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Inmates helping Inmates (A Tiny Toese Tale)

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Tusitala “Tiny” Toese is a commonly known name in the Portland Protest circle, a Proud Boy who’s had a penchant for getting into fights. In 2018, he faced three assault charges for events that happened during a protest. One charge was dropped almost immediately, and January of 2020 he reached a plea deal for a misdemeanor Assault 4 charge, with 2 years probation, community service and a special condition: No participation in mass demonstrations or protests in Multnomah County for the probation term.

Over the last few months, Tiny seemed to have difficulties maintaining the terms of his probation, based on reports from the probation office, and a warrant was put out for his arrest for repeated violations on August 11, 2020. Many who follow the protests will remember that he was present at the Proud Boy rally at the Justice Center on August 22nd. This did not go unnoticed, as the following Monday, the Department of Community Justice filed a new report, stating that he was known to reside in Vancouver and the current warrant could only be acted on in Oregon. A new warrant was issued, one that allowed him to be arrested in Washington. He was later arrested in the Vancouver area and was booked into Multnomah County Jail on September 1st, according to the inmate roster.

In comes a new character to the tale, Benjamin Barber, currently in custody in the Washington County jail for a charge of distributing ‘revenge porn’ (at the time of writing, jail records suggest he’s due for release in 3 weeks). During his time incarcerated, he’s filed a number of pro-se (representing himself) cases, using a variety of legal claims that were quickly denied by trial courts in attempts to move his case to federal court or claim unlawful imprisonment. At this time, it’s uncertain his relation to Tiny Toese (aside from one time attending the same protest), if any, or if he’s taken similar action for other inmates. But he attempted to file an amicus brief with the court on September 11th essentially claiming that the probation condition of not being allowed to attend mass demonstrations was an unlawful infringement of his rights. (It is worth noting as an aside that even before the August 22nd protest, probation reports filed with the court were requesting revocation of his probation and to be put in jail for other repeated violations). When reviewing the filing he made, it looks like the letter was written on August 4th (mail from jails takes a notoriously long time to be processed, so the fact that this was penned before a warrant was even issued is not surprising.

As an inmate, he likely doesn’t have access to a computer or typewriter, and has to do all filings by hand, and he’s gotten quite good at it (I’ve looked at literal hundreds of pages of filings he’s done in custody already), so in the interest of those who have difficulty reading handwriting, the document is transcribed below, and the original is available here.


In the Circuit Court of Oregon for Multnomah County

The State of Oregon

vs

Tusitala Toese

Case no {to be entered by the clerk}

Amicus Curiae in opposition to States Motion to Show Cause

Comes now, Benjamin Barber pro-se, to Move the Court to dismiss the probation violation against Tusitala Toese, for violating the condition of probation that he not attend any protests for 2 years.

Standing

Benjamin Barber alleges that he has standing, because he has a 1st Amendment right to receive the speech of the Defendant. see eg Stanley v. Georgia 394 U.S. 557, 564; and thus may assert the 1st Amendment rights of the Defendant see Virginia Board of Pharmacy v. Virginia Citizens Consumers Council Inc 425 U.S. 748, 757; and also has third party or prudential standing to assert the rights of third parties whether speakers or listeners similarly situated see Broadrick v. Oklahoma 413 U.S. 601, 612; Secretary of State of Maryland v. Joseph H Munson Co. 467 U.S. 947, 956-958.

Benjamin Barber attended a “free speech protest” with the defendant in 2017, and intends to attend other protests with the defendant in opposition to the Marxist and new Marxist phisophies such as critical theory adopted  by the members of the governments of Portland and also Oregon.

Prior Restraints

The order entered by this court to provide as a condition of probation a requirement that the Defendant not attend any protests for 2 years is a prior restraint of speech. See eg Near v. Minnesota 283 U.S. 697, 711-713 “A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of the government”

See also New York Times Co. v. United States 403 U.S. 713,714 “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against it’s Constitutional validity” Bantam Books, Inc v. Sullivan 372 U.S. 58,70 (1963) see also Near v. Minnesota 283 U.S. 697 (1931). The Government “thus bears a heavy burden of showing justification for the imposition of such a restraint.”

Prior restraints “must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of public order” Carrol v. President & Com’rs of Princess Anne 393 U.S. 175, 183-184.

The Amicii believes that the order by this court was meant to prevent potential violence between the Defendant and the group Antifa, which has been labeled by the US DoJ as a terrorist organization.

As the Court is likely aware, Antifa has been the organization leading over 90 days of violence in Portland, and has attacked journalists like Michael Strickland who engage in first Amendment rights, attempted to burn down the mayors home and the police union building, and attacks strangers unprovoked including a recent murder.

