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Government Agencies to Pay $418,000 in Political Surveillance Case

The U.S. District Court in Tacoma has awarded $248,817 in attorney's fees and costs to attorneys for an Olympia activist in a case involving covert surveillance by several government agencies.
June 28, 2010
Seattle, WA
Contact: Doug Honig, ACLU-WA
Larry Hildes, 360-483-7210

Government Agencies to Pay $418,000
in Political Surveillance Case

The U.S. District Court in Tacoma has awarded $248,817 in attorney's fees and costs to attorneys for an Olympia activist in a case involving covert surveillance by several government agencies. The award comes after plaintiff Phil Chinn accepted in May three offers totaling $169,000 from the Washington State Patrol, the City of Aberdeen, and Grays Harbor County in settlement of claims that officials of those agencies violated his rights to lawful protest.
Representing Chinn are Larry Hildes of the Law Offices of Lawrence A. Hildes, a member of the National Lawyers Guild Mass Defense Committee; and the ACLU of Washington and its pro bono attorneys Nathan Alexander and Mark Carlson of Dorsey & Whitney LLP, and Evan Schwab.

In its Order on attorney's fees and costs, the Court stated, "This case was far more than a wrongful arrest case. Besides ordinary damages, it was an attempt to vindicate the plaintiff's civil rights, and involved issues of whether governmental agencies were unconstitutionally targeting and arresting protesters without probable cause." The Court further observed that, "... the willingness of the defendants to make the offers of judgment could be viewed by the plaintiff and the public as some vindication of the plaintiff's position."
Chinn initiated the lawsuit (Chinn v. Blankenship) last year asserting that city, county, and state officials had developed and implemented a plan designed to prevent him and others from participating in lawful anti-war demonstrations at the Port of Grays Harbor in May 2007. The suit alleged that as part of the plan, state troopers stopped and wrongfully arrested Chinn after receiving word that he was driving a car with "three identified anarchists" in it. Chinn and his passengers were presumed to be "anarchists" based on covert surveillance by law enforcement officers.

"In America, people have the right to engage in lawful protest without being targeted by law enforcement because of their political beliefs. This settlement sends a strong message to public officials around the state that they need to respect free speech rights and political dissent," said ACLU of Washington executive director Kathleen Taylor.
"There's no evidence that Mr. Chinn had broken any law or that there was any justification whatsoever for stopping him," attorney Larry Hildes stated. "This was an attempt to silence dissent and to penalize those who participate in peaceful protest. The First Amendment exists precisely to protect controversial protest, and individuals should be free to protest without fear of retaliation," Hildes added.

Philip Chinn was driving from Olympia to Aberdeen, Washington on May 6, 2007 to participate in a lawful demonstration against the use of the Port of Grays Harbor for military shipments. Chinn observed all traffic regulations and drove in a safe and careful manner. According to all tests, records, and other proof, he was not under the influence of any controlled substance.
Despite that, Washington State Patrol (WSP) troopers began to follow Chinn's vehicle based on an "attempt to locate" message that directed officers to seek a green Ford Taurus, identified by its license plate number and described as carrying "three identified anarchists." Undercover officers had observed Chinn and the car in Olympia at a site where individuals met to carpool to the demonstration.

Officers conducted a pre-textual stop of Chinn that was part of a coordinated effort by the City of Aberdeen, County of Grays Harbor, and the Washington State Patrol to deter and prevent anti-war demonstrations at the Port of Grays Harbor. In advance of scheduled shipments of military equipment, various state and local law enforcement agencies, military entities, and others had developed the "Grays Harbor Military Movement Incident Action Plan." The plan was designed to deter and prevent individuals believed to be "anarchists" or associated with anarchists from participating in anti-war demonstrations.
The stated pretext for stopping Chinn was "erratic braking" and driving under the speed limit. Chinn was going 50 mph in a 55-mph zone and slowed down periodically, as WSP troopers followed directly behind him, as the speed limit decreased approaching Aberdeen, and as traffic increased. Although the troopers noted no smell of alcohol or other controlled substances, they gave Chinn a breathalyzer test, which he passed, and subjected him to additional roadside sobriety tests. Based on the observation that Chinn had raised taste buds and a white coating on the back of his tongue, the troopers concluded that he was under the influence of marijuana, arrested him, and took him to the Grays Harbor County Jail where they conducted a "Drug Influence Evaluation" and took a blood sample.

By the time Chinn was released from jail, the planned anti-war demonstration was over.
After the arrest, the WSP troopers forwarded incomplete and misleading information regarding the basis for Chinn's stop and arrest to the Grays Harbor County prosecuting attorney. A narrative report and affidavit of probable cause omitted any description of the substance of the "attempt to locate" communication regarding Chinn's car and its passengers' suspected political affiliation. Despite the complete lack of evidence, the Grays Harbor Prosecutor's office insisted on charging Chinn with driving under the influence, a serious charge that can have long-term implications for his life and career.
Several weeks later, the lab results came back negative for all substances. Chinn's attorney Lawrence Hildes filed a dismissal motion and asked for discovery related to the "attempt to locate" message. Almost immediately, the prosecutor said he would be dismissing the action.

