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Video Camera


									                          Video Camera
     Portrayed As Weapon
                                   Framing a police case

                                             they were conducting a warrantless            fence by multiple police officers pointing
                                             search on private property. Frank sued        their weapons at him and screaming at
                                             the individual officers under Section         him to put his camera down. Interest-
                                             1983 for violating his Fourth Amend-          ingly, while all of this was going on, the
                                             ment rights.                                  dog never alerted on him once, despite
                                                                                           the officers’ vehement assertions that our
                                             The “jaywalker”                               client was the jaywalker whom they had
                                                 The incident occurred when the po-        tracked to the location.
                                             lice entered an enclosed auto body yard           When our client did not immedi-
                                             in North Portland while searching for an      ately put down the camera (in part be-
                   Clay McCaslin             alleged “jaywalker.” The defendants           cause it was actually fastened to his hand
                                             claimed that the jaywalker had run away       with a velcro strap), two of the defendant
                                             from them earlier and that they were          officers simultaneously opened fire on
By Clay McCaslin                             following a hot K-9 track on his scent        him with a less-lethal shotgun and a
OTLA Guardian                                when they entered the enclosed property       Taser. The defendants did not provide
                                             without a warrant. The officers broke          any verbal warning before firing their

F    ew cases present more formidable
     challenges and obstacles than those
involving claims against police officers
                                             windows on several of the cars parked in
                                             the yard as they carried out their search
                                             for the elusive jaywalker.
                                                                                           weapons, and they opened fire within less
                                                                                           than twenty seconds of realizing that they
                                                                                           were being recorded on video. Upon be-
for excessive force and other constitu-          Those present were understandably         ing hit, our client shouted and fell to the
tional violations. In September 2009, I      alarmed and began asking the officers for      ground and dropped the video camera.
was fortunate to have the opportunity to     some explanation, but the officers refused     While the electricity from the Taser was
try one of these cases to verdict in fed-    to give any explanation for their presence    still cycling through his body, several of
eral court in Waterhouse v. Frashour, et     or their actions. So at this point, Frank     the officers jumped on top of him, press-
al., USDC CV 07-1716-HA. I became            began recording the actions of the officers    ing his body and his face into the ground
involved when attorney Benjamin Haile        with a hand-held video camera. As soon        while repeatedly striking him with their
approached me and asked me to try the        as the officers realized that our client was   fists and knees.
case with him. As soon as he explained       holding a video camera, one of them               The video our client made can still be
the facts and showed me the videotape        pointed at him and shouted “You!” and         seen on YouTube. (Just search for “Frank
that the client, Frank Waterhouse, had       accused him of being the alleged jay-         Waterhouse Portland police.”) The last
made of the incident, I readily agreed.      walker who had fled from them earlier.         time I checked, the YouTube video had
    This was a federal civil rights case                                                   been viewed over 13,000 times. At the
under 42 U.S.C. § 1983. The case in-         The dangerous camera                          time of trial, it had already received over
volved claims of excessive force against        By now, there were a total of seven        9,000 hits. On the first day of trial, the
several Portland police officers for simul-   officers in the yard, and they simultane-      jury was instructed not to visit the You-
taneously shooting Frank with a Taser        ously converged on Frank, who was             Tube website during the course of the
and a “less lethal” shotgun when they        unarmed. Our client suddenly found            trial, although we played the video for
discovered him videotaping them while        himself cornered against a tall wooden        the jury during both our opening state-

