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Eric King: Civil Litigation and Legal Defense for Imprisoned Anti-Fascist

Case Update 11/29/21: ORDER Granting in Part and Denying in Part Defendant’s Amended Motion to Suppress

Following Eric’s evidentiary hearing regarding the voluntariness of his statements to BOP officials, Judge Martinez concluded that “Defendant’s will was overborne such that his statements on August 20, 2018 were involuntary and must be suppressed.” In doing so, the Court acknowledged that significant portions of Eric’s testimony were “highly credible,” including his recounting of prolonged physical torture, psychological intimidation, and being deprived of writing materials to contact family, friends and counsel.

Case Update 10/15/21: At the close of Eric King’s evidentiary hearing on his motion to suppress evidence, the Court asked that the parties each provide a written closing argument to sum up the evidence and testimony that was presented in court. As you may recall, the Court closed the courtroom to the public for this hearing, so we wanted to share our summation with the public.

King Closing Argument in Support of Suppression

Case Update 10/13/21:

Order Regarding Courtroom Procedures

Case Update 9/30/21:

CLDC continues to make important progress in bringing justice for imprisoned anti-fascist activist Eric King (background below). On September 28, after Eric and the CLDC legal team presented a compelling argument for dismissing the charges against him for “assaulting” an officer (in five separate motions), Judge William J. Martinez, of the United States District Court District of Colorado, vacated (postponed) the initial hearing scheduled to begin October 12 in order to first hold an evidentiary hearing. The new October 14 hearing in Denver, Colorado will seek to determine the validity of disputed evidence presented by both the U.S. Government and CLDC regarding the voluntariness of Eric’s statements to government interrogators. Eric spoke to BOP officers following hours of physical and mental abuse, being placed in a cell full of feces that guards refused to clean, and questionable Mirandizing that, as our attorneys are alleging, violated Eric’s Constitutional rights. While our legal team still has a steep hill to climb, this evidentiary hearing is a monumental step forward.

Case Update 9/21-22/21: Both Eric’s team and the US government filed separate “motions in limine,” seeking to limit the introduction of evidence during Eric’s trial. CLDC seeks to exclude information that could prejudice a jury unfairly against Eric. Unsurprisingly, the government seeks to exclude evidence of Eric’s torture. Motions in limine are filed in most, if not all, criminal trials; they set the ground rules for what each party can or cannot talk about in front of the jury.

Case Update 9/13-14/21: Our legal team filed five pre-trial motions (see below), aiming to dismiss Eric’s charges of assault (Preindictment Delay, Destruction of Evidence, and Outrageous Government Misconduct), to require the government to produce documents relevant to Eric’s defense, and to suppress statements Eric allegedly made that we allege were not voluntary.

Case Filings

Motion to Dismiss for Preindictment Delay (103)- In this motion CLDC sought to have Eric’s case dismissed because the government delayed in indicting him in order to have a strategic advantage during the trial, which would be a violation of Eric’s Fifth Amendment Right to Due Process. While the Court has denied this motion, you can read the filing here.

United States’ Response to Defendant’s Motion to Dismiss for Pre-Indictment Delay (138)

Order Denying Defendant’s Motion to Dismiss for Preindictment Delay (145)

Motion to Dismiss for Destruction of Evidence (104)- Here, CLDC moved the Court to dismiss Eric’s case because the BOP destroyed some the exculpatory video evidence taken on the date of the incident, in violation of his Fifth Amendment Due Process rights. The Court denied this motion, but you can read it here.

United States’ Response to Defendant’s Motion to Dismiss for Destruction of Evidence (137)

Order Denying Defendant’s Motion to Dismiss for Destruction of Evidence (149)

Defendant’s Motion to Dismiss for Outrageous Government Misconduct (107, stricken)- in this motion (amended below), the CLDC argues that government’s misconduct throughout Eric’s case warrants dismissal. The misconduct includes forcing Eric to be interviewed by a BOP officer in a storage closet, subjecting Eric to conditions of confinement amounting to torture, BOP officials making false statements to the FBI, destruction of evidence, and hindering Eric’s right to counsel. The Court has not yet ruled on this motion.

Amended Motion to Dismiss for Outrageous Government Misconduct (113)

United States’ Response to Defendant’s Amended Motion to Dismiss for Outrageous Government Misconduct (124)

Motion to Suppress (108)- here, CLDC argues that Eric was forced to make involuntary statements on two occasions: once during a “Miranda” interview after Eric had been subjected to continuous inhumane conditions for three days, and a second time when Eric made statements during a BOP disciplinary hearing after being falsely informed by the government he would not be prosecuted criminally. If the Court finds Eric’s statements were involuntary, they will not be admissible in any way during the trial. The Court will decide this issue on October 14, 2021.