Then, copies of a Computer Aided Dispatch Log and an audio tape were released in response to a request for public records. These revealed the "attempt to locate" alert, including the statement that Chinn's vehicle was carrying "three identified anarchists" who were believed to be headed to the demonstration.

"Phil Chinn and many others were subjected to surveillance and harassed by the government while seeking to exercise their freedom of speech, assembly, and right to petition their government. The misconduct by three of our police agencies - state, city, and county agencies - highlights the need for state legislation to restrict government agencies from collecting and distributing information about individuals' political beliefs without reasonable suspicion of crime," said ACLU-WA executive director Kathleen Taylor. "The ACLU supported legislation sponsored by Sen. Adam Kline and Rep. Sherry Appleton - SB 6432 and HB 2798 - to achieve this in the 2010 legislature and will promote its enactment again next session."


and another story of the WSP ruining someones life 03.Jul.2010 21:33

cops are paid gangsters

Court: State Patrol DQ'd man from dream job with state over 1996 incident

LACEY - David Andrews wants to look ahead, but a day more than a decade ago hasn't faded from his rearview mirror.
Click here to find out more!

It's April 23, 1996. He has just started to drive away in his car after a traffic stop, and there they are again, two Tacoma police officers running up to arrest him for felony drug possession. Andrews, who is black, says the arrest was bogus and racially motivated. He says one of the officers pulled his right thumb out of its socket while putting his arm behind his back. Four stressful months later, a judge dismissed the charge because of insufficient evidence, said Kevin Johnson, Andrews' attorney.

Fast-forward to April 30, 2007. The kid from Tacoma's Hilltop neighborhood lands his dream job as a network technician for the state Department of Information Services. His wife, Michelle, who prodded him to apply, said he was on "Cloud Nine" when he learned of his hiring.

Then, nearly three months into his new job, he met with his supervisors. Earlier, they had praised his performance. In the meeting, they told him he was being let go. He'd failed a background check essential to his position. There was nothing they could do.

Andrews was stunned. The arrest that he thought had faded into the distant past had caught up with him again.

He sued his former employer and the Washington State Patrol - which conducted the background check that cost him his job - for wrongful termination and, later, discrimination.

His former supervisor revealed during a deposition that he - the supervisor - had two felony forgery and theft convictions in another state, crimes not caught by WSP's background check four months earlier.

The admission couldn't save Andrews' case. A Thurston County Superior Court judge dismissed all but the discrimination claim earlier this year. Andrews and his wife couldn't afford an appeal and accepted a settlement offer from the state in April.

It's June 23. Andrews, 43, is sitting in his living room with his wife in their home near Tolmie State Park. He's earning less at a full-time job at Home Depot. He gazes into the past when asked about his termination and the resolution of his lawsuit.

"I felt like my thumb was being pulled out of my socket" again, he says. "The mental abuse can be worse than the physical abuse."


"Fast money burns fast" was a common refrain Andrews heard from his father growing up in Tacoma's Hilltop area when gang members and drugs populated its streets. Andrews wanted money, but he wanted to earn it the right way. He stayed in school and out of trouble, aided by his strong, church-going family that included 11 siblings.

Andrews was 29 on that fateful afternoon. An unexpected visit from a friend led to a drive in his new car, a three-year-old Buick Century he purchased a week earlier. They were driving to a music store when Andrews realized he'd forgotten his wallet. I'll be fine, he recalled thinking.

After buying some compact discs, the two friends headed home. Shortly after pulling out of the driveway, he saw flashing lights in his rearview mirror. Just my luck, he recalled thinking.

The officers stopped him for failure to use a turn signal, according to the police report. Andrews explained to the officer after being asked for identification that he forgot his wallet.

Andrews was ordered out of his car, handcuffed, searched and placed in the back of the patrol car. The report said the officers determined Andrews had a valid driver's license and was clear of outstanding warrants.

Andrews and the police reports say the officers then went behind the patrol car to talk. The police report says an officer observed Andrews "fumbling around in the back seat of our patrol car."

The officers returned and told Andrews he was free to go. An officer noticed a crumpled paper cup on the car seat as Andrews stepped out, leading to a thorough search of the patrol car, according to the report. The report said they found rock cocaine in a plastic bag under the driver's seat.

Andrews said the crumpled cup - from when he got some water at the music store - did fall out when he was pulled out of the car, but it was impossible for him to hide anything because his hands were handcuffed behind him and his only pockets were in front of his coat. He said the officers lied in their reports by saying he wore a bulky jacket and was unemployed; in fact, he said, he had two jobs.

The officers told Andrews the bag wasn't there at the start of their shift, according to the report, and Andrews "became upset and uncooperative and said that he thought we were trying to plant that on him."

The officers placed him under arrest, according to the report.

Andrews' claim that the officers allowed him to return to his car when he saw them running after him is not mentioned in the police report.

"As much as I wanted to mash the gas, that would have incriminated me," Andrews said.

