WEST LINN, Ore. — An Oregon man has won $1.15 million after his boss had a police chief friend manufacture a criminal case in a bid to halt a potential racial discrimination lawsuit against his towing business.
Michael Fesser, 48, of Portland, last week settled his lawsuit against the West Linn Police Department for $600,000. The settlement is one of the largest wrongful arrest settlements in Oregon history.
Fesser had previously settled his claim against his former boss, Eric Benson, for $415,000. Benson owns A&B Towing in Southeast Portland.
Fesser said in an interview with the Oregonian that it is his eight children “and the next black man or individual that has to go through this” that drove him to keep pushing forward with the lawsuits.
Fesser’s attorney, Paul Buchanan, said Saturday that he is pleased with the attention the lawsuits and ultimate settlements are receiving.
“For Michael, the purpose of this litigation has always been to bring about change,” Buchanan said. “We are watching to see whether law enforcement leaders are merely saying the right words to get them through this scandal until the attention dies down, or whether concrete steps are taken to bring about real change.”
Watch Michael Fesser talk below about why he sued the West Linn Police Department.
Police officials have not admitted guilt in the case but in a public statement, current West Linn police Chief Terry Kruger said the settlement was reached to avoid additional cost and uncertainty for the city.
"The City of West Linn and the West Linn Police Department do not tolerate any acts of discrimination or disparate treatment by its employees," Kruger said in the statement. "In 2018, when the allegations were first reported, an internal investigation was conducted, and swift and appropriate disciplinary personnel action was taken."
The settlement has resulted in outrage in the community and a number of fast-moving developments involving those named in the lawsuits, particularly former West Linn police Chief Terry Timeus. On Thursday, a West Linn city attorney released a long-secret, 100-page internal report that dealt with allegations of Timeus making racist, homophobic, anti-Semitic and sexist comments while on the job as a Lake Oswego police officer, the post he held prior to becoming West Linn chief in 2005.
According to the Oregonian, the allegations included a sexual relationship with a confidential informant and the gay-bashing of a hotel clerk while arguing over the price of a room where he'd taken the informant in Portland.
The report was completed in 2008 -- three years after Timeus became police chief in West Linn.
The newspaper reported that former West Linn city manager Chris Jordan, who also had previously worked in Lake Oswego, had hired Timeus without performing a background check.
Two of the police officers embroiled in the Fesser case have been placed on administrative leave. Kruger said he placed Sgt. Tony Reeves, the only involved officer still working for West Linn, on leave pending the outcome of an investigation by the Clackamas County District Attorney’s Office.
Former West Linn police Lt. Mike Stradley, who now works as a supervisor of police training at the Oregon Department of Public Safety Standards and Training, has also been placed on leave in the wake of last week’s court settlement.
Since the settlement, Oregon Gov. Kate Brown and three members of Congress have called for a federal investigation into the alleged wrongdoing of West Linn and Portland police officials. The Oregonian reported Wednesday that U.S. Department of Justice officials are opening a probe into whether federal crimes were committed.
West Linn Mayor Russ Axelrod and the city council have submitted a letter of support for the federal investigation.
Brown has also directed the state Department of Public Safety Standards and Training to investigate the case and Portland police Chief Jami Resch has asked the Police Bureau's Professional Standards Division to look into the role Portland officers played in the case, Axelrod said Tuesday.
Axelrod offered his “sincerest apologies” to Fesser, his family and the community.
"As Mayor of West Linn, I must apologize for the described conduct that has stained our community. Such actions do not reflect West Linn and our neighboring cities, and we will be vigilant to make sure that such conduct never occurs in the future," Axelrod said in a lengthy statement. "Mr. Fesser: I want to offer my sincerest apologies to you, your family, and everyone who has been hurt by this.
“The (news) articles describe inexcusable racism and abuse of power at the hands of members of our police department. The pain, hurt, and fear that this caused you is unacceptable. I am deeply sorry.”
The mayor said he looked forward to meeting Fesser, a meeting which was part of the settlement, and “learning from the courage (he has had) to share (his) story and press for justice.”
"I commit to doing my part to work together with all parties and community members on a journey of healing," Axelrod said.
The district attorney in Multnomah County, where Portland is located, is also conducting an investigation into the credibility of those involved, the Oregonian reported. If the officers' conduct triggers a Brady notice, prosecutors would be required in future cases to disclose to defense attorneys evidence that could be used to impeach the officers' credibility as witnesses.
According to the Washington Post, the case began in 2017 when Fesser, who has for decades run a prison ministry in his spare time, went to Benson with complaints of racial harassment at A&B Towing. Fesser told Benson his coworkers used racial slurs, including calling him "Buckwheat," and that one white man had pointed out a Confederate flag displayed on his truck, asking Fesser how he liked it.
Fesser, who the Oregonian reported had managed the towing company's auto auctions since 2004, described the workplace as hostile. Benson, who had been sued before for racial discrimination, feared another lawsuit.
He turned to fishing buddy Timeus.
According to Fesser’s federal lawsuit against the West Linn Police Department, Timeus had two of his officers, Reeves and Sgt. Mike Boyd, who were at the time detectives with the department, build a theft case against Fesser. Benson alleged that Fesser was skimming cash off the proceeds of the auctions he conducted.
Benson later claimed he believed the company should have been earning more cash from the auctions and that Portland investigators were dismissive of his concerns that Fesser was stealing, the Oregonian said.
