This curious case of the nude cyclist charged with public indecency may draw some heat. Judge Jerome LaBarre was the lucky (ha!) trial judge who drew this case.  Judge LaBarre reportedly ruled that 21-year old Bobby Hammond’s nude bike ride was protected speech and thus not punishable.

There may be a lot of ranting about this case. We’re going to hear about “activist judges.” Wouldn’t surprise me if some outraged citizens even targeted Judge LaBarre for ouster when he is up for re-election. It doesn’t help that young Mr. Hammond hardly sounds like a deep political protester.

Several things that are important and not widely understood. First, the Oregon Constitution’s guarantee on free expression is stricter that the free speech clause found in the U.S. Constitution’s First Amendment.  In Oregon, for example, the State constitution protects nude dancing as free expression. The judge’s task in this setting is to interpret the facts and apply the law. When we’re talking about constitutional rights like free speech, sometimes the results won’t be pretty to all.

The other thing is that regardless of Mr. Hammond’s lack of articulation in the linked radio interview, the Portlland-area bike community has actively “spoken” or protested on bikes for years. This includes annoying rides that tie up traffic. (”Annoying” is defined as something that bothers me, a middle aged guy who drives, walks and cycles.) The nude rides have also been part of the general protests against car culture.

But the most important thing about all this is that Judge LaBarre did exactly what any principled judge should do. He made a ruling based upon constitutional interpretation that is firmly imbedded in the history and text of the Oregon constitution. It is critcally important that we recognize and honor judges’ independence, even when we don’t agree with them. Because a judge who makes decisions based on political whims is a real danger to our society.

So yeah, on one level, this is another case for the “Keep Portland Weird” advocates and those compilers of zany court cases. But looking deeper, this is case that validates the power of the Oregon constitution and judicial independence. And while I’m not interested in having my family subjected to nude cyclists, it’s the right result.

David Sugerman

Leave it to The Onion to have its own unique view of the outcome of the presidential race. Note that it contains salty language, so if words you can’t say on broadcast TV offend, don’t go there.

I was taken by both senators’ speeches Tuesday night. Senator McCain’s concession was moving and healing. He was profoundly eloquent about our race history. Quieting those who booed Senator Obama’s name was likewise classy. I wish that guy had run for office, as I didn’t really see that Senator McCain in this election.

Senator Obama left me in tears. As I’ve said before, regardless of who you support and what happens, we’re better as a country for his candidacy. There’s plenty to dislike in any politician, and president-elect Obama is no exception. Still, regardless of who you supported and how you voted, it seems like the rivals’ efforts to find common ground should be adopted by all of us.

There are very few defining moments in our nation. Middle-aged Americans probably can tell you all about a few, including the 911 attacks and their aftermath, the fall of the Berlin wall, the resignation of President Nixon, the end of the Vietnam War, and the assassinations of the Kennedys and Rev. King. Older Americans could supplement the list, and maybe some would quibble with what I included and what I left out.

Regardless, Tuesday was a night of history.

David Sugerman

Reported here is the impending settlement of a claim by the estate of James Perez against the City of Portland. Back in 2004, Mr. Perez was shot to death by Portland police in a traffic stop. Details are sketchy, except that Elden Rosenthal represents the family. Elden is a rock star when it comes to tough civil rights cases.  I expect to hear more about this in the coming days.

In a situation like this, you can’t really congratulate the family. While money from the settlement apparently will be used to provide care to Mr. Perez’s ailing mother, there’s little joy in the resolution of these types of tragedies.

David Sugerman

Allan cuts my hair and has for years. Nice guy. He does a good job, considering what he has to work with. We invariably talk about things trivial and weighty, and while we’re different politically and socially, we share wicked senses of humor and fundamental respect for differences.

So Allan and I fell to talking about the presidential contest. I’ll probably misquote him, but the dialogue went something like this:

“I’m a life-long Republican,” he volunteered,  “Still have to admit that I would enjoy the hell out of watching a black couple walk into the white house, ” he added.

“Through the front door?” I asked.  “And not even wearing uniforms?” I deadpanned.

We both broke into laughter. I suppose some would label the exchange inappropriate, politically incorrect, or–worst of all–sophomoric.  Still it was a great moment.

See, we’re both old enough to know that this is something that is profoundly different.

I have to say that I wept last night watching Senator Obama’s acceptance speech.  Don’t misunderstand me. This isn’t about the candidate. Truth is that I have questions about his candidacy.  I don’t share a number of his views and poisitions.

Nope, it’s about us.

Even though I am only middle-aged, I have lived from the days of lingering Jim Crow laws, of Dr. King, of the civil rights murders and lynchings through to this day when an energetic, accomplished and brilliant African American family may occupy the White House.  I cried last night because it says that for all of our flaws and warts and starts and stops that we have made progress as a people.