Defendant’s Amended Motion to Suppress (114)

United States’ Response to Defendant’s Amended Motion to Suppress (120)

Defendant’s Reply to Government’s Response to Defense’s Amended Motion to Suppress (143)

Order Setting Evidentiary Hearing (148)

Motion to Compel (105)—here CLDC filed a motion asking the court to order the government to turn over important information for Eric’s trial, including information about the BOP officer who assaulted Eric. The government turned over some information but objected to the remaining requests. The Court found most of CLDC’s motions moot because the government claimed it had turned over everything after CLDC filed this motion.

Government’s Response to Motion to Compel (141)

Order Denying in Part and Denying as Moot in Part Defendant’s Motion to Require Certain Documents (146)

Defendant’s Motion in Limine (117)

Government’s Response to Defendant’s Motion in Limine (144)

Government’s Motion in Limine Regarding Conditions of Confinement (118)

Defendant’s Response to Government’s Motion in Limine (142)

Case Background

Eric King is a vegan anarchist prisoner serving a 10-year sentence for an attempted arson of a government official’s office in Kansas City, Missouri in September 2014. He undertook this act in solidarity with the Ferguson uprising and rebellion — a movement that took place over the summer of 2014 in response to the Ferguson police’s murder of Michael Brown. At his sentencing, Eric spoke on the record about his political motivations for committing his criminal act, saying “I’m happy I did it. The government in this country is disgusting. The way they treat poor people, the way they treat brown people, the way they treat everyone that’s not in the class of white and male is disgusting, patriarchal, filthy, and racist.”

In part because of his political convictions and his ongoing antiracist work while incarcerated, Eric has been consistently threatened, assaulted, and placed under threat of death and/or serious bodily injury by officers and other inmates at the federal prison where he is currently serving his sentence. In May 2019, after attempting to defend himself from one such attack, Eric was indicted by a grand jury in the District Court of Colorado for a new federal felony charge of Assaulting a Federal Official.

In May 2021 CLDC filed a federal civil rights lawsuit on King’s behalf under Bivens v. Six Unnamed Agents of the Federal Bureau of Investigation, 403 U.S. 388 (1971), the Federal Tort Claims Act, and the Administrative Procedure Act, against the Federal Bureau of Prisons (BOP) and numerous correctional officers and BOP staff.

The complaint alleges that BOP officers have collaborated with each other, and with white supremacist prisoners, to target, harass, and assault King. Moreover, King has been held in solitary confinement (the Special Housing Unit, or SHU) for over 1,000 days without adequate explanation or legal justification, in violation of BOP and federal statutory policy. He is currently one of only 80 people who have been held in the SHU for more than a year, let alone almost three years.

Despite the support from CLDC Eric continues to face draconian communication restrictions and an extremely hostile environment in BOP custody. You can support of Eric’s commissary needs via Eric’s Support Crew, or you can make a contribution to CLDC, which will support our pro bono representation.

Black Unity et al v. City of Springfield et al

Trigger warning: The video below, featuring CLDC clients, includes graphic footage of police brutality, (censored) racial slurs, and other bigoted comments to describe protestors.

In March 2021, the Civil Liberties Defense Center filed a federal civil rights lawsuit under 42 U.S.C. sections 1983, 1985, and 1986, against the City of Springfield, its police chief, and 26 of its police officers, on behalf of Black Unity, whose constitutional rights were violated and its members were assaulted and arrested by police at a peaceful march July 29, 2020, and two other people who were injured while filming the interactions of police and an Anti-Black Lives Matter mob that day. Black Unity and its members are primarily engaged in advocating for racial justice and seeks equal treatment of Black lives through education, awareness, and policy change, and strives for equal opportunities for Black lives through protest, engagement and abolition.

In response to Black Unity’s peaceful march and its messages against police brutality and racism, Springfield Police Department (SPD) took malicious, deliberate, and intentional actions to punish, prevent, and impede protestors’ constitutionally protected assembly and speech. The complaint alleges that members of the SPD violated the rights of protesters and others when they arbitrarily halted this peaceful march on a public street in the Thurston neighborhood, while allowing far-right counter-protestors free rein. The march was intended to draw attention to racist symbols, including a noose hanging from a tree that placed Black neighbors in fear. Sometime before the march, SPD Officers went door to door provoking neighbors by warning them of the protest and asking for assistance in shutting down the constitutionally protected anti-racist event.

