Crime West Linn to pay $600,000 to settle wrongful arrest, racial discrimination suit stemming from former chief’s favor for a friend
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Former West Linn Police Chief Terry Timeus had his officers work as his “personal posse” to initiate an unwarranted, racially motivated surveillance and arrest of a black Portland man as a favor to the chief’s fishing buddy.
The case had no ties to West Linn.
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The city recently negotiated to pay $600,000 to the target of the rogue investigation, Michael Fesser, 48.
West Linn police also have agreed to a face-to-face meeting with Fesser.
The settlement is one of the largest in the state resulting from a wrongful arrest claim, Fesser’s lawyer Paul Buchanan said. It ends a federal lawsuit that Fesser filed in the summer of 2018.
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“Profiling and racial discrimination remain a problem in our state, but not one we are willing to accept,” Mr. Schneiderman said in a statement on Monday. He was stopped several blocks from the store on Fifth Avenue by plainclothes officers who questioned his ability to pay for the 0 belt.
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“This case vividly illustrates a ready willingness on the part of the West Linn police to abuse the enormous power they have been given, and a casual, jocular, old-boy-style racism of the kind that we Oregonians tend to want to associate with the Deep South rather than our own institutions,” Buchanan said.
Attorney Andrew Campbell, who represented West Linn in court, did not respond to a request for comment Monday night.
The brazen misconduct by West Linn police include making a surreptitious audio recording of Fesser at work without a warrant or court order, arresting him without probable cause with the help of Portland police and seizing his cash, cellphone and documents without a search warrant, court records show.
The case file includes a raft of racist and crude text messages between West Linn police and Fesser’s boss at the time, aimed at Fesser and others. The West Linn detective who lead the investigation against Fesser deleted the offensive texts from his phone and claimed they weren’t of a racist or homophobic nature, but they were found on another phone, according to the records.
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Fesser, a father of eight who now runs a prison ministry and transitional program to support men getting out of prison, said he took legal action so this doesn’t happen to another black man, including his two teenage sons.
“Ever since that arrest, I was terrified to go to West Linn,” Fesser said. “This has to be exposed, and it has to stop.”
‘My game my rules’
The West Linn investigation began in February 2017 after Fesser brought concerns of racial harassment by co-workers to his boss at the time, Eric Benson, owner of A&B Towing in Southeast Portland, court records show.
Fesser said other employees called him racist slurs and one asked him how he liked a Confederate flag that was fastened to a pickup parked in the tow company’s lot.
A black Oregon man told his boss about discrimination at work. Then he was arrested.
Michael Fesser said West Linn officers unlawfully surveilled him and then falsely arrested him after he complained to his boss about racial discrimination.Michael Fesser of Portland claimed in the suit, an amended version of which was filed last month in U.S. District Court in Portland, that the incident left him suffering from emotional distress and resulted in economic damages. He sued the city and several members of the West Linn Police Department for false arrest, malicious prosecution, defamation and invasion of privacy.
He had worked for the company since 2004, mostly managing its car auctions, selling impounded, abandoned and other cars. It was his job to record the amount of the sales, receive deposits and payments from bidders and handle the cash transactions.
After Fesser complained about a hostile workplace, Benson went to Timeus, his friend in West Linn who he had joined on four or five fishing trips.
Benson convinced the police chief to investigate unsupported allegations that Fesser was skimming proceeds from the car auctions, according to court records. Benson said he believed his company should have been earning more from the auctions and that Portland police wouldn’t respond to his concerns.
Timeus sent a text message to Benson on Feb. 21, 2017, saying his detective was finishing up a sex crimes case “and will have your case ready to go before Saturday … If I hear more, I’ll let you know.”
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On Feb. 25, 2017, the West Linn police conducted surveillance of Fesser at his job. Police that day relied on an associate of Benson’s to record Fesser at work using an audio app called “Swann View.” Benson also watched a live feed from company video surveillance cameras, according to evidence obtained during the litigation.
Benson provided real-time updates to West Linn Detective Tony Reeves, text messages show.
As the surveillance went on, Benson and Reeves exchanged sexually explicit and homophobic banter, referencing themselves and the police chief, and made racist comments about Fesser, their text messages revealed.
At one point, Benson told Reeves that he regretted Fesser’s arrest wasn’t going to happen in Clackamas County because he had hoped to “make sure he was with some real racist boys.”
Benson added: “Dreams can never come true I guess” and followed up, writing, “Oh did I say that? I’m a bad person. I have some anger issues going on with him right now.”
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At another point, Benson sent Reeves a photo of his dog. Reeves messaged, “Hope Fesser doesn’t get her in the law suit.” Benson wrote back, “Hahaha. She is not a fan of that type of folk. She is a wl (West Linn) dog.”
Although Reeves later admitted that officers hadn’t found any signs of wrongdoing by Fesser during the surveillance, he told another West Linn officer, along with five Portland officers, to stop Fesser as he headed home from work that day about 5 p.m.
“My game my rules,” Reeves wrote to the tow company’s owner just before police moved in.
Reeves continued in texts to Benson: “It’s better that we arrest him before he makes the complaint (of race discrimination). Then it can’t be retaliation.”
Fesser recalled seeing lights and sirens behind him and so he pulled over at Southeast 106th and Foster.
“I’m thinking they’re going to go by,” he recalled in an interview with The Oregonian/OregonLive on Monday.
But multiple police cruisers surrounded his black Range Rover.
A Portland sergeant told him that the Portland officers were just there to help West Linn police.
“West Linn? It has to be a mistake,” Fesser said he thought. “I know I haven’t done anything wrong. I’m terrified. I’m scared.”
‘How do police fire me from my job?’
