On information and belief, the District of Columbia failed to supervise and

discipline its officers for unlawfully interfering with the First and Fourth Amendment rights of

the public and the press in photography equipment, storage media and audiovisual recordings,

displaying deliberate indifference to its citizens’ constitutional rights.

105. These unconstitutional policies, customs and practices of the District of Columbia

were the moving force behind the violation of Mr. Kelley-Chung’s constitutional rights by the

John Doe Officers and Officials and the MPD.


25

106. As a direct and proximate result of the District of Columbia’s unconstitutional

policies, customs and practices, Mr. Kelley-Chung suffered damages, including:



c. Psychological and emotional injury, past and future;


COUNT IV Section 2000aa Claim – Privacy Protection Act of 1980

(ALL DEFENDANTS)



108. The seizure of Mr. Kelley-Chung’s photography equipment, storage media, and

images and recordings they contained by the MPD Officers constituted a search and/or seizure of

work product materials from Mr. Kelley-Chung, whom the officers were aware was a photojour-

nalist.

109. This seizure of Mr. Kelley-Chung’s photography equipment, storage media, and

images and recordings they contained by the MPD Officers, and the ensuing deprivation for over

10 weeks while the MPD Officials retained the property, violated the Privacy Protection Act of

1980, 42 U.S.C. § 2000aa.

110. The Officers and other members of the MPD who had access to Mr. Kelley-

Chung’s photography equipment, storage media, and images and recordings they contained,

acted with reckless and callous indifference to Mr. Kelley-Chung’s federally protected rights.

111. By reason of these seizures of his photography equipment, storage media, and

images and recordings they contained, Mr. Kelley-Chung suffered actual damages, including the

loss of licensing fees from his inability to license time-sensitive footage to news organizations.


26

COUNT V False Arrest and False Imprisonment

(ALL DEFENDANTS)



113. The Defendant MPD Officers Bagshaw, McCloskey and Brown, and the MPD

John Doe Officers, were on notice and informed that Mr. Kelley-Chung was a photojournalist

covering the protest activity that the Officers were monitoring.

114. The Officers, who could not have had a reasonable belief held in good faith that

their conduct was lawful, nor any rational reason to believe Mr. Kelley-Chung was commit-

ting any crime or was about to commit any crime, nonetheless approached Mr. Kelley-Chung

and placed him under arrest.

115. Mr. Kelley-Chung’s arrest was made without a warrant or legal justification.

116. Mr. Kelley-Chung’s arrest was made without probable cause.

117. The fact that Mr. Kelley-Chung was recording protest activity and/or police

action did not constitute probable cause needed to make a warrantless arrest, nor did it provide

legal justification for the arrest.

118. The Officers intended to confine Mr. Kelley-Chung and deprive him of his liberty

when they arrested and placed him in police custody without probable cause under any objective

standard.

119. These actions were flagrant, malicious, willful, wanton and reckless, and dis-

played a high degree of moral culpability.

120. The Officers’ conduct was committed within the scope of their employment by

the District of Columbia, and their actions were approved, consented to, and ratified by superior

officers of the MPD acting within the scope of their employment.


27

121. As a direct and proximate result of the foregoing, Mr. Kelley-Chung suffered

damages, including:





COUNT VI Conversion

(ALL DEFENDANTS)



123. The Defendant Officers Bagshaw, McCloskey and Brown, and the MPD John

Doe Officers who arrested Mr. Kelley-Chung, seized personal property consisting of a Nikon

D7100 camera body with an SD card and an 18-140mm lens, a Fuji XT3 camera body with an

SD card and 18-55mm lens, and a black Samsung Galaxy S10e smartphone, all of which were in

Mr. Kelley-Chung’s rightful possession.

124. The Officers’ August 13, 2020 seizure of Mr. Kelley-Chung’s photography

equipment, storage media, and the images and recordings they contained constituted unlawful

exercise of control and dominion over same, thereby depriving Mr. Kelley-Chung of his rights to

his property.