Antifa originated as a Marxis-Leninist group in Germany whose doctrines of revolutionary communism and revolutionary terror led to the take over of Germany by the Third Reich National Socialist Party, and is again engaging in political terrorism and civil rights violations.

Thus the order by the court amounts to a heckler’s veto of speech, hoping that by freezing the defendants speech that Antifa will not engage in disorderly conduct. see Beckerman v. City of Topelo, Mississippi 664 F.201 502, 509 “This provision falls as an impermissible prior restraint upon free speech because it is not narrowly drawn to relate to health, safety and welfare interests, but instead it sanctions the denial of the permit on the basis of the so called “heckler’s veto”. In authorizing the denial of permit because the licensor has determined the activity will provoke disorderly conduct in others, the state treats on thin ice. There is a host of Supreme Court cases dealing with the issue of the “hecklers veto”. In almost every instance it is not acceptable for the state to prevent a speaker from exercising his Constitutional rights because of the reaction to him by others.”

The conditions of probation are unenforceable see Perry v. Sindermann 408 U.S. 593, 597 (1972) “For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his Constitutionally protected interests – especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his Constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly” Speiser v. Randall, 357 U.S. 513, 526. Such interference with Constitutional rights is impermissible.”

Thus since the punishment was unconstitutional, the Court lacked jurisdiction to enter the judgement with respect to that condition See eg Ex Parte Lange, 18 Wall 163, 176; Ex Parte Young 209 U.S. 123, 159-160; Landis v. City of Roseburg 243 Or. 44, 49; Matter of Providence Journal Co., 820 F.201 1342, 1347 (1st Cir 1986). A prior restraint of speech is extraordinarily grave, and each passing day constitutes a separate and cognizable infringement of first Amendment rights CBS Inc v. Davis 510 U.S. 1315, 1317, and is not thus subject to the Collateral bar rule State ex rel mix v. Newland 560 P.201 255, 260

Date 8-4-2020

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Ben Smith Murder Trial date set, victims and community prepare for the long haul

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All court media and documents we have available can be found on our information page here.


Today was the first time Benjamin Smith, accused of a murder charge, four attempted murder charges and four assault charges was seen in court since his March indictment. Two previous status hearings had gone on without him due to medical issues requiring him to be hospitalized in OHSU for an extended period of time.

Today he appeared virtually from the Inverness jail, where a person familiar with him stated he’s “aged like 10 years in 3 months”. He told the court clerk that he was still unable to get out of bed without assistance and was wheelchair bound for the duration of the hearing.

When the hearing started, Judge Greenlick, who has been appointed to oversee all matters in this case through trial, offered to delay the hearing to allow for Mr. Smith to be transported to appear in person, which he declined.

With the preliminaries out of the way, discussions started on setting trial date, noting the fact that he legally has a right to a trial within 120 days. His public defender, Mr. Sarre, requested a trial date in the April to May 2023 timeline.

The DA, Mr. Vasquez (who successfully prosecuted Alan Swinney in his assault trial last year) said April was an option, but strongly requested a trial be held much sooner, in no small part because the victims in the case all desire this case to be finished and closed sooner rather than later, and dragging this out for the next year would cause undue pain to them.

Unfortunately for the state, after the defense pointed out the slate of other murder cases he was defending, including cases resolving in June, August, September and November of this year, the judge agreed to the April 2023 timeline. It was pointed out that the state is prosecuting a 2 year old murder case in February of 2023, and the 13-14 month timeline for Mr. Smith’s trial is actually in line with the normal timeline for trials similar to this. Mr. Sarre’s full docket, combined with the innumerable court delays caused by the COVID pandemic combined to thwart the will of the victims.

From there, questions were raised about the special needs for this trial, including the use being approved of what is called a ‘special jury panel’. We’re uncertain at the moment if there’s a special definition for it in Oregon, but generally, this is a special jury that is made up of people who are more knowledgeable to address complicated issues or serious felonies [FindLaw Legal Dictionary]. The jury selection process is expected to also take longer than normal due to the nature of the crimes as well as the broad media attention being brought to the case.

The state has confirmed that 99% of the discovery has been provided to the defense already, absent some transcripts related to one of the victims that is still being processed, meaning that discovery concerns seem to be less of a concern than other cases we’ve covered here. The DA also anticipates not needing to bring forward ‘404(3) evidence’, a reference to statute where past actions aren’t allowed to be used as evidence of these charges. To borrow from the Alan Swinney case, this would be akin to a number of the social media posts Mr. Swinney made suggesting his premeditation to assault racial justice protesters, causing most of his posts to be disallowed as evidence to the jury.