 6   Trial Lawyer • Summer 2011
ment and closing argument.                   issues in such a way that the jury would           Because of our efforts, I believe that
   Our client was charged with several       be more inclined to believe our client and     the jurors carried a very different impres-
misdemeanors but was ultimately ac-          to adopt his perspective of the facts, as      sion of that weapon with them into their
quitted of all criminal charges, including   opposed to the officers’ version of what        deliberations, the impression we wanted
Eluding a Police Officer, Improper Posi-      happened. This process of framing the          them to have.
tion on a Highway, Disorderly Conduct,       issues began well before we even set foot          Another example of framing was the
and Criminal Trespass. Notably, all of       in the courtroom, starting with the spe-       distinction that we drew early and often
those charges were based on the defen-       cific language of the jury instructions.        between our client and “the jaywalker.”
dants’ allegations that he was the jay-          For example, the defendants continu-       Throughout the entire case, the defen-
walker who had fled from them earlier.        ally referred to the weapon that they used     dants continued to insist that our client
                                             to fire a beanbag round at our client as        was the jaywalker who had fled from
City refuses appology                        the “beanbag gun.” At trial, Ben and I         them. In fact, the defendants persisted
    Following his acquittal, our client      both made a conscious effort not to refer      in their assertion that our client was the
sought only an apology, a commitment         to this weapon as a “beanbag gun” at any       jaywalker despite the fact that he had
to policy change and modest monetary         time, from voir dire through the end of        been tried and acquitted of those charg-
compensation for his injuries. But the       closing statement. Instead, we always          es in state court. So starting in our pre-
City of Portland rejected all offers of      called the weapon by its proper name           trial pleadings, we made it a point to
compromise before and after he filed          — “the less lethal shotgun.” We rejected       draw a frequent and marked distinction
suit. The defendants claimed that our        the term “beanbag gun” because that            between our client and the jaywalker.
client was a danger to their safety based    seemed to convey that it is a child’s toy,         By framing the narrative early on to
on his “body language,” and they argued      as opposed to a serious and potentially        draw a marked distinction between “the
that he might have tried to fight or run      lethal weapon. “Beanbag gun” was a             jaywalker” and our client, we were able
away if they had not preemptively fired       loaded term that the defendants deliber-       to neutralize the defendants’ ongoing
their weapons on him. They tried to          ately deployed in an attempt to minimize       assertions that he was the person who ran
justify their actions on the grounds that    the capacity of this type of weapon to         away from them. Ultimately, this distinc-
Frank had failed to follow their “lawful     cause serious pain, injury and even death.     tion is what led to the defendants’ open-
commands” to put down his video cam-              In fact, the “beanbag gun” is actually    ing the door to the fact that our client
era. They even claimed that our client       a 12-gauge shotgun. The only thing that        was acquitted of all criminal charges, as
might have tried to use his video camera     makes it “less lethal” is the ammunition       discussed in more detail below.
as a “deadly weapon” against them.           that is used: namely, a beanbag round, as
    In September 2009, the case finally       opposed to a shotgun shell. The ammu-          The rules
proceeded to a four-day jury trial before    nition is fired with the same velocity and         Another technique that we used
Judge Ancer Haggerty in U.S. District        force as a shotgun shell and from the          throughout the trial was the use of the
Court. Plaintiff ’s witnesses included       same type of gun.                              well-known “Rules” approach, as es-
former Portland Police Chief Roseanne            At trial, we emphasized to the jury        poused by David Ball in his much-her-
Sizer, Donald Van Blaricom (the former       that this weapon is “less lethal,” as op-      alded books and lectures on juror psy-
police chief of Bellevue, Washington and     posed to “non-lethal,” and that firing it       chology and trial advocacy in the era of
our expert on police practices and use       on an unarmed person who is suspected          “tort deform.” For those few readers who
of force), the defendant officers, our        of an offense as trivial as jaywalking is a    may not be familiar with this approach,
client, and the others who witnessed the     gross and excessive use of police force that   the basic idea is to focus on certain ir-
incident. Although I cannot be certain       violates the Fourth Amendment. Just to         refutable “rules” or standards of conduct
what specific factors had the greatest        illustrate the serious nature of this          that govern the defendants’ actions, and
influence on the jury in reaching its final    weapon, we introduced it as an exhibit         then show how the defendants broke
decision, we did employ several tech-        and had the officers bring it out and show      these very same rules with the choices
niques during the course of the trial that   it to the jury. Interestingly, the court       they made and the actions they took in
I believe were helpful in achieving a        required the presence of an additional         a particular situation.
plaintiff ’s verdict.                        law enforcement officer simply to handle           In this case, the “rules” that we devel-
                                             the weapon in the courtroom. This              oped, which became our operative
Framing the issues                           helped to illustrate our point that the        themes at trial, were broad, simple, bed-
   Before the trial began, we recognized     “beanbag gun” is actually a serious and        rock principles of the Fourth Amend-
that it would be crucial to frame the        potentially dangerous weapon.                                           See Video Camera p 8