125. The MPD John Doe Officials wrongfully retained Mr. Kelley-Chung’s photo-

graphy equipment, storage media, and the images and recordings they contained upon his release

from custody on August 14, 2020, and thereafter refused to surrender the equipment to him for

ten weeks, until October 23, 2020, thus depriving Mr. Kelley-Chung of his rights to his property.


28

126. The MPD’s seizure of Mr. Kelley-Chung’s property and subsequent retention of

it for a period of ten weeks was a substantial deprivation of chattel of which Defendants were in

wrongful possession throughout that period.

127. As a direct and proximate result of the foregoing, Mr. Kelley-Chung suffered

damages, including:

a. Loss of earnings and earning capacity; and

b. Costs incurred to replace the equipment, and to protect against further incursion by MPD personnel, to allow continued functioning in his occupation as a photojournalist.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Kian Kelley-Chung requests relief as follows:

(a) A declaratory judgment that Mr. Kelley-Chung’s arrest for recording public

protest and police activity in a public location, and seizure of his equipment,

violated his clearly established constitutional rights under the First, Fourth, and

Fourteenth Amendments to the United States Constitution;

(b) A declaratory judgment that the confiscation and ensuing ten-week retention of

Mr. Kelley-Chung’s photography equipment, storage media, and images and

recordings they contained, violated his clearly established constitutional rights

under the First, Fourth, and Fourteenth Amendments to the United States

Constitution and the Privacy Protection Act, 42 U.S.C. § 2000aa;

(c) An award of compensatory damages against defendants jointly and severally, in

an amount to be determined by a jury at trial, for damages Mr. Kelley-Chung

suffered in the form of deprivation of his First Amendment rights; diminished

personal and professional reputation; lost earnings and earning capacity;


29

psychological and emotional injury; and degradation, humiliation, mental

anguish, suffering and embarrassment;

(d) Pursuant to 42 U.S.C. § 2000aa-(6)(a) and (f), an award against the defendants

jointly and severally of actual damages, in an amount to be determined by a jury

at trial, as suffered by Mr. Kelley-Chung as result of the unlawful seizure of his

photography equipment, storage media, and images and recordings they

contained;

(e) Punitive damages in an amount to be determined by a jury at trial;

(f) Injunctive relief (i) barring the District of Columbia from arresting, detaining,

obstructing or otherwise interfering with journalists and members of the public

who are engaged in recording protest and police activity in public places; and

(ii) directing the District of Columbia to develop and implement, with the Court’s

oversight, appropriate training and procedures to test its effectiveness on the

ground and for appropriately disciplining those who breach their training;

(g) Injunctive relief (i) barring the District of Columbia from improperly and

unconstitutionally seizing, retaining and/or searching property that comprises

implements or outputs of First Amendment activity; and (ii) directing the District

of Columbia to develop and implement, with the Court’s oversight, an effective,

comprehensive policy to protect the First and Fourth Amendment rights of

the press when property is seized from them in connection with arrests and/or

detention;

(h) Pursuant to 42 U.S.C. §§ 1988 and 2000aa-6(f), an award of the costs and

expenses of prosecuting this action, including reasonable attorney’s fees; and


30

(i) Such other relief that this Court may deem just, proper, and appropriate.

DATED: January 13, 2021.

By: /s/ Robert Corn-Revere Robert Corn-Revere (DC Bar #375415) [email protected] Ronald G. London (DC Bar #456284) [email protected] DAVIS WRIGHT TREMAINE LLP 1301 K Street, N.W., Suite 500 East Washington, D.C. 20005 Telephone: (202) 973-4200

Counsel for Plaintiff

JURY TRIAL DEMAND

Plaintiff hereby requests a trial by jury on all paragraphs and counts.

/s/ Robert Corn-Revere ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___


EXHIBIT 1

Case 1:21-cv-00116 Document 1-2 Filed 01/13/21 Page 1 of 2

EXHIBIT 2


1

Mickey Osterreicher

From: [email protected]

Sent: Friday, September 4, 2020 3:35 PM

To: 'Parsons, Leslie (MPD)'; 'Ennis, Ralph (MPD)'; 'Copeland, Nicole G. (MPD)'; 'Godin, Daniel

(MPD)'

Cc: 'Kian Kelley-Chung'

Subject: URGENT: Camera Equipment

It has now been twenty (20) days that your department has deprived Mr. Kelley-Chung of his property and

severely hampered his ability to cover matters of grave public concern by refusing to return his camera

equipment and cellphone. It has also been almost two weeks since I requested that you do so.

