Not entitled to qualified immunity with allegations Chief Henslee directed patrols of El Palacio.

Not entitled to qualified immunity with allegations Chief Henslee directed patrols of El Palacio.

By James C. Garland

This article will discuss the pending court case:

CISNEROS v. CITY OF KLAMATH FALLS

No. 1:19-cv-00296-CL.

Qualified Immunity on Federal Claims

Defendants assert that Chief Henslee, Councilor Bell, and City Manager Cherpeski are entitled to qualified immunity from any federal claim. Qualified immunity protects governmental officials from suits seeking damages provided that their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

The facts alleged in this case are not precisely the same, but they follow a sufficiently similar pattern as to put Defendants on notice that such conduct would unreasonably violate Plaintiffs' constitutional rights. Plaintiffs' allegations include that Chief Henslee directed patrols of El Palacio, including nightly walk-throughs of the premises, and Plaintiffs assert that under his direction, KDPD engaged in an informal policy of misattributing criminal incidents in the general area to Plaintiffs' specific establishment. Plaintiffs assert that Chief Henslee, Councilor Bell and City Manager Cherpeski in practice treated Plaintiffs' business differently by than similarly situated non-Hispanic establishments in the area and that they acted with intent to shut down El Palacio.

Defendants move to strike Plaintiffs' assertion regarding statements made by Chief Henslee, including, "It's not your bar that's the problem, it's the people and your culture" and that El Palacio needs to be "pulled up like a weed." Defendants claim that they learned for the first time that Faiers recorded this conversation when Plaintiffs filed their response brief and attached Faiers' declaration. Because the recording was not disclosed or produced in discovery, Defendants move to strike the recording itself and all reference to the conversation from the record.

At the oral argument hearing on July 30, 2020, Plaintiffs' counsel informed the Court that they believed the audio recording