DOJ Lawyers Taken to Task for Unprofessional Conduct
While I do not make it a practice to sue the police, officers do make mistakes and sometimes abuse the law. When they do, they should be held accountable. Similarly, when lawyers make mistakes or abuse the law, they should be held accountable as well. Just like bad police officers, it only takes one to reflect poorly on the entire profession. These DOJ lawyers have finally been called out for their unprofessional conduct. Their employer should take note of this decision and hold them accountable. This behavior reflects poorly on our entire profession.
Here is the opinion:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JUSTIN MICHAEL WILKENS,
ROBERT WAYNE EDWARDS, in his
individual capacity; THE STATE OF
Case No. 6:14-cv-00907-MC
OPINION AND ORDER
Plaintiff Justin Wilkens seeks attorney fees in the amount of $343,717.36 following a
jury trial and award totaling $181,169.62. The jury awarded Plaintiff$19,749.05 in economic
damages, $100,000.00 in noneconomic damages, and $50,000.00 in punitive damages based on
an excessive force claim brought under 42 U.S.C. §1983. ECF No. 135. The jury also awarded
Plaintiff $11,420.57 based on a negligence claim against Defendant State of Oregon. Id.
Defendants concede that Plaintiff is the prevailing party, but dispute the amount that should be awarded.1 As the prevailing party, Plaintiff may properly recover reasonable costs and fees pursuant to 42 U.S.C. § 1988(b). For the reasons below, the court GRANTS Plaintiffs fee petition, ECF No. 135, in PART, and awards Plaintiff the reduced amount of $318,689.48 in attorney fees and the reduced amount of $17,141.39 for his costs.
The Ninth Circuit applies the "lodestar" method for calculating attorney fees. Fischer v.SJB-P. D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). That calculation multiplies a reasonable hourly rate by the number of hours reasonably expended in the litigation. Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933 (1983). The court then decides whether to enhance or reduce the lodestar figure by evaluating a set of factors. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). A "strong presumption" exists that the lodestar figure represents a "reasonable fee," and it should therefore only be enhanced or reduced in "rare and exceptional cases." Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986).
1 Confoundingly, Defendants dispute that Plaintiff prevailed on his negligence claim against Defendant State ofOregon, stating that "only one of two defendants was included on the verdict form, presumably meaning the State ofOregon was dismissed from the case." Def:'s Response, 2, ECF No. 143. As Plaintiff properly points out, "the Stateof Oregon was only removed as a named defendant on the verdict form in order to alleviate potential confusion withthe jury deliberations." Pl.'s Reply, 3, ECF No. 149. The court discussed this matter with both parties prior toinstructions and defense counsel agreed that the State of Oregon would be removed from the verdict form eventhough any judgment on Wilken's negligence would be a judgement against the State Defendant. Plaintiff is theprevailing party on both his excessive force claim and his negligence claim, see ECF No. 130, despite Defendants'deliberate misinterpretation of the verdict form.
BACKGROUNDI. Motion for Attorney Fees
The parties' briefs surrounding Plaintiffs petition for attorney fees raise a host of issues and minor disputes. In determining the reasonableness of fees, the court is not required to respond to each specific objection. Gates v. Deukmajian, 987 F.2d 1392, 1400 (9th Cir. 1992).Rather, all that is required is a "concise but clear" explanation of reasons for the fee award. Id.
A. Reasonable Hourly Rates
Courts apply prevailing market rates for purposes of§ 1988 fee determinations. Blum v.Stenson, 465 U.S. 886, 895, n.11, 104 S. Ct. 1541 (1984). Prevailing market rates are those that the local legal market would pay for a case of this nature to a lawyer of comparable skill,experience, and reputation to a plaintiffs counsel of record. Id. at 897. Accordingly, courts in this District have determined that they will use the Oregon State Bar 2012 Economic Survey as their initial benchmark when reviewing fee petitions.2 Exceptional circumstances may be taken into account for an enhancement of the lodestar figure, including when the prevailing rate does not account for the true market value of an attorney or when litigation includes extraordinary expenses or is exceptionally protracted. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1674-75, 176 L. Ed. 2d 494 (2010).
Eugene, Oregon attorneys Lauren Regan and Marianne Dugan both seek an hourly rate of$375. Ms. Regan and Ms. Dugan fall in the "16-20 Years" and "21-30 Years" experience rangeof the Economic Survey's billing analysis, respectively. ECF Nos. 137, 139. Eugene, Oregon
2 The economic survey is available at https://www.osbar.org/ _ docs/resources/Econsurveys/12EconomicSurvey.pdf.I note that Plaintiffs counsel point to a 2008 survey that is specific to the Civil Rights Section of the Oregon StateBar, but I do not apply that survey due to the fact that this District has opted to apply the 2012 Economic Survey, see https://www.ord.uscomis.gov/index.php/court-info/court-policies/fee-petitions. Further, I note that the 2008 survey's 20.3% response rate (55 persons of 271), wide range of hourly rates, and lack of geographical indicators render it unreliable for the purposes of the prevailing market rate inquiry. See ECF No. 137-3
attorney Cooper Brinson seeks an hourly rate of $195. Mr. Brinson falls in the "0-3 Years"experience range. ECF No. 138.
Defendants object and assert that hourly rates for all three attorneys exceed reasonable rates for counsel in the Lower Willamette Valley area of the Economic Survey. According to the Economic Survey, the median hourly billing rate for plaintiff-side civil litigation attorneys in private practice in the area is $225, while the 25th percentile is $175 and the 75th percentile is$275. The prevailing market rates for Plaintiff's attorneys based on their years of experience are:
25th Percentile Median 75th Percentile 95th Percentile
Marianne Dugan $225 $250 $300 $320
Lauren Regan $179 $210 $228 $255
Cooner Brinson $113 $150 $169 $175
Plaintiff's attorneys cite a number of reasons for their requested hourly rates, including the difficulty of this case, the specialization required, and their expertise in the subject matter of this litigation. I have considered all of Plaintiff's assertions in support of and Defendants' objections to the requests for increased hourly rates. After careful consideration, I apply the 95th percentile hourly rate found by the Oregon State Bar 2012 Economic Survey for Ms. Dugan and Mr. Brinson. I adjust these rates for inflation to an hourly rate of$325.71 for Ms. Dugan and$178.12 for Mr. Brinson. 3
With regard to Ms. Regan, the lead counsel in this case, the prevailing market rates do not adequately address her level of experience, her reputation in the state as a civil rights attorney, the risks associated with civil rights litigation, the lack of adequately trained and available attorneys in the Eugene area willing to take on this work, and the unique difficulties
3 This adjustment was performed using the Bureau of Labor Statistics Consumer Price Index ("CPI") Inflation Calculator, available at http://www.bls.gov/data/inflation_calculator.htm. That calculator uses the average CPI for a given calendar year using the latest monthly index value to represents changes in prices of all goods and services purchased for consumption by urban households.
presented in the litigation of this case. I find her requested hourly rate to be reasonable after
considering all of these factors.
To support the reasonableness of her hourly rate for the services she provided to Mr.
Wilkens, Ms. Regan details 18 years of specialized skill in federal court on behalf of clients in
cases involving police and government misconduct. ECF No. 137 a t ~ 6. In an era in which it is
difficult to find an attorney with extensive experience before a jury, Ms. Regan has tried over 88
cases in federal and state comis. Jd. As an educator in the field of civil rights litigation, Ms.
Regan is a frequent presenter at bar sponsored CLE events, she presents to the public and the
media, and she mentors and consults with less experienced attorneys seeking assistance with
civil rights litigation. Id
The reasonableness of Mr. Regan's hourly rate is supported by the declarations of experts
who practice in the field of civil rights, Ms. Jennifer Middleton and Ms. Beth Creighton. Both
have reviewed the hours and the hourly rate submitted by Ms. Regan and both opine that the rate
sought by Ms. Regan is in keeping with the reasonable rates billed by a practitioner in the field
with like expertise and skill. Ms. Middleton, who bills between 400 and 450 dollars per hour,
states "despite my twenty years of civil rights experience, I often refer police misconduct cases
to other lawyers-most often Ms. Regan-when I do not feel I have the expertise to handle
them." ECF No. 141 a t ~ 5. Ms. Creighton refers to both Ms. Regan and Ms. Dugan as "two of
Oregon's premier attorneys in the field of protecting the civil rights of individuals against police
misconduct in the Eugene area."
