Suit by protesters costs city $300,000

The City Council is set to OK a settlement with 12 people who claim police violated their rights
Tuesday, November 30, 2004

The city of Portland is poised to pay a $300,000 settlement to 12 people who claimed police used excessive force against them during the protest of President Bush's visit to Portland in August 2002 or two antiwar marches in March 2003.

A federal judge spent at least five months mediating the claims, and the City Council is set to approve the settlement at its meeting Wednesday. SETTLEMENT A12

In the two lawsuits, the plaintiffs argued that the city, Mayor Vera Katz, then-police Chief Mark Kroeker and several officers violated the protesters' rights to free speech and free assembly by dousing them with pepper spray at close range and firing rubber stingballs into a crowd. Those who brought the suits used videotaped footage to support the claims.

The total exceeds what the city has paid out for several officer-involved fatal shootings. But the city downplayed the figure, noting that the $300,000 is expected to be divided among the 12 plaintiffs.

"Our settlements historically have been few and far between in this range," said Mark Stairiker, a claims analyst in the city's Risk Management Division. "It's a big case, but when you divide it by 12, it's fairly routine."

Those who filed the suit counter that the settlement is significant.

"We hope that getting a settlement of this size will send a message and result in some more accountability than the police have had to date," said Liz Joffe, one of the lawyers representing the group. "If they continue to attack peaceful protesters and use excessive force to suppress free speech activity, we'll come back again and again until the city recognizes it's too expensive and makes needed reforms."

The city attorney's office has recommended a settlement to avoid the risk of a large jury award, according to an ordinance before the council. City Attorney Linda Meng did not return calls Monday.

Political activist Lloyd Marbet was among nine defendants who filed a lawsuit against the city stemming from their participation in the Aug. 22, 2002, protest during President Bush's visit to the downtown Hilton. Police clashed with protesters outside the hotel as a Republican fund-raiser headlining Bush was getting under way.

The complaint said police tactics represented a "pattern and practice of flagrantly violating peaceful demonstrators' First Amendment rights." Three children who attended the protest with their parents, and a teacher who was hit by pepper spray were among the other plaintiffs.

Their lawyers reviewed more than 100 hours of videotape, some taken by independent observers and some by the Police Bureau.

"Several officers testified that protesters were rioting, but the videos showed they were chanting, peaceful protesters," Joffe said. "These officers just showered people in a sea of pepper spray who were doing nothing but chanting."

Alan Graf, one of the Portland lawyers who represented the plaintiffs, said the videotaped footage could not be disputed. "The videos really told the story. The city said one thing, and the video said another thing. . . . We had pictures of babies getting pepper-sprayed, and if you put (those pictures) in front of a jury, there's no telling what would happen."

Much of the discovery also focused on the background of one officer, Mark Kruger, who was present at each demonstration. The plaintiffs accused him of being a Nazi sympathizer and sought to link that to a disdain for any "political dissent from the left," court records show. The plaintiffs' attorneys interviewed former friends of Kruger who said he had collected Nazi memorabilia and uniforms with swastikas and wore them to World War II re-enactments.

Although Kruger acknowledged in a deposition that he owned Nazi memorabilia, the city argued that Kruger was a World War II buff who had interest in the German military but never sympathized with the Nazis. Kruger has since been promoted to lieutenant, and Chief Derrick Foxworth said he has "complete confidence" in Kruger.

"He does have a genuine interest in history and in World War II, and I don't see anything sinister in that," Foxworth said.

Mistakes acknowledged

According to court records, the city argued that the Bush protesters in 2002 were sprayed when they "ignored lawful orders to disperse." Yet police commanders and supervisors have acknowledged that they made mistakes and changed tactics when Bush returned for a fund-raiser at the University of Portland the following summer.

"Over the years, we've learned from each and every incident, dating back to the infamous May Day incident" in 2000, when police clashed violently with protesters, Foxworth said. "We continue to look at what worked well and identify areas for improvement."

Police said no safe corridor was set up to give donors attending the fund-raiser access to the Hilton and that the police perimeter around the hotel was too crowded.

Police said they ordered the crowd to move back and that they tried to push demonstrators with their batons. When the protesters did not move, police used pepper spray. At another point, three Portland police cars drove through the crowd, trying to move behind the barricades. When some demonstrators leaped onto one car, two officers fired rubber stingballs at them from 37 mm single-shot guns.

The next summer, police bused the donors into a fund-raising luncheon at the University of Portland, and set up a large fenced perimeter around the event. They also strengthened command communications, the chief said.

Antiwar actions

A second suit was brought by William S. Ellis, Randall C. Lyon and Miranda May stemming from antiwar protests on March 20 and March 25, 2003.

According to the complaint, Lyon, an engineer for KATU television news, was struck in the right temple and shoved into his news van by two officers at the demonstration on March 20. It said May, a peaceful protester, was pepper-sprayed at close range and hit in the head on March 25. Ellis, the suit said, was slammed to the ground, assaulted and pepper-sprayed when he refused to identify himself on March 25.

The lawyers who filed the lawsuits are members of the National Lawyers Guild. While they were pleased with the settlement amount, they said their effort to persuade police to ban the use of pepper spray and rubber munitions against peaceful protesters was not successful.

Some of the plaintiffs pledged to donate a portion of their settlements to the Northwest Constitutional Rights Center.

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