I expect the courtesy of a response to this email with an explanation regarding this matter and the immediate

return of the equipment.

Thank you.

Very truly yours,

Mickey H. Osterreicher, Esq.

General Counsel

National Press Photographers Association (NPPA)

716.340.2200 ext.224 (TEL)

716.983.7800 (CEL)

716.608.1509 (FAX)

email: [email protected]

Twitter: @nppalawyer

NOTICE: This message (including any attachments) from Mickey H. Osterreicher, Esq. may constitute an

attorney-client communication and may contain information that is PRIVILEGED and CONFIDENTIAL

and/or ATTORNEY WORK PRODUCT. If you are not an intended recipient, you are hereby notified that any

dissemination and/or disclosure, copying, distribution, or the taking of any action in reliance on the contents of

this information and/or this message is strictly prohibited. If you have received this message in error, please do

not read, copy or forward this message. Please permanently delete all copies and any attachments and notify thesender immediately by e-mail and delete the original message. Thank you for your cooperation.

From:Sent:To:

Subject:

Search warrants?


2

If indeed the MPD plans to pursue a search of the work product belonging to a journalist, that in the application

someone advises the magistrate that the material being sought is such and protected by the Privacy Protection

Act of 1980 (42 U.S.C. § 2000aa et seq.) and thus avoid what happened in San Francisco. See:

https://www.rcfp.org/bryan-carmody-raid-analysis/.

I truly had hoped that this was a simple oversight and that his equipment would be promptly located and

returned but if there is more to that we request to be immediately informed on what grounds it was seized in the

first place (since Mr. Kelley-Chung was detained but never charged) and why the MPD believe they have a

right to retain the equipment and seek to search it.

Thank you.

Stay safe and be well.

Very truly yours,


General Counsel


716.340.2200 ext.224 (TEL)

716.983.7800 (CEL)

716.608.1509 (FAX)








not read, copy or forward this message. Please permanently delete all copies and any attachments and notify the

sender immediately by e-mail and delete the original message. Thank you for your cooperation.

From:Sent:To:

Subject:

From:Sent:


3

To:

Subject:

CAUTION:

Good morning.

Just following up to see if there is any progress on this matter and the status of the property?

Thank you.


Very truly yours,


General Counsel


716.340.2200 ext.224 (TEL)

716.983.7800 (CEL)

716.608.1509 (FAX)










From:Sent:To:

Subject:


4

From:Sent:To:

Subject:

We are here to help.

From:Sent:To:Cc:Subject:

CAUTION:

Thank you Mr. Osterreicher,

I appreciate the introduction and your assistance in the return of my property.

Commander Ennis, thank you for your time and patience.

I just want to make a quick correction. The phone model is: Samsung Galaxy S10e (Black)

Thank you,

Kian Kelley-Chung

“Uncle Iso"

Founder & Leader of RXNIN LIFE

[email protected]

www.rxnin.life/uncleiso

On Aug 21, 2020, at 1:34 PM, <[email protected]> <[email protected]> wrote:


5

Commander Ennis,

Good speaking with you. As we discussed I am seeking the return of equipment seized by MPD

on 8/13//20 belonging to one of our members, Kian Kelley-Chung (copied here) who was taken

into custody and later released (see attached paperwork) with no charge. His DOB is

05/14/1997.

The equipment is as follows:

Nikon D7100 body with SD card and 18-140mm lens

Fuji XT3 body with DS card and 18-55mm lens

Samsung Galaxy X10E (black)

Please let me know if you need anything further. Thank you again for your assistance in

resolving this matter.