More important than the above declarations outlining Ms. Regan's expetise and skill, I
find that Ms. Regan's rates are reasonable in light of the litigation tactics employed by the
attorneys representing the government in this case. The government's approach to litigating this
factually simple dispute was unprecedented in both its scope and its lack of regard for the law and the facts of the case. From my perspective it was disappointing; from the perspective of those wronged by police conduct, those tactics can only be described as purposely focused on chilling any attorney without a stout heart from an avalanche of pointless litigation.In a basic injury case in which there was little factual dispute, the government conceded nothing. In a case where the typical attorney would stipulate to uncontested facts, the government failed to confer or stipulate to even the most obvious.
The government filed 22 objections to exhibits being introduced by the plaintiff, all of which were groundless. For example, government counsel objected to the introduction of photographs of the scene of the accident, the motorcycle at the scene, and photos of the police vehicle involved in the accident. Incredibly, they objected on grounds of"relevance, rule of completeness, also subject to foundation and see defendant's motion in limine 1, 10, and 11."ECF No. 92 at 2 (citations omitted). The irony that they were offering some of the same photographs seemed lost on them. Unable to grasp the relevance of plaintiffs medical records relating to the jury sustained, the defense objected to the introduction of such records on the grounds of"relevance, hearsay, hearsay within hearsay, rule of completeness, also subject to foundation and see defendant's motions in limine 4, 5, and 9." Id. Continuing in this same vein,the defense filed a 17-page memorandum in their attempt to keep out the testimony of treating physician and surgeon in a case where damages are being sought for a shoulder injury. The grounds were both confusing and meritless; defense counsel apparently believed that a treating physician is an expert witness who is subject to a Daubert hearing. None of these physicians were offering opinions on causation; rather they were simply testifying as to the extent of the injury, the treatment provided, and the reasonableness of costs. No attorney before me, in the 29 years I have been on the bench, has objected on these grounds to the testimony of treating physicians in a case involving injury. One would be hard pressed to find more relevant testimony on the issue of damages in an injury case.
But for the behavior of counsel at trial, I would chalk such tactics up to inexperience.The condescendence that was exhibited toward plaintiff and his counsel during trial, however,can only lead this court to agree with the characterizations found in the declarations of Ms.Regan and Ms. Middleton that the government's trial tactics made the litigation more costly and prolonged, and ultimately conclude that it was intended to deter the plaintiff bar from filing lawsuits. While the best of us at times have our moments of eye rolling, snickering, and sighing inthe courtroom, it quickly became apparent that this was a concerted tactic to discredit the plaintiff in front of the jury. At one point during examination of the defendant, government counsel pretended to be asleep in his chair, his unconscious visage being broken only by an occasional loud sigh. Such tactics failed miserably to impress the jury and required repeated warnings from the court.
The behavior of defense counsel throughout this litigation sadly supports the understated contention in Ms. Regan's declaration that "defendants were particularly hard to work with .... "ECF No. 137 at if 18.Certainly the argument could be made that the government has rightfullyincurred the cost of the additional hours that their litigation tactics produced and nothing more.But such tactics also chill the plaintiffs bar from engaging in the field of civil rights. Thosewilling to take on this additional burden have the right to set a reasonable rate to do so
B. Number of Hours Spent
Defendants also dispute Plaintiffs declared number of hours spent on this case, which are 749.20 hours for Ms. Regan, 183.57 hours for Mr. Brinson, and 15.48 hours for Ms. Dugan. Pl.'s Memo in Support of Fee Petition, 2, ECF No. 142.
In their objection, Defendants' distinguish between the "overall amount of time spent on the entire case," with which Defendants do not take issue, and "an award of the entire number of hours spent" by Plaintiffs counsel, to which Defendants object. Def.'s Response, 3, ECF No.143. Defendants assert this objection based on the fact that Plaintiff did not prevail upon all of his claims. Defendants suggest an "across-the-board" percentage cut of 70% to reflect Plaintiffs partial success. Id (citing Quesnoy v. Oregon, 2012 WL 1155832 at *6 (D. Or. Apr. 6, 2012)(Stewart, J.)).
I reject Defendants' objection to Plaintiffs requested hours. This case is procedurally and factually distinguishable from Quesnoy, which involved an array of claims with varying levels of success brought under entirely separate bodies of law, including the Americans with Disabilities Act, the First Amendment, the Eighth Amendment, the Fourteenth Amendment, and state law intentional infliction of emotional distress. See Quesnoy, 2012 WL 1155832 at *1. Importantly,when assessing reasonableness of hours expended by the plaintiffs counsel in that case, Judge Stewart noted: "None of the unsuccessful claims are related factually or legally to the successful... claims." Id. at *5.
Unlike Quesnoy, there is no dispute that all of Plaintiffs claims center upon and arise out of a single event. His unsuccessful claims are so factually intertwined with those upon which he prevailed that any cut to his requested hours would violate the clear mandate of the Supreme Court: "Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised." Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 1935 (1983).I do not alter the hours set f01ih by Plaintiff in his fee petition.
Based on the above, Plaintiff is awarded attorney fees as follows:
Hours Rate Fees
Lauren Regan 749.20 $375.00 $280,950.00
Cooper Brinson 183.57 $178.12 $32,697.49
Marianne Dugan 15.48 $325.71 $5,041.99
Total Fees $318,689.48
II. Bill of Costs
Plaintiffs Bill of Costs itemizes $16,496.36 in general trial expenses and expert fees and$4,805.00 in fee declarant expenses, for a total of $21,201.36.
Defendants object to (1) $80 witness fees for the Lane County Sheriffs Department for alack of explanation; (2) $10 ambulance account report for a lack of documentation; (3) $21.49 for trial materials from an office supply store for a lack of documentation and asserting that office supplies should be considered overhead; (4) $2,090.00 for Exam Works testimony costs for a lack of documentation, (5) $37.50 for Pacer research, asserting that this should be considered overhead; (6) expert fees, generally, assetiing that§ 1988 does not allow an award of expert witness fees on § 1983 claims; (7) $2,500.00 for "trial testimony fees" for Dr. Boespflug because he did not testify at trial; (8) $3,000.00 for "trial testimony fees" for Dr. Sheerin because he was not designated as an expert and for lack of documentation; (9) $800.00 and $347.47 for"expert witness fees" for Gary Monteleone and Bill Cole, respectively, for lack of documentation; (10) two separate fees of$1,675.00 and $1,237.50 in expert fees for Dr.Robertson for lack of documentation; and, finally, (11) $1,575.00 and $3,230.00 for "fee declarant/expert fees" for Ms. Middleton and Ms. Creighton, respectively, asserting that such fees are not recoverable.
A. General Objections
Upon careful consideration of Defendants' objections and Plaintiffs cited reasons for seeking the relevant fees, I dismiss Defendants' objections (1)-(5), (7), and (8). See Pl.'s Reply,3, ECF No. 149; see also id. at 4, n.1 (explaining the fee bases for Drs. Boespflug and Sheerin).B. Expert Fees Regarding Defendants' expe1i witness fee objections (6), (9), and (10), I turn back to Quesnoy v. Oregon, which considered a petition seeking expert fees following a plaintiffs successful § 1983 claim. The relevant holding in Quesnoy reads:
In 1991, the Supreme Court held that§ 1988 does not authorize the shifting of expert witness fees to the losing party. West Virginia Univ.Hosp., Inc. v. Casey, 499 U.S. 83 (1991). After Casey, Congress amended§ 1988 to allow the court, "in its discretion,'' to award expert witness fees "in any action or proceeding to enforce a provision of section 1981 or 1981a of this title." 42 U.S.C. § 1988(c). This amendment does not include claims brought under§ 1983. Ashker v. Sayer, No. 05-03759CV, 2011 WL 825713, at *4 (N.D. Cal. Mar. 7, 2011); Rtif.fv. County ofKings, 700 F. Supp. 2d 1225, 1243 (E.D. Cal. 2010); Agster v. Maricopa County, 486 F. Supp. 2d 1005, 1019 (D. Ariz. 2007). Thus,§ 1988 does not allow an award of expert witness fees to plaintiff for prevailing ... onher § 1983 claim.
2012 WL 1155832, at *10 (citations updated). I agree with this analysis and the findings of the various courts that have recognized the effect of Casey and the subsequent amendment to§ 1988. I find that expert fees are not available to a prevailing plaintiff fora § 1983 claim, and I accordingly reduce Plaintiffs Bill of Costs by those amounts a tissue in Defendants' objections (9) and (10), which total $4,059.97.
C. Fee Declarant Fees
Finally, I dismiss Defendants' objection (11) to the fees sought for the assistance of Ms. Middleton and Ms. Creighton. The Ninth Circuit has held that counsel may"solicit the assistance of other lawyers in working on a case, however, and the time spent by all lawyers on a litigation can be billed so long as the hours claimed are not duplicative." Davis v. City and Cty. of San Francisco, 976 F.2d 1536, 1544 (9th Cir.1992). Nothing in the record before me indicates that the work of Ms. Creighton or Ms.Middleton was duplicative of Plaintiffs trial counsel.
