Nearly four months after a jury awarded $306,000 to a Portland man Tasered, punched, pepper-sprayed, and tackled by police outside an Old Town nightclub back in 2010, the city attorney's office is asking for permission to appeal the finding.
The request, like most of these kinds of things, is tucked into the Portland City Council's consent agenda—meaning, unless some intrepid citizen flags it for review, it's expected to pass unanimously during next Wednesday's meeting—with no discussion.
The Mercury reported on Gallagher Smith's scuffle with police not long after it happened, as part of a story about Taser policies and how they weren't changing. The Oregonian covered Smith's trial and the verdict last December, detailing what happened to him.
Jurors found that police falsely arrested, battered and maliciously prosecuted Gallagher Smith after he quarreled with a doorman on Nov. 13, 2010, at the Aura nightclub on West Burnside Street. The doorman told Smith he'd have to wait at the end of a long line again even though he'd just been in the club and had gotten a stamp on his hand before stepping outside. The doorman eventually flagged down police.
Both sides agreed that police wouldn't explain why. As officers tried to handcuff Smith, he pulled his arms into his chest. Smith said he was immediately punched in the face. The scuffle that ensued was his attempt to protect himself, he said.
But one of the officers testified during the four-day trial that Smith clenched his fists from the beginning and his body language indicated he was looking to pick a fight. Smith never hit or kicked police, his attorneys said.
Officer Patrick Johnson fired his Taser at Smith, but the probes didn't pierce his skin. Officer Sean McFarland then used his Taser and hit his mark. Police said Smith was defying orders to stay on the ground.
Johnson pepper-sprayed Smith twice and police punched him in the back before half a dozen officers piled on top of him. Smith was handcuffed with his feet tied to his wrists and charged with criminal trespass, interfering with a police officer and resisting arrest.
Smith said he wasn't ignoring police orders, but simply trying to crawl out of traffic after he ended up in the street during the encounter. He suffered a black eye, road rash on his face and Taser marks on his abdomen. He also was diagnosed with post traumatic stress disorder and said he's lost his trust in police.
Harry Auerbach, a deputy attorney who handles appellate cases for the city, has declined to comment, citing the fact that this would be, technically, pending litigation.
Court records show Smith was cleared of criminal charges in connection with the confrontation outside Aura. The O previously reported that the officers involved in Smith's arrest were investigated by internal affairs and cleared of any wrongdoing.
Update 4:44 PM: The council agenda now links to the city attorney's memo (pdf) explaining the request for appeal. The city's argument isn't about the force used against Smith. The city is more concerned the award, because it stemmed from a finding that police lacked probable cause to arrest Smith on a public sidewalk, improperly abrogates what they believe is their all-the-time right to regulate traffic on sidewalks.
WHEREAS, a critical issue in the case concerned whether the police had the authority to order Mr. Smith to leave the area of the public sidewalk outside the nightclub on the basis of information they had received that he was creating a disturbance when the proprietors of the nightclub denied him re-entry into the club, and
WHEREAS, the case was tried to a jury, and, notwithstanding PCC 14C.30.030, which authorizes Portland Police officers to direct pedestrian traffic on any public right of way, the Circuit Court instructed the jury that the police lacked probable cause to arrest Mr. Smith when he disobeyed their order to move away from the sidewalk in front of the nightclub, and
WHEREAS, Risk Management and the Portland Police Bureau desire that the City appeal the judgment in order to vindicate the authority of the police to maintain order, particularly in the downtown Entertainment District
Smith is represented by Greg and Jason Kafoury—and his case bears some striking similarities to another case the Kafourys filed this week. In that case, an arrest caught on surveillance video, officers punched and Tasered Jason Matthew Cox after claiming he was resisting arrest. They used language in their reports very similar to what officers said in Smith's case.