Well done. Congratulations.
tl;dr: Sued Corvallis PD officer in federal court for unlawful detainment, won.
This post has been on my mind for some time, and finally I feel that I can share it with you all, as the dismissal of the case was filed today. As you may or may not remember, on October 26, 2011 (ironically the 10th anniversary of the U.S. PATRIOT Act being signed into law) I was illegally detained by Corvallis PD while I was checking my mail. At the time I didn't say much about it because I didn't want my version of the events to be known before I obtained the Corvallis police officer's version of the events. Anyway, here is the (long) story.
I was checking my mail at a little after noon, just like I had done every day. It was a Wednesday and since I worked at home I usually checked the mail right before taking my lunch. I had my Glock 22 in a level 3 Serpa retention holster, the same gun and holster I carried throughout Corvallis pretty much the entire time I lived there. I was wearing jeans, a brown zip-up hooded sweatshirt, a beanie and probably these fingerless gloves that I used to wear all the time when it was cold out. That day the low was an unseasonably cool 26 degrees Fahrenheit, and while it was noon and had warmed up a bit, I had only lived in Oregon for four months and was still used to California weather.
Normally when I would go out in public while open carrying (which I did daily if not multiple times a day), I would carry an audio recorder and an ipod capable of video recording. I had both right next to my front door to grab along with my open carry flyers, but since I was just going to get my mail, a brought nothing with me. This would prove to be a mistake that I would quickly regret. I walked to my mailbox which was on the nearest street corner, about 100 yards away and as I was just about to reach my mailbox I noticed what looked to be a Corvallis PD cruiser coming up the street directly toward me.
While this was disconcerting, I had been open carrying in Corvallis for over four months at that point with no real negative encounters and only one consensual encounter with a Corvallis PD officer. I was a tad worried but I figured he wouldn't care and I'd once again be reassured that Oregon police officers are way more respectful than those in California. As I turned to walk away, it became more and more obvious that the officer had taken interest in me and would at the very least be contacting me. I walked along the dead-end gravel road that I lived on and as I had reached where my residence was and needed to cross the street to go home, I turned to see if the street was clear and here was the Corvallis police officer getting out of his patrol car, maybe 75 feet from me, staring right at me.
I've made it a point to study the law in my free time and to know the ins and outs of what a police encounter is like. I've read Terry v. Ohio countless times, along with various other appellate and higher court cases relating to open carry and detainments. I had probably watched over a hundred youtube videos of people being detained and had never seen an open carry video where the detainee exercised the right to remain silent. I knew exactly what I would do if I was ever detained. The officer greeted me while he was still at his vehicle and my response was, "Am I being detained?" He said I wasn't. I told him, "I'll be on my way then" and turned to walk away (side note: I walked away from his vehicle here and not toward my residence. This was either clever of me or lucky, because this didn't give him any indication where I lived). He immediately said, "Okay you're being detained now." I stopped and turned back to face him. I told him, "I'll be exercising my right to remain silent then" because a recent Supreme Court ruling had said police officers should cease questioning those under arrest (which I wasn't, but you can never assert your rights quick enough) as soon as an individual said he was going to remain silent.
The officer, whose name I would soon learn was James Dodge, told me to raise my hands and approached me. He asked me a bunch of questions which I ignored and stared directly ahead. He then told me to turn around and frisked me which resulted in him finding nothing since all I had on me was a pocket knife and my gun, both plainly visible. He then continued questioning me which I again ignored and stared directly ahead. I think I was admiring the plants that had been enjoying the recent rains or something. I was listening to his words and trying to remember them but since I was going to say nothing until I was free to go, I didn't have to deal with conversing. Eventually he realized that I was carrying mail, and that mail often has names on it. Unfortunately one of the two pieces of mail had my name on it (ironically it was from Midway USA or some gun related store). He picked the mail up off the ground and looked at the names. He then asked if I was Kevin Hall, to which, unsurprisingly, I ignored and remained silent. He ran the license plate of my neighbor's car which came back to my neighbor. He then asked dispatch to run a warrants check on my name. It came back clean and showed I had a valid concealed weapons permit. He then told me I was free to go.