Upon careful consideration of the record, I find that Ms. Middleton and Ms.Creighton acted as fee counsel, and that "time spent by counsel in establishing the right to a fee award is compensable," and such compensability extends to situations in which a plaintiff hires "an additional lawyer to act as fee counsel." Davis, 976 F.2d at 1544.
Based on the above, Plaintiffs Bill of Costs is reduced to $17,141.39.
For the reasons stated above, Plaintiff's Motion for Attorney Fees, ECF No. 135, is GRANTED in the reduced amount of $318,689.48, and Plaintiff's Bill of Costs, ECF No. 135, is GRANTED in the reduced amount of$17,141.39.
IT IS SO ORDERED.
Dated this day of March, 2016.
Michael McShane United States District Judge
Oregon Court Rejects Common Sense in Favor of Criminals
July 10, 2015
Yesterday, in State v. Jimenez, the Oregon Supreme Court ruled that police officers in the State of Oregon cannot ask people they lawfully detain if they have any weapons on them without some independent reason for doing so. The Court specifically rejected the fact the State Legislature implicitly recognized in both ORS 131.615 and ORS 810.410 that a weapons inquiry invariably serves to protect officer safety.
The case involved an Oregon state trooper who saw Joseph Lucio Jimenez jaywalk. When the trooper turned his car around, Jimenez looked in his direction and started to walk away. The trooper honked his horn and motioned to defendant to come and talk to him, which defendant did. The trooper knew that the intersection was in a high-crime area where a lot of recent gang activity had occurred. He observed that defendant was wearing an “oversized” or “puffy” jacket over a “hoodie sweatshirt,” “oversized baggy gray pants,” and “white tennis shoes,” and was carrying what could be a green lanyard—garb that the trooper thought might indicate gang affiliation. The trooper got out of his car, approached defendant, and began a conversation with him. The trooper told defendant why he had stopped him and asked defendant why he had crossed the street against the light. Defendant replied that he had seen somebody else doing the same thing and “thought it was okay.” At that point, the trooper asked “do you have any weapons on you?” Defendant “kind of sighed and closed his eyes and said yes.” The trooper asked defendant what he had, and defendant answered he had a gun. Without being asked, defendant separated his feet, leaned forward, separated his hands, and put his hands on the hood of the trooper’s car. The trooper put defendant in handcuffs, called for backup and continued to question defendant; however, the trooper did not ask additional questions about the jaywalking and did not cite defendant for jaywalking. The trooper frisked defendant, located the gun and learned that defendant kept the gun for “protection” and he was indeed a gang member. When backup did not arrive, the trooper placed defendant in his patrol car and took him to the police station. Defendant ultimately was charged with one count of unlawful possession of a firearm under ORS 166.250(1)(a). At the motion to suppress hearing the trooper testified he asked defendant if he had any weapons on him, “which I do with all contacts on the street with pedestrians, just for—obviously for officer safety reasons.” The trooper explained that “[i]t makes [it] a lot easier if we can stand and have a normal conversation if there’s no weapons on the person.” The trial judge denied the motion and the defendant was convicted. However, the court of appeals and the Oregon Supreme Court disagreed with the trial judge, ruling that the trooper’s question violated the Article I Section 9 of the Oregon Constitution.
ORS 810.410 States that a police officer may stop and detain a person for a traffic violation for the purposes of investigation reasonably related to the violation, identification and issuance of citation and may make an inquiry into circumstances arising during the course of a detention and investigation that give rise to a reasonable suspicion of criminal activity and may make an inquiry to ensure the safety of the officer, the person stopped or other person present, including an inquiry regarding the presence of weapons. ORS 136.615 has a similar provision for stopping individuals suspected of a crime. These are essentially a codification of the “stop and frisk” rule. The statutes specifically authorize officers to inquire about weapons without any additional justification. It is a recognition that law enforcement officers potentially place themselves in harm’s way every time they exercise their authority over another person and there is often no way to tell if someone is armed and dangerous.
The Court today chose to ignore that reality. The Jimenez opinion states that an officer making a general inquiry about whether a person they stop has any weapons, without any particularized suspicion as to that individual, violates Article I Section 9 of the Oregon Constitution. In effect, they ruled ORS 810.410 and 136.615 are unconstitutional as applied (although they decline to say that outright).
The State argued officer safety is always reasonably related to a traffic or other legitimate police investigation and the mere question “do you have any weapons” is always reasonably necessary to effectuate it. Consequently, asking about weapons in no way violates anyone’s constitutional rights, whether it be Jimenez or Mr. Law-abiding citizen. A pedantic Oregon Supreme Court ruled otherwise.
Lessons for law enforcement to take from this case:
1. Articulate why, under the facts involved in your particular case, you had PC or reasonable suspicion and you had reasonable circumstance specific concerns for officer safety. Articulate why the puffy jacket and other attire not only raised suspicions of gang affiliation but also raised concerns about weapons possession and ease of concealment. Articulate specific concerns you have about the defendant’s tattoos and what your experience told you at that time about them. Articulate why you were concerned about this particular part of town and the time of day and the fact that you were alone and the suspect’s demeanor that heightened your sense of concern. Put this in your report and make sure it goes on the record at the motion hearing. In Jimenez, the court of appeals ruled earlier that the trooper’s testimony was insufficient to raise such a concern or even that he is a gang member. Just looking at Jimenez’s picture tells you much more could have been extracted from the trooper on the stand. Justice Kistler in his concurring opinion states as much:
“In my view, (the circumstances articulated by the trooper) were sufficient to warrant asking defendant if he had a weapon and did not depend on impermissible stereotyping. The majority does not hold otherwise. Rather, as I read its opinion, its holding rests on the absence of any explanation from the officer why the circumstances of this particular stop raised a safety concern and why the officer asked about weapons when he did. On that issue, the officer testified only that he asked defendant “if he had any weapons on him, which I do for all contacts on the street with pedestrians, just for—obviously officer safety reasons.” The officer’s testimony is lacking ****.”
2. Don’t assume the court will understand what you are talking about. Judges do not have the same experience as you and need to be educated about things you might think are common sense. Do not just say the suspect appeared to be gang-affiliated and was wearing baggy clothes so “for officer safety” I searched him. Explain what led you to the conclusion he is gang affiliated, why that is important (weapons) and in your experience baggy clothes can conceal weapons. As Kistler also noted in his concurrence: “Officer safety” explains the nature of the officer’s concern. It does not identify the facts that, in his mind, gave rise to that concern.”
3. Do not talk about gang members or other groups generally, provide a particularized basis to assume suspects are dangerous in the context of their affiliation. In other words, provide the background regarding the group affiliation, articulate why it caused concerns. (weapons/violence), then describe this individual suspect's affiliation with that group and his particular actions that furthered your concern (furtive movements, nervousness, etc.).
4. Always, always, always cite defendant for the original charge if you end up finding drugs or weapons pursuant to your lawful search. It might just be for a taillight, or in this case, jaywalking, but the court takes notice when there is no further inquiry or concern about the behavior that originally drew your attention. Yes, pretext stops are still legal. No, the court has never particularly liked them.
5. Do not rely solely on your best argument. If you have a search warrant, get consent too. Then in court testify about those and the underlying reasons the auto exception would apply as well. There is no reason to limit yourself to what you were thinking at the time if another lawful rationale justifies your actions. You never know when the court is going to decide a statute is unconstitutional.
6. Do not rely on the DDA to ask you all the right questions. Make sure you talk to the DDA before you testify and discuss the facts. If you need to explain something on the stand, make sure it gets on the record. If it doesn’t, tell the DDA and see if you can reopen your testimony.
The truly unfortunate thing about this case is that it did not need to happen. The State did not have to make bad law here, and 810.410 could have continued to be used as a tool for police. The trooper had sufficient information he could have provided to the court to justify even a frisk of this defendant. However, because it was not part of the record, the Assistant Attorney General had to take the most “extreme” position on appeal. As a consequence, police have to (again) relearn to navigate this already convoluted area of Oregon law.
Posted by: Josh Lamborn
Victim Rights Attorney Recognized by Super Lawyers
July 8, 2015
The Law Office of Josh Lamborn, P.C. is proud to announce that Josh Lamborn was selected for inclusion in the 2015 Oregon Super Lawyers Magazine. Josh opened his firm in 2009 and built a reputation as a zealous, effective advocate for sexual assault victims, crime victims and personal injury clients.