Please help support my fight against

cancer http://give.roswellpark.org/site/TR/SpecialEvents/General?px=1001764&pg=personal&fr

_id=1560

Very truly yours,


General Counsel

National Press Photographers Association (NPPA) <image001.jpg>

716.340.2200 ext.224 (TEL)

716.983.7800 (CEL)

716.608.1509 (FAX)



NOTICE: This message (including any attachments) from Mickey H. Osterreicher, Esq. may

constitute an attorney-client communication and may contain information that is PRIVILEGED

and CONFIDENTIAL and/or ATTORNEY WORK PRODUCT. If you are not an intended

recipient, you are hereby notified that any dissemination and/or disclosure, copying, distribution,

or the taking of any action in reliance on the contents of this information and/or this message is

strictly prohibited. If you have received this message in error, please do not read, copy or

forward this message. Please permanently delete all copies and any attachments and notify the


<Kelly-Chung Release 08-14-20.pdf>


1

Mickey Osterreicher

From: [email protected]

Sent: Thursday, August 20, 2020 12:37 PM

To: [email protected]

Subject: Please call

Hope you and your family are OK in these challenging times.

Not sure if you remember me but I would greatly appreciate it if you would call my cell (below) at your earliest

convenience regarding a matter involving a journalist and the MPD.

Thank you.


Please help support my fight against cancer

http://give.roswellpark.org/site/TR/SpecialEvents/General?px=1001764&pg=personal&fr_id=1560

Very truly yours,


General Counsel


716.340.2200 ext.224 (TEL)

716.983.7800 (CEL)

716.608.1509 (FAX)





and/or ATTORNEY WORK PRODUCT. If you are not an intended recipient, you are hereby notified that anydissemination and/or disclosure, copying, distribution, or the taking of any action in reliance on the contents of





EXHIBIT 3


EXHIBIT 4


1301 K Street, NW Suite 500 East Washington, DC 20005

Robert Corn-Revere 202.973.4225 tel 202.973.4499 fax [email protected]

October 16, 2020

VIA ELECTRONIC & REGULAR MAIL Paul V. Courtney Assistant U.S. Attorney United States Department of Justice Judiciary Center 555 Fourth Street, N.W. Washington, D.C. 20530 [email protected]

Re: Kian Kelley-Chung

Dear Mr. Courtney:

On behalf of Mr. Kian Kelley-Chung, I am responding to your letter of October 6, 2020, in which you requested that he “voluntarily turn over the data” in cameras that were seized from him by the District of Columbia Metropolitan Police Department (“MPD”) on August 13, 2020. For purposes of this request, you identify the camera equipment as “a Nikon D7100 camera and a Fujifilm X-T3 camera.” However, in the interest of accuracy and completeness, the seized items include: one (1) Nikon D7100 body with SD card and 18-140mm lens; one (1) Fuji XT3 body with SD card and 18-55mm lens; and one (1) Samsung Galaxy S10e smartphone (black).

Mr. Kelley-Chung does not consent to any search or review of the information or images on his cameras or phone and will oppose a subpoena or other legal process seeking to obtain government access to these devices. He is an independent photojournalist and documentarian who was illegally arrested on August 13 as he was photographing a public protest in the Adams Morgan neighborhood of Washington, D.C. Mr. Kelley-Chung’s cameras and phone were seized at that time in violation of rights guaranteed by the First, Fourth, and Fourteenth Amendments to the U.S. Constitution as well as the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa (“PPA”). His repeated requests for return of his cameras and phone have been ignored, and his equipment has now been held illegally for more than two months. Accordingly, Mr. Kelley-Chung does not just decline your request, but demands the return of his cameras and smartphone without further delay.

The wording of your letter suggests you may not be entirely familiar with the events that led to government custody of Mr. Kelley-Chung’s equipment. As you put it, “MPD is currently in possession of two digital cameras that were recovered from your person.” Just to be clear: The cameras were not “recovered;” they were seized during an illegal arrest.


Background

Mr. Kelley-Chung is an independent journalist and documentarian who has been actively covering public protests of the killing of George Floyd and police brutality throughout the summer of 2020. He is a member of the National Press Photographers Association (“NPPA”), and his work has appeared in such publications as the Washington Post. He was in the process of gathering information for a documentary on the night of August 13 when police surrounded people near 18th and Willard Streets in Adams Morgan and began making indiscriminate arrests. Mr. Kelley-Chung was detained and arrested even though he clearly identified himself to the arresting officers as a journalist.

