Court Case Wrap Up, Nov 24
Another week or so, and another slew of updates in court cases. I’ve had a bout of something wrong between medication issues and time changes so I haven’t been able to pay as much attention as I should have the last few days. Thankfully, court records are somewhat eternal.
So without further delay, let’s go digging! First up is one of the early civil cases against the city in the wake of George Floyd’s death, Farley v. Portland. His case was by far the most expensive in terms of dollar figure that was sued for at $950,000, and the case was in uncertain territory after his attorney requested to be removed from the case for unspecified ethics concerns. Brandon Farley had told me, in an email at the time, that it was ‘due to [his] “disparaging statements.”.
Yesterday the case was set for a settlement conference hearing on December 4th, which seems to be a step closer to finalizing the first of a slew of cases against the city.
Another case of particular note has been the Green family suing the city for injuries resulting from tear gas usage in the early days of the protests, especially when the city attempted to make a claim that because people were at a protest that was later declared a riot, that the city was in no way responsible for anything that happened to them as a result. At the time, I had serious concerns at the idea that the city was putting forward equated to ‘the police could declare a riot at any time, and could do whatever they wanted with complete immunity from consequences.
Oregon Justice Resource Center lawyer Juan Chavez blasted the idea, which the city tried to justify using “the same legislative records but comes to an opposite conclusion despite evidence to the contrary”. The law was structured so that the city would not be liable for acts of people committing riot (a move taken to “fend off likely suits from property owners who suffered damages from rioters”), but the city tried to turn the idea on it’s head. Mr. Chavez suggested that “[p]laintiffs would not foreclose on the concept of police officers rioting”, referencing a New York Magazine article comparing protests at the time with police brutality against protesters in 1968 Chicago. It’s worth noting, as Mr. Chavez did, that the law the city is trying to hide behind was initially created and passed in 1969, in the wake of the Chicago protests and other anti-Vietnam War sentiment across the country, even citing an incident from the time frame of 3,000 plantiffs suing Newark, New Jersey, for about $6 million in damages (roughly $47 million in 2020 value)
Unless the city backs down in light of a very detailed explanation of the history of the law, it appears that this will be going to a hearing at some time in the near future.
In other civil cases, known conservative writer Andy Ngo had a hearing in court last week in the matter of one of the people he is suing claiming it was not him that was responsible for injuries Mr. Ngo received in 2019 at a protest. Ben Bolen claims that while he was at the protest when Mr. Ngo was supposedly punched, he wasn’t the one to do it, and people that haven’t testified to the court said it was him and allowed Mr. Ngo to work backwards from a name to make a story to fit the allegation. I was able to sit in on this hearing, and while a lot of back and forth happened, Judge Dailey declined to make a judgement at the time of the hearing, citing the need for more legal research on her end to determine if a case of mistaken identity can be handled in front of a judge at this point in time or if it has to go all the way to a jury trial. We’ll keep watching this case, as we have no idea when a follow-up hearing or an opinion will come down.
He is also apparently seeking alternative means of service to notify two of the other suit members that they are being sued. He states he has been unable to locate either person, and alleges both people have outstanding warrants, one I was able to confirm in Oregon, and another one in Idaho. I’m not sure if there will be an order or a hearing about this, but again, we’ll be continuing to watch this closely.
One of the multitude of lawsuits swirling around supposed Patriot Prayer member Alan Swinney has been dealt a blow in the courts as well. While he remains in jail awaiting bail, his lawyer has asked the attorneys for two of the civil suits against him to delay their cases by six months so that he could focus on his criminal case, citing the idea that he shouldn’t have to choose between testifying in a civil matter and asserting his Fifth Amendment privilege. One lawyer agreed to the stay, but Mr. Fuller declined, citing where in Oregon there is no absolute right to not be forced to make such a choice. He also goes on to show statements from Mr. Swinney on Parler stating how he wouldn’t work within the legal system, saying “All you lefty judges, DAs, city council, and mayors can get bent.” This parley in particular is very familiar to me, as I’ve heard it referenced by Deputy DA Vasquez in Mr. Swinney’s criminal case as reason to doubt his sincerity to work within the system to defend his criminal charges.
Mr. Fuller also pointed out the difficulty of serving Mr. Swinney lawsuit papers, confirming that they were unable to serve him until he had been arrested several weeks after a warrant was issued in his criminal case and he was in jail. That there was such difficulty undercuts the claims that Mr. Wolfe, his attorney in the criminal case, said about Mr. Swinney turning himself in to police at the end of September. In the criminal case, it is worth pointing out that even county deputies hadn’t been able to or were unwilling to affect the warrant for his arrest for three weeks after his indictment.
After a hearing on the matter (that I’ve requested audio of) the motion was denied by Judge Bushong, with an apparent trial date set for January 25, 2021. With the coronavirus pandemic still ongoing, and this being a civil case, I’m uncertain how set in stone this date is, but considering Mr. Fuller’s written statements about concerns that this be addressed sooner rather than later, we could well see a civil case heard very soon. I will be following this case closely, and working to see if I can livestream or video record this case.
In Clackamas County, I’ve already spoken at length on the order signed by Judge Silver upholding the stalking order against Dixie Bailey (you can read more about that order here). Ms. Bailey, who was represented by the same law firm that is representing Mr. Swinney in his criminal and both civil cases. In a post on Parler, Ms. Bailey stated that she plans to appeal, and is looking into a lawyer that specializes in gun rights, as it seems the firearm restrictions are the particular issue she has with the outcome.
In cases of the city not just facing allegations of abuse against it’s citizens, a case of now retired police officer Hollins is preparing to request a default judgement against the city for allegations of racial discriminations and retaliation. The city has not responded to the lawsuit, filed in early September, and could cost taxpayers in excess of $950,000.
Moving on to the last category for the time being, government transparency is making some waves in the courts recently. In the Reyna v. Portland case, where the city is denying access to certain police records because of a vague (and as lawyer Alan Kessler claims, improper) claim that it could be combined with other public records, has had Judge Roberts assigned as the motion judge. Kessler, a staunch public records activist, has been under fire from the city for similar claims the boil down to “if we give you any more information, you could use it to figure out things we don’t want you to know”
Another public records request case, this one filed against Southwest Neighborhoods, Inc, has had an affirmative defense filing made late last week. The simplified details of this case is the idea SWNI, while doing significant work for the city as a neighborhood association, is not actually subject to public record laws. As Mr. Kessler, also the attorney in this case, explained in a Twitter thread last week (available here), there were concerns that SWNI was misusing public funds, and a recent forensic audit that was completed seems to support the concern. I haven’t had the opportunity to go over the audit myself (which claims misuse of $180,000 of taxpayer funds over a 7 year period), but I do plan to take a closer look later.
The final case we’re looking at is, both surprisingly and unsurprisingly, another case involving Mr. Kessler. This time the city is suing him due to a disagreement in what is appropriate information for redaction in regards to cell phone messages in public record requests. The city attempted to use the ‘if we give you any more information than we have you’ll do bad things with it’ defense as to why they couldn’t release records requested, but the county DA’s office disagreed with their interpretation, forcing the suit for a judge to decide. A handful of individual city employees and labor unions, alleging that not redacting the information would amount to a labor agreement violation, are requesting to join in the suit to protect their right to privacy. A hearing on the motion is scheduled for December 10th.