Super Lawyers is a research-driven, peer-influenced rating service that showcases outstanding lawyers who obtain a high degree of peer recognition and professional achievement. The mission of Super Lawyers is to bring visibility to those attorneys who exhibit excellence in practice. Selection for the Super Lawyers list is based on peer nominations and peer evaluations combined with independent, third-party research. Lawyers from more than 70 practice areas are included and selections are made annually on a state-by-state basis. Only five percent of lawyers in Oregon were selected.
You can check out Josh’s Super Lawyers profile by clicking the badge at the bottom of the page.
The Law Office Of Josh Lamborn, P.C. is Proud to Sponsor the 2015 Crime Victim Law Conference
April 17, 2015
Register Now for NCVLI’s 2015 Conference by clicking HERE.
Registration is now open for the 13th Annual Crime Victim Law Conference.
Join us May 28-29th, 2015 at Lewis and Clark Law School in Portland, Oregon. Keynote speakers will include James E. Baker, who was appointed to the United States Court of Appeals for the Armed Forces on September 19, 2000 and Laura Dunn, J.D., the Executive Director of SurvJustice, a non-profit whose mission is to decrease sexual violence in our communities. Please visit my Conference Agenda Page for a complete rundown of the program.
Posted by: Josh Lamborn
DHS Fails Children
December 16, 2014
By Erin Olson and Josh Lamborn
Last week, a courageous and angry Multnomah County jury awarded two little girls a substantial amount of money for enduring nearly two years of physical, sexual and emotional abuse in a state-certified foster home. The jurors' verdict – for every penny they could legally award – was clearly intended to send a loud and strong message to the state of Oregon, and we hope the Oregon Legislature, the Department of Human Services and the other state and local agencies charged with the safety of foster children were listening.
There is no more vulnerable a population of Oregon children than those who are taken into protective custody by DHS because they have suffered abuse or neglect in their families of origin. We simply must find better answers for placing these children than in the homes of people like Kimberly Vollmer, and up until 2009 there was a better option – the Children's Receiving Center.
While the Children's Receiving Center was open, DHS Child Protective Services workers had a safe, professionally staffed, child-centered place to take children while a longer-term placement was found. The CRC was the product of the collaborative efforts of both public and private organizations, and its construction and operation were supported by federal, state and local politicians who touted the center as a critical component of the child welfare system. The closure of the CRC in 2009 due to budget cuts went largely unnoticed by the public, but not by the Child Protective Services workers charged with finding safe shelter for the sad and confused children they must take into protective custody.
When Kimberly Vollmer was certified as a foster parent in 2011, DHS foster home certifiers overlooked or ignored her obvious limitations. All of the certifiers who testified at trial spoke of the desperate need for foster homes, and in the closing summation to the jury, the state's attorney argued that whether a foster care placement is reasonable depends on what is available. That is not – and cannot be – the standard.
The state of Oregon must do better for these children, and not just the Department of Human Services, but all the state and local agencies that are charged with the care and safety of children. Rule changes are important and warranted, but having a safe place to put the children taken into state custody is critical.
The Children's Receiving Center fell victim to budget cuts, but the number-crunchers forgot to factor in the consequences to children placed in foster homes like Kimberly Vollmer's when they were doing their cost-benefit analysis. The jury – who took to heart its role as the conscience of the community – recognized the consequences, and so should the rest of us.
Erin Olson and Josh Lamborn are the attorneys, respectively, for the two abused girls, known as N.E. and E.S.
Originally published in the Oregonian
Tags: DHS, Child Abuse, Sexual Abuse, Crime Victims
Universities' Lack of Policies, Resources and Staff Training Lead to Unjust Treatment of Student Rape Victims
October 17, 2014
Stories of female college students who were raped and then relied on their schools to adjudicate their claims have permeated the media during the past few months. And each woman’s story carries the same general theme: She was denied justice and left feeling like her school betrayed her. In these cases, the system failed because university and college campuses are not set up to effectively handle sexual assaults and other serious crimes.
Instead, the university disciplinary system is designed to address infractions like disrupting class or academic honor code violations such as plagiarism, which does not require much investigation other than comparing the student’s work with the source—and some schools even have software to do that for them. It does not work, however, when schools attempt to go beyond the scope of these violations.
There are numerous problems with victims only going through their school for sexual assault claims. The greatest downside is that the worst penalty the offender faces is expulsion from the university, releasing him from adequate legal punishment and to prey on others. Another drawback is the disciplinary process itself. The hearing panels schools use often lack consistent policies and procedures for dealing with cases like these and comprise administrative staff or faculty members who have little or no training in evaluating evidence, interviewing witnesses or the parties involved or understanding victims’ responses to trauma. The panelists might be unfamiliar with the elements of sexual assault and base their decisions on a lack of knowledge or without considering all of the evidence. At the hearing, the victim might have to speak for herself, being unable to afford an attorney or the school not allowing an advocate to speak on her behalf. If the attacker is found not responsible, the victim’s only option is to appeal, which goes to the dean or another school official who decides the fate of the case. The ordeal is made worse for the victim, as while the case proceeds, she must maintain confidentiality and cannot turn to friends or family. This makes what seemed like the right thing to do a nightmare for the survivor, often causing her shame and regret for trusting her school.
Rather, the best course of action is to immediately go to the police. They are properly trained and staffed to conduct interviews, collect evidence and thoroughly investigate the crime. Reporting the attack right away is crucial, because waiting can lower a victim’s credibility and even ruin a case—critical physical evidence might be destroyed, witnesses’ memories fade and attackers have time to fabricate their side of the story, all of which significantly lessen the likelihood of a case being pursued.
Still, reporting a rape to the police can be overwhelming to a victim, particularly right after it happens. Dealing with the aftermath of a sexual assault is anything but easy, and uncomfortable medical exams need to be performed and difficult questions need to be asked of the victim. Some police officers might seem insensitive or like they are blaming the victim, but they are still trained to do the job, unlike school officials—plus, using the system is the only way it can improve. A victim might worry about being scrutinized for her behavior, feeling like she somehow contributed to her attack, and the prospect of a long, complicated criminal trial might be the least appealing option if she just wants to move on. Additionally, the standard of proof in criminal cases—beyond a reasonable doubt—is higher than a fairly straightforward university panel hearing, so the possibility of a case failing at trial might not seem worth pursuing.
The survivor may pursue a civil case if there is a responsible party financially capable of compensating her for her suffering. In this instance, the defendant might be a company or public entity, such as the attacker’s employer or an organization that facilitated the abuse, like the school. The standard of proof in a civil case, a preponderance of the evidence, is lower than in criminal cases, so the chance of prevailing is higher. The parties might also reach a settlement agreement, making a trial unnecessary. Furthermore, all of the evidence was already gathered in the police investigation, aiding in establishing the civil claim. Pursuing a civil case certainly lengthens the legal process for the victim, but it is another avenue to try obtaining closure and justice against the perpetrator.
If you or someone you know has been sexually abused, call a lawyer who represents crime victims and / or sexual abuse victims and learn more about the options available. Do not make important decisions based on what you have heard in the media or from friends. Josh spends hours with victims every week consulting with them (for free) about their options and educating them on the criminal and civil justice systems so they can make informed decisions. Whether the case involves a University, another institution or just an individual perpetrator, take the time to get the information necessary to make the right decision for you.
Posted by: Jessica Pedrosa
Tags: Sexual Abuse/Sexual Assault, Abuse, College Sexual Abuse, Campus Rape, Sexual Assault Victims
Sexual Assault Response: Progress Toward a Victim-Centered Approach
February 26, 2014
City Auditor Lavonne Griffin-Valade released her report yesterday detailing the results of her recent audit of the City of Portland’s progress in improving its response to sexual assault cases. The report was an update of her 2007 report which was highly critical of the City and in particular, the Portland Police Bureau, in their handling of sexual assault victims. The February 2014 report found The City and PPB made significant progress since the last audit toward achieving a victim-centered approach in assisting sexual assault victims. In fact, the audit notes that the Bureau and community response to the 2007 audit was “impressive and immediate.” This response and the audit itself, is testimony to the City’s commitment to implementing a victim-centered approach to sexual assault. This is important to achieve the goal of keeping victims involved in the investigative and prosecutorial process in an effort to improve the odds a case will be successfully prosecuted and a perpetrator will be taken off the streets. Auditors examined 49 detective case files and listened to 54 9-1-1 calls, finding substantial progress has been made. One SANE nurse with extensive work experience said the difference between 2007 and today is an improvement like “night and day.”
The most impressive changes include:
- Multnomah County now has 27 SANE nurses, which is more than any other county in Oregon (up from 13 in 2007).
- PPB hired two Victim Services Specialists to provide social support to victims and changed their policy to require detectives to contact victims within 48 hours of case assignment and conduct in-person interviews with victims at a location convenient to the victim.