At the current moment, the timeline is looking to be something along these lines:

  • Status hearing on July 22nd at 1:30 PM
  • Normal pre-trial motions by the defense due Sept 9th
  • Response from the state due Sept 23rd
  • Hearing on any of these motions on Oct 14th
  • The Jury special panel is scheduled for April 7th in the morning
  • ‘In Limine’, or pre-trial motions, the afternoon of the 7th
  • The trial itself, scheduled for weekdays from April 17th to May 5th of 2023.

Of course, these dates are subject to change, and we will be keeping an eye out for any updates that may come about in the meantime.

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Public Records Law applies to District Coalition, Judge announces Friday

It’s time for taxpayer-funded organizations doing the public’s business to provide transparency and be recognized for what they are – outsourced government bureaus.

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History was made that day in the mostly empty courtroom. A lone lawyer sitting at the bar, court staff in attendance. Everyone else, even the judge, was appearing remotely. But it did nothing to dampen the impact of the ruling the judge was about to make that Friday afternoon.

Summary judgement in favor of the plaintiffs in the Hiller-Webb and Tyvoll v Southwest Neighborhoods, Inc (commonly known as SWNI) case confirmed that the district coalition was, for purposes of state public records law, a quasi-government entity and was required to turn over particular records to Ms. Hiller-Webb and Ms. Tyvoll.

As Shannon Hiller-Webb (she/hers) stated in a press release: “I am proud to represent my neighborhood and advance the goals of residents of SW Portland. I became concerned when, as a SWNI board member tasked with financial oversight, I was unable to gain answers to questions and even when submitted as a formal records request, SWNI repeatedly denied access. My intent with this lawsuit is to ensure transparency for taxpayers as the primary funders of District Coalitions who were created to serve us all.”

Associate counsel and public records attorney Alan Kessler (he/him) concurred:  “It’s time for taxpayer-funded organizations doing the public’s business to provide transparency and be recognized for what they are – outsourced government bureaus.

Marie Tyvoll (she/hers) and Shannon Hiller-Webb’s stories may have only started in the last few years, but as attorney Rian Peck (they/them) detailed in a masterclass of research and legal writing, the history behind the public records issues and the need for such transparency went back longer than even this author’s been alive, to the very founding of SWNI and the form of neighborhood/district engagement with City Council as a whole.


District Coalitions and the history of SWNI


All the way back in 1974, the state of Oregon passed SB 100, creating a statewide ‘land use planning program’, requiring cities to plan for 20 years of growth in new households and jobs. In response, the City of Portland created the Office of Neighborhood Associations, creating a conduit for residents to ‘influence land use decisions in what had previously been the political realm of the real estate industry and downtown business interests’ (Historical Context of Racist Planning: A History of How Planning Segregated Portland, p11). Unfortunately, in the first five years, while 60 neighborhood associations had been created, the power dynamics of white affluent residents having all the effective power remained.

An additional 15 years later, in 1994, City Council adopted a new plan to address issues that had emerged in the previous 1980 Comprehensive Plan, a move designed to shift away from the simple expansion of single family residences in favor of multi-family zoning. The plan was anticipated to be completed by 2005, but was quickly beset by similar failures of unequal treatment as had been seen in the Portland living situations since it’s inception.

The first community plan study outside of Central City was the Albina area, where the African American community had historically resided, and had already been torn apart by the 1948 Vanport flood and interstate expansions in more recent years, resulted in the city attempting to ‘boost economic development and bring investment and improvements to Albina’, using it as an excuse to rezone significant portions of single family residential to higher-density zoning to help meet the projected growth goals. The result, as we know well now, was to set the stage for gentrification and push the already struggling residents out of the area, into the outer Eastern Portland and Gresham areas. Author Karen Gibson of “Bleeding Albina: A History of Community Disinvestment” explained it this way: “The occupation of prime central city land in a region with an urban growth boundary and in a city aggressively seeking to capture population growth, coupled with an economic boom, resulted in very rapid gentrification and racial transition in the 1990s.”

From 1990 to 2016, over 4000 households and more than 10,000 African American residents would be displaced from their homes as a result.

In 1996, when planners attempted to produce a similar plan for the Southwest Portland area, they faced two distinct issues. The lay of the land and various environmental issues would reduce the effects that land use planners could use in increasing the housing density in the area. But more importantly, the local community was enraged at the idea of redeveloping single family neighborhoods, and as the residents tended to be well-educated, higher income, typically white, and more organized and well-resourced than the residents in the Albina and Outer Southeast area, they succeeded in not only pushing back on almost every attempt to increase density in the area, but their work managed to derail the entire 1994 plan, forcing a shift from community planning to ‘area planning’, trying to target work in higher density areas.