The complaint alleges the officers’ actions foreseeably funneled the protesters into a gauntlet of violent anti-BLM agitators. SPD casually watched as the anti-BLM mob assaulted plaintiffs and other protestors. SPD officers also told the mob where the police were funneling and corralling the marchers, and actively sought crowd control “assistance” from the counter-protestors before and during the march. SPD is liable for all of these constitutional violations, due to its policies, as well as failures in leadership, inadequate training in the constitutional rights of protestors and reasonable use of force, and failures to discipline racist and/or biased unprofessional police officers. This is the third such civil rights case filed by CLDC in the wake of nationwide protests against the murders of George Floyd and Breonna Taylor at the hands of law enforcement.

Boudjerada et al v. City of Eugene et al

In July 2020, a group of Black Lives Matter protestors, represented by CLDC, filed a federal civil rights suit against the City of Eugene and members of the Eugene Police Department (EPD) for violating their rights. In the words of our clients, “We did this not for ourselves, but for all of those who were brutalized or have had their rights violated by the police state—or may in the future—but cannot or do not feel safe enough to come forward and sue the cops. We also do this on behalf of our community at-large, in the hope that such violent oppression will not deter future change-makers from engaging in protesting unjust systems. Not all of us were protesters; our plaintiff group includes people who were indeed exercising their constitutional rights to protest, people who were providing legal support to community members, others who were attempting to leave the curfew zones as directed, and residents of a housing cooperative who experienced assaults on their homes by overzealous armed attack-cops looking for an excuse to shoot at humans. Harms by EPD range from serious physical injuries from impact munitions and chemical weapons, to unwarranted arrests, imprisonment during a pandemic, and physical property destruction.”

To date, the City and its City Manager and Council have failed to address the protestors’ demands for police accountability:

  1. Defund EPD – The essentially secret budget for SWAT (it’s buried in the $32 million police patrol budget) needs to end. Redirect those funds to programs and organizations that will help solve the devastating problems we face in this city and raise quality of life for groups of people that are historically excluded and marginalized here.
  2. Demilitarize EPD – It’s time for police departments to stop acting like they are enforcing a military occupation of hostile territory. We are calling for prohibitions on chemical and impact munitions for crowd control and significant community oversight regarding what is an appropriate use of force during nonviolent protests.
  3. Stop ordering unconstitutional curfews – The city’s curfew law was written to deal with things like natural disasters and other crises that might make being outside unsafe – and even in such instances a city-wide curfew would be questionable. To permit an unelected, unqualified City Manager to invoke blanket curfews to quell the exercise of free speech is not only a violation of protester’s rights; it is also a violation of the rights of everyone who lives in the city.

Michael Gammariello v. Humboldt County et al

CLDC settled a federal civil rights lawsuit in California federal court against Humboldt County and two of its Sheriff’s deputies for illegal police brutality in May 2021.  Our client, Mike “Gamms” Gammariello, is an independent journalist who travels around the United States documenting activists’ work through video and print media, and ran for Congress on the 2020 Green Party ticket in his home state of New York.

In June 2019, Mr. Gammariello was arrested on public land near Rio Dell, Humboldt County, in northern California, while acting as an observer and video journalist at a long-standing logging protest of an area containing significant old growth forest. Proposed logging and herbicide use by Humboldt Redwood Company (HRC) within the Mattole watershed has for years raised significant and wide-spread controversy—more so now that every intact forest is essential to combat catastrophic climate change. Local law enforcement also has a long history of violating the constitutional rights of forest protectors and acting as the hired goons for private timber industry instead of protecting the local community.

Arriving about two weeks into the demonstration, Mr. Gammariello was at the logging site to work on a long-form video piece about the Mattole old-growth forest logging controversy. When arrested, Mr. Gammariello was wearing his photo credentials labeled “United Nations,” issued to him by the International Native Tradition Interchange (INTI), which has consultative status with the U.N. Economic and Social Council. Mr. Gammariello was standing nearby a group of about 15 forest protectors. A private corporate security guard hired by HRC, standing directly in front of HRC’s gate, told the group that if they stood about four feet away from him, they would be on the public land and not on private land, and would therefore not be trespassing. The group complied and Mr. Gammariello stood even further back on the public land in order to videotape the demonstration.

