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Fouad Kaady Civil Suit Goes Forward; Trial Scheduled for April 2009

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The federal civil rights case filed by the family of Fouad Kaady will proceed following a November 26 order by United States Magistrate Judge Paul Papak. Judge Papak's order settles summary judgment motions from the defendants in the case, a process in which the Judge determines which issues have been judicially proven by one side or the other and which facts remain to be determined by a jury.

On September 8, 2005, Fouad Kaady was shot seven times by a Clackamas County Sheriff's deputy and a Sandy, Oregon police officer after being badly burned and disoriented in a fiery car crash minutes earlier.

The judge cited conflicting statements by several witnesses, including the two officers, as proof that material facts need to be decided by a jury at a trial.

"The conflicting evidence leads me to conclude that material questions exist regarding the circumstances of the shooting," Papak wrote. "I therefore conclude that plaintiffs' version of the facts shows a rights violation that would be clear to a reasonable officer."

The order sets the stage for a trial in April 2009 at the Clackamas County Circuit Court in Oregon City.

A copy of the Judge's 50-page order is attached as a PDF file.

Correction 09.Dec.2008 08:42

Reporter

I inadvertently wrote that the trial would take place in Oregon City. In fact, a trial in this case would occur at the Oregon District Court in Portland.

At the time I was writing this short piece, I was also thinking about the criminal charges against Kaady shooter William Bergin, which would be at the Clackamas County Circuit Court in Oregon City.

I regret the error.

Thank you! 09.Dec.2008 11:12

Fonzy

I jumped out of my seat when I saw Clackamas County Court! That would be like the right hand watching the left, (of course in Clackamas County both hands would be holding a loaded gun).

Bergins court date is Dec. 11 at 1:30, is this correct? I apologize but I would not know how or what to say if I were to call that place. ....Well, ok, I am too scared to call.

Bergin's Arraignment 09.Dec.2008 16:32

court reporter

So far, Bergin's arraignment is scheduled for Thursday the 11th at 1:30pm. You can call Thursday morning to confirm that it's still scheduled for then, but as of right now, that's the plan. (To all the Clackamas County Deputies out there reading this site -- and we know you do -- don't shit your pants. It's just people interested in their right to attend a public arraignment. It's not like there's going to be a riot or anything. ...well, probably not. Let's just say it's extremely unlikely, at least for right now. But if this guy gets away with a few more DV-menacing-drunken-torturing-murder incidents, then there will be. Just put him away.)

(Remember when Clackamas County sheriffs deputies closed down the whole town for the Kaady demo? They shut down the jail and blocked off acres and acres, enough parking for something like 30 thousand people. Grin. I guess they don't get much action in Oregon City.)(Or maybe they just have no idea how many things are going on in the world, and how much time and effort it takes just to get 20 people to show up somewhere. About 150 people showed up for the Kaady demo, and I thought that was SWEET. Imagine my surprise to see snipers on the rooftops and discover they had been expecting thousands of people to storm the place.) So if they get to crapping their drawers again over reading this site, they might just want to close the courthouse or secret Bergin away before the pitchforks come out or something. Whatever. As of right now, it's scheduled for Thursday at 1:30.

Number to call 09.Dec.2008 16:36

public record

You can call the courthouse here: 503.655.8447

Just ask them to confirm that William J Bergin's arraignment is at 1:30. (Been confirmed for today, but you should call Thursday morning to be sure.)

The courthouse is here:

Clackamas County Circuit Court
807 Main Street
Oregon City, OR 97045

You can take Tri-met right there. (I think it's the 33 from Portland, but call 238-RIDE to find out for sure. Just ask how to get from wherever you are to 807 main street, oregon city, by bus. They'll tell you how long it takes and everything.)

Thank You! 10.Dec.2008 10:18

mh

Thanks, "Reporter"! Really appreciate you going to the time, trouble and expense of posting the judge's ruling here.

Some things I found interesting... 10.Dec.2008 12:17

mh

After a quick reading of the judge's ruling (thanks again "Reporter"), a couple of things I found interesting...

