The United States District Court For the District of Columbia Daniel Christmann 22-cv-2189 (BAH) SUR REPLY DISTRICT OF COLUMBIA 400 6th Street, NW Washington, D.C. 20001 Direct: (202) 727-2125 and United States Capitol Police 119 D Street, NE Washington, DC 20510 (202) 224-1677 -ZOV. X— Defendants. 1. Plaintiff, Daniel J. Christmann, Prose- 315 $ 4%4P'2, Brooklyn, NY 11211 2. Respectfillly set forth as undeniable facts of what happened on January 6, 2021.L Concessions Not Made 3. On the January 12,2022 select committee hearing in which Mayor Bowser testified, the Mayor claimed that the event was already declared a riot. Then, upon attempting to get a hold of the Chief Sund of the Capitol Police at around 2:26 p.m. the Mayor claimed that Chief Sund was busy with members of Congress. At this point approximately 2:26 p.m. Mayor Bowser testified it was at this point the Mayor realized that the Capitol Building was now the Mayor's responsibility. “And it became clear to me it was now our—the building was our responsibility.” At this point Mayor Bowser took on a leadership role of the Capitol especially interfacing with the public. This quote is found on page 11 line 25 and 12 line 1 From the transcript of: Mayor Bowser testifying before the Select Committee to Investigate January 6th Any claim made by the plaintiff was based on the Mayor’s Curfew order, the actions of Capitol Police and Metropolitan Police that did not follow First Amendment Activity Protocol and especially First Amendment Activity after a riot is declared.Metro LTE @ (vA) }, EMERGENCY ALERTS | Emergency Alert Mayor Bowser issues a city-wide curfew for DC for Wednesday, January 6, starting at 6 p.m. until Thursday, January 7 at 6 a.m. Essential workers, including healthcare personnel and media, are exempt. 4, Dismissal motions are based on claiming that the Capitol Building was not the Mayor’s Jurisdiction meanwhile the mayor testified that the Capitol at the time in question “the building” was their responsibility. Equally concerning is that the Capitol Police have not made any arguments or refuted the claim that dispersal orders were not issued. The mayor wrote and signed the letter below. This letter clearly illustrates the responsibilities and power of the Mayor and District, cementing the Districts command of all Law Enforcement including Federal,Che MURIEL BOWSER MAYOR January 5, 2021 The Honorable Jeffery Rosen The Honorable Ryan D. McCarthy Acting United States Attorney General Secretary of the Anny 930 Pennsylvania Ave, NW 101 Army Pentagon Washington, DC 20530 Washington, DC 20310 ‘The Honorable Chris Miller Acting Secretary of Defense 1000 Defense Pentagon Washington, DC 20301 Dear Acting Attomey G ral Rosen, Secretary McCarthy, and Acting Secretary Miller: ‘As the law enforcement agency charged with protecting residents and visitors throughout the District of Columbia, the Metropolitan Police Department (MPD) is prepared for this week's First Amendment activities. MPD has coordinated with its federal partners. namely the US Park Police, US Capitol Police and the US Secret Service—all of whom regularly have uniformed personnel protecting federal assets in the District of Columbia. This week, MPD has additional logistical support of unarmed members of the DC National Guard. who will work under the direction of, and in coordination with, MPD. ‘The District of Columbia Government has not requested personnel from any other federal law enforcement agencies. To avoid confusion, we ask that any request for additional assistance be coordinated using the same process and procedures, We are mindful that in 2020, MPD was expected to perform the demanding tasks of policing large crowds while working around unidentifiable personnel deployed in the District of Columbia without proper coordination. Unidentifiable personnel—in many eases, armed—eaused confusion among residents and visitors and could become a national security threat with no way for MPD and federal law enforcement to decipher armed groups, To be clear, the District of Columbia is not requesting other federal law enforcement personnel and discourages any additional deployment without immediate notification to, and consultation with, MPD if such plans are underway. The protection of persons and property is our utmost concem and responsibility MPD is well trained and prepared to lead the law enforcement, coordination and response to allow for the peaceful demonstration of First Amendment rights in the District of Columbia. Sigcere| rie Boy MayorThe municipality knew or should have known of a risk of constitutional violations, but showed deliberate indifference to that risk by failing to act." Hurd v. District of Columbia, 997 F.3d 332, 337 (D.C. Cir. 2021) A showing under this theory suffices to sustain a claim of Monell liability against a municipality 6. Similar Cases: I. Goodwin vs the District of Columbia: Arrested without being given a safe way to disperse. According to D.C. Jaw and ACLU Guidelines IL. Becker v the District of Columbia: Protesters involved in Political Protesters were illegally kettled. They were never notified what they were doing was illegal. They were never provided a safe way to disperse. Constitutional Rights were violated. IIL Horse vs the District of Columbia: Police response to some protesters vandalizing was to arrest all protesters and photojournalists. Violating their Constitutional Right to protest freely until dispersal orders were provided. 