From Oregon Live. Nov 7.
Vancouver man sues City of Portland after police arrest him — he claims, for failing to consent to a search
Jose Gasque was sitting on a curb in an alley next to the building in November 2009 when officers approached him. Jose Gasque was sitting on a curb in Old Town as his former college buddy lit up a cigarette. It was late, and the Portland police officer who approached asked the men for identification, ran criminal background checks (which came up clean), then patted them down for weapons.
Both men cooperated. But when Officer Tequila Thurman told them she was going to dig through their pockets, Gasque pulled out the ACLU’s “Know Your Rights” guide and told the officer no.
That, according to a lawsuit filed Monday in Multnomah County Circuit Court, earned Gasque a 3½-hour visit to jail under the charge of criminal trespassing for sitting on the curb, which happened to be in an alley next to one of the sketchiest spots in Portland, a boarded-up Burger King building at 707 N.W. Burnside Street.
Nearly four months later, a prosecutor asked a judge to dismiss the case when it became clear that Gasque wasn’t trespassing while sitting on land open to the public.
Now Gasque is suing the City of Portland and the officers involved for $180,000 for false imprisonment, malicious prosecution and other violations of his rights. Attorney Bronson James said Portland police were trying to force his client to consent to an illegal search, and when he didn’t, drove him to jail as punishment. Case in point, James said, was that police let Gasque’s friend go after he consented to a search. Thurman and two officers who arrived as back-up — John Maul Jr. and Benson Weinberger — didn’t charge Gasque’s friend with criminal trespass.
“I think there’s a lot of pressure on the police and the City of Portland to get controls on Old Town,” James said. “Unfortunately, you don’t achieve that by trampling on the right to privacy and the constitutional rights of every citizen who makes the decision to step into Old Town.”
Police spokesman Lt. Robert King referred questions about the suit to the city attorney’s office, which had not received a copy of the suit and plans to file a response within the next month.
The ACLU of Oregon is footing the bill for Gasque’s lawsuit.
“We want everyone to know their rights and assert them,” said Kevin Diaz, legal director for the ACLU of Oregon. “Also, we think it’s important that the police know that they need to be respectful when individuals assert those rights. …The law is pretty clear that you just can’t go around searching random people.”
Police have the right to pat down people if they believe the person has a hidden weapon and could be dangerous. In general, police have the right to search people if they have probable cause to make an arrest — or if people consent to the search.
The ACLU’s “Know Your Rights” guide advises the public that “you do not have to consent to a search of yourself or your belongings, but police may ‘pat down’ your clothing if they suspect a weapon.” The guide also states that people may calmly leave if they aren’t under arrest. The guide tells people to be polite, which is what Diaz said Gasque was doing the night officers handcuffed him and hauled him off to jail, where staff snapped a mug shot and fingerprinted him.
Gasque — a 31-year-old Vancouver engineer and dad — had spent that Saturday evening in November 2009 with his friend at the arcade Ground Kontrol, and at a few musical venues, including Berbati’s Pan, before Officer Thurman approached. According to the suit, after Gasque pulled out his ACLU guide, Thurman told him he had to consent to a search or “it was jail time until Monday.” He was in jail from 1:21 a.m. until 4:49 a.m. Sunday.