First, and though this is pretty minor, it jumped out at me. From the ruling:

"Skelton also testified that he decided to have supervisory personnel review the reports because the department was a "tight-knit group" and the shooting had affected everyone."

But we're supposed to still believe this "tight-knit group" didn't have a freakin clue what was going on with Billy (and Claggett) and his numerous illegal escapades throughout his career? Whatever.



Anyway, I was most hopeful when I read of the criteria used to judge excessive force in the summary judgment phase (see the discussion of "Graham" on pages 28-35):

==
Police officers may only use force that is objectively reasonable under the circumstances,
viewing the facts from the perspective of a reasonable officer on the scene. Graham v. Connor,
490 U.S. 386, 396 (1989). Courts determine the reasonableness of police use of force at the
summary judgment stage by balancing the "nature and quality of the intrusion on the individual's
Fourth Amendment interests against the countervailing government interests at stake." Id. at
396. Courts assess the nature of the intrusion based on the type and amount of force inflicted.
See, e.g., Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994).

The next step of the analysis requires that the court weigh the government interest by considering: 1) the severity of the crime at issue, 2) whether the individual posed an immediate threat to the safety of the officers or others, and 3) whether he or she actively resisted arrest. Graham, 490 U.S. at 396.

In addition to the factors mentioned above, courts may consider the reasonableness of
officers' use of force in light of whether officers knew that an individual was mentally unstable."
==

The judge's findings are significant and speak to what a lot of us have been trying to say here from the beginning. It's reassuring to me that the law backs up what many feel should be morally and ethically obvious:

That "although Kaady posed a potential threat to the officers when Bergin deployed his Taser the first time, that threat was significantly reduced by Kaady's physical state, compliant conduct, and the fact that he was outnumbered."

Thank you. This, in a nutshell, is what we have been screaming from the first. That "[A] simple statement by the officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern."

The judge stated it succinctly:
"I do not accept the proposition that officers can use a Taser to shield themselves from any possibility of harm and "the suspect must suffer the consequences." ...To accept this proposition would effectively eviscerate the protections of the Fourth Amendment and also ignore the teachings of Graham, which counsels that a key question in this inquiry is whether a suspect poses an 'immediate' threat, not a 'possible' threat."

"After reviewing the case law, I conclude that, as of September 2005 when Bergin used his Taser on Kaady, police officers had reasonable notice that they may not use a Taser against an individual suspect who does not pose a threat and has merely failed to comply with commands."

Again, thank you. So much for the old "action-reaction" theory the cops so like to subscribe to around here. Here's hoping this case will bring this stupid, reactionary, policy-driving theory under more scrutiny and force a change to the justifications law enforcement use for lethal force.


There's a lot of other horrible stuff in there that I hadn't heard before. Like how only one of the shots fired that hit Kaady entered from the front, all the others entered from the back. And how the forensic investigation points to the suggestion that Kaady had his arms up when he was shot.

"In Bergin and Willard's account, Kaady threatened to kill Willard and appeared poised to leap on top of him from the top of the patrol car, which posed a threat in the event Kaady grabbed Willard's gun. Witness accounts indicate that they did not hear Kaady threaten to kill Willard. In addition, witnesses reported that Kaady did not appear to be lunging at the officers and one witness stated that Kaady appeared to be attempting to flee. The forensic expert declaration does not resolve the contradictions in these accounts. It indicated that, although one gunshot wound was consistent with Kaady facing the shooter and bent at the waist, other shots hit Kaady as he was turned away from the officers and the wounds suggested he had his hands in the air. The conflicting evidence leads me to conclude that material questions exist regarding the circumstances of the shooting."

Once again, thank you for reiterating that we do not have to simply accept a cops' statements as fact and that their judgment can and should be questioned. Just because they have a difficult and often dangerous job to do does give them carte blanche to anything they deem appropriate.

Oops 10.Dec.2008 13:22

mh

That last line should read:

Just because they have a difficult and often dangerous job to do does NOT give them carte blanche to do anything they deem appropriate, regardless of the circumstances.

Sorry.