I asked him for his business card and told him that he had illegally detained me and violated my rights (or something to that effect). I really should have just asked for a business card and reserved the law quoting for a different time but I was pretty upset at being detained and then felt up by this guy who at this point obviously had no reasonable suspicion. He didn't have a business card on him but said he'd get one from his car. Then when we got to his car he started telling me to stand in front of his running car for his safety. I told him that wouldn't be happening since I wasn't being detained he couldn't give me any lawful orders, and I reminded him that Corvallis police policy was to give out a business card when making contact with a member of the public. He said he wouldn't be giving me one because he feared for his safety and got into his car (side note: the action of him getting into his car to leave made him just as unsafe as him getting into his car to get me a business card…but I digress). I turned to walk back to my residence I realized that if I kept walking he'd know where I lived. I stopped and turned toward him and waited for him to back all the way up to the corner and completely leave before I returned to my home.
Once inside I immediately told my fiancee (now wife) what had happened and went to my computer to write down what took place while it was fresh in my mind. This was an extremely good idea. Recording the details as soon as possible made me confident about what took place and where Dodge was lying when he gave his version of the events. After I finished writing down what happened, I went to the Corvallis PD records department and filed a public records request for the notes, audio, video, and radio recording of the detainment.
Mistakes on my part:
1. Not carrying a recording device. I had ample time to get a recording device out and get it recording. Having an impartial witness would had been invaluable.
2. After my detainment ended I shouldn't have expressed displeasure to Dodge. I realized later that by doing so it could have made him take notes on the event, or start thinking up ways to frame the event to his benefit, or to write a detainment report sooner rather than later.
3. Filing a public records request immediately after the incident. This caused two problems. One, Dodge hadn't written the report yet so the records department might have been confused. They initially called me back a few days later saying a report didn't exist. Two, it let the police department know that not only was I upset, but I was requesting information that I could use at a later point. I should have taken a deep breath, bided my time, and waited at least a couple of weeks before filing the public records request. At that point if Dodge realized that he should have written a detainment report, his memory wouldn't be very good and he'd likely make more mistakes about what happened.
A couple of weeks later, and after some difficulty, I received Dodge's memorandum detailing the detainment as well as the audio recording from dispatch (which I have since misplaced), but there was no audio or video recording from the police cruiser. I was displeased over the inconsistency between what I remembered and what he wrote. The good news was that he admitted he detained me and he appeared to have detained me solely because I was open carrying. Obviously this was not a legal action and so I filed a police complaint detailing various policy violations. While I didn't have a great deal of faith in the police department being impartial, I thought the detainment was obviously unlawful and they'd give him a slap on his wrist and additional training and I'd be happy that the system works and all would be well. This did not occur. Instead Dodge was exonerated on every point I brought up. I was, quite obviously, not pleased. I could had appealed to some citizen review board, but since Corvallis is mainly a liberal city and since I very much doubted the review board would be more knowledgable about the law than police officers, I decided that would be a futile exercise.
I did some research and learned I had a year from the time of the incident to file a lawsuit if I so chose. I had filed a federal lawsuit, pro se (I represented myself, I'm not an attorney), over school zones in San Francisco back in 2010, which I had lost and had dealt with a fair amount of grief from various people. While I learned a lot, it was not a pleasant experience and it was fairly draining. I knew if I was going to pursue this legally that I would want to do it myself. Why? I thought it was a much easier case than the one I lost in SF, and the thought of paying a lawyer thousands of dollars only to lose (or win and have the lawyer take thousands of dollars of whatever I got) was not very appealing. I had a feeling my case had merit and was fairly straightforward.
Over the year I did research that would benefit my case and research that could be used against me. This proved to be less useful than one might expect. I was doing this research assuming that Dodge would say he detained me for open carrying. All my research was related to carrying firearms and detainments. When summer had ended I knew I had to make a decision. Do I take the plunge and file a lawsuit or do I spare myself the investment of time and money and decide not to? I decided, after much internal debate and discussing the matter with my wife, that I'd file the case.