The Metropolitan Police Department seized Mr. Kelley-Chung’s equipment, and he was held for over eighteen hours before being released later on August 14. At that time, he was provided with a “No Paper/No Charges” slip indicating he had been arrested for felony rioting but that no charges were being pursued. See Exhibit 1. As is evident from video taken of the events at the time, Mr. Kelley-Chung’s arrest was utterly baseless and without probable cause. Unfortunately, he was not the only one who was swept up in what appear to be dragnet arrests undertaken to quell legitimate protest activity. See, e.g., John Henry, MPD releases dozens from custody after Thursday protests, WUSA9.COM, Aug. 14, 2020 (https://www.wusa9.com/ar-ticle/news/local/protests/mpd-releases-dozens-from-custody-after-protests-in-adams-morgan/65-cecf9764-e239-403f-930d-80def1156856).1

After he was released without charge, Mr. Kelley-Chung made repeated inquiries to the MPD in an effort to locate and recover his seized equipment. Upon his release, MPD refused even to provide Mr. Kelley-Chung an inventory of items seized. In the more than eight weeks since the seizure, MPD has neither provided a substantive response nor returned Mr. Kelley-Chung’s cameras and phone. Once again, in the event the MPD failed to inform you about this background, here is a chronology of efforts undertaken to recover the equipment:

• On August 20, Mickey H. Osterreicher, NPPA’s general counsel, contacted MPD Training Academy Commander Ralph Ennis on Mr. Kelley-Chung’s behalf to initiate a dialog about the equipment’s return. Mr. Osterreicher became involved because Mr. Kelley-Chung is an NPPA member, and because Mr. Osterreicher had previously pro-vided First Amendment training to MPD officers and supervisory staff. See Exhibit 2.

• On August 21, Mr. Osterreicher had a telephone conversation with Commander Ennis in which he requested the equipment’s return, and followed up with an email identifying the seized equipment as including: one (1) Nikon D7100 body with SD card and 18-

1 Unfortunately, the tactic of mass arrests without probable cause to suppress protest activity and the misuse of “felony rioting” charges is not unprecedented. E.g., Keith L. Alexander, Prosecutors no longer pursuing 188 inauguration protest cases, WASH. POST, Mar. 24, 2019 (https://www.washingtonpost.com/local/public-safety/prosecutors-no-longer-pursuing-188-inauguration-protest-cases/2019/03/24/cf990576-4ca7-11e9-93d0-64dbcf38ba41_story.html).


140mm lens; one (1) Fuji XT3 body with SD card and 18-55mm lens; and one (1) Sam-sung Galaxy S10E (black). See Exhibit 3.2

• Commander Ennis responded by email on August 24 to say he was working to resolve the inquiry and report that he had copied the Commander of CID (Leslie Parsons) re-garding the request. See Exhibit 4. The same day, Parsons emailed Osterreicher, copy-ing Ennis as well as Sergeant Nicole Copeland, stating, “I have included Sergeant Nicole Copeland on this email. She will provide an update on the status of the property as soon as we can.” Also copied on that email was Daniel Godin of MPD. See Exhibit 5.

• When Sergeant Copeland failed to provide an update, Mr. Osterreicher checked back on August 27 to see if there had been any progress. See Exhibit 6. Commander Parsons responded to this email to say there was no new information, but added that search warrants “have been submitted to the USAO and are under review.” See Exhibit 7.

• Mr. Osterreicher responded that same day to express astonishment that search warrants were being sought. Specifically, he told MPD: “If indeed the MPD plans to pursue a search of the work product belonging to a journalist, … in the application someone [must] advise[] the magistrate that the material being sought is such and [is] protected by the Privacy Protection Act of 1980 (42 U.S.C. § 2000aa et seq.) and thus avoid what happened in San Francisco. See https://www.rcfp.org/bryan-carmody-raid-analysis/.” He asked MPD to explain the basis for its assumption that it could seize and retain a journalist’s equipment or to seek a search warrant. See Exhibit 8.