He spent 24 hours in jail. At a court hearing the next day, he was aghast to learn that one of the officers claimed they found 51 rocks of crack cocaine stashed under a seat in the patrol car.

He was released on personal recognizance and was later charged with unlawful possession of a controlled substance with intent to deliver.

He was looking at a prison sentence of up to three years, if convicted.

He hired a lawyer. A judge dismissed the charge Aug. 2, 1996, because the prosecutor couldn't prove the plastic bag belonged to Andrews, Johnson explained.

"I was so happy, I was jumping up and down," he recalled. "Looking at 36 months, I had a new lease on life."

The stress and uncertainty of the last four months was gone. Unknown to him, however, the record of the arrest remained.


Andrews put his aptitude for math and problem-solving to work with computers. He received an associate degree from ITT Technical Institute and worked for several companies, including Dell computer and VeriSign. He passed all his background checks.

In February 2007, Andrews was hired as a network technician for the state Department of Information Services. It was a job that offered good money - Andrews would be making $49,000 a year within six months - and the stability the couple were looking for to start a family.

His employment was conditional on passing a background check required under an agreement between WSP and DIS. Andrews would be working in an area that hosts WSP's fingerprint information system. The decade-old agreement grants the patrol final authority on who has access to its equipment and data.

Andrews' arrest popped up during the background check. Under patrol rules, a felony arrest that doesn't lead to an outright acquittal can disqualify a candidate. The patrol did a further investigation of the police reports and court record after Andrews signed a waiver. The patrol's human resources administrator ruled Andrews did not qualify for the job.

There were no open positions available that didn't have the background check requirement. Andrews was called into an April 30, 2007, meeting with his supervisors and told he was being terminated. Andrews' former supervisors said in court records that it was the first time one of their employees had failed a background check.

WSP has not provided the reasons for its decision on Andrews or his former supervisors. It declined to do so when asked by The Olympian.

James Dixon, a local criminal defense attorney not involved in Andrews' case, said he frequently hears from people surprised that a prior arrest or dismissed charge followed them into a new job.

"They are under the mistaken impression that there is no record of it," he said. "There is a record of it because there is an arrest record."

State law allows an individual to petition a court to delete this so-called "non-conviction data" two years after a case is resolved.

Andrews did this on June 28, 2008, but it was too late to save his job.

"We never knew," Michelle Andrews said. "If we would have known, of course we would have gone down and done it in a heartbeat."


Andrews sued the two state agencies for wrongful termination in August 2008. His former supervisor said during a deposition in February that he had been convicted of two felonies, for theft and forgery in Utah. He received probation in 1991.

"I was a little (expletive) when I grew up. It's been 21 years. I've redeemed myself, I feel," he testified.

The supervisor, who is white, also testified that he passed a background check about four months earlier, his first since he was hired in July 2004.

The supervisor testified he told a manager of his convictions before his background check.

The disclosure of the supervisor's convictions prompted Andrews to amend his complaint to include a racial discrimination claim.

"All I wanted was to have my job back and be treated equally like (his supervisor), and they couldn't do that," he said.

Added his wife: "Who is the bigger threat? Someone with a false arrest, or someone with two felonies?"

The state Attorney General's Office, defending the two agencies, argued that the two situations didn't compare. It was not discrimination, but a mistaken assumption that allowed Andrews' supervisor to pass his background check, it argued.

After the supervisor's deposition, WSP learned of the convictions. The supervisor signed a waiver for further investigation of his convictions, according to court records. A WSP spokesman declined comment on the outcome of the investigation.

The patrol conducted an audit of all its DIS employees to verify they don't have disqualifying arrests and convictions. A WSP spokesman said the audit came back clean.

Andrews is complimentary of his former supervisor, saying he stood by him while his senior managers did not.

The judge dismissed the wrongful termination claim in part because there was no violation of public policy. Johnson argued that the State Patrol did not follow the established policy for pre-employment checks related to arrests. The judge, however, noted that there's an exemption to that policy for law enforcement.

"He could have easily gone the other way," Johnson said.


Unable to afford an appeal, the Andrewses took their attorney's advice and accepted a settlement offer on the remaining discrimination claim in April.

Assistant Attorney General Andrew Logerwell said the offer was made to protect the state from the risk inherent in going to trial.

"Any time you put it in front of 12 jurors, there's a chance of an adverse consequence," he said. "That's just the reality of going to any jury trial in any case."

Logerwell maintains that the discrimination claim was without merit.

"The record speaks for itself," he said. "It seems like most of (Andrews') ire was directed at the City of Tacoma and that stop."

Sitting in his living room, Andrews is grateful to have a full-time job, even if it pays less than his former state position.

The past three years have taken a toll. He's been to counseling to deal with anger and depression but said the hardship has made him stronger.

Andrews knows it's time to put the past in the rearview mirror. He has enrolled in online courses to earn his bachelor's degree in business information systems and looks toward a brighter future.

"I have to keep my attitude up," he said. "I know it's going to be rigorous."

Christian Hill: 360-754-5427  chill@theolympian.com www.theolympian.com/outsideoly