7. The law on January 6 2021 ACLU Rights- Protesting (htips://www.aclu.org/know-your-rights/protesters-rightsHi-was-stopped- by-the-police-while-protesting) 10 Shutting down a protest through a dispersal order must be law enforcement’s last resort. Police may not break up a gathering unless there is a clear and present danger of riot, disorder, interference with traffic, or other immediate threat to public safety If officers issue a dispersal order, they must provide a reasonable opportunity to comply, including sufficient time and a clear, unobstructed exit path. | Individuals must receive clear and detailed notice of a dispersal order, including how much time they have to disperse, the consequences of failing to disperse, and what clear exit route they can follow, before they may be arrested or charged with any crime.8. Code of the District of Columbia § 5-331.07. Police handling and response to First Amendment assemblies. (a) The MPD’s handling of, and response to, all First Amendment assemblies shall be designed and implemented to carry out the District policy on First Amendment assemblies established in § 5-31.03. (b)(1) Where participants in a First Amendment assembly fail to comply with reasonable time, place, and manner restrictions, the MPD shall, to the extent reasonably possible, first seek to enforce the restrictions through voluntary ‘compliance and then seek, as appropriate, to enforce the restrictions by issuing citations to, or by arresting, the specific non-compliant persons, where probable cause to issue a citation or to arrest is present. (2) Nothing in this subsection is intended to restrict the authority of the MPD to arrest persons who engage in unlawful disorderly conduct, or violence directed at persons or property. (c) Where participants in a First Amendment assembly, or other persons at the location of the assembly, engage in unlawful disorderly conduct, violence toward persons or property, or unlawfully threaten violence, the MPD shall, to the extent reasonably possible, respond by dispersing, controlling, or arresting the persons ‘engaging in such conduct, and not by issuing a general order to disperse, thus allowing the First Amendment assembly to continue. (@) The MPD shall not issue a general order to disperse to participants in a First Amendment assembly except where: (1) A significant number or percentage of the assembly participants fail to adhere to the imposed time, place, and manner restrictions, and either the compliance measures set forth in subsection (b) of this section have failed to result in substantial compliance or there is no reasonable likelihood that the measures set forth in subsection (b) of this section will result in substantial compliance; (2) A significant number or percentage of the assembly participants are engaging in, or are about to engage in, unlawful disorderly conduct or violence toward persons or property; or (3) A public safety emergency has been declared by the Mayor that is not based solely on the fact that the First Amendment assembly is occurring, and the Chief of Police determines that the public safety concerns that prompted the declaration require that the First Amendment assembly be dispersed. (o)(1) If and when the MPD determines that a First Amendment assembly, or part thereof, should be dispersed, the MPD shall issue at least one clearly audible and understandable order to disperse using an amplification system or device, and shall provide the participants a reasonable and adequate time to disperse and a clear and safe route for dispersal.9. (2) Except where there is imminent danger of personal injury or significant damage to property, the MPD shalll issue multiple dispersal orders and, if appropriate, shall issue the orders from multiple locations. The orders shall inform persons of the route or routes by which they may disperse and shall state that refusal to disperse will subject them to arrest, (3) Whenever possible, MPD shall make an audio or video recording of orders to disperse, (£)(1) Where a First Amendment assembly is held on a District street, sidewalk, or other public way, or in a District park, and an assembly plan has not been approved, the MPD shall, consistent with the interests of public safety, seek to respond to and handle the assembly in substantially the same manner as it responds to and handles assemblies with approved plans. (2) An order to disperse or arrest assembly participants shall not be based solely on the fact that a plan has not been approved for the assembly. (3) When responding to and handling a First Amendment assembly for which a plan has not been approved, the MPD may take into account any actual diminution, caused by the lack of advance notice, in its ability, or the ability of other governmental agencies, appropriately to organize and allocate their personnel and resources so as to protect the rights of both persons exercising free speech and other persons wishing to use the streets, sidewalks, other public ways, and parks. ‘The municipality knew or should have known of a risk of constitutional violations, but showed deliberate indifference to that risk by failing to act.” Hurd v, District of ColumbiaArgument 17, 10. “Christmann has not shown that the District's custom, practice or poliey was the moving force behind his arrest.” L1. Above is the law and policy of the district. 