• MPD did not respond. Accordingly, on September 4, 2020, Mr. Osterreicher followed up by email: “It has now been twenty (20) days that your department has deprived Mr. Kelley-Chung of his property and severely hampered his ability to cover matters of grave public concern by refusing to return his camera equipment and cellphone. It has also been almost two weeks since I requested that you do so. I expect the courtesy of a response to this email with an explanation regarding this matter and the immediate return of the equipment.” See Exhibit 9.

There have been no further communications from MPD or anyone else until your October 6 letter, which you sent directly to Mr. Kelly-Chung with no copy to his counsel. Again, I understand there is a possibility that MPD neglected to inform you about Mr. Osterreicher’s efforts to secure the return of Mr. Kelley-Chung’s equipment. To avoid any further confusion on this point, you are not to contact Mr. Kelley-Chung directly. Any future communications with Mr. Kelley-Chung should be sent to me.

2 In a follow-up email to Commander Ennis, Mr. Kelley-Chung corrected the request to note that smartphone model that was seized was a Samsung Galaxy S10e (Black). See Exhibit 4.


Legal Issues

Mr. Kelley-Chung’s arrest and detention, as well as the seizure of his equipment, were in clear violation of his rights under the First, Fourth and Fourteenth Amendments to the United States Constitution as well as the PPA. Any further governmental efforts to review or retain data contained on his devices would be in further violation of his rights.

His arrest and the seizure of his equipment is part of a disturbing trend of police misconduct in reaction to efforts to cover protests sparked by the killing of George Floyd by Minneapolis police. The United States District Court for the District of Oregon enjoined actions by federal officials to interfere with reporters and photographers who document such events, observing that “without journalists and legal observers, there is only the government’s side of the story to explain why a ‘riot’ was declared and the public streets were ‘closed’ and whether law enforcement acted properly in effecting that order.” Index Newspapers LLC v. City of Portland, 2020 WL 4883017, at *19 (D. Or. 2020), emergency stay denied sub nom. Index Newspapers LLC v. U.S. Marshals Serv., 2020 WL 5988501 (9th Cir. Oct. 9, 2020). The court recognized that “[o]pen government has been a hallmark of our democracy since our nation’s founding,” and “[w]hen wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.” Id. at *1 (quoting Leigh v. Salazar, 677 F.3d 892, 897 (9th Cir. 2012)).

The arrest of Mr. Kelley-Chung echoes the issues raised in other cases where courts have affirmed the First Amendment right to observe and record police conduct. In Glik v. Cuniffe, 655 F.3d 78 (1st Cir. 2011), police arrested a person who had photographed officers as they were arresting a suspect on the Boston Common. The plaintiff, Simon Glik, began videotaping the police from a distance of about ten feet when he became concerned the officers were using excessive force. When Glik declined to cease taking pictures at the request of the police, he was handcuffed, arrested, and ultimately charged with eavesdropping, disturbing the peace, and aiding in the escape of a prisoner. The police also confiscated his cell phone and computer flash drive. The state court dismissed the charges, noting “the fact that the ‘officers were unhappy they were being recorded during an arrest … does not make a lawful exercise of a First Amendment right a crime.’” Id. at 80.

In the ensuing federal civil rights claim, the First Circuit rejected the Boston Police Depart-ment’s qualified immunity defense, finding the First Amendment’s protections in this area to be “fundamental and virtually self-evident.” Id. at 85. After thoroughly canvassing the law, the court explained that “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.” Id. The Seventh Circuit endorsed this holding, and called any contrary argument denying the existence of such a right “extraordinary” and “extreme.” ACLU v. Alvarez, 679 F.3d 583, 594 (7th Cir. 2012). It traced the First Circuit’s conclusion that the right was clearly established to Supreme Court precedent dating back over four decades holding that “[g]athering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion


of governmental affairs.’” Id. at 601 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Numerous decisions have affirmed this right.3

Your agency has likewise acknowledged the First Amendment right to record police activity. In a Statement of Interest filed in Sharp v. Baltimore City Police Dep’t, Civil No. 1:11-cv-02888-BEL (D. Md. Jan. 10, 2012), the Civil Rights Division affirmed unequivocally that “[t]he right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution,” they “are consistent with our fundamental notions of liberty, promote the accountability of our government officers, and instill public confidence in the police officers who serve us daily.” Statement of Interest of the United States, Sharp v. Baltimore City Police Dep’t, http://www.justice.gov/crt/about/spl/documents/Sharp_SOI_1-10-12.pdf, at 1; see also Statement of Interest of the United States, Garcia v. Montgomery Cty., https://www.jus-tice.gov/sites/default/files/crt/legacy/2013/03/20/garcia_SOI_3-14-13.pdf.