                                                                                                                 Trial Lawyer • Summer 2011   7
Video Camera                                   Tasers and less lethal weapons), a police        in our own case-in-chief. On direct, we
Continued from p 7
                                               K9 and another officer providing lethal           got the defendants to agree to the ap-
ment — basic truths that are difficult for      cover. She testified that, based on her           plicability of the “rules” governing police
anyone to really refute:                       review of the video, the police reports,         conduct and use of force. We spent the
• A police officer should use physical          and all of the Internal Affairs interviews       rest of the time focusing on how they had
force only when is necessary.                  and documents, our client was “not ag-           violated those same rules. Opposing
• A police officer should use only that         gressively physically resistive.” Chief          counsel tried to argue that the defen-
amount of force that is reasonable under       Sizer concluded that the officer who had          dants’ simultaneous firing of their weap-
the circumstances.                             fired the less lethal shotgun (Officer Boc-        ons was an innocent mistake, suggesting
• A police officer should not use              chino) had acted outside of PPB policy           that neither officer knew that the other
greater force than is necessary under the      and had received a letter of discipline for      was going to fire. They said the officers
circumstances.                                 his conduct. She recommended com-                independently came to the conclusion
    We began to plant the seeds of these       mand counseling for the officer who fired          that they both needed to pull the trigger
“rules” early, starting in voir dire (all      the Taser (former Portland police officer         due to our client’s “body language” and
twenty-five minutes of it). Throughout          Ronald Frashour). Chief Sizer stated             his refusal to follow their “commands.”
the rest of the trial, we then continued       there was time to provide a warning if           However, Officer Bocchino (who fired
to refer to these same “rules,” repeatedly     the defendants had been acting in                the less lethal shotgun) testified that even
emphasizing their significance and point-       greater coordination, and their failure to       if he had it to do over again, he would
ing out that the defendants made a             provide a verbal warning prior to using          do it exactly the same way, even if he
conscious decision to violate them. We         the less lethal shotgun and the Taser was        knew that that Frashour was going to fire
had some last-minute help from the             outside PPB policy. Although Chief               the Taser. And when Frashour took the
cosmos in that regard. Literally on the        Sizer did not testify at trial that Frashour’s   stand, he stated that he had fired his
eve of trial, in a turn of events that I can   actual firing of the Taser violated PPB           Taser “just to make sure the situation was
only attribute to sheer luck, the city         policy (instead focusing on his failure to       over.”
hand-delivered to us a confidential            issue a warning), she later came to that             The defendants showed no remorse
memorandum written by then-Portland            conclusion following a public hearing by         throughout the entire trial. In fact, while
Police Chief Rosie Sizer containing her        an independent Citizen Review Com-               they were on the stand, they looked right
conclusions related to the Portland Police     mittee. Based on the recommendations             at the jury and told the jurors (with vis-
Bureau (PPB) internal affairs investiga-       of the citizens’ review panel, Chief Sizer       ible disdain) that they disagreed with
tion of the incident. She concluded that       upheld the panel’s determination that            Chief Sizer’s (their boss’s) conclusion that
the use of force in this case was unneces-     Frashour’s use of the Taser was an un-           their use of force was unnecessary and
sary and that there was ample time to          necessary use of force that violated PPB         outside of Bureau policy. In the end,
give a warning before the officers fired         policy. Frashour has since been termi-           those two officers were their own worst
any weapons. The internal affairs inves-       nated from the PPB following his lethal          enemy and helped our case immensely.
tigation had been going on for nearly          shooting of an unarmed African-Ameri-
three years at that point, so the timing of    can man outside of his apartment com-            Turning weaknesses into strengths
this opinion from Chief Sizer was fortu-       plex in January 2010.                                Another approach that we used at
itous, to say the least. We promptly               Chief Sizer’s testimony obviously            trial was to take the weaknesses of our
moved to amend our witness list to call        provided a huge boost to our case because        case and turn them into strengths. For
Chief Sizer as a witness, and Judge Hag-       she articulated the exact same “rules” that      example, our client had been arrested and
gerty granted our motion. On the first          we had just stated in our opening, and           charged with several crimes arising out
day of trial, we called Chief Sizer as a       she confirmed that the defendants had             of this incident. Since the jury was aware
friendly witness to establish “the rules,”     indeed broken those rules. We then called        of this from the outset, we obviously did
and to show how the defendants had             the defendants immediately as witnesses          not want the jury speculating that our
consciously chosen to break their own
rules regarding use of force.
    Chief Sizer testified that the defen-
dants’ use of such a high level of physical
force was unnecessary given that there
was ample cover (seven officers present
in the yard, all of whom were armed with

 8   Trial Lawyer • Summer 2011
client had actually been convicted of         our client was the jaywalker (just as we      weak spot in our case into one of its
those crimes. In its pretrial rulings, how-   had hoped she would), vehemently insist-      notable strengths, and this obviously
ever, the court ruled that we were not        ing that our client and the jaywalker were    marked a big turning point in the trial.
allowed to introduce the fact of our cli-     indeed the same person. Of course, this           Another potential weakness in our
ent’s acquittal unless the defendants         testimony violated the court’s pretrial       case was that our client did not have any
“opened the door” by testifying that he       ruling and opened the door to the fact        economic damages. He had never sought
was actually the jaywalker who ran from       of our client’s acquittal on all of those     any medical treatment for his injuries (in
them earlier. In other words, under the       charges. So at this point, Judge Hag-         part because he lacked health insurance),
pretrial rulings, the defendants were al-     gerty sent the jury out, and the City was     and he did not have any lost wages be-
lowed to testify that they thought our        forced to stipulate that our client had       cause he was unemployed when the in-
client was the jaywalker, and that our        actually been acquitted of all charges        cident occurred. We knew that the lack
client looked like the jaywalker. However,    related to his being the “jaywalker.” Judge   of any economic damages could make
as long as the defendants did not actu-       Haggerty then brought the jury back in        our client’s case problematic for some
ally testify that our client was the jay-     and instructed them that our client had       jurors. However, we decided that we
walker, then we would not be able to          been acquitted of those charges, and that     could turn this potential weakness in our
introduce the fact of his acquittal to the    the jury must therefore accept it as true     case into a strength by asking the jury for
jury. So of course, that is exactly the       that our client was NOT the jaywalker         a relatively conservative amount of non-
testimony we sought to elicit from the        and reject any testimony to the contrary.     economic damages and then empowering
defendants at trial.                          That stipulation pretty much eviscerated      the jurors to award whatever amount of
    We called all of the defendant officers    the defendants’ case, which had focused       damages they found to be appropriate.
as adverse witnesses in our case in chief,    almost entirely on whether or not our         In our view, this would help the jury to
including the female officer who claimed       client was actually the jaywalker who had     express itself through its final damages
that our client had run from her earlier.     run from the defendants earlier. The          award.
During her direct examination, she            judge’s instruction that our client was not       Although the original prayer was for
stepped over the line and testified that       the jaywalker transformed a potential                                 See Video Camera p 10