12. The event was already declared a riot. In this case itis the District's law, practice, and policy, to issue dispersal orders. Instead, Bowser with the understanding that the capitol building was their responsibility and against protocol ONLY issued a curfew order. 13. The phones were then turned off immediately after the curfew order was sent via mass text alert, the police were not issuing dispersal orders. Christman reported on curfews and understood the stand-off scenario that was awaiting. Christmann then began to urgently look for his friend. Had there been cell service Christmann would have texted or called his friend and walked back to the car and told them to do the same. Had there been a dispersal order given by the mayor who had the capacity to do so, Ora clear dispersal order given by the Capitol Police that watched Christmann enter the building. Christmann would have never entered the building or the terrace. 14, Had there been a clear and safe route for dispersal provided Christmann would have known where to find his friend. By simply following the dispersal direction and ‘would have never even looked in the building. 15, Washington D.C. had these laws in place for over a decade Mayor Bowser was very familiar with these laws, Familiarity through enforcing the policy or through the city losing law suits by not following these policies set in place. The Mayor who took responsibility for the Capitol Building failed to issue a dispersal order. There has been no dispute to this matter. 16. If this was caused by a lack of training, complete incompetence, or a total mishap under pressure. The Mayor’s actions- disregarded First Amendment Activity Protocol and this had a direct cause and effect on Christmann’s actions. Effectively Christman was in compliance with the only orders provided by leaving two plus hours before curfew. FAAA's §§ 5-331.07(e)(1), which provides in full that. (1) Ifand when the MPD determines that a First Amendment assembly, or part thereof, should be dispersed, the MPD shall issue at least one clearly audible andunderstandable order to disperse using an amplification system or device, and shall provide the participants a reasonable and adequate time to disperse and a clear and safe route for dispersal Argument 2: 18. Quote from II Defense Negligence Argument: “Finally, Christmann’s argument that it has been shown that undercover Capitol Police and MPD were at the Capitol and were the first wave of MAGA protests is, not enough to show District liability under any theory of liability. Christmann decided for himself to enter the Capitol and even if he was hurt while inside, he assumed the risk of injury. He cannot show that any dispersal order would have protected him from himself, For these reasons, these claims cannot proceed.” nally Christmann’s argument this it has been shown that undercover Capitol Police and MPD were at the Capitol and were the first wave of MAGA protesters is not enough to show District Liability under any theory of liability.” Below is a quote from Mayor Bowser and the District asserting the District's role and responsibility on January 5, 2021 “The District of Columbia Government has not requested personnel from any other federal law enforcement agencies. To avoid confusion, we ask that any request for additional assistance be coordinated using the same process and procedures. We are mindful that in 2020, MPD was expected to perform the demanding task of Policing large crowds while working around unidentifiable personnel deployed in the District of Columbia without proper coordination Unidentified personnel- in many cases armed- caused confusion among, residents and visitors and could become a national security threat with no way for the MPD and Federal Law Enforcement to decipher armed groups. To be clear, the District of Columbia is not requesting other federal law enforcement personnel and discourages any additional deployment without immediate notification to, and consultation with MPD if such plans are underway. ‘The protection of persons and property is our utmost concern and responsibility. The MPD is well trained and prepared to lead law enforcement, coordination, and response to allow for peaceful demonstration of First Amendment Rights in the District of Columbia” 20. Yet the Defense still has not shown that Proper Dispersal Orders or that a safe and timely exit were provided, Despite the affirmation the Mayor made that the Distriet is properlya trained and received extensive First Amendment training. The bottom line is that the Capitol