- At least five major hospitals in the area are now ready to process Sexual Assault Forensic Examination (SAFE) kits (up from one in 2007).
- PPB changed their policy to require contact with a victim within 48 hours of case assignment.
- PPB revised their policy to specifically state, “the Sex Crimes Unit employs a Victim Centered approach when investigating sexual assaults. The mental and physical well-being of the victim should be the priority…”
A number of news agencies chose to cherry-pick the negative findings of the report, most of them merely following the lead of the Oregonian. While the report did find that mistakes were made and that there is room for further improvement, unlike the 2007 audit, the bulk of the report and its overall tone was positive. The takeaway should not be that there were cases that fell through the cracks, because that will always be true when investigating sexual assault. Sexual assaults are the most under reported of all serious crimes according to the U.S. Department of Justice. The victims who do report still are often reluctant to proceed and sometimes change their mind after they do report. That is why a victim-centered approach to sexual assault investigations is so important. The takeaway from this audit is that the City and PPB have started a shift in their thinking and their response when it comes to sexual assault. It is a positive change and one we should encourage and welcome rather than point out where it has failed. Auditor Lavonne Griffin-Valade seems to understand that approach and where the report found problems she made recommendations as to how to address them. Police Chief Reese and Mayor Hales responded by concurring with the recommendations and detailing their plans for implementing them.
As the report recognized, a victim-centered response recognizes that victims must feel they are believed and trust the system will work for them, or they will not participate in the system. Indeed, victims often choose not to report crimes in the first place because they fear not being believed. The victim-centered approach recognizes the victim is the center of the investigation, as in the majority of sexual assaults the only witness to the assault is the victim. The investigation starts with the premise that victims are the most important part of the investigation and their cooperation is necessary throughout the process to ensure successful prosecutions. Having said that, the supervising sergeant of the Sex Crimes Unit told the auditor that out of respect for a victim’s well-being, SCU staff do not try to persuade a reluctant victim to participate in an investigation; and that is key to a successful victim-centered approach to sexual assault.
Tags: Crime Victim Representation
Posted by: Josh Lamborn
TriMet Testing Devices to Warn Pedestrians
November 13, 2013
In downtown Portland, Gresham or the Beaverton Town Center, bus operators have to stay vigilant to avoid hitting pedestrians or cyclists who are often distracted by texting or talking on their phones. It is a growing concern, and some TriMet bus drivers have had to make hard stops to avoid collisions. This is a danger to the pedestrian or cyclist as well as everyone riding the bus.
TriMet is testing five different devices in the next few months to warn pedestrians and cyclists of approaching buses. The devices, funded by a $400,000 grant from the Federal Transit Administration, are to be used in the hopes of avoiding incidents of distracted pedestrians and buses.
In addition to distracted driving, distracted walking is a problem garnering attention nationwide. A study from Ohio State University released this summer found that injuries related to using a cell phone while walking have more than doubled from 2005 to 2010. If this trend continues, injuries will double again between 2010 and 2015.
Four of the five devices are mounted on the buses. One, the Protran Technology Safe Turn Alert, uses an audible warning and LED strobe light to warn when a bus is turning into an intersection. Two devices, the Clever Devices Turn Warning System and a system made by Transit Tech Solutions, use only an audible warning. The fourth, the Dinex Star LED headlight, is a visual warning system. TriMet also will test a crosswalk light at Southwest 5th Avenue and Burnside Street to warn of oncoming buses.
TriMet used an audible warning system on a small number of buses in early 2011. The tests were done as part of a safety review following the April 2010 bus crash that killed two pedestrians in Old Town. TriMet concluded at the time that the devices were not fully developed and hopes the new ones work better.
An additional benefit to the warning devices is they would aid pedestrians and cyclists who have the right of way and are endangered by distracted bus drivers. Presumably the devices will signal a turn regardless of who is distracted. Anything that increases safety and awareness for pedestrians, cyclists and drivers is worth the effort. Implementing these warning devices is a step in the right direction for eliminating pedestrian- and cyclist-related accidents and is well worth the investment.
Posted by: Jessica Pedrosa
Files Further Expose Boy Scouts' Cover-Up of Sex Abuse
September 30, 2013
Last month confidential files were turned over for a lawsuit in Minnesota to bring attention to the problem of sexual abuse in the Boy Scouts of America. These files, otherwise known as the “perversion files” or “ineligible volunteer,” span 1999 to 2008, which are more current than similar files presented in an Oregon case last year.
The attorney for one of the molested Scouts didn’t say specifically what the files might reveal, or how many former Scout leaders the files cover. However, the more than 1,200 files released in the Oregon case as well as the Scouts’ reluctance to turn them over suggests the files may be similarly voluminous and damaging.
Last year’s Oregon case unveiled a cover-up spanning multiple decades, with files from 1965 to 1985. The men involved in this case were typically barred from leadership roles but seldom turned over to law enforcement. The alleged pedophiles were also permitted to stay in the Scouts, due to pressure from community leaders and local Scout officials, as detailed in the files.
Journalist Patrick Boyle was one of the first to shed light on the Scouts’ burying of the abuse.
“What’s potentially powerful about these files is they can give us some idea of how big the problem has been in recent years, and might even give us an idea of whether the abuse prevention efforts by the Scouts have had any impact,” said Boyle, who currently works as the communications director at the nonprofit Forum for Youth Investment in Washington.
The public relations director for the Boy Scouts, Deron Smith, didn’t comment on whether the Scouts would try to stop the production of the files, but said he thinks keeping the files private would make people more likely to report abuse. However, when District Judge Elena Ostby from Ramsey County in Minnesota ordered the Scouts in January to produce the files, she also ordered the removal of information that might identify those named in the files. So, it is unclear how shedding light on the offenders would deter victims in the future. In fact, keeping hem secret and protecting the offenders is far more likely to keep victims from coming forward.
Even having the names removed, the release of new files might uncover new offenders and new institutions where abuse took place, empowering victims to pursue justice, said Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law in New York and a longtime advocate for children victims of sex abuse.
“It can be a real wakeup call to survivors who have not come forward,” she said.
The plaintiff in the Minnesota case is recognized as John Doe 180. The lawsuit names the Boy Scouts of America, Northern Star Council and River Hills United Methodist Church in Burnsville, which sponsored his troop. Also named is Peter Stibal II, who is serving a 21-year prison sentence for molesting four Boy Scouts. The suit alleges that both the national and local organizations were aware of the abuse for decades and still allowed pedophiles within the organization. The suit seeks damages of more than $50,000.
“He is a courageous young man who really stepped forward in a way that resulted in Stibal having gone to prison,” Anderson said. “Hopefully through his actions other kids will be safer for it and the Boy Scouts better for it.”
With approximately 2.7 million youths in the Boy Scouts of America, it is imperative they ensure their policies and practices foster a safe, positive environment for those involved. The Scouts and other organizations that cater to our youth need to be vigilant in ferreting out those who seek to take advantage of participants. When an abuser is found among their ranks, it is not okay to cover it up and move the abuser to a new location in an effort to avoid bad publicity. This seems like common sense, but oftentimes leaders of large organizations make decisions based on money rather that the safety of the participants. Lawsuits like the ones in Oregon and in Minnesota help to shape policy and force those who perpetuate abuse to address it appropriately. The release of the perversion files will shed light on the Scouts’ misguided practices. This will hopefully act as a deterrent to others and assist victims of abuse in seeking justice. If you or anyone you know within Oregon has been a victim of sexual abuse, please contact The Law Office of Josh Lamborn, P.C.
Oregon City Adds New Memorial for Homicide Victims
September 26, 2013
A new memorial for Oregon and Washington murder victims has been donated to Oregon City’s Mountain View Cemetery. The Greater Portland Area Chapter of Parents of Murdered Children donated the memorial, which features the names of 390 murder victims carved into the granite walls. “It will be a beautiful place for anyone who has lost a loved one or child due to homicide,” said Mary Elledge, who heads Portland’s chapter. The memorial—one of eight of its kind nationally—has been years in the making, with the challenge of finding a location and raising the money. The project is still not done, and another wall will be added. “It would be a dream for us if we never had to add another name,” Elledge said.
Posted by Jessica Pedrosa
Oregon mom goes after convicted molester who refused to pay restitution from PERS account
When the girl was just 8 years old, the man had earned her mother's trust enough to be left alone with her. Over the next three years, he crept into her bed. He cornered her on her family's couch. He waited for her to step out of the shower. By the time the girl was 11, she'd found the courage to tell her mother. Last year, Patrick Roman Garcia was sentenced to 25 years in prison for sexually abusing her. As part of the 64-year-old's plea bargain, he'd agreed to sign over his only source of income -- $482 a month in Oregon Public Employees Retirement System benefits earned as an OHSU maintenance worker -- to pay for therapy the girl will need into adulthood. But when it came time to start paying, Garcia refused to give her a dime. He also found a surprising ally: the Oregon Department of Justice.
