Wednesday, January 28, 2015

FEDERAL CIVIL TRIAL; March 11, 1985 to June 7, 1985; "What happened after November 3, 1979?"

"...Defendants (the parties being sued) – Initially, the plaintiffs sued 87 different persons and entities and unknown “John Doe” defendants. The following were individual defendants in the lawsuit: 13 individually named “Klan defendants;” seven individually named “Nazi defendants;” 34 named members of the GPD; two persons termed in the lawsuit as “informant-provocateurs” working for the GPD, the FBI or the ATF; two officials of the State Bureau of Investigation (SBI); three officials of the city of Greensboro, including the mayor; three officials of the state of North Carolina; six officials of the FBI, including the director; two officials of the BATF, including the director; two officials of the Community Relations Service (CRS); and three present or former Attorneys General of the United States. The institutional defendants were: the city of Greensboro; the GPD; the State of North Carolina (including the governor); the SBI; the North Carolina Department of Crime Control and Public Safety; the FBI; the CRS and the BATF.

...As a civil case, not a criminal case, the standard of proof, that is, the standard by which the plaintiffs had to convince the jury to rule in their favor, is known as “the preponderance of the evidence,” rather than “beyond a shadow of doubt.” As Judge Robert R. Merhige Jr. explained to the jury, when instructing them on the relevant law, “to establish by the preponderance of the evidence means to prove that something is more likely so than not so.”

...The lawsuit was brought under the federal statutes, 42 United States Code (U.S.C.) Sections 1981, 1983, 1985 and 1986. These statutes originated in the Civil Rights Act of 1871 and complement the criminal law provisions reviewed above in connection with the federal criminal case.

42 U.S.C. §1985 (3) is the section of this law that addresses conspiracies. The U.S. Supreme Court has ruled that four elements are necessary to proof of a claim under this law: (1) a conspiracy; (2) for the purpose of depriving either directly or indirectly, any person or class of persons, the equal protection of the laws, or of equal privileges and immunities under the law; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured personally injured or suffers property loss or is deprived of any right or privilege as a U.S. citizen.

...Section 1983 allows individuals to sue state actors in federal courts for civil rights violations.  3 Section 1985 (3) provides a cause of action in federal court against those who have conspired, either directly or impliedly, to deprive a person or a class of persons of their civil rights. Section 1986 provides a cause of action in federal court against those who had knowledge of a conspiracy and failed to prevent the action from taking place, either by neglect or by refusal to do so.

Under 42 U.S.C. §1985 and §1986, every person “having knowledge that any of the wrongs conspired to be done … or about to be committed, and having the power to prevent or aid in prevention of the same, neglects or refuses to do so … shall be liable.” In other words, a person who has knowledge of a pending violation could be liable for conspiracy if he or she does not prevent or assist in preventing the violations, whether he or she intentionally refuses to do so or whether he or she neglects to do so.

...The eighth, ninth and tenth Causes of Action were directed at the federal defendants for their role in the conspiracy and cover-up, their policies and practices which led to the denial of the plaintiffs’ rights, and their failures in their supervisory responsibility for informants.

...The last two state law causes of action were for malicious prosecution and abuse of process (13th, 14th Causes of Action).

...Judge Robert R. Merhige Jr. ...dismissed the federal agency defendants under the doctrine of sovereign immunity. Sovereign immunity is a legal doctrine that prevents people from bringing lawsuits against a government without its consent. This doctrine protects all federal agencies and federal officials, acting in their official capacity, from liability for money damages.  The judge ruled that all the federal defendants, similarly, were immune from the state law claims.  It should be noted, however, that a federal, state or municipal official can be sued in his or her individual capacity.

...According to the court, several defendants were never served with the papers informing them that they were the subjects of this lawsuit, as required by law.  Thus, those five defendants (U.S. Attorney General Bell; Civiletti, Smith and Robert Ensley of the CRS; and FBI Agent Monahan) were dismissed.

...The plaintiffs’ final witness was an expert witness, former Boston Police Department Superintendent Robert di Grazia. As an expert, di Grazia was allowed to offer opinion testimony. He said that he believed the GPD should have stopped the Klan/Nazi caravan and should have had a police presence along the caravan route and at the demonstration. He also criticized the way the police handled their informant, Dawson.

...the court advised the jury that at least one of the conspirators had to be acting “under color of state law.” Hidden within the jury instruction defining “color of law” was the statement to the jury that “as a matter of law,” the city defendants were acting under color of law; thus, the jury would not need to deliberate on that finding.  That instruction also, importantly, noted that a private actor can be considered to be acting under “color of law” if he conspires with a state actor.

...the instructions noted that conspiracy was not a necessary element of the federal claim, but
that it would be a sufficient finding, if the defendant(s) were found to have committed an act during the course of and in furtherance of the object of the conspiracy. The instructions noted that the act could be a knowing or intentional act or a failure to act which had the effect of depriving the plaintiffs of their civil or constitutional rights. In a later jury instruction, the elements of §1983 conspiracy were outlined in greater depth: (1) the defendant acted in concert with others, (2) the defendant acted under color of state law, (3) an act was committed by the defendant in furtherance of the conspiracy to deprive the plaintiff of his or her rights, and (4) the acts proximately caused the plaintiffs’ injuries.

The instructions also explained the rights that the plaintiffs alleged were abridged by the defendants’ conspiracy. These included the denial of due process; the right to equal protection which requires a showing of intentional discrimination; and the rights to free speech and assembly.

Buried in the conspiracy instructions was a crucial instruction concerning the concept of “proximate cause.” This is the requirement that the plaintiffs’ injuries can be attributed to the defendant only if the defendant’s acts or failures to act, in the natural or probable sequence of events, produced the injury. As the instructions explained, this “cause” does not have to be the last or nearest in time or the only cause of the injury. In fact, many factors can independently or together cause an injury.

...Jurors found GPD Lt. Paul W. Spoon, field commander on Nov. 3, 1979, and Det. Jerry Cooper, the GPD intelligence officer who was Dawson’s “handler” and who followed the Klan and Nazi caravan and reported on its progress to others in the GPD, along with Edward Dawson, the Klan informant, and Klansmen Mark Sherer, David Matthews, Jerry Paul Smith and Nazi Party members Roland Wood and Jack Fowler jointly liable for the wrongful death of Dr. Michael Nathan...

...They did not determine that civil rights violations, under the applicable federal law, had occurred.

...The African American jury foreman and the white woman from the North urged a verdict
for the plaintiffs on the civil rights conspiracy charges against defendants Butkovich, several members of the GPD, and several members of the federal agencies. They also favored a substantial award. The others were in favor of a narrower verdict or no award.

...The city of Greensboro agreed to pay the full $351,500 that Martha Nathan had been awarded for the wrongful death of her husband. One of the most unusual aspects of the settlement is that the city, in essence, was settling on behalf of both itself and the Klansmen and Nazis who were also found liable for the Nathan murder.

...City officials were quoted as calling the agreement a “settlement of disputed claims.”

...As far as is publicly known, the city took no further actions in addition to the settlement. It did not discipline Lt. Spoon or Det. Cooper, even though both had been held liable at trial for a wrongful death.

...Post verdict interviews with two of the jurors suggest that many jurors simply did not want any money to go to the CWP and this inevitably had an effect on their verdicts and damage awards. Further, plaintiffs’ polls of the general public found 37 percent of those asked would not award the plaintiffs any damages even if the defendants were found to be liable...

...although the city’s stated reason for settling was to put an end to the litigation, the city’s decision to pay the judgment for both Klan/Nazis and police officers gives the appearance of support for the Klan and Nazi defendants."