November 30, 2004

Statement Regarding Proposed Settlement with City of Portland

 

On August 22, 2002, the day that George W. Bush came to the Hilton Hotel in Portland, Oregon, to raise a million dollars for the Republican Party and Senator Gordon Smith’s election campaign, I was pepper sprayed, along with other protestors, by City of Portland police officers, for peacefully demonstrating in front of a police barricade that was erected on SW Fifth and Taylor. As my attached account describes, this was a traumatic event in which I both experienced and witnessed gross violations of our first amendment rights.

Shortly after being assaulted by the police, I asked Allan Graf to represent me as my attorney in a lawsuit against the City of Portland. I knew there were other plaintiffs being represented by Alan and/or other attorneys. When all of the plaintiffs joined together in settlement negotiations with the City of Portland, I had no objection to this arrangement. In subsequent meetings between the plaintiffs and our attorneys, we reached consensus on all of the issues presented to us, clear up to the final settlement offer that we made to the City of Portland (City), which we agreed would be just that: the final settlement offer; and, if rejected, we would then go to trial.

The City did reject this offer, instead counter-offering to simply pay us to go away, instead of either: agreeing to change their behavior (reducing their financial liability) or admitting wrong doing on their part and offering an apology. (The City’s counteroffer has since been characterized by Mark Stairiker, a claims analyst in the city’s Risk Management Division as “fairly routine.” See the November 30, 2004, Oregonian.) From the moment this counteroffer was made, I have been deeply troubled by its’ implications and in my communication with the other plaintiffs and attorneys involved in this case, I have pointed out that it does not reach our stated goal of altering police behavior, even with the promotion for funding, by our attorneys, of the Constitutional Rights Center. I also pointed out that the money being paid by the City is not even their money, “it is money belonging to all of the taxpayers of Portland. Money that will be taken away from a city struggling to fund many social programs that we support.” (See attached message dated 10/22/04.)

Yet, after making a number of alternative suggestions that were rejected by both plaintiffs and attorneys, I found that I had no way out of this conflict, except to withdraw from this case and accept no money from the city at all. I still do not believe that this settlement represents any change in the behavior of the police and I remain unwilling to be bought off by the City. I respect the right of the both the attorneys and plaintiffs to see this differently and because I have been confronted with conflicting legal advice, I have since found it necessary to be legally represented by a new attorney in order to effect my withdrawal.

 

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The purist and the pragmatist part company

Alan Graf and Lloyd Marbet go back 15 years and they have one another pegged. "Lloyd is a purist," says Graf, the pragmatist. That may explain the parting of their ways. Two weeks after Graf once again celebrated victory for the pepper-sprayed protesters who brought suit against the city and the Portland police, Marbet -- one of the 12 plaintiffs -- has filed a bar complaint against his friend and lead attorney.

The purist feels betrayed. "Alan had an ethical obligation to represent my interests," Marbet says. "In the course of this litigation, his own interests begin to become evident."

The pragmatist is annoyed by what he describes as an all-too-familiar turn in the community of political activists.

"If you win, you've sold out. If you're not struggling, you're not a true activist," Graf says, wearily. "It's a sign to the right that they don't have to worry. The left will self-destruct."

In October 2002, Marbet and eight other protesters filed suit against the city in federal court, alleging the police used excessive force while confronting demonstrators who'd gathered outside the Hilton Hotel in Portland to protest the appearance of President Bush at a fundraiser for U.S. Sen. Gordon Smith, R-Ore.

The protesters had compelling video evidence of what Graf called "a police riot," in which the cops plowed into a fairly peaceful crowd with pepper spray and rubber stingballs. The group was eventually joined by three other plaintiffs who were injured at anti-war demonstrations the following March.

Last December, all of the plaintiffs save Marbet agreed to a $300,000 settlement with the city. They did not receive an official apology, although then-Mayor Vera Katz said, "Mistakes were made. . . . You had to be blind not to see it."

Two weeks ago, a federal judge ordered the city to pay Graf and his legal team $545,000 in attorney fees. Graf says the team put 3,900 hours into the case. He adds that the city's attorneys devoted 4,400 hours to the defense effort before concluding Katz's eyesight was better than theirs.

In the beginning, Graf and Marbet were adamant the plaintiffs were -- as attorney Elizabeth Joffe wrote in January 2004 -- "deeply committed to effecting change in the Portland Police Bureau's handling of peaceful protests in the future. Any settlement will have to include, at a minimum, policy changes and guarantees limiting the use of pepper spray in these situations."

For two years, that commitment was mutual and similarly directed. Marbet argues in his carefully constructed bar complaint that while the purist never wavered in his refusal to "be bought off by the city," the pragmatist eventually decided that a $300,000 settlement and attorney fees were victory enough.

"For us to think we're going to reform the police bureau overnight is a pipe dream," Graf says. "That's what separates me and Lloyd. 'Policy' is just paper. The money is going to get their attention. The headlines will get their attention."

That's a legitimate perspective, Marbet says, but because it isn't mine, it shouldn't be my attorney's. Marbet maintains the settlement cost the city nothing; it consists of taxpayer dollars, after all. And the headlines didn't stop Police Chief Derrick Foxworth from promoting two supervisors, Lt. Mark Kruger and Capt. Marti Rowley, who were part of the August 2002 melee.

Marbet's bar complaint seeks to determine whether Graf developed "a personal and financial stake" in the outcome of the case, specifically the funding of the fledgling Northwest Constitutional Rights Center, which operates out of Graf's office.

At least two of the plaintiff attorneys protested that Graf was pressuring the plaintiffs to contribute to the center. In a November 2004 email, Graf wrote, "(I)f we don't come up with at least $120,000 from the Plaintiffs, I don't see any reason to keep the Center's doors open."

In that case, "We will all go away from this having gained nothing from our efforts other than some money," the pragmatist writes, sentiments that would make the purist proud.

Steve Duin: 503-221-8597; Steveduin@aol.com ; 1320 S.W. Broadway, Portland, OR 97201

©2005 The Oregonian

 

For a copy of the Complaint and Timeline of Events

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An optimist isn't necessarily a blithe, slightly sappy whistler in the dark of our time. To be hopeful in bad times is not just foolishly romantic. It is based on the fact that human history is a history not only of cruelty but also of compassion, sacrifice, courage, kindness. What we choose to emphasize in this complex history will determine our lives. If we see only the worst, it destroys our capacity to do something. If we remember those times and places--and there are so many--where people have behaved magnificently, this gives us the energy to act, and at least the possibility of sending this spinning top of a world in a different direction. And if we do act, in however small a way, we don't have to wait for some grand utopian future. The future is an infinite succession of presents, and to live now as we think human beings should live, in defiance of all that is bad around us, is itself a marvelous victory.

Howard Zinn

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