This isn’t meant as paean or love letter to Senator Obama.  It is instead a joyous note to mark a moment of American progress.  It’s American progress that is fundamental and true regardless of who we support and what we believe.  No matter the outcome of this election, we are changed as a people, I think, by these times. That is worth an outpouring of tears of joy.

David Sugerman

It’s just coming out, but The Oregonian is reporting that Oregon lawyers Keith Dozier and Aaron Baker obtained a jury verdict for $19 million in federal court here in Portland on behalf of four Thomason Toyota employees who suffered racial discrimination on the job. Keith is one of my favorite younger lawyers in Portland. He’s committed to doing things the right way. He’s kind of quiet and obviously committed to his clients. I don’t know Aaron, but I imagine he’s talented, too.

Verdicts of this size reflect outrage with a Big O.  I’ll keep an eye on this one and be posting about it as I learn more. In the meantime, if anyone out there knows about the case, I would appreciate your comments and would be happy to learn more about the case.

Congrats to the gentlemen who stood up for what’s right and their lawyers who obviously did a great job.

David Sugerman

Fair to assume that a number of employers sat up and took notice of these whopping big EEOC settlements finalized in U.S. District Court here in Oregon. The Oregonian news report suggests that Video Only was ordered by Judge King to pay a total of $630,000 on the two claims and the EEOC’s enforcement action. Not clear whether this was a private settlement, a consent decree or an actual decision.

According to the report, two employees–one Hispanic and the other African American, with a Jewish family–endured repeated racial, ethnic and religious slurs. Store management participated in the repeated misconduct. To add insult to injury, the news article reports that after receiving their complaints, Video Only hired an investigator to attempt to discredit the two men.

Here’s how the EEOC described the situation: “Our investigation discovered harassment that engaged in the worst stereotypes and slurs about blacks, Latinos and Jews, and that upper management actively participated in this behavior,” said Mike Baldonado, the EEOC’s acting district director. “The settlement should send a strong message that harassment based on race, national origin and religion has no place in the workplace.”

The news report also explains that the $500,000 of the $630,000 will be awarded to the two victims, and the balance will be paid to two co-workers who apparently suffered retaliation for supporting the complaints.

The size of the settlement should send a message to Oregon employers that management-led discrimination is going to result in a rather expensive slap down. That’s a good thing.

For my part, I can imagine that the men who took this on had a terribly difficult course at work and then–after blowing the whistle–likely had things get worse before they got better.

I’ve learned from clients over the years that blowing the whistle on employment discrimination is tough, especially when it is wide-spread and when it involves race, religion or sexual harassment. To my way of thinking, these four employees who said no deserve our thanks. By facing the monster, they made the workplace better for the rest of us. The other thing is that they’ve taught their children that sometimes we have to do hard things. Heroic.

David Sugerman

Interesting piece here on the City of Portland parking patrol’s ticket writing campaign for vehicles lacking front license plates.  Apparently, our parking cops have written 3,000 high-dollar tickets on parked cars without front plates.

Assuming the report is accurate–and sometimes they aren’t–here’s the problem. While I could be mistaken, I believe that the basis of these tickets is found in the Oregon Vehicle Code violation at ORS 803.540. The problem is that the statute is makes it a traffic infraction when a person “operates” a vehicle without proper license plates. A vehicle sitting parked isn’t being operated by anyone. (ORS 801.370) So how the parking patrol can legally ticket 3,000 people in our fair is a question that occurs to me.

It’s been years since I found myself appearing in traffic court. (Talk about adventure!) So it’s possible that my take on this is off the mark. Still, I would be really curious as to whether the City is citing vehicles based only on ORS 803.540, and–if so–how they get around the “operates” requirement. They wouldn’t have illegally ticketed thousands of parked vehicles….

David Sugerman

Must be the summer heat, but today’s news annoys me to no end. Congress gave in to the Bush White House by providing it the coveted immunity to phone companies that participated in illegal wiretapping. Gutless surrender monkeys.

I’m particularly annoyed by Senator Obama’s vote with the majority. As a former constitutional law professor, he knows better. Guess he couldn’t stand up to the FOX news critique if he stood for civil liberties and protection of privacy.

I don’t know about you, but I get pretty nervous when we make it easier for the government to spy on its own citizens. Seems like it’s a quick few steps from there to really bad news. If you have doubts about the importance of civil liberties, consider the case of Brandon Mayfield, a gentle soul who was caught in the horror-net of the Patriot Act when investigators mistakenly interpreted fingerprints left at the site of the Madrid train bombing.

