MONTHS AFTER a jury awarded $306,000 to a Portland man Tasered, punched, pepper-sprayed, and tackled by police officers outside an Old Town nightclub in 2010, the city attorney's office is asking for a new trial.
The request was placed on the Portland City Council's "consent agenda" this Wednesday, April 17. The consent agenda is a weekly list of items typically approved unanimously and with no discussion—although police accountability advocates told the Mercury they planned to pull the item for a public airing.
Multnomah County jurors in December decisively ruled that cops used excessive force against Gallagher Smith, 25 at the time, after wrongfully ordering him off a public sidewalk.
It's an unusual move: Advocates say they can't remember the last time the city appealed a police misconduct judgment, noting the city normally settles excessive force cases before they reach a jury. Greg Kafoury, one of Smith's attorneys, says "the city has never appealed a judgment from one of our clients" in his firm's decades of winning five- and six-figure awards in misconduct cases.
The Mercury first reported on Smith's case days after he was roughed up outside the now-closed Aura nightclub on West Burnside, following an argument with a doorman who wouldn't let him back in the club ["Shocking Questions," News, Nov 25, 2010]. That doorman then called the cops on Smith, who had begun walking away from the club.
According to trial testimony last year, reported by the Oregonian, officers refused to explain to Smith why they were handcuffing him. Smith resisted the handcuffs—he was trying to protect himself, he said—and was punched in the face and Tasered three times.
Witnesses told the Mercury in 2010 that Smith hadn't been resisting by the time the final Taser jolts were administered. At trial, police argued Smith wouldn't stay on the ground. Smith said he was then pepper sprayed, punched in the back, dog-piled, and then hog-tied.
Smith was never booked, just cited, and was taken from the jail to Providence Medical Center for treatment, his attorneys say. Court records show Smith was cleared of criminal charges in connection with the confrontation.
The language the cops used in trial, saying Smith tensed up and clenched his fists, echoes another police brutality case recently filed by Greg Kafoury and his son, Jason. In that case, filed earlier this month, Jason Matthew Cox alleges police punched and Tasered him repeatedly amid claims, laid out in their reports, that he resisted arrest.
Harry Auerbach, a deputy city attorney who handles appellate cases, declined to comment on his office's request for an appeal. But a resolution submitted to the city council last week offers a glimpse into the city's thinking.
According to the resolution, the city isn't explicitly trying to justify the amount of force used against Smith. Attorneys, instead, are quibbling with the jury's finding that cops—because Smith was on a public sidewalk, not breaking any law—had no right to use any force at all. The city is worried the verdict chips away at its officers' ability to regulate sidewalks.
"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," the resolution reads.
Greg Kafoury submitted a letter to the city on Friday, April 12, suggesting city commissioners deny Auerbach's request for an appeal. In the letter, obtained by the Mercury, he wrote that Smith was "far, far away" from Aura, and his confrontation with the bouncer, when the cops told him to leave the area.
"For questioning what two judges have found to be a clearly unlawful order, my client was severely beaten, repeatedly Tased, repeatedly maced, and hog-tied," Kafoury wrote. "The uncontradicted testimony at trial was that he will permanently suffer from PTSD as a result."