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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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Semi-dramatic reading of public record letter sent by former PPB Records employee

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This video was cc’d to Ted Wheeler’s office on July 1st. Content warning for extreme examples of racism, ableism, homophobia/transphobia and xenophobia

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Chandler, a Timeline

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Normally, we don’t like dedicating a complete page to a single person, but with the complexity of this story and the varied threads, a lot of people have been confused about what’s happened when. The goal here is to try to create a cohesive timeline to help clear up confusion.

My information comes primarily from Oregon public court records, and I have limited information about actions in other states. If others have information about legal proceedings outside of the state, please feel free to contact me and I’ll see about adding it to the timeline.

  • 2015
    • Feb 12 – Convicted of a misdemeanor for ‘unlawful possession of a firearm’ (case CR1412813). Specifics of the case are not readily available, but part of the sentence was one year probation with no firearms. That probation would have expired in Feb of 2016
  • 2020
    • May
      • Allegedly a vehicle is damaged by Chandler, starting a later misdemeanor case in 20CR49079 (PDF)
    • August
      • An uncle of Chandler files a protective order in Multnomah County, alleging threats and assaults against him earlier in the month. The restraining order was approved in case 20PO07287 (PDF). A firearms restriction order was included with the restraining order, but it wouldn’t go into full effect until service by police.
    • September
      • On the 9th, charges were filed in the 20CR49079 case, with arraignment set for the 30th. A failure to appear warrant was issued after he failed to show for arraignment. (PDF)
    • October
      • On the 5th, Clackamas County deputies file with the court in 20PO07287 that they did not serve the order because he ‘doesn’t live or work at address provided; no response to 10 day letter’ (PDF)
    • November
      • Chandler is arrested on the Sept 30th failure to appear warrant and cited to report for arraignment on Dec 16th (PDF)
    • December
      • 16th – Chandler is arraigned on the misdemeanor charge for ‘criminal mischief’ (20CR49079). Court records do not show any firearm restrictions put in place with pre-trial release conditions.
      • 21st – In Salem, (Marion County) allegedly attends a demonstration at the state capital building where a number of crimes are alleged to be committed in case 21CR00416.
      • 26th – In Clackamas County, he is allegedly in possession of a firearms silencer in violation of state law. This eventually starts case 21CR11527.
  • 2021
    • January
      • 5th – Charges are filed in case 21CR00416, including one Class A misdemeanor, 7 Class C felonies and one Class A felony. Bail was set for $250k due to ‘public safety risk’. This is the first time since 2016 we have records showing a firearm restriction. (PDF – Charges), (PDF – Bail)
      • 11th – Marion County deputies serve the August 2020 restraining order while he’s incarcerated pre-trial (PDF). At this point his firearm restricts from the restraining order would have gone into affect.
      • 26th – Chandler is released from pre-trial custody, with restrictions on out of state travel, firearms, or being within 1/4 mile of any demonstrations (PDF)
    • February
      • 4th – Chandler’s attorney files a motion requesting permission for his client to move to Arizona, where he reportedly has a relationship, work and housing already available to him. Initially permission is granted, then quickly revoked due to the need to coordinate with Clackamas County in their case. (PDF)
      • 18th – The finalized order allowing him to move to Arizona is approved, with conditions requiring him to sign an approved ‘waiver of extradition’ before leaving and confirming pre-trial restrictions in the Clackamas Case (PDF)
      • 23rd – In Clackamas County, a grand jury meets to approve a secret indictment in case 21CR11527, on the allegations of him having an illegal silencer in December. The indictment itself isn’t filed for almost two weeks after. (PDF)
    • March
      • 5th – Final language of the waiver of extradition is approved by Marion County court. (PDF)
      • 8th – A secret indictment is filed in Clackamas County on the alleged actions in December 26th (PDF)
      • 15th – Chandler is arrested in Pinal County, AZ, on a ‘fugitive from justice’ warrant. The next day he is released on bail, with an indictment date set for the newest 21CR11527 case. (PDF)
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PBOT & TriMet mismanagement endangers lives of nearly 2 dozen local residents by shutting down transit and stranding them overnight on disabled Max train

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The headline is not hyperbole. I was one of them. This is my story.