The year came to an end and I was scheduled to give my deposition in early January. I've never given a deposition and I had to do research in order to realize what took place during one. It seemed pretty straight forward though; you're asked questions that you answer and a court reporter writes everything down. Your answers are important because you are giving them under oath and can be referred to later (like in motions or at trial). If you give one answer at deposition, it better be the same at trial. Also the opposing side can use what you say to their benefit if they'd like. So the basic idea is to answer questions while thinking about the words you are using.
The day came and I showed up to this public meeting room and when I walk in the door there are only two people there, one of which is Dodge, the cop that had detained me. The first thing out of his mouth is, "Are you armed?" Now normally, I don't talk to cops and I thought I was in a public building, so why the hell would I answer that question, but this is a deposition for a lawsuit against him, surely he wouldn't hassle me while a lawsuit was going on. Right? Wrong. I say, "I always assume everybody is armed." He again asks to which I answer that I am. He then says he is going to have to check it. I immediately take out my audio recorder and start recording, as I'm doing that I get my cell phone out to start video recording. He says he is going to call another officer to come and do the inspection. I'm asking him what the point is since I was telling him it's loaded and he knew I had a concealed handgun license. It is clear that the purpose is to harass me and nothing more. I have video of the event but I haven't posted it anywhere public yet.
Overall the deposition was uneventful outside of the harassment. Two lawyers asked me questions for two or three hours. I don't believe I said anything too useful for them.
After my deposition I started preparing to take Dodge's deposition and I asked for various documents relating to my detainment. Among the documents I asked for was a list of all laws that Dodge suspected me of violating which lead to him detaining me. This was a last minute addition but I think this question was a clever way to get an idea why he detained me prior to taking his deposition. What was the reason for the detainment? The only crime they listed was for trespassing (what?!). With this information I tailored my questions around the reasonable suspicion he claimed he had. I hadn't started preparing for taking his deposition until I had given mine because I had no idea what I was doing and wanted to see what happened at a deposition before I started preparing for one. A couple of months go by and the day comes when I get to ask Dodge as many questions as I wanted. I took a couple of hours and asked him what ended up being over 120 pages of questions. I thought a lot of Dodge's answers could have been better, but there are no glaring slip ups.
His story is that he thought I was trespassing on the adjacent railroad property and he had detained me for that crime because of my location in a high-crime area, my manner of dress, my behavior of not answering his questions, and because I was armed. There are a variety of things wrong with this supposed belief, but the most glaring is the fact that he never mentioned trespassing in his detainment report and he never mentioned trespassing during the police complaint investigation. Instead trespassing suddenly arose over a year later when I sued and he retained counsel.
After discovery ended it was springtime of 2013. Dodge's lawyer filed a motion for summary judgment, and I did the same. We filed responses to each other's initial motion, and then finally replies to the responses. Altogether I ended up writing over 40 pages of legal arguments, and Dodge's lawyer wrote around the same. Yet another side note: When the case was filed, it was assigned to Judge Hogan. Shortly thereafter Hogan retired and my case was reassigned to Judge Coffin. Then in July my case was again reassigned to Judge McShane. Needless to say, I wasn't sure how long it would take for my case to be ruled on simply because of the amount of shifting around it had undergone. But two months after being reassigned to Judge McShane, an opinion was issued. I had won.
McShane had granted nearly everything I could have reasonably hoped to win in my motion for summary judgment. He ruled that the detainment and subsequent frisk were unconstitutional. I was thrilled for a variety of reasons:
1. The justice system had actually worked
2. I had succeeded as a pro se filer in federal court
3. I had shown that the police complaint investigation was wrong
4. I had shown that Dodge was wrong for detaining me
5. I had ignored Dodge's lawyer's variety of tactics to not proceed with my lawsuit because I would lose
6. I had argued successfully against a lawyer who had quite literally been an attorney since I've been alive
After the opinion and order was issued, a settlement was reached that was much better than their initial offers, which I accepted. I plan to donate the majority of the proceeds to the Oregon Firearm Federation to further bolster Oregonian's gun rights. Hopefully this ruling along with the funds going to our gun rights will help prevent these incidents from arising again in this state. Also, hopefully this case will cause Oregon police officers to change their behavior because even idiots like myself can represent themselves and succeed.