Based on DOJ’s understanding of controlling law, your office is on notice that Mr. Kelley-Chung’s arrest, detention, and equipment seizure are in violation of his constitutional rights. The arrest and seizure of his equipment also violated the PPA. Under the Act, it is illegal for a govern-ment officer or employee, in connection with the investigation or prosecution of a criminal offense, to search or seize any work product or documentary materials “possessed by any person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other

3 See, e.g., Fields v. City of Phila., 862 F.3d 353, 358 (3d Cir. 2017) (“The First Amend-ment protects actual photos, videos, and recordings ... and for this ... to have meaning [it] must protect the act of creating that material.”); Turner v. Lt. Driver, 848 F.3d 678, 688-89 (5th Cir. 2017) (“[T]he Supreme Court has long recognized that the First Amendment protects film. A corollary to this is ... that the First Amendment protects the act of making film ....”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing a “First Amendment right to film matters of public interest”); Williamson v. Mills, 65 F.3d 155 (11th Cir. 1995) (denying qualified immunity to officer who arrested festival participant for photographing officers); Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa. 2005) (holding arrest of individual filming police from private property violated First and Fourth Amendments and awarding punitive damages); Demarest v. Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82, 94 (D. Mass. 2002) (recognizing a “constitutionally protected right to record matters of public interest”); Connell v. Town of Hudson, 733 F. Supp. 465, 471-72 (D.N.H. 1990) (denying qualified immunity to police chief who prevented photographer from photographing car accident); Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 638 (D. Minn. 1972) (noting “employees of the news media have a right to be in public places and on public property to gather information, photo-graphically or otherwise”). Cf. Swart v. City of Chi., 440 F. Supp. 3d 926, 940 (N.D. Ill. 2020) (citing “taking selfies” as expressive activity that unconstitutional regulation of a public forum restricted).


similar form of public communication.” The law authorizes civil actions for damages against government officials who violate the Act. 42 U.S.C. § 2000aa-6(a), (f).

Conclusion

Mr. Kelley-Chung’s cameras and smart phone were illegally seized and have been in government custody for over two months without justification or explanation. The seizure resulted from an illegal arrest, a matter we will take up separately with the MPD. Numerous requests for the equipment’s return have been ignored, and retention of the cameras and smart phone constitute an ongoing violation of the Constitution. As stated above, Mr. Kelley-Chung does not consent to turn over to the government any data on his devices. Instead, he demands the following:

1. Please arrange for the immediate return of all equipment seized on August 13, 2020. This includes not just the cameras identified in your October 6 letter, but all the equipment, including: one (1) Nikon D7100 body with SD card and 18-140mm lens; one (1) Fuji XT3 body with SD card and 18-55mm lens; and one (1) Samsung Galaxy S10e smartphone (black).

2. Please identify the chain of custody of Mr. Kelley-Chung’s equipment from the time it was seized on August 13, identifying all MPD and/or DOJ personnel involved, and explaining how this matter came to your attention.

3. Please certify, as an officer of the court, that there has been no search of Mr. Kelley-Chung’s equipment, and that no images or other data have been accessed, reviewed or copied by any MPD or DOJ personnel.

As noted above, please respond directly to me rather than to Mr. Kelley-Chung. I would appreciate a response by October 23.