Police and the MPD failed to issue proper Dispersal Orders and a proper way to exit after the district thoroughly took command of all Law Enforcement. Th defense, - “Christmann decided for himself to enter the Capitol and even if he was hurt while inside he assumed the risk of injury. He cannot show that any dispersal order would have protected him from himself. For the reasons these claims cannot proceed.” The fact that the defense still has no means of demonstrating that dispersal orders were provided, what dispersal orders were provided, and who provided them. Is equally as disingenuous as stating Christmann made a claim he was hurt while inside the building. This claim was fact checked to be wrong in the previous opposition and simply never made. Itis difficult to understand why they are clinging on to such to such an unsubstantiated premise. For clarification: Subsection below is from the previous opposition and quote is from the complaint “8. On page 5 in the second paragraph the Defendant makes a false statement again, The Defense states the Plaintiff claimed— “While Christmann avers that he was sprayed with an unknown, Substance while inside the Capitol, there is no showing that a MPD Officer sprayed him” see paragraph 30, 42 9. Plaintifffs paragraph 30- “Daniel was scared to go down the stairs, cops were spraying the top of the stairs, his knee ailment makes it hard to move fast downstairs and was scared of creating a stampede. He walked around to see if there was any other safe way off that dangerously overcrowded balcony. He attempted to make it to the stairs to exit and had to avoid being sprayed by Police. Daniel was not provided a safe way to leave. The Police were just spraying the stairs of those coming and going and not making any announcements, not using whistles, nothing.” And 42, “42. Since Daniel was sprayed at the top of the stairs while no dispersal orders were given. This violated the rights of Plaintiffs under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, 10, There is absolutely no Claim of being sprayed inside the building, the Stairs in question were to the outdoor balcony, and no claim was made about a23. specific agency spraying the top of the Stairs - which was the only viable outdoor exit for the premises.” Christman absolutely made no claim that they were hurt while in the Capitol Christmann’s only claim is that District officials and Capitol Police never made an effort to tell Christman not to enter or even attempt block entry, nor was a safe exit ever provided. All this while Police -Capitol and MPD- stood back and watched thousands of people enter, some they let it, others they watched come in, others they ignored. Christmann passed by hundreds of officials on the way into the building. Nobody signaled not to go in, the PA system was not used, there were no oral commands, or even hand gestures, a whistle, a bull horn, nothing. The Police both Capitol and MPD with Mayor Bowser assuming leadership and in direct contact with the masses gave no indication entering the Capitol Building would result in Criminal charges. No where near Christman while on Grounds was there an audible dispersal order made. A First Amendment Requirement. |. Notice how the Defendant does not even dispute the claim that there were Undercover Police from both agencies on the front lines. Mayor Bowser testified that the mayor was totally aware that the Capitol Building was in a state of riot, then testified the building was the Mayor’s responsibility, and then issued the very interfering curfew order. usally related to the curfew order was the interruption it had on cell service. For approximately 15 minutes after the mass text sent at 2:49, cellular service was not functioning, as a result of the mass text. Christman was urgently looking for the person they came with. Knowing if they didn’t leave before curfew things could get ugly. This was a very scary and tense situation, Christman was not advised where he could and could not go, neither was the rest of the crowd. With phones not working as a result of this curfew order. Christmann decided he would find their friend and get out. As it was clear, Mathew Martin, was let in the building, the Police were making no effort to turn people away. Christman a reporter who has reported on many government building sit-ins such as- Atlanta, New York City, and San Francisco, was given no indication that filming inside the building could result in criminal charges. Nobody in law enforcement made this clear and Mayor Bowser was now in control of the building and failed to issue a dispersal order, while demonstrating her capacity to do so via text. This text was broadcasted to the masses AFTER a protester was shot dead in the building. All this mishap despite the extensive training of First Amendment Activity that Bowser and the District received and practiced in real time.Argument 3: 28. It is clear that if not Mayor Muriel Bowser herself, her legal team definitely was aware of Christmann’s complaint and demand for relief. They refused to comply with requests for relief only increasing the damages. 