I know, I know. Al Queda presents a very real threat. I’m not being snarky. Daniel Perl’s horrible death and 9/11 and Madrid trains were very real terror events. But the specter of terrorist attack can’t give the government license to spy us, to torture our prisoners, and to lie about weapons of mass destruction.

Immunity means that no jury will ever consider what these people have done. No one will ever have to explain. Immunity leaves the actors free to do whatever they choose. And that is a very scary thought.

David Sugerman

By the narrowest of margins, the U.S. Supreme Court reportedly recognized that the right of habeas corpus applies to detainees at Guantanmo Bay. The opinion is not yet up on the Supreme Court’s website, so I haven’t been able to look at it first hand.

Maybe this seems distant and esoteric. While many of us question the conditions and circumstances of detentions of so-called enemy combatants, it seems like this may have little to do with our day-to-day lives. I beg to differ. When the Bush administration and Congress suspended the rights of habeas corpus, they chose expedience over a long-run vision of how our country should function.

The right of habeas corpus simply means that someone jailed has a right to have an independent  judge determine whether he or she was illegally imprisoned. This is especially important in situations–like Gitmo–where some of the prisoners reportedly have been jailed for six years without a trial.  For those of us who believe in the rule of law and the constitution, this is intolerable. Because when constitutional rights are suspended, there is no line that limits that suspension. Today it’s “enemy combatants” a new category that didn’t exist before the “war on terror.”

And for those who are critical of this ruling, I can only ask a simple question: Where does the “enemy combatants” line end? Does it include those of us who are critics of the current administration? The whole “war on terror” and “enemy combatants” things are right up there on my personal bill of particulars–along with “We don’t torture” (wrong!) and “Mission accomplished” (oops!)–as to why the current occupant of the White House really pisses me off.  But enough about me.

In the film, Life is Beautiful, Roberto Benigni plays an Italian Jewish guy who goes from carefree clown to Holocaust statistic. The story is told from the point of view of his young son who survives the camp, because of his father’s wily antics. The movie is so damned poignant and beautiful.

Toward the end, the camp is liberated by the allies–Americans, as I recall–and the survivors slowly begin walking up a sunny road into freedom. The end is filled with hope and tears and laughter. While there is no comparing our current situation to that of post-World War II Europe, I sometimes think about the last scene of that movie and hope that we walk out of these dark times in a similar moment soon.

I have been extremely critical of the Supreme Court in the past. I imagine that won’t end, as they often do the wrong thing. The reported vote here–the narrowest 5-4–doesn’t give much comfort. Still, it’s a good day and a good thing because our constitution means something, even in the hard times.

I’m looking forward to reading this opinion, as it sounds like those who would suspend constitutional rights got slapped down. And that is good news.

David Sugerman

The news report appeared during the week. My friend and colleague, Ed Johnson, did a helluva job representing a homeless woman in her excessive force claims against members of the Gresham police force.  Here’s what seems to be a less-than-accurate account of what happened.

I rarely go out of my way to call into question news reports of trials, but the story left me with the impression that the police were the victims.  We know from the result that the story is wrong, as there are two independent checks the injured person must clear to win against the police.

In federal court, juries deciding civil lawsuits must be unanimous. The jury unanimously found in favor of Mary MacQuire, the woman tasered and beaten, and even found that her harms and losses required more money than she had requested.

But there is another check as well.  The federal judge who tried the case, Judge Michael Mosman, is not inexperienced in police cases. Before his appointment to the bench, Judge Mosman served as the U.S. Attorney, the person in charge of federal criminal prosecutions in Oregon.  So he came to the bench with a lot of experience with the police. As the judge presiding over the case, Judge Mosman only submits a case to the jury if there is sufficient evidence of wrongdoing. He listened to the evidence and submitted the case to the jury.

I had a chance to talk to Ed Johnson both before and after the trial. He’s a great guy who works for the Oregon Law Center, representing people of modest means. The case he described to me wasn’t the same one I read about in the paper. But regardless of the reporting problem, police cases are hard. Juries typically give police a lot of leeway because they recognize the difficulties of their jobs. In my experience, most Oregon juries believe the police. Of course, Oregonians tend to be pretty level headed, such that when they hear credible evidence of a problem they do what is right to assess fault and address harms and losses.

When I spoke to him before the trial, Ed was clear-eyed about the difficulties a homeless woman faces in claiming that the police used excessive force. He was quietly committed to his case. After the trial, he was spent, as most of us are after a hard-fought case. He was also pleased with the result.

Ed Johnson and Ms. MacQuire deserve our gratitude and praise. By taking the case to trial, Ed Johnson and Ms. MacQuire demonstrated that justice can be found in Oregon. The jury and judge deserve our praises as well, because a verdict in a case like this sends a message to those who fail to heed the rules that no one is above the law. Not even the police.

David Sugerman