Sincerely,

Robert Corn-Revere


EXHIBITS OMITTED AS DUPLICATIVE


EXHIBIT 5


U.S. Department of Justice

Michael R. Sherwin Acting United States Attorney

District of Columbia

Judiciary Center 555 Fourth St., N.W. Washington, D.C. 20530

October 22, 2020

Via First-Class Mail and E-Mail Robert Corn-Revere, Esq. Davis Wright Tremaine LLP 1301 K Street, N.W. Suite 500 East Washington, D.C. 20005 [email protected]

Re: Kian Kelley-Chung – Request for Preservation of Records

Dear Mr. Corn-Revere:

Thank you for your letter of October 16, 2020. As you know, my Office and the Metropolitan Police Department (MPD) have been conducting an investigation into events that occurred in and around the Adams Morgan neighborhood on August 13-14, 2020. Certain property was recovered from your client, Kian Kelley-Chung, incident to his arrest on August 14, 2020, including a Nikon D7100 camera and a Fujifilm X-T3 camera. We believe these devices (and/or any removable media contained therein) may contain information relevant to our investigation.

As reflected by the attached letter, my Office has indicated to MPD that we have no objection to its disposition of Mr. Kelley-Chung’s property in accordance with the District of Columbia Code. Mr. Kelley-Chung should be able to pick up his property from the Evidence Control Branch, located at 17 DC Village Lane, S.W., Washington, D.C.

By this letter, we are formally requesting the preservation, pending potential legal process and until further written notice, of all photographs, videos, audio recordings, and other evidence, created or captured on August 13-14, 2020, and currently stored on the above-referenced Nikon D7100 camera, Fujfilm X-T3 camera, and any removable media contained therein.


2

Robert Corn-Revere, Esq., p.2 October 22, 2020

This request applies only retrospectively. It does not in any way obligate Mr. Kelley-Chung to capture and preserve new materials after the date of this request. Furthermore, this request does not obligate Mr. Kelley-Chung to produce any materials to the government at this time.

If you have questions regarding this request, please let me know.

Sincerely,

MICHAEL R. SHERWIN Acting United States Attorney

By: _______________________________Paul V. Courtney Assistant United States Attorney (202) [email protected]

Encl.


U.S. Department of Justice

Michael R. Sherwin Acting United States Attorney


Judiciary Center 555 Fourth St., N.W. Washington, D.C. 20530

October 22, 2020

Property Clerk Metropolitan Police Department 17 DC Village Lane, S.W. Washington, D.C. 20032

Re: United States v. KIAN KELLEY-CHUNG, CCN 20115956

Description of Property PCN 10967664

- Black Cell PhonePCN 10967665

- Nikon D7100 Camera- Fujifilm X-T3 Camera- Goggles

Dear Sir/Madam:

I am writing to inform you that, on August 14, 2020, my Office declined to paper the above-captioned arrest. Through counsel, Mr. Kelley-Chung has requested the return of his property. As reflected in the attached Property Release form, my Office has no objection to your disposition of the above-listed property in accordance with the District of Columbia Code.

Sincerely,

Paul V. Courtney Assistant United States Attorney (202) [email protected]

Encl.

Cc: Robert Corn-Revere, Esq., Counsel for Kian Kelley-Chung (without attachment)


EXHIBIT 6


AO 440 (Rev. 06/12; DC 3/15) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

)))))))))))

)

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

ANGELA D. CAESAR, CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk


Kian Kelley-Chung

Robert J. Contee, Acting Chief of Police; DCMetropolitan Police; Lieutenant Jason Bagshaw;

Officer S. McCloskey; Officer D.L. Brown; Officersand Officials John Does 1-10

Robert J. Contee III, Acting Chief of PoliceDistrict of Columbia Metropolitan Police Department300 Indiana Avenue, NWWashington, DC 20001

Robert Corn-RevereDavis Wright Tremaine, LLP1301 K Street, NWSuite 500 EastWashington, DC 20005


AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

’ I personally served the summons on the individual at (place)

on (date) ; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

’ I returned the summons unexecuted because ; or

’ Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

0.00




__________ District of __________

)))))))))))

)

Plaintiff(s)

v. Civil Action No.

Defendant(s)









Kian Kelley-Chung



Lieutenant Jason BagshawDistrict of Columbia Metropolitan Police Department300 Indiana Avenue, NWWashington, DC 20001