To start with, a bit of background on me. I have disabilities that necessitate me using a mobility device (a walker) when I leave the house for a period of time. I had eligibility through TriMet Lift that essentially gave me access to their services whenever I needed a trip. But because of severe limitations on access to those services, I could almost never use them, as trips that I took were either covered by medical insurance or just could not be scheduled around their limits. So a lot of times, I will either have to push myself to use normal transit service or use rideshare.

Last night all of that fell apart. In a storm that, as a kid in Pennsylvania, would have had a 50/50 chance of cancelling school, no rideshare organizations had riders available. So I braved going out on transit, with a belief that tracks would be clear enough to get me to the airport, where I was meeting someone who was flying in, and we’d have shelter while figuring out how to get to their final destination (they were one of the lucky ones who managed to get a ride directly from the airport, and are safe).

At 162nd, where I got on about 10pm, I should have known there was going to be trouble and just gone back home. We were told that train services were shutting down, and the train was only going as far as Gateway, where shuttles would still be able to get me to the airport. But with no idea of when the shuttles were coming, we all ‘stayed on the train for warmth’.

The train didn’t make it to 102nd Ave until 3am, a full five hours later. Once the train left 162nd, I was committed to the quest since I had no way to return home. We were stopped at 122nd long enough that getting food and a drink from the 24 hour convenience store was no issue

Once we arrived at 102nd, passengers were told we needed to disembark. The train in front of ours had broken down, and they were going to use our train to help move that one to the yard. A shuttle bus came to go eastbound, which would at least have gotten me back to 162nd, but before I could even get past the tracks on the west side of the station, the shuttle took off. Calls to TriMet customer service went unanswered since it was ‘after hours’ (not the first time that’s happened) so I ended up calling 911. The dispatcher I spoke to said there was a Portland Police sergeant on the scene of the disabled train, and they were to get in touch with me.

About 15 minutes later I did get a call from him, with the oh-so-useful information to ‘come back and get back on the train’. He seemed to barely care that I was having mobility issues, and with no sidewalks or MAX platforms and the road having minimal plowing, Every inch I traveled was a battle. Eventually I did get back to the train, where cacophony reigned. One door was beeping as the bridge plate for getting in and out of the train was stuck on the snow. Another door was stuck two inches open, trying to close itself but unable to. A third door was wide open to the elements, and the car was running on battery power with no heaters.

At 4:45 am, after finding out the emergency call boxes on the train were down (guessing because the train was on battery power, that seems like a serious flaw) I called 911 again. There were four of us on that car, and I recognized the risks of exposure. This seemed to trigger a response from staff on site, who came back and encouraged everyone to go into the other car, which still had heat.


Disabilities strike again! The other car on the train was a Type 1 car. As a bit of background on Type 1 train cars, thanks to Wikipedia, they were introduced in 1984 in Portland, making them older than most transit riders. They have a raised platform that requires riders to go up three steep steps, and as such, are completely inaccessible to anyone with a mobility device. Type 1 cars are always paired with another, ADA accessible car, but I’ve always maintained that the system was unsustainable, and last night is further proof of that.

TriMet announced in 2018 plans to finally fully phase out the Type 1 trains, with new Type 6 trains. The initial timeline for production, before the coronavirus pandemic, had the first trains arriving later this year and the last of the first batch arriving by the end of 2022.


With me stuck on a Type 2 car that was rapidly losing power and heat, TriMet staff were able to close most of the doors, leaving one only open a few inches and turn off the buzzers. They also arranged to check on me periodically to make sure I was okay and got the emergency call buttons working again. That all lasted until about an hour later when the batteries finally went out, turning everything off in the train. I wasn’t dressed or equipped for being out in long term winter weather, but I knew enough survival to keep myself safe, if not entirely comfortable in the meantime.