West Linn police ordered Fesser out of his SUV. They took his phone, cash and a letter Fesser had written to his boss documenting the alleged racial discrimination he faced at work.
They took him to Portland’s East Precinct, where West Linn officers questioned him.
Reeves asked for the passcode to Fesser’s cellphone, but Fesser didn’t disclose it. Reeves said in a deposition later that he sought the passcode “in case I was able to obtain a search warrant to search his phone.”
Fesser was then taken to the downtown jail in Portland, booked on an aggravated theft allegation and released.
That night, Reeves had notified Benson that West Linn police had found a letter in Fesser’s car “about the work place and discrimination” and Benson alerted his fishing buddy, according to text messages obtained by Fesser’s lawyer.
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Benson texted Chief Timeus at 6:26 p.m. that day, asking: “Can I get extra patrols for a bit at my house?”
“Yep, send me your address,” Timeus responded by text. “I’ll handle it.”
About two days later, West Linn police called Fesser, who had gotten a new phone with the same number, and told him to come to their department to retrieve his belongings.
Afraid to go on his own, Fesser waited for his wife to drive with him there. Once he arrived, Reeves told Fesser that he was fired from his job and ordered him to not return to A&B Towing’s property.
“How do police fire me from my job?’’ Fesser said he thought.
Before he left, Reeves told Fesser, “Stradley says hi.”
Indictment based on ‘shady’ witnesses
That was a reference to then-West Linn police Lt. Mike Stradley, a retired veteran Portland police officer who used to work on the gang enforcement team.
Stradley had told Reeves that Fesser was a “gang associate.” Stradley was the one who helped get Portland gang enforcement officers to assist in Fesser’s arrest.
Stradley, though, admitted in a deposition that he hadn’t had any interactions with Fesser for more than two decades. He acknowledged that his characterization was based partly on who he remembered Fesser was hanging out with in the late 1980s and 1990s and that he saw Fesser attend gang-related trials.
Fesser, who grew up in North and Northeast Portland, had been convicted in 2001 of using his phone in the commission of a drug-trafficking offense and sentenced to four years in prison. He has had no other convictions since.
The afternoon after Fesser went with his wife to the West Linn Police Department, Fesser attended his Multnomah County arraignment and learned prosecutors had declined to file the theft charge. The case was dismissed, though it could be revived in the future.
Months went by. Fesser checked daily with the court to see if the charge had been refiled. In September 2017, he filed a suit in Multnomah County courthouse against Benson and A&B Towing, alleging racial discrimination and retaliation.
That lawsuit led Benson to press West Linn police about Fesser’s theft charge, court records show. West Linn police, in turn, asked the Multnomah County District Attorney’s Office to revive the case.
In November 2017, based largely on grand jury testimony by Reeves and Benson and statements from two witnesses who West Linn police described as “shady” and “dirty,” Fesser was indicted on five counts of first-degree theft, according to court records.
As Fesser’s lawsuit against the tow company was pending, lawyers for Fesser’s ex-boss offered to have the criminal charges against Fesser dismissed if Fesser dropped the civil suit, Buchanan said.
Fesser wouldn’t accept that.
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Nearly a year after Fesser’s arrest, his lawyers finally received the damning text messages between Benson, the tow company owner, and Reeves, the West Linn detective. They came through an exchange of evidence in Fesser’s suit against A&B Towing.
“Only after he received the text messages did he understand that racism, cronyism and impropriety of the officer’s conduct and motivations,” Fesser’s lawyer wrote in court documents. “And only after he received the texts were all criminal charges precipitously dropped.”
In March 2018, Benson and A&B Towing agreed to pay Fesser $415,000 in damages, wages and attorney fees to settle his discrimination suit in Multnomah County Circuit Court.
The settlement included a clause that Fesser wouldn’t bring any further legal action against the company or its agents.
As his federal civil case then progressed against West Linn police, the department’s lawyers urged the court to dismiss the case, arguing that West Linn officers were acting as the “agents” of the tow company and therefore couldn’t be sued based on the state settlement.
“This assertion is virtually an admission of misconduct,” Buchanan, Fesser’s lawyer, responded last month. “Defendants were not seeking to engage in legitimate law enforcement. Rather, the officers were acting based on a striking and alarming personal malice, racism, and desire to protect a ‘good old boy’ from the West Linn community.”
West Linn police admitted in court records that they conducted audio surveillance of Fesser without a court order and seized his phone without a warrant.
Reeves was investigated and disciplined for failure to properly document the seizure of Fesser’s cash after his arrest, according to his deposition.
He also acknowledged that he didn’t document the seizure of Fesser’s cellphone and didn’t record the interview of Fesser in Portland – both violations of West Linn police policy.
Reeves, according to deposition records, also had deleted his Feb. 25, 2017, text message exchange with Benson and maintained that there had been no homophobic or racist remarks sent between them, according to court records.
Fesser and his lawyer already had the text messages from Benson’s phone and knew that to be false.
It’s unclear the level of discipline Reeves received. He was promoted to sergeant in March 2018.
Timeus, the police chief, said in a deposition that he heard his friend Benson use a racist slur at least a “half a dozen” times. Timeus admitted to having used the racist slur himself but said he couldn’t recall if it was when he was police chief or if he used it when referring to Fesser’s cases, according to his deposition transcript.
Timeus retired in October 2017 amid allegations that he drove drunk while off duty. He received more than $123,000 in a separation agreement.
Stradley resigned as a West Linn lieutenant on Jan. 16, 2018, and started working the next day as a police trainer at the state’s basic police academy for the Department of Public Safety Standards and Training, where he’s a supervisor.
-- Maxine Bernstein
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