Portland Maps image showing city with all it's neighborhoods and associated District Coalitions
Map of Portland showing all District Coalitions and the underlying neighborhoods. SWNI covered the grey section to the southwest

SWNI, a non-profit organization founded in 1978 specifically to fill the need the City had asked be filled with the creation of the Office of Neighborhood Associations, played heavily in this tale, the 94 volunteer led neighborhood associations coordinating with 7 ‘district coalition offices’ to work with the city’s Office of Community and Civic Life to provide input from the communities on how the citizens feel about particular events in their areas. In 2020, when this lawsuit was filed, SWNI was one of five privately run district coalitions, the remaining two run by city managed offices.

However, SWNI was no stranger to controversy of it’s own. In addition to their successful attempts to derail attempts to increase living density in the southwest area, they had also been caught up in a 2011 embezzlement case where former SWNI employee Virginia Stromer eventually pled guilty to stealing well over $130,000 of SWNI funds dating back to at least 2004, an organization that in court records claims annually about 85% of their funding comes directly from the cities Civic Life department (most of the remaining 15% came from Portland’s Bureau of Environmental Services and West Multnomah Soil & Water). The embezzlement case, of which restitution has only seen a few hundred dollars of the over $200k owed, is something SWNI seemed to actively want to ignore ever happened, even going so far as board members who were active in both 2011 and 2020 hiding it’s existence from newer board members.


In the Present Day


The background helping bring the story to the current times, Ms. Hiller-Webb joined SWNI in 2019, as a representative of one of the local neighborhood organizations, where she jumped in with fervor learning the shorthand language 20+ year veterans of the board had been using, and working to try to make the organization more equitable and justice-minded (efforts that were ultimately denied by the broader board). This was around the same time that she first met Ms. Tyvoll, at a July 2019 SWNI organized picnic, where they connected over a desire for more inclusivity and equity in the area. During this time she started noticing financial information that, as a business owner herself, didn’t make sense, and when she started asking questions, board members began acting strangely, referring to it as ‘magic money’ and refusing to justify it’s purpose or use. January 2019 board minutes confirmed that excess taxpayer funds were being transferred to different accounts to avoid having to return unused grant money (taxpayer funds) to the City, causing the questions of mismanagement of funds to deepen drastically and quickly.

It was then that Ms. Hiller-Webb was urged to connect with former SWNI Board member and attorney Jim McLaughlin (he/his) who gave in depth information about the 2011 embezzlement case, an event which had apparently caused the ouster of not only Ms. Stromer, but also the forced his own departure from the organization, the victim of a slander campaign for his attempts to uphold the law. Ms. Hiller-Webb doubled down on the public records method of trying to get information to better learn about what, if any, mismanagement of funds was happening, when COVID began interfering with the day-to-day running of all of our lives.

When the Paycheck Protection Program (PPP) was released by the federal government, SWNI, knowing full well that it’s funding through the city was not impacted at all as a result of the pandemic, applied for funding, over the objections and with complete opacity to the numerous board members who asked to see the application both before it was submitted as well as after. In a declaration by Ms. Hiller-Webb, she stated that “SWNI created a Citizen Engagement Allocation Program, with the idea that it would move taxpayer-provided funds from Civic Life to a grant program that would create an artificial COVID hardship.” SWNI eventually received over $66k in federal funds, a loan which was later forgiven by the federal government. As Ms. Hiller-Webb went on to state “SWNI had more than sufficient funds to continue its operations, whereas many local businesses back in April 2020 – right after the physical distancing restrictions went into effect – had lost all their revenue stream, could not pay their employees, and were on the verge of and indeed some did shutter their doors permanently.” A move which has historically disproportionally affected BIPOC owned businesses.

SWNI created a Citizen Engagement Allocation Program, with the idea that it would move taxpayer-provided funds from Civic Life to a grant program that would create an artificial COVID hardship.

Shannon Hiller-Webb, Court Declaration

This misrepresentation, combined with complaints made to Commissioner Jo Ann Hardesty by Ms. Hiller-Webb and Ms. Tyvoll among others, in her position as lead of Civic Life, caused the city to withhold funds to SWNI pending a forensic audit. That audit, completed November 2020, came back with ‘conclusions of troubling financial mismanagement’, and in March 2021, the city officially struck SWNI from it’s list of district coalition offices, replacing it with a government run version, modeled on the two existing offices the city had already been fielding.


