Federal prosecutors have decided not to pursue charges after concluding an investigation into whether West Linn police violated the civil rights of Michael Fesser in their 2017 wrongful of the Black Portland man.
The U.S. Attorney's Office, the Justice Department's Civil Rights Division and the FBI launched the investigation one year ago after West Linn paid Fesser $600,000 to settle a civil rights lawsuit.
According to a press release issued Friday, Feb. 19, the investigation included interviews of 18 people, including Fesser, current and former police officers, city employees, and community members. The FBI also reviewed about 28,000 pages of material that resulted from 24 subpoenas.
"After examining the circumstances surrounding Mr. Fesser's arrest and the evidence gathered, the FBI and career Justice Department prosecutors from the U.S. Attorney's Office and the Civil Rights Division concluded that they could not prove beyond a reasonable doubt that officers involved in Mr. Fesser's arrest willfully violated Mr. Fesser's civil rights or federal public corruption statutes," the release stated.
West Linn police staged an illegal investigation of Fesser in 2017 as a favor to a friend of then-Police Chief Terry Timeus.
Timeus' friend, Eric Benson, was Fesser's boss at A&B Towing in southeast Portland. Fesser had complained to Benson of racial harassment he faced at work and Benson feared he would file a lawsuit.
News of the city's settlement with Fesser, along with new details of the faulty investigation and arrest, sent West Linn citizens into an uproar. The city has since fired the lead detective who arrested Fesser, Tony Reeves, and Chief Terry Kruger, who joined WLPD the day Fesser filed his tort claim with the city. West Linn also conducted an independent investigation of the Fesser case and established a police oversight task force in the months following the settlement.
In May of last year, Clackamas County John Foote found "deeply disturbing" misconduct by West Linn police officers in their investigation and arrest of Fesser.
Foote was particularly troubled by racist text messages exchanged between Reeves and Benson as they discussed the investigation.
While the District Attorney recommended the revocation of the Department of Public Safety Standards and Trainings license of both Reeves and Timeus, decisions on the prosecution of officers for any particular misdeeds in the case were left to federal officials.
In the end, investigators found that the evidence did not warrant charges.
"In this case, under the applicable federal criminal civil rights laws, the government would have to prove beyond a reasonable doubt that Mr. Fesser's constitutional rights were violated and, if a violation occurred, the actions taken by law enforcement officers were willful," the press release read. "Willfulness requires proof that an officer acted with the specific intent to do something the law forbids. It is not enough to show that an officer made a mistake, acted negligently, acted by accident or mistake, or even exercised bad judgment."
The statement noted that the U.S. Attorney's office had connected WLPD with 'national community-oriented policing technical assistance' in response to broader concerns raised by the investigation.
Fesser's lawyer Paul Buchanan said he and Fesser met with the prosecutors Friday morning and that neither of them was surprised at the results.
Buchanan noted the high bar for prosecution in federal civil rights cases, a threshold that has also prevented charges for officers in recent high-profile police killings throughout the country.
"It gives the sense that officers can operate with impunity, which is what happened here in my view," Buchanan said.
He added that Fesser, who he said is forgiving, did not seem to desire criminal prosecution in this case. Fesser is more interested in reform and accountability.
The attorney mentioned the concern of an official statement provided to Portland police by former WLPD Lt. and former Portland Police Officer Mike Stradley before Fesser's arrest that Buchanan believed amounted to criminal conduct.
Stradley coordinated with PPB during the Fesser investigation, getting Portland police to assist with the arrest.
According to Buchanan, Stradley falsely reported to PPB, "In the past, Fesser had made threats to assault Benson, his employees, and to damage his business."
Buchanan said that in the hours of lawsuit deposition he took from both Stradley and Benson, neither mentioned Fesser threatening Benson.
Buchanan believes Stradley's misstatements were made to bring about "an aggressive arrest of Michael and put his life in danger. And to me, that is clear criminal conduct."
Lastly, Buchanan said that the investigation in and of itself was a good thing.
"It's healthy that local police had to undergo the scrutiny of this process from the federal government," he said.