29. The mayor never took responsibility for not issuing dispersal orders, the mayor never alerted the DOJ that the building was under the Mayor's responsibility at the time and that the mayor never issued dispersal orders. Despite the assumption that the Mayor had made on live Television that the Police actually issued Dispersal Orders. The mayor makes an ambiguous claim to the public that Police issued dispersal orders in a press, conference on the evening of January 6" aftermath, This false claim knowingly criminalized protesters. 30. This video can be found on YouTube: PBS NewsHour Channel: Watch Live: D.C. Mayor Muriel Bowser speaks after pro-Tump mob breaches U.S. Capitol > go to 8 minutes and 30 seconds to hear Bowser mislead the public again. “the statement is made at 8 minutes and 30 seconds. 31. To continue to have it appear that the public kept moving forward continuously defying orders to disperse, with an intent on terror, insurrection, and to tear down our democracy, is harmful and dishonest, not only is it dividing the entire nation, it is especially affecting Christmann’s livelihood, career, political prospects, education prospects, and has destroyed close relationships. 32. Christmann now a journalist student is ineligible for internships that could provide lucrative opportunities. 33. Christmann was accepted into Maharishi University in 2022 and then had his acceptance withdrawn after they gained knowledge of Christ mann’s link to January 6. While their policy is to only question felonies. 34. During the raid Christmann was hit in the head and has been suffering from excessive sleep, sudden nodding off, falling asleep at the wheel, and dropping items in hand, andunderwent multiple sleep studies, and is now on drugs for narcolepsy something that never occurred before the excessive and violent pre-dawn raid. 35. The Mayor, or the Mayor’s legal team, has been aware of this case since it was in local court in, Washington, D.C. in February 2022 and has done nothing to mitigate the damages. This misguides prosecutors and withholds exculpatory evidence. Argument 4: 36. The Office or Risk Management forms have been fied a long time ago and this was never a reason to dismiss in previous rounds. Argument 5: 37. Some arguments made by the District were blatantly not true and Christman addressed all arguments by addressing the argument, or explaining why the premises are false clusion: 38. These arguments by the defense are based on deferring responsibility. The district says it is the Capitol Police’s fault, Or don’t blame us for being a journalist and independent political candidate that had their head bashed in at 6am by 35 FBI agents in swat gear 8 ‘months later. That is not the District’s fault. The defense does fail to declare why the District is not responsible, considering the mayor assumed responsibility at 2:26 p.m. that day. Nor does the defense procure evidence that proper dispersal orders and a safe exit were provided by law enforcement. Concerning as well the Capitol Police have provided no response to this matter risking default judgement, 39, This case is about a complete failure to follow existing protocol. How the Plaintiff's rights were violated, and Mayor Bowser’s and the Capitol Police’s indifference towards those rights. There was no question that the Capitol Police completely failed to issue dispersal orders and a safe exit. The Capitol Police are included in the case with the District who took responsibility of the building that day. 40. After Muriel Bowser testified to the select committee that they knew the event was “declared a riot” and that the building was now their responsibility. It is now a complete lost cause to make any attempt to defer responsibility or discuss jurisdiction. Instead, it is time to offer an explanation. Was it a lack of training, or was it incompetence, that caused such blatant indifference towards Christmann’s first amendment rights? 41. Regardless Daniel Christmann’s constitutional rights were absolutely violated and he was left severely deceived, and severely injured in many different waysDate: April 28, 2023 Respectfully Submitted, Daniel Christman Plaintiff BRIAN L. SCHWALB. Attorney General for the District of Columbia STEPHANIE E. LITOS Deputy Attorney General Civil Litigation Division {s! Patricia A. Oxendine PATRICIA A. OXENDINE D.C. Bar No, 428131 Chief, Civil Litigation Division, Section I Is/ Jessica Krupke JESSICA KRUPKE D.C. Bar No. 1019967 Assistant Attorney General Office of the District of Columbia Civil Litigation Division 400 6th Street, NW Washington, D.C. 20001 Direct: (202) 727-2125 Fax: (202) 585-0145 jessica. krupke@de.gov Counsel for Defendant District of ColumbiaCEI ICA’ iE OF SERVICE Ihereby certify that a copy of Plaintiff Daniel Christman Pro Se Sur Reply was served by email on this 28th day of April 2023 to: Jessica Krupke JESSICA KRUPKE Assistant Attorney General jessica.krupke@dc.gov and United States Capitol Police 119 D Street, NE Washington, DC 20510 (202) 224-1677 USCapitolPolice@usep.gov Isl Daniel Christmann 315 S. 4th Street, Apt. 2 Brooklyn, NY 11211 DanielChristmann00@gmail.com