                                                                                                                 Trial Lawyer • Summer 2011   9
Video Camera                                  fighting us on the amount after trial. In       hesitant to second-guess actions and
Continued from p 9
                                              its final order awarding attorney fees, the     decisions made by the police, jurors are
$30,000 in noneconomic damages, we            Court gave some insight into the basis of      more likely to give the benefit of doubt
filed a motion before trial to request that    its attorney fee award, “The Court notes       to the police officer defendant rather
the jury be allowed to award any amount       that the number of hours required to try       than your client. This is especially true
they found appropriate. We told the jury      this matter by plaintiff ’s counsel could      where the plaintiff has been arrested,
that our client wasn’t looking to get rich,   have been greatly reduced if defendants        charged or convicted of a crime, which
and that $30,000 was the value our client     had accepted plaintiff ’s settlement offers.   is often part of the factual background
had placed on the ordeal. At the same         Defendants’ refusal to participate in          in cases involving claims of police mis-
time, we obviously didn’t want the jury       settlement negotiations in this case is        conduct. In a classic “he said/she said”
to believe that it was limited in terms of    puzzling.”                                     situation, where the credibility of the
how much it could award. So we empha-                                                        parties is central to the jury’s decision, a
sized to the jurors that they were in no      Protecting our rights                          police officer enters the courtroom with
way tied to the number we suggested,              Trial attorneys play a pivotal role in     a decided advantage over the plaintiff,
and that they could award any amount          safeguarding the civil liberties that we       particularly since the jury may already
they found appropriate.                       enjoy under the Constitution and in            view the plaintiff with skepticism and
    The jury ultimately awarded $55,000       protecting the community from actual           believe that the plaintiff is a criminal or
in noneconomic damages. In addition,          or potential deprivations of those rights      “had it coming.” When these challenges
because this was a civil rights case under    and other abuses of power by the police.       are added to the difficulties inherent in
Section 1983, we received all of our          Civil rights cases against police are cer-     almost any type of personal injury case,
reasonable attorney fees and costs in-        tainly difficult to litigate. These cases       many plaintiff ’s attorneys steer away
curred under 42 U.S.C. § 1988. The            invariably present additional hurdles and      from police misconduct cases altogether,
Court awarded 90 percent of the attorney      difficulties in addition to those that al-      viewing such cases as too risky, expensive
fees sought in our petition, despite the      ready exist in pretty much any disputed        and time-consuming to litigate.
fact that the City spent several months       liability case. Because the public is often        Having now won one and lost one, I
                                                                                             can look back and honestly say there have
                                                                                             been few experiences in my career that
                                                                                             have been as satisfying or as rewarding as
                                                                                             trying these cases. While it is obviously
                                                                                             better to win than to lose, I believe that
                                                                                             it is important and worthwhile to take
                                                                                             these cases and try them, regardless of the
                                                                                                 In this country, citizens have a collec-
                                                                                             tive responsibility to stand up to the
                                                                                             misuse of police power. As trial lawyers,
                                                                                             we have a unique opportunity to fill that
                                                                                             role. These cases cry out for resolution.
                                                                                             As attorneys sworn to protect and uphold
                                                                                             the United States Constitution, it is our
                                                                                             duty to make sure that happens.

                                                                                             Clay McCaslin represents injured people,
                                                                                             small businesses, landowners and consum-
                                                                                             ers throughout northwestern Oregon. He
                                                                                             contributes to the OTLA Guardians of
                                                                                             Civil Justice at the Guardians Club level.
                                                                                             His office is located at One SW Columbia
                                                                                             Ste 1850, Portland OR 97258. He can be
                                                                                             reached at or 503-

10   Trial Lawyer • Summer 2011

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