Timeus had his detectives investigate Fesser, despite the fact that Benson’s towing company is in the city of Portland and outside the jurisdiction of West Linn.
“The investigation culminated in an unlawful, extra-jurisdictional and unwarranted surveillance operation in Portland at the business of Chief Timeus’ friend where Mr. Fesser was employed,” the lawsuit stated.
Much of the most damning evidence in the lawsuit came in the form of text messages between Benson, Timeus and the detectives.
“At the direction of Chief Timeus, Sgt. Reeves and Sgt. Boyd attempted to secure statements from individuals who were expressly acknowledged in text messages to be ‘dirty,’” the lawsuit said. “These text messages can be found on both Chief Timeus’ and Sgt. Reeves’ phones.”
The lawsuit alleged that the detectives worked with the witnesses, hoping they could get the men to back the false claims that Fesser was stealing from Benson’s company. Reeves, the suit stated, also undertook an illegal surveillance operation Feb. 25, 2017, as Fesser conducted an auction.
Benson had an acquaintance record Fesser at work and, watching a live feed through company surveillance cameras, gave real-time updates to Reeves.
Text messages revealed during discovery in the lawsuit showed Benson and Reeves using racist, homophobic and sexually explicit language as they texted one another. The texts, which are contained in federal court records, show that Benson said he wished Fesser’s arrest would happen in Clackamas County because he wanted to “make sure he was with some real racist boys.”
“Dreams can never come true, I guess,” Benson texted. “Oh, did I say that? I’m a bad person. I have some anger issues going on with him right now.”
“I can’t imagine why,” Reeves responded.
At another point in the conversation, Benson sent the detective a photo of his dog.
"Hope Fesser doesn't get her in the lawsuit," Reeves joked.
“Hahaha. She’s not a fan of that type of folk,” Benson wrote. “She is a wl (West Linn) dog.”
No evidence of wrongdoing by Fesser was found during the illegal surveillance.
Despite that fact, Reeves and Boyd, with help from Stradley, a retired Portland police officer then working in West Linn, got the Portland Police Department’s gang enforcement team involved and that same night, they arrested Fesser as he drove home from work.
“My game, my rules,” Reeves texted Benson shortly before the officers moved in, according to court records. “It’s better that we arrest him before he makes the complaint (of racial discrimination). Then, it can’t be retaliation.”
Fesser told the Post he remembered seeing about a half-dozen patrol cars descend on him as he left the site of the auction that night. One West Linn officer repeatedly demanded, "Where's the money?" and they asked him about his place of work.
"When they first said that, I knew where this was coming from," Fesser told the Post.
According to Fesser’s lawsuit, one of the Portland officers, who knew him from his prison ministry, expressed discomfort with the situation.
“Mike, this is not my call,” the unnamed officer told him, according to the complaint. “I don’t want to be here. We’re just assisting West Linn.”
Below, read the amended federal lawsuit Michael Fesser filed against the West Linn Police Department.
Fesser’s lawsuit claimed the detectives arrested, detained him and interrogated him illegally and without probable cause. They also seized his belongings, including his cellphone, personal papers and “attorney-client privileged communications between Mr. Fesser and his employment attorney regarding his concerns of racial discrimination in the workplace,” the document said.
Fesser was released on his own recognizance about eight hours after his arrest for aggravated theft. He was ordered to go to court for an arraignment the following Monday, at which time the case against him was dismissed.
Meanwhile, the Oregonian reported, Benson had reached out to Timeus asking for "extra patrols" at his West Linn home, apparently fearing Fesser might show up after being released.
Two days after his arrest, Fesser was called to the police station to pick up his belongings. At that point, Reeves and Boyd informed him he’d been fired by Benson.
“How do police fire me from my job?” Fesser told the Oregonian of his thoughts at the time.
Though the criminal case was thrown out prior to Fesser’s arraignment, the investigation was reignited seven months later -- after Fesser had filed a lawsuit against Benson in state court.
“Upon information and belief, shortly after the filing of the civil litigation referenced above, the West Linn Defendants sought to prevail upon the Multnomah County district attorney to bring criminal charges against Mr. Fesser. This effort finally bore fruit in November 2017 when criminal charges were initiated,” the lawsuit stated.
The district attorney dropped the charges again the following March.
Timeus was placed on administrative leave in June 2017 amid accusations of “potential personnel policy violations.” He retired later that year after an internal investigation into an off-duty drunken driving investigation found “no terminable offenses,” the city announced at the time.
Reeves said in his deposition in the Fesser civil case that he was disciplined for his participation in the illegal arrest. Nevertheless, he was promoted from detective to sergeant in March 2018.
Kruger, who became police chief in June 2018, spoke out last week amid a wave of public outrage over Fesser's wrongful arrest. He said much has changed about the department in the three years since he was targeted.
"The former chief, captain and lieutenant involved no longer work here. Three sergeants, one detective and thirteen officers have also left service from the City of West Linn in that same timeframe; all in a department of 30 sworn personnel," Kruger said. "In the 20 months that I have been the chief, I have promoted two new captains, two sergeants and two detectives, along with the hiring of six new police officers, a new evidence technician and community service officer."
Kruger said he has also implemented new and added training that focuses on implicit bias, diversity and procedural justice.
"The officers here are on a strong path of ethical policing and fair and equitable service to all members of the public," the chief said.