State attorneys have argued that a clause written into the 1953 PERS law protects retiree accounts from garnishment or transfer to other parties -- whether for unpaid credit card bills, lawsuits they've lost, or in this case, restitution owed by a convicted child molester. The Oregon Constitution guarantees a victim's right to "prompt" payment of restitution from the people who hurt them -- and the girl's attorney argues that right trumps PERS law.
Josh Lamborn, a Portland attorney representing the mother of the girl, is puzzled by the state's stance. On its website, the Justice Department lists "protecting crime victims" and "improving the well-being of Oregon's children" under the first two bullet points of its seven-point mission statement. "It boggles the mind -- defending this person because he was a public employee," Lamborn said. "It seems totally contrary to their mission."
That criticism doesn't appear lost on state attorneys assigned to the case. "The facts of the case are egregious," wrote John Dunbar, the Justice Department attorney in charge. But PERS law "unfortunately" protects the state from channeling Garcia's benefits to his victim, Dunbar said. The position may seem "heartless and cold," said department spokesman Jeff Manning, but the state also believed that not siding with Garcia could jeopardize the tax-exempt status of the entire PERS program. Attorney General Ellen Rosenblum declined to comment.
A Multnomah County Circuit Court judge agreed with the state earlier this year. The girl and her mother appealed to the Oregon Supreme Court in what appears to be the first case of its kind challenging the PERS protection. But last month, they got their answer: The high court won't consider the case and gave no reason why.
"It's very frustrating," said Erin Olson, the Portland attorney representing the girl. "The Supreme Court has effectively cut off any hope (the family has) in paying for this little girl's counseling." Olson said one last avenue remains: The Legislature could change state law to force PERS retirees to make good on restitution.
It's not clear how many retirees that would affect. Public retirees have fought for privacy, and lawmakers have agreed PERS shall not release retirees' birth dates or other identifying information, including whether their home address is a prison. That makes cross-referencing PERS rolls (covering about 118,000 retirees) with a roster of state inmates (currently about 14,000) a nearly impossible task.
The Oregonian was able to track down some people who fit the profile. Most of them, like Garcia, are child molesters. Most owe relatively modest amounts but have dodged court orders. Also as with Garcia, the state hasn't acted to dip into their public retirement checks. Beyond the PERS dispute, Garcia's case has sparked broader questions about what inmates owe victims and society at large -- and what Oregon does to collect from prisoners.
Failure to pay
Overall, offenders in Oregon have a dismal track record of paying restitution. In the past 50 years, convicted criminals in Oregon have failed to pay $424 million in restitution and compensatory fines to 82,000 victims, according to state calculations.
Last year, judges in 30 of Oregon's 36 counties ordered defendants to pay more than $21 million to their victims for a wide array of damages, including broken car windows, stolen goods that were never returned, counseling or funeral expenses to the families of people who were killed. But they paid only about $2 million, or 9 percent, of the money owed.
Some don't pay because they're bitter -- contending that they were wrongly convicted. Some don't pay simply because they'd rather have the money for themselves, or they're buying drugs to fuel their addictions. Others don't have the ability to pay.
Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis & Clark Law School, said Garcia's case stands out because his finances are known: He receives $5,784 from PERS each year. And Garcia clearly doesn't need the money to buy food or pay rent because his basic needs are taken care of in prison, Garvin said. "When you have offenders who have the resources to pay and we're putting hurdles in the way of the victim recovering that money, that's really troublesome," she said. Much of the state's problem with restitution, she said, is that there's no single agency responsible for enforcing court orders. That job is predominantly left up to the individual district attorney's offices across Oregon. But DAs say they have little staff to spare to devote to collections.
In January 2012, the state began funding a $1.8 million, 2 1/2-year pilot project for extra staff in five counties -- Multnomah, Lane, Jackson, Jefferson and Crook -- to get more offenders to pay up. The Multnomah County DA's office has used the extra staff, and devoted some of its own, to look at offenders' bank balances, investigate whether they have jobs, or own homes or cars that can be liquidated. In one case, prosecutors persuaded a judge to order a delinquent defendant to sell his car.
Other states' strategies
Other states are more aggressive in forcing offenders to pay victims for their losses as well as cover some of the costs of their imprisonment. Some states strip the benefits of some public retirees who are inmates -- following the lead of the federal government, which cuts off Social Security checks to all prisoners on the reasoning that tax-supported prison systems are already taking care of their basic needs.
The former city manager of Dallas, Ore., 15 miles west of Salem, drew public ire after siphoning money from the city for his own use. Jerry Allen Wyatt was convicted of official misconduct and theft, and sentenced in January to two years in prison. While he quickly repaid nearly $12,000 in restitution to the city, the 46-year-old, who earned more than $100,000 a year on the job, will get to collect his PERS benefits when he retires -- stirring controversy in his community.
Many states -- 24, according to a 2012 count by the publication Governing -- ban public employees or elected officials from collecting their pensions if they're convicted of crimes related to their official duties. Oklahoma goes further, forcing public employees to forfeit their pensions if they're convicted of any felony, related to their work or not. Oregon isn't among any of those states. But House Bill 2784, sponsored by Rep. Gene Whisnant, R-Sunriver, would allow the state to cut off part of public retirees' benefits if they're convicted of a work-related felony. The bill hasn't been scheduled for a committee hearing and appears to be going nowhere this session.
In the past 15 years, appeals courts have ruled in Illinois, Kansas, Michigan, Washington and the federal prison system that it's legal to take prisoners' money -- including from their pensions -- for everything from crime victim compensation to incarceration costs. Inmates across the nation have challenged many of the deductions. But in two cases in 2000 and 2007, the 9th U.S. Circuit Court of Appeals, which hears federal appeals from nine Western states including Oregon, ruled that tapping money from prisoners' assets -- including pension money -- was constitutional.
Girl still suffers
The mother of the girl Garcia molested said she and her daughter have acutely felt the effects of Garcia's abuse -- emotionally and financially. "We had to move," she said. "I had to replace clothing. I had to replace all of her bedding. I had to get rid of all of these things. Because she didn't want to wear that, touch that. I got rid of our couch. For a year and a half, we didn't have a couch." The girl's mother also is paying for her daughter's counseling. She could have turned to the state's crime victim compensation fund for help, but wouldn't have been able to pick the counselor she wanted.
The woman sat silently in the gallery of a Multnomah County courtroom in February as she listened to Garcia's excuses about why he hadn't paid. In his plea deal more than a year earlier, Garcia had agreed to channel all of his PERS checks to the girl in exchange for 20 years in prison instead of 25 years. But a few months later, he refused to file the necessary paperwork and Judge John Wittmayer sentenced him to the longer term. The girl's mother doesn't know if Garcia understands the harm he's continuing to inflict. "I don't think he's able to see the difference between right and wrong," she said. She also listened to a Justice Department attorney defend Garcia's right not to pay. "What about the victims?" she asked. "Does that mean that we're to chin up and grin up, to bear it and carry forward?" She's doing everything in her power -- and finances -- to help her daughter, she said. "My daughter feels like she'll never be OK, and it's my job to make sure that's not the case."
-- Aimee Green
Tags: Crime Victim; Sexual Abuse
Posted by Josh Lamborn
Wrong Way Semi-Driver Causes Crash on I-205 Bridge
March 18, 2013
Semi-Truck driver, 49-year-old Kenneth Eugene Burgess was arrested this morning on charges of DUII, Criminal Mischief in the Second Degree (two counts), and Reckless Driving. Earlier this morning, the Multnomah County Sheriff's Office received reports of a tractor-trailer driving the wrong way on I-84. Initial reports started coming in to 9-1-1 from East of Wood Village of the truck traveling westbound in the eastbound lanes of I-84. The Sheriff's Office began pursuing the truck, which continued on to the I-205 bridge northbound in the southbound lanes. On the North side of the bridge, almost to the State of Washington, the truck crashed into a southbound vehicle and stopped. The driver of the southbound vehicle has been transported as a trauma entry to Southwest Washington Medical Center. Her injuries do not appear to be life-threatening.
Tags: Semi Truck Injury; Drunk Driving Injury
Posted by Josh Lamborn
Source: Portland Police Bureau
New TriMet Audio Recording Aids Injury Lawyers
Posted: Wednesday, February 13, 2013 12:24 pm
The Oregonian reported today that the new TriMet buses are equipped with on-board microphones. According to TriMet spokesperson Mary Fetsch, audio recording came standard on all 55 of the new 3000 series buses. The audio recording system will complement the six video cameras on the new buses. While older TriMet buses had the ability to record audio at the discretion of the driver, the new buses are wired with microphones that are always recording.
