Portland City Council this afternoon gently pumped the brakes on a request by the city attorney's office to appeal a $306,000 jury award in favor of a Portland man punched, Tasered, tackled, pepper-sprayed, and hog-tied by Portland cops down the street from an Old Town nightclub in 2010.
As reported last Friday, the city attorney's office wants a new trial in the case. It's worried less about the force used against the victim, Gallagher Smith, as much as where the force was used: on a city sidewalk. Because a judge told jurors the the cops lacked probable cause when they told Smith to move along, attorneys and police brass are worried the case abrogates cops' right to direct traffic on Old Town sidewalks.
But in council today, Commissioner Amanda Fritz joined activists in pulling the item of the consent agenda, where it otherwise would have been approved unanimously and with no debate. And then Commissioner Steve Novick persuaded his colleagues to approve a modified version of the request that lets the attorney's office file only a notice of its intent to appeal—not any actual legal briefs.
More action will require another city vote. In the meantime, the city attorney's office has been asked to look into whether it can pay Smith his money while still contesting the sidewalks issue. An appeal could take years. The city, if it loses, could pay what City Attorney James Van Dyke estimated was $55,000 more in interest, not including a potential 10 percent penalty.
Fritz, however, still voted no—the only commissioner to do so. (Dan Saltzman was absent for the vote on the appeal.)
In remarks touching on ongoing legislative attempts to tighten sidewalk rules, she strongly suggested the city council discuss code changes without trying to get an appellate judge to permit what she seemed to think would be unchecked authority by cops.
"The appeal seems to be saying officers have the right to order anyone off any sidewalk for whatever reason they want," she said before voting. "I believe we won't win this appeal, and it's costly to the city, more than just money."
Accountability advocates who showed up to speak were even more forceful in urging the council to let the case die.
"They beat this guy so badly he's still suffering after a couple of years" Joe Walsh said. "Now you want to appeal it? Give the man his money, apologize and move on."
"The city attorney is asking you to go to Vegas," Charles Johnson testified, arguing the odds of a successful appeal are too slim, especially at time of budget cuts. "You want to cut your losses and not appeal this case, not say that it's okay for police officers to brutalize citizens."
Van Dyke bristled at suggestions from commissioners and advocates that the city wouldn't win and said he and his team felt clearly that cops, even though "they can't abuse that authority," have a clear right, or "broad authority," to tell people what to do on sidewalks if they believe they're quelling a disturbance.
"We think we're right," he said.
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