Man, 27, beaten by police in 2010 and awarded $306K, agrees to settlement to get his check

By Aimee Green, The Oregonian, July 30, 2013

Gallagher Smith (left) with Portland attorneys Jason Kafoury (middle) and Greg Kafoury

Gallagher Smith (left) with Portland attorneys Jason Kafoury (middle) and Greg Kafoury

A 27-year-old man who won a $306,000 jury verdict last year after Portland police beat him and then unlawfully arrested him has agreed to a carefully worded settlement to receive his check.

READ – Gallagher Smith v. City of Portland Settlement Documents (PDF, 28KB)

Gallagher Smith was stunned with a Taser, pepper sprayed, punched and smashed as police piled on top of him after he questioned their authority to move him off a downtown sidewalk.

His attorneys, Greg and Jason Kafoury, said they agreed to vacate the December judgment in exchange for the city’s payout last week.

But they said that doesn’t mean Smith is agreeing to nullify the words of two Multnomah County Circuit Court judges in the case. They ruled that police didn’t have probable cause to arrest Smith for refusing officers’ unlawful order to move down the sidewalk.

One of the judges, Youlee You, gave jurors those instructions before they came back with the $306,000 award and found that police falsely arrested, battered and maliciously prosecuted Smith.

Smith had quarreled with a doorman on Nov. 13, 2010, at the Aura nightclub on West Burnside Street. The doorman told Smith he’d have to wait at the end of a long line again even though he’d just been in the club and had gotten a stamp on his hand before stepping outside. The doorman eventually flagged down police.

As Smith walked away from the club, police followed. Smith questioned police about what law prevented him from standing on a public sidewalk — and officers handcuffed him, then began to use force as Smith tried to pull his arms into his chest.

This past April, the Portland city attorney’s office planned to ask city councilors for permission to appeal the verdict. The move would have allowed the city to challenge the judge’s instruction that police didn’t have probable cause to arrest Smith.

Even though the jury’s findings are now set aside, the judge’s instruction remains as part of the record, said Greg Kafoury. The instruction frustrates police, he said.

“The police want to be able to order people off of the sidewalk, essentially at their discretion,” he said. “They want to rule the sidewalk like it’s the police department’s private property.”

But City Attorney Jim Van Dyke said Kafoury is just speculating. The council decided not to approve an appeal of the verdict because Smith’s case wasn’t the one the city wanted to use as a test case, he said.

That’s because sidewalk issues aside, a second jury still would need to rule on the issue of whether police used excessive force — and if it found police did, the jury could again award big money.

“The city’s authority to direct citizens (along) a sidewalk and in what circumstances is going to come up again,” Van Dyke said. “Someday, we’re going to have to have this legal issue resolved.”