While some are concerned about the privacy implications of the new audio recording systems, personal injury attorneys are grateful there is more evidence to help them prove (or disprove) their case. The audio recordings are taped over within 48 to 72 hours, just like the video. However, in the event of a collision or a crime committed on a bus, a prompt request to preserve the evidence from an injury attorney will force TriMet to pull the data pack and provide it to the lawyer and his or her client. This evidence can potentially make or break a case. Whether it hurts or helps, it is evidence an attorney who is considering representing an injured party or a prosecutor who is considering launching a criminal case will be glad they have prior to hearing it from a witness later at trial.
Unfortunately, our civil and criminal justice systems are less than ideal. While they are both designed to get at the truth, they both rely on the presentation of evidence that sometimes does not give the full story. As I always tell my clients, lawsuits are not about what really happened; they are about what we can prove happened. Unfortunately, the reality of that statement means that nine times out of ten victims and injured parties are the ones who suffer when there is a lack of evidence. Having more evidence is a good thing for personal injury attorneys and for prosecutors. They allow us to reject the bad cases and help us prove the good ones. The TriMet audio recordings may never end up helping me on a civil lawsuit, but I will be glad to know that I will not be surprised with a witness’s testimony at trial or in a deposition.
If you are injured while riding a TriMet bus, or if you are injured in an automobile accident with a TriMet bus, be sure to contact a TriMet attorney or file a claim with TriMet right away (at least within 48 hours). It is essential that TriMet pull the data pack that contains key evidence to prove your case. Failing to properly preserve this and other evidence can mean the difference between being able to prove your case or not.
Tags: TriMet Injuries; Automobile Accidents
Posted by Josh Lamborn
Portland Party Bus Death
Who is responsible for the death of the 11 year old girl who fell out of the window of a bus full of teenage partygoers last Saturday? Is it the driver of the bus who was not licensed to drive more than16 people on the bus? Is it the owner of the company who employed the driver, failed to provide supervision on the bus, and may have been responsible for the unsecured emergency window? Is it the manufacturer of the window or the bus itself? How about the adults who organized the party or hired the bus company?
It is too early to tell in this case who bears the blame for sure. The police are still investigating and only some of the facts about the case have come to light. However, the facts that have been released do not look good for Five Star Limousine, the company that operated the party bus in question. According to Lt. Robert King, a Portland Police spokesperson, there was no adult supervision in the bus other than the driver. King also noted that there was a “nightclub environment” inside the bus with disco lights flashing, a flat screen t.v., loud music and at least 20 kids on board.
While Five Star Limousine recently received a permit to operate in Portland and four of its vehicles passed mandatory safety inspections, the party bus involved in this incident was not one of them. Additionally, the 61 year-old driver of the party bus did not have the commercial driver’s license required to carry more than 16 passengers or the required permit from the City to operate a party bus.
Not surprisingly, this is not the first death involving a party bus recently. Another birthday celebration aboard a party bus ended in tragedy last month. Daniel Fernandez, 16, was on a double-decker party bus carrying 65 teens to a birthday party in New Jersey when he stuck his head out of the emergency hatch, struck his head on an overpass and died. In July, a 25-year-old California woman died after she fell out of a party bus on her way home from a concert. A second woman fell out of the bus and sustained moderate injuries. In 2010, a 19-year-old died in a car crash after drinking aboard a party bus.
State and local governments it seems are playing catch-up with regulating this growing industry. Portland already requires for-hire companies like taxi, town car, and limo operators to be licensed.
Part of the licensing process requires companies to carry out yearly safety checks on vehicles, carry at least $1 million in liability insurance and perform background checks on drivers. Portland City Council passed an ordinance just this summer requiring companies to also carry an official sticker on the back making it easier for patrons to tell which companies are currently licensed. The city of Portland suspended the company's permits for its four licensed vehicles following the Saturday incident. California Gov. Jerry Brown signed a new last week requiring chaperones and ID checks on all party buses carrying underage passengers.
Records show the party bus owner, Rick Lycksell, filed for personal bankruptcy five months ago, owing more than 50 creditors about $1.2 million. First Investments LLC, which does business as Five Star Limousine, also filed for bankruptcy in 2010. Lycksell is the sole partner in First Investments, according to a 2011 document he filed in federal bankruptcy court. Hopefully he was current on his insurance premiums.
Posted by Josh Lamborn
Drunk Driver Kills Roadworker
On Tuesday July 10, 2012 at 7:48 pm, 47-year-old highway worker Gregory A. Priest of Salem was struck and killed by a drunk driver. Priest was on foot, placing construction warning signs on South New Era Road near South Haines Road, north of Canby when he was run down by 40-year-old Bruce Dancer, of Aurora. Dancer was arrested and booked in Clackamas County Jail on Duii Charges, but was released the following day. He was cited to appear in court August 9, 20012 to face the drunk driving charge. According to Sgt. Adam Phillips, spokesman for the Clackamas County Sheriff’s Office, additional charges may be filed.
There is very little question that Dancer will face additional charges on this case. Clackamas CountySheriff’s Office should have charged him with Manslaughter at the time of the arrest and held him incustody. At the time of the incident it was still daylight and Dancer was entering a construction zone. Unless the victim in this case jumped in front of Dancer’s car, he should face Manslaughter charges. Manslaughter II is the reckless killing of another human being. Anytime someone drives under the influence they are aware of and consciously disregarding a substantial and unjustifiable risk that they may crash and injure or kill another. When that comes to fruition, and the driving can be said to be deficient in some manner due to intoxication, the driver is guilty of Manslaughter II. If in addition to being reckless, the driver manifests extreme indifference to the value of human life (by driving at extreme speeds, running lights, etc.), the driver is guilty of Manslaughter I.
One commenter to the Oregonian article indicated that if drivers view the risks involved with drinking and driving weren’t worth it, they may choose not to get behind the wheel. In my experience, the penalties for crimes such as Duii hold very little deterrent effect, regardless of how onerous they are. I doubt Dancer thought at all about the fact that a conviction for Duii carries a two day jail sentence, a $1000 fine, a mandatory one year license suspension, mandatory alcohol treatment and is a conviction that cannot be expunged from his record.
Dancer was likely aware that if he injured or killed someone he would face particularly onerous criminal penalties (Manslaughter I carries a mandatory minimum 120 months under Measure II; Manslaughter II carries a mandatory minimum 70 months), yet this did not seem to deter him. Additionally, most people know that if they injure or kill someone when driving drunk they are likely to be sued by a personal injury attorney for the injuries they caused or for wrongful death.
No matter what the penalty, I doubt Dancer or most others who choose to drink and drive would takeit into account prior to getting behind the wheel. The people that would take that into account already do. Most, like Dancer, just play the odds that they will not be caught or kill anyone. Oftentimes, it is not until one is arrested or kills someone that one truly contemplates the tragic consequences that all too often result from driving under the influence.
Posted by Josh Lamborn
By Shari Phiel
Posted June 21, 2012
A plea agreement offered by the Columbia County District Attorney’s office to a Vernonia man charged with 28 counts of sexual crimes involving children isn’t sitting well with at least one of his victims. “The offer was extended - over the objections of my client and the objections of the other victims – for five years in prison,” said Portland attorney Josh Lamborn. Lamborn is representing one of the victims in the case, attorneys from the Oregon Crime Victims Law Center are representing two other victims and a fourth victim decided not to testify in the case. The charges related to that fourth victim would likely be dropped if the case went to trial.
Richard Scott Courtney, 63, was arrested in March 2011 after a 10-month long investigation conducted by the Columbia County Sheriff’s Office and U.S. Immigrations and Customs Enforcement agents. The DA’s office offered Courtney the agreement on June 14. Currently, Courtney, who has not pleaded guilty to the crimes he is charged with, is expected to accept the offer. Another hearing has been scheduled for July 5.
Three victims under the age of 12, two of whom were related to Courtney through extended family members, were interviewed during the investigation. A total of four victims were eventually identified in the case. Lamborn said he and his client are both frustrated by the amount of time it has taken to bring the case to closure. “In Multnomah County, they have a timeline for different kinds of cases. In a case like this, the timeline is 150 days for sex abuse cases. And after that, it becomes a date-certain trial date,” said Lamborn. To date, it has been more than 450 days since Courtney was arrested. Lamborn said he and the other attorney were not included in the settlement conference. While this isn’t unheard of, he says it is a practice that shouldn’t continue.
“This is a right that victims’ rights advocates have been fighting for for a while. In fact, in the last legislature, they passed a law to make the judicial settlement conference a critical stage of the proceedings so that victims would have the right to be notified and be present for those hearings,” he said. But Lamborn acknowledged that while victims have the right to be consulted, the district attorney’s office still has the final say so. “That makes sense,” said Lamborn, “but at the same time they are supposed to consider what the victim wants. That doesn’t seem to have happened here.” Lamborn said his client, and those represented by the OCVLC, are willing to testify in the case and want to see Courtney receive a much tougher sentence.
To read the rest of the article, click here .
Posted by Josh Lamborn
Steve Duin: When will the tide turn at Oregon's Department of Human Services?
Posted May 14, 2012
In her successful campaign for attorney general, Ellen Rosenblum promised, "I will stand up for children." If that's true, or possible, perhaps Rosenblum can put the fear of God and retribution into Oregon's Department of Human Services, a mission seemingly beneath the notice of the last two Democratic governors, John Kitzhaber and Ted Kulongoski.
In recent days, two more lawyers have filed suit against DHS in Multnomah County, arguing that the agency failed to respond to reports of abuse in foster homes it supervised.
Attorney Josh Lamborn is suing DHS for $1 million on behalf of the 8-year-old girl molested by Leslie Boyd Hayden, her 70-year-old foster father. Although the girl's biological father twice conveyed his daughter's complaints to her caseworker, DHS saw no reason to remove the girl from Hayden's tender loving care until the biological father called police.
Hayden was convicted of first-degree sexual abuse in 2011 and sentenced to 12 years in prison.
To read the original article as published in the Oregonian - please click here .
Posted by Josh Lamborn
DHS sued for $1 million after Portland foster father molested girl
By Aimee Green, The Oregonian
An attorney has filed a $1 million lawsuit against the Oregon Department of Human Services on behalf of an 8-year-old girl who was molested by her North Portland foster dad. The suit, filed in Multnomah County Circuit Court on Monday, faults DHS for failing to adequately respond to reports that something was wrong in the home.
According to the lawsuit and Josh Lamborn, the Portland attorney who represents the girl:
The girl and her younger brother were placed in the home in August 2009, after their mother was locked up in jail. In October 2009, the girl, then 6, told her biological father that foster father Leslie Boyd Hayden had rubbed her back and stomach. Her dad told her caseworker, who told Hayden to stop the massages.
"Hayden says it's no big deal, and they (DHS workers) drop it," Lamborn said.
Ten days later, the biological father complained to the caseworker that his son told him he was bleeding from the penis. The caseworker interviewed the children and Hayden's wife later that day. The children were allowed to stay in the Hayden home.
Four days after that, the caseworker learned from a non-profit worker that the girl had said her foster dad had touched her inappropriately. The caseworker responded by saying "he had already addressed that issue and it would no longer be an issue," according to the suit.
About a month after that, the girl told her biological father that Hayden, then 70, had kissed her on the mouth and molested her with his hands. The biological father called police, who started an investigation and notified DHS. Child-protective workers removed the children from the home that day.
Lamborn said the father turned to police because he'd "lost faith in the caseworker because he'd told him twice before that something was wrong" and nothing happened.
To read the rest of the article, please click here .
Posted by Josh Lamborn
Driver Cited After Bicycle Rider Hit By Car in Southwest Portland
Posted: May 22, 2012
This morning, Tuesday May 22, 2012, at 7:52 a.m., Portland Police officers assigned to Central Precinct and the Traffic Division responded to the report of a bicycle rider struck by a vehicle at Southwest Bertha Boulevard and Beaverton-Hillsdale Highway.
Medical personnel responded and transported the bicycle rider, 28-year-old Jessie L. Belter, to an area hospital where it was determined that she had a broken right leg.
The driver of the car, 33-year-old Nicole Y. Poor, remained at the scene and cooperated with investigators. Traffic investigators determined that Poor was driving northbound on Bertha then made a westbound turn onto Beaverton-Hillsdale Highway where she struck Belter, who was riding her bicycle eastbound on Beaverton-Hillsdale Highway in the bike lane. The driver of the car stopped at the stop sign but failed to yield to the bicycle rider.
Investigators believe that the collision speed was approximately 5 miles per hour. The driver of the car was given a citation for Failure to Obey a Traffic Control Device. Traffic in the intersection was affected briefly as investigators processed the crash scene.
Posted by Josh Lamborn
Source: Portland Police Bureau
|California Judge Releases Crime Victim from Custody |
Posted: April 16, 2012
A Sacramento, California Superior Court Judge reversed himself earlier today in releasing a 17-year-old rape victim he earlier ordered held on a material witness warrant to compel her testimony at her rapist’s trial. In bowing to growing pressure from victim rights advocates and the public, Judge Lawrence Brown released the girl with a GPS ankle bracelet and apologized saying, “I am truly sorry for all that you’ve been through. You’ve demonstrated great courage for a young woman.”
The teen failed to appear for two prior court appearances, forcing prosecutors to dismiss rape charges against 37-year-old Frank Rackley Sr. In refilling the charges prosecutors obtained a material witness warrant to hold the teenage victim in custody until his trial to ensure her appearance.
Material witness warrants are a tool seldom used by prosecutors. Most witnesses cooperate with the State, especially if they are the victim of the crime. However, in some cases, fear of retaliation, public scrutiny or pressure from family or friends may discourage a witness from testifying. If the crime is serious enough and the prosecutor is not able to prove the case without the witness, he or she may ask the court to issue a warrant for the witness’s arrest to ensure their appearance.
Many District Attorney Offices will not seek material witness warrants against crime victims except in the most extreme circumstances, such as in the case of a homicide. Victim advocates, crime victim attorneysand most prosecutors agree that incarcerating victims discourages other victims from reporting sexual assaults and other crimes. The criminal trial against Rackley is scheduled for April 23rd.
Posted by Josh Lamborn
Source: Oregonian: Judge Releases Calif. Teen Who Says She Was Rapedhttp://www.oregonlive.com/newsflash/index.ssf/story/judge-releases-calif-teen-who-says-she/2fff80d079904a4a9344b143b25991d1
U.S. Traffic Deaths at Record Low
Posted: April 12, 2012
According to preliminary government data released on Monday, national automobile related deaths declined again last year, reaching an all-time low when compared to miles driven since such record- keeping began in 1921. The National Highway Traffic Safety Administration’s early estimate of 2011 traffic fatalities indicated that there were 32,310 deaths in motor vehicle crashes last year. This represents a drop of 1.7 percent from 2010 and the lowest number of deaths in more than 60 years. Safety experts attribute the decline to a variety of factors, including the economy, seat belt use, better safety equipment and efforts to curb drunk driving. Overall traffic fatalities are down 26 percent since 2005.
Despite the national drop in traffic fatality rates, Oregon experienced an increase in traffic fatalities in 2011 with ten more fatalities in 2011 than the previous year (327 in 2011; 317 in 2010). However,according to the Oregon Department of Transportation, when you compare the last two years to any previous two-year period, the improvement in safety is clear. For example, the 644 fatalities in 2010 and 2011 is an 18 percent reduction from 788 in 2008 and 2009. The fatalities crash rate, which is a reflection of fatalities and miles traveled in the state, also remains low. To determine the fatalities crash rate, analysts compare fatalities to “vehicle miles travelled” to assess safety. Oregon’s rate for 2011 is projected to be .96. That means there is less than one life lost on average per 100 million miles traveled in Oregon. This preliminary rate is the second lowest rate in Oregon motor vehicle history: in 2010 the rate was .94. The national crash rate average for 2010 was 1.09.
Oregon bicycle fatalities also rose in 2011. In fact, bicycle fatalities resulting from car crashes more than doubled from 2010 to 2011 (from 7 to 15). However, local governments, ODOT and Governor John Kitzhaber are all making efforts to improve safety on the roads for bicyclists, motorists and pedestrians.
For example, Portland and other local governments are adding dedicated, green-painted bicycle lanes. ODOT’s Safety Division is supporting a “Lighten Up…And Be Seen At Night” campaign to remind bicyclists how important it is to use lights and war bright, reflective clothing. Finally, Governor Kitzhaber and ODOT proclaimed May “Transportation Safety Awareness Month” in tandem with “Motorcycle Safety Awareness Month.” “Motor vehicle traffic injuries are one of the leading causes of death and hospitalization in Oregon, and are the second leading cause of injury-related death for all Oregonians,” Kitzhaber wrote in the proclamation. “I encourage all Oregonians to put safety first.” Advocates will be hosting safety fairs, bicycle helmet fittings, child safety seat clinics, motorcycle safety events and more during May and into June.
Source: Oregon Department of Transportation - Posted by Josh Lamborn