I've attached Judge McShane's order.
Well done. Congratulations.
If TRUMP 2016 loses then I will shrug off my WHITE MAN'S BURDEN and leave the world to the Dindus and Done Nuffins. Read and understand Ayn Rand's Atlas Shrugged as a prescription for the future. TRUMP 2016
Wow! Great story! I appreciate your efforts for the cause. Well done...
Excellent and very informative. Lots of things to be learned from this.
Do you feel that catching the officer in the trespassing charge played some or a lot in the outcome?
I'd only amend that to say you 'thought you sued the officer, but you really didn't sue any individual. He was shielded and the department settled', if I'm not mistaken.
He wasn't punished, sent to school, or more training on the law, wasn't admonished, had nothing put in his folder as to lying to the court. Shame.
Congratulations! That is a win on so many different levels.
Thanks for persevering and for sharing so much detail, the whole ordeal is both inspiring and educational.
One man takes on the system and wins!
A lot to be learned here.
You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC
Old and treacherous will beat young and skilled every time. Yata hey.
I admire your attitude and perseverance and congratulate you on your success.
I hope that Oregon's RKBA group(s) spread the story far and wide, and use it as inspiration for the next victim.
Bravo! Well played, sir.
Guns don't kill people. Drivers on cell phones do.
Seems as if the OP won everything he would have if it would have gone to trial. Why settle? Just wondering.
And it shows...facts are facts, the law is the law.
Good job by the OP ...
The settlement I assume is unable to be detailed?
Last edited by davidmcbeth; 10-05-2013 at 10:56 PM.
But suing him personally is the correct avenue to go; you never know what will happen.
Training? Who cares. Lawsuits are all about $$$. I never asked for training in any of my civil cases. You know what trains them? Loss of money.
As far as a trial goes, you would not have won anything more than what you won in the summary judgment IMO.
But if you are happy, that's all that matters.
What was the $$$ collected?
"It's not important how many people I've killed. What's important is how I get along with the people who are still alive" - Jimmy the Tulip
As always know your rights follow them to the letter and provide proof. Excellent job! I'm glad this turned out very well
-Matt of Hillsboro OR-
Thank you for the inspiration. I've only ever lost a case pro se and had been so discouraged that I never thought I could ever try it again, but now I might not be so afraid to stand up for myself in case my rights are violated.
Really inspiring work. I read every word of the court's opinion. Well done sir.
As for the "tresspass" justification for the seizure, that's crazy unless the person was banned from the RR property or proper posting of the property.
Every time you walk across private property it's a tresspass at common law, and you could be sued for nominal damages and maybe an injunction - it's a civil suit matter - not a police or criminal matter
Great work. I've printed out the court document to add to my collection of legal decisions ...
Last edited by JamesCanby; 10-07-2013 at 02:04 PM.
As you can see though, the wording of the law says railroad yards, tracks, bridges or rights of way. He said he suspected me of coming from an empty gravel lot that the railroad owned. Even in that case I wouldn't have been coming from a railroad yard, tracks, bridges, or rights of way. Further down the railroad tracks (about 100 yards) there is an overpass that would force any pedestrian traffic to be funneled closer to the railroad tracks, but he never said that's where he suspected me of trespassing.ORS 164.255
A person commits the crime of criminal trespass in the first degree if the person:
(c) Enters or remains unlawfully upon railroad yards, tracks, bridges or rights of way; or
I know all too well how difficult a Pro Se case can be. Kudos to you for putting forth the effort and getting your redress of grievances.
Do you know if this case will be able to be used as precedent so that other Oregonian's can reference it in future cases?
ADDED ON EDIT:
I would also like to say that I have read a LOT of cases in which the court ruled that while there was an unlawful detainment, that it didn't rise to the level of supporting damages. Many of those cases involved far more offensive conduct than what this officer did. I think it's great that you were able to get a ruling in which the court took a relatively minor (compared to some of the other unlawful detainments I'm aware of around the state) violation by the officer and refused to give him a "pass".
DAMN FINE WIN
Last edited by We-the-People; 10-07-2013 at 12:27 PM.
"The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
"Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.