In the middle of the night, the corporate security guard said he was “calling my friends in the sheriff’s office.” A sheriff’s vehicle immediately arrived, finding the group of forest protectors and Mr. Gammariello all on public property on the side of a public roadway. Humboldt County Sheriff’s Deputy Conan Moore quickly approached Mr. Gammariello, bypassing protectors who were closer to the HRC gate (who were not recording). Mr. Gammariello clearly stated “Press,” showing his credentials, but Moore responded “I don’t care,” and, without warning of any sort, grabbed Mr. Gammariello’s camera, and knocked him to the ground, face first. Moore rested his weight on top of Mr. Gammariello with his knee in the back of Mr. Gammariello’s neck and head while another kneeled on Mr. Gammariello’s legs.

The assault resulted in a fractured rib and several other bruised ribs; a large contusion to Mr. Gammariello’s right eye socket; a three-centimeter laceration on his left upper lip, contusions on his nose, and loosening of a tooth.

Later, more than six months after the assault, and after Mr. Gammariello filed a tort claim notice that placed Humboldt County on notice he was planning to sue them, the Humboldt County District Attorney’s office informed him they were charging him with two misdemeanors and a violation, in seeming retaliation for his planned lawsuit.

“I was violently assaulted and unlawfully arrested by Humboldt County for documenting an action to defend the Mattole’s Old Growth Forest,” said Plaintiff Mike “Gamms” Gammariello. “Corporations like HRC are destroying our planet and everyone on it for financial gain while law enforcement protects those private profits with violent force without fear of accountability. We seek accountability and justice, not only for me and my busted face and fractured rib, but for every forest defender who has been brutalized for a corporation’s bottom line. No journalist should ever be beat up by police for documenting police; Humboldt County and their deputies must be held accountable for their misconduct.”

“When law enforcement does the dirty work for the timber industry, they cannot perform their public duties to protect and serve the people of Humboldt County,” said Lauren Regan, CLDC Executive Director and Senior Staff Attorney. “This department has a history of violating peoples’ constitutional rights to be free from excessive force and unlawful seizures, in part because they have usually not been held accountable for their abuse. Mr. Gammariello is just one of many activists beaten by Humboldt County Sheriff’s deputies in an attempt to intimidate and bully them into silence.”

“The Mattole Forest Defense Campaign stands in solidarity with the decision to sue the Humboldt County Sheriff’s Department in order to prevent further police brutality for others in the future. The department has a notorious reputation for using excessive force against non-violent forest defenders who have been fighting to save the ancient Mattole forest from being logged for over 20 years, and will continue to do so despite the continued oppressive police response. We demand that the Humboldt Sheriff’s Department be brought to justice and held accountable for the harm it causes, the violence it perpetuates, and for its crimes against community members who non-violently stand up to prevent the cutting of priceless forest land and the destruction of habits,” said the Mattole Forest Defense Campaign in its official statement.

Anonymous v. Corizon Health Inc. et al

In 2016, the CLDC filed a lawsuit on behalf of a client that, we alleged, was deprived of his Fourth and Fourteenth Amendment rights when he was denied adequate mental health treatment and subject to abusive conditions at the local jail in Lane County, Oregon. At summary judgment, the US District Court for District of Oregon ruled that the lawsuit should move forward to trial after successfully beating back the defendants attempts to have the case dismissed. The federal civil rights lawsuit alleges that Corizon Health Inc. (a private prison “healthcare” corporation), Lane County (OR), and one individual that worked at the jail, violated our client’s constitutional right to be free from cruel and unusual punishment.

The CLDC filed the lawsuit on behalf of our client in June of 2016 after hearing several reports of individuals that were arrested and taken to LCAC in the midst of a mental health crisis. These individuals were immediately placed in a segregation cell and left for weeks without any mental health treatment. In several cases, charges were dropped against these individuals affording the question: why were they arrested and jailed in the first place, especially when police have the power (and obligation) to take people to the hospital for care instead?

Our client had no history of mental health issues and no criminal record. In June of 2014 our client began to suffer from the onset of a psychotic episode shortly after a change in his prescription medications. He was eventually arrested in the midst of a complete psychosis. All of his charges were later dropped. Like others, our client was taken to jail and immediately placed in solitary confinement (segregation). He remained in solitary, as an innocent man, for 16 days until he was finally released and transported to the hospital where he received treatment.

