Eric Kirk / Thursday, Dec. 7 @ 6:45 a.m. / Op-Ed
OP-ED: LoCO Wasn’t Fair to That Occupy Protester Who Got a $50K Settlement From the City of Eureka
I’m writing this several months after your coverage of the settlement of Andrew Hamer’s excessive force case against the City of Eureka arising from police violence during the Occupy Wall Street protests several years ago, as well as subsequent discussion on social media and the local blogosphere. I want to start by disclosing that my law partner is Andrew’s mother, and I consider both to be friends. I was not involved in the litigation of the case. I am certainly not unbiased in the matter.
First I want to address the following sentence in the settlement agreement which is included in your article and repeated like a mantra as if it means something of substance:
“It is understood and agreed that this settlement is the compromise of a disputed claim, and that payment made is not to be construed as an admission of liability on the part of any party or parties hereby released, and the said Released Parties deny liability.”
This provision, or something of substantially identical wording, is in every written settlement agreement of a civil law dispute executed in the State of California, and probably everywhere. If it is omitted, then the attorney for the defendant in the claim has committed malpractice. It is understood that the defendant isn’t admitting anything. That’s the whole point of settling. It is present in settlement in every insurance claim, contract dispute, and tort claim. It is boilerplate and it means nothing other than to protect the alleged wrongdoer from claims by other parties.
Secondly, whatever the City of Eureka statement says, a $50,000 exchange of money is not a “nuisance” settlement. Of course it was an economic decision, as is true of every settlement. It’s an economic decision for the plaintiff who was facing about a hundred thousand dollars in costs to move forward. And factored into the economic decision of all parties is the likelihood, or at least possibility, that a federal jury would not see the case they way he/they/it does. Whatever the statement says, the City entered into settlement because they knew they could lose. And that says something about the strength of the case.
I am disappointed that the article contains the full press statement made by the City, but it does not mention any attempt to reach Andrew or his counsel for statement. Had the author done so, he would have learned that a more extensive video is available, taken from an elevated angle, which depicts the more horrific aspects of the arrest. The author might also have learned that famed movement lawyer Dennis Cunningham had agreed to try the case if necessary, and the attorney who was part of the team who won the Judi Bari/Darryl Cherney case against the FBI is very careful about the cases he takes.
The video of arguments at the Ninth Circuit Court of Appeals included in your story mentions a “jaywalking defense.” Whenever a false arrest case is pursued, the defense invariably looks for a charge which might have been filed (no charges were filed against Andrew – none of the coverage bothers to mention that) which could bypass a 4th Amendment violation claim. Jaywalking. Yes, it is a “detainable offense.” But does anyone really believe that’s why Andrew was pursued, subdued, and beaten?
The defense did not claim that once Andrew was caught that he was resisting. He did not resist. The defense claim was that other demonstrators had touched officers and were being chased themselves, generating confusion, and therefore it was reasonably necessary to pummel Andrew over the head with a baton even though he himself was offering no resistance.
And while bloggers are complaining about the settlement, and posters are threatening violence on Andrew’s livelihood by posting his address and the name of his employer online, let’s consider the wisdom of breaking up the Occupy encampment in the dark of the morning rather than by day, in full view of media cameras with full warning. Note that the jurisdictions in which this happened led to little if any violence. It was the late night/early morning raids which led to serious violence and injury.
This topic may seem untimely or stale, but I am anticipating a near and long term future of demonstrations locally and nationally, by everyone from anarchists to the “alternative right.” It is going to be extremely important for law enforcement officers to keep their own politics and personal feelings in check and avoid the influence of charged politics on social media as they do what is essential to keep the peace. And they need to forgo chasing demonstrators down to arrest them for jaywalking. And the rest of us need to be vigilant. Always.
Eric Kirk is a partner at the firm of Stokes, Hamer, Rowe and Eads. He once believed that the photo we have of Andrew Hamer, above, was not a photo of Andrew Hamer, but he now concedes that it is. He is also a blogger and has hosted talk shows on numerous radio stations.