I spent the time monitoring social media and talking with others on the outside world about what was happening, and at 5:40am, after TriMet announced service cancellations, Genevieve Reaume of KATU reached out about interviewing for the 7:30am news story about the closures. The intervening time was mostly spent with me walking laps in the train to keep warm and not too stiff from the cold, blaring music from my phone and using the Pink Walker’s light rig to make a party train. Things I’d never do otherwise, but having a dead train car to myself for a few hours was a (hopefully) once in a lifetime experience.

Shortly before the interview TriMet finally managed to get a shuttle bus to us, after being stuck at 102nd for 4 1/2 hours and 9 1/2 hours after I’d first gotten on the train. We were left under a vague impression that the shuttle was taking us downtown where a supervisor would be able to help coordinate us getting to final destinations. I did a phone interview while on the shuttle (and if I can get a link to the segment, I’ll post it here), and then sat back and waited. At a minimum, 19 people were on the bus, including 4-5 likely houseless people. Some people got off the bus as we went downtown, and when we got to Providence Park we got hit with a nasty surprise.

“This is the last stop. Everyone off!”

We were met with a supervisor, but not one who planned to help us. Some passengers cried foul that they were now further from their destinations than when the shuttle picked them up, while I made a pointed statement that after what I’d been through, I could no longer navigate to get home. The supervisor tried to claim “all the transit is shut down. There’s no bus service.” as if we didn’t know that already, and were still holdovers from the night before. Radio records from Twitter users @rosecitytransit and @AlYourPalster had dispatchers thinking we “were just in Gresham!” when our previous 4 hour detention was 3-7 miles from Gresham (if you look at the border or downtown), the supervisor complaining about having to be ‘politically correct’ because I was filming him (video available here) and that the experience ‘aged him 10 years’

Finally we pushed for our rights and got a route that took some passengers to Jantzen Beach, others to shelters and me back home. But even before we started on the last part of the trek, dispatchers set the expectation that police would be called on anyone who didn’t get off after that.


At the end of the night, I did make it home. I was one of the fortunate ones to still have power. So I was warm, had a hot drink, and warm cats to curl up next to me as I slept. But as I think now, and I’m sure I’m forgetting even more, a few things stick out to me about this:

  • Portland really has an issue with accessibility. I had been out earlier in the day, and that combined with this showed me parking lots and sidewalks unshoveled all day. Curb cuts were invisible, and pushing a specialized light weight walker through even half of this snow would be impossible for a lot with physical disabilities.
  • TriMet dropped the ball badly. The frontline employees that I dealt with last night seemed competent and were doing the best they could with the tools they were allowed. Supervisors, not so much. And I’m sure the competency and empathy decreases the further up the executive ladder you go. While I wasn’t here, 2008 has been universally considered much worse of a storm, and they never had to shut down the whole system.
  • But TriMet isn’t all to blame. One TriMet supervisor explained that PBOT’s inability to plow or prepare for the storm was hamstringing their efforts. From my firsthand encounter of road conditions on major east side roads like Glisan and Burnside confirm that. And as local lawyer and personal hero Alan Kessler pointed out, PBOT was able to plow million dollar home area Germantown Road to the asphalt, lower income areas with a lot more people with reduced transit availability got delayed and inadequate ‘scraping’, not even plowing. It definitely makes it look like there’s systemic issues in how our government takes care of people.
  • No one involved in managing this situation handled things like they should have. We’ve been through worse and done better.
  • I cannot wait for the Type 1 trains to go away for good! Thirty-six year old train cars with no disability accessibility is insane. People don’t want to use the stairs so normally Type 1 cars are empty and the other car has double the people. With half the handicapped seating. And heaven forbid if a door breaks. That’s happened too many times to me, and before Covid was one of the biggest detractors for me using transit (thank you social anxiety)

This storm was no joke. I don’t know where things are going for me with this, but I really hope people start waking up in these board rooms and start addressing things properly.

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