While incarcerated, we alleged that our client was kept in his solitary cell for days at a time; that food, access to showers, and hygiene products/practices were regularly withheld; and that he was punished for actions clearly related to his psychosis, including being maced and beaten. His mattress was removed and he was not provided any of his vital prescription medications. Throughout his incarceration, our client’s family and people at the local Dept. of Veteran’s Affairs pleaded with the jail to transfer him to a hospital so he could be diagnosed and treated. We alleged that our client never received mental or medical health care during his incarceration, including never having even his vitals checked, despite jail staff’s apparent awareness that he was in need of immediate care and treatment. As the days wore on, our client’s psychosis worsened and he lost over 30 pounds. Even 4 years after his release, our client is still haunted by the long-term effects of his solitary incarceration.

For defendants, this is not the first time that they have been embroiled in similar litigation. Corizon is a for-profit corporation that contracts with states and municipalities to provide medical and mental health care to jails and prisons at a significant profit for their shareholders. Estimates for Corizon’s net worth are hard to come by, but The Guardian estimates Corizon’s revenue in 2015 was $1.55 billion.

In 2012, Lane County entered into a contract with Corizon to provide care at LCAC after the CLDC sued Lane County on behalf of a seriously mentally ill person, who was also left in a jail segregation cell until he was found unconscious and critically ill. After three years, the County declined to renew its contract with Corizon. The County cited concerns about actual cost savings and quality of care provided at the jail under Corizon. The County’s decision to sever ties with Corizon came just after Corizon settled a claim related to the death of Kelly Green (who was held at LCAC) for $7 million.

The Southern Poverty Law Center wrote extensively about Green’s case as well as several other cases around the country involving Corizon. The SPLC noted that what happened in Mr. Green’s case and elsewhere with Corizon, demonstrates what critics of private prison healthcare argue “is fundamentally wrong with a privatized prison health care system that, at its core, exists to generate profits for investors.” The report from the SPLC highlights the perverse incentive endemic to private prisons and private prison health care systems: In an effort to increase profits, private companies look for ways to cut costs and one way to decrease costs is to decrease services (or staff available for these services). As Oliver Hart, 2016 Nobel prize winner in Economics, and his co-authors have explained, the incentives for cutting costs at the expense of the quality of services are generally greater than the incentives to prioritize quality.

Counties and states across the country often cite cost-savings in their decisions to privatize jail and prison healthcare. However, the shift toward privatization in jail/prison healthcare appears more ideological than economic. Studies that have attempted to determine the actual cost-savings of governments using private prison contractors are inconclusive. A report from the Hamilton Project of the Brookings Institution found that “existing studies that attempt to account for differences in the population show that private prisons do not offer clear cost savings or quality improvements.” Even the Justice Department under Obama recognized the need to phase out private prison prisons, with then Deputy Attorney General Sally Yates writing that private prisons “simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and…they do not maintain the same level of safety and security.” The Trump administration, predictably, rescinded the DOJ’s policy of phasing out private prisons. If, after decades of privatization in the nation’s jails and prisons, there is not a clear answer to this question, perhaps it is time, given the perverse incentives, to rethink whether privatizing is the right choice.

According to Capt. Dan Buckwald, a Lane County Jail commander, “[a] big portion of the folks who come in [the jail] are typically in some form of psychosis.” An estimated 60%of individuals housed at LCAC suffer from some form of mental illness. County Officials, including former Lane County Sheriff Byron Trapp have lamented that the jail has become the de-facto “treatment” center for people with mental health issues. As Sheriff Trapp has said, this is “not the right way to address our mentally ill in the community.” We agree. A large part of the problem, according to several county officials, is the lack of funding for treatment outside of the jail. Perhaps one simple action we could take in Lane County is to demand that county officials prioritize funding for mental health treatment. We could also urge county officials to refuse to outsource basic government responsibilities to corporations who don’t seem to care what happens to prisoners so long as the profits keep rolling in.

Lastly, we need to start a discussion about the discretion of law enforcement in situations involving someone in the midst of a mental health crisis. This issue is complex, but if the position of law enforcement is that they have no choice but to take someone having an emergency mental health crisis directly to jail—even when that jail is incapable of providing treatment or transferring the person to the hospital, the alleged victim doesn’t want to press charges, and the probable cause determination is extremely weak—we must change that position.

No one, including law enforcement, seems pleased that the task of treating individuals with serious mental health issues rests primarily with the jail and law enforcement. But, as has often been the case with social problems, we cannot rely on law enforcement to solve this problem. We must take an active role ourselves and end these barbaric policies.

In 2018, our client and the defendants came to a mutual agreement to settle this case.