Public Records, Private Organization


Public records provided under state records laws may seem like strange bedfellows for a non-profit like SWNI, but as Ms. Tyvoll testified to the court, it was something that SWNI had done regularly as part of their normal business, in fact one of her earliest interactions with SWNI being responding to a public records request about an event in the area. There was no pushback from SWNI, and the neighborhood organization that was under SWNI was ‘required’ to do the same, per Ms. Tyvoll. And it was part of that confusion that reigned when, as part of the process for appealing denied public record requests, Former Multnomah County District Attorney Rod Underhill initially denied to intervene in the case. Even when he eventually realized this was a question over a District Coalition and not merely a neighborhood organization, he agreed to a hearing over it, but still didn’t quite recognize the power dynamics that existed between the district coalitions and the city, ruling that, from his understanding, because SWNI did not directly control government policies, they were not a governmental body and thus were exempt from public record laws.

A win for SWNI, to be sure, but a short lived one, as in the few months after the case was appealed to the Multnomah District court, the forensic audit finding disturbing mismanagement and the eventual defunding of SWNI by the city all but gutted SWNI’s ability to exist. They no longer held the official position as being a district coalition, and no longer had the grant funding from the city to maintain the neighborhood associations that used to be under it. Those functions were all now handled by the newly formed city-run office of Southwest Community Services . In court, SWNI tried to highlight how, because of the defunding, there was no question that they were not a government agency and in no way responsible to respond to public records requests.

Attorney Rian Peck, representing Ms. Hiller-Webb and Ms. Tyvoll, however, disagreed, pointing out specifically how the simple move of defunding and removing SWNI from the list of Portland District coalitions was enough to make the organization effectively useless, writing in their motion for summary judgement: District Coalitions are not only the City’s mouthpiece to the people about what the City has planned for their neighborhoods, but they are also the neighborhoods’ representatives and advocates to City officials,” going on to state “If SWNI’s functions were not essential to the City’s unique form of governance, the City surely would not take it upon itself to perform the exact same functions in SWNI’s absence.”

If SWNI’s functions were not essential to the City’s unique form of governance, the City surely would not take it upon itself to perform the exact same functions in SWNI’s absence.

Rian Peck motion for summary judgement

They also pointed out how, when the case was before the DAs office, SWNI relied on the City Attorney to defend them, a move that was ‘logically inconsistent with its position that it is an independent, private entity’, as well as the use the same public records law to extort money from the city for records that the city required from them, an incident where SWNI violated city standards to try to gain an additional $30,000 in revenue.

None of this was lost on the judge, apparent by the prepared notes it seemed he read from when he announced summary judgement in favor of Ms. Hiller-Webb and Ms. Tyvoll. While declaring SWNI, at the time the records request was filed, a public body for purposes of record request laws, he declined to extend the same designation to all privately operated district coalitions, citing their lack of presence in the courtroom. He did feel that his ruling would be relevant to them, however. He also ruled that SWNI improperly witheld the records requested, and ordered that they be given to Hiller-Webb and Tyvoll within 30 days, as well as awarding attorney fees.

In a prepared press release announcing the victory, lead attorney Rian Peck stated “Even though SWNI purported to represent its constituents’ interests, it refused to be transparent. Government without oversight is dangerous. I am proud to represent two of SWNI’s constituents in their hard-wrought fight for transparency.”

Ms. Tyvoll agreed, stating: “Access to public records is imperative for residents to hold City of Portland officials and those they fund and task with quasi-governmental roles accountable. My records request to SWNI was ignored and this allowed them to perpetuate and enable what the City of Portland Bureau of Planning and Sustainability (BPS) determined funded “…the historical, structural, and institutional racism that has created deep racial inequities that continue to harm Black, Indigenous, Latinx, and other communities of color.”(Letter introducing the Historical Context of Racist Planning: A History of How Planning Segregated Portland). The City of Portland provided SWNI with 85% of their annual funding and has effectively perpetuated and enabled white supremacy for 40+ years.”

The City of Portland provided SWNI with 85% of their annual funding and has effectively perpetuated and enabled white supremacy for 40+ years.

Marie Tyvoll, Press Release

For an organization that’s had a historical record of misusing well over $400,000 in local and federal taxpayer money since the beginning of the 21st century, using it’s position to prop up predominantly white homeowner neighborhoods at the expense of the rest of the city, it seems that this may well be the closing of one of the final chapters of the organization. Even so, to look at SWNI’s website, they currently make no effort to acknowledge their status as an unofficial district coalition, effectively burying their heads in the sand and hoping the controversies will one day blow over.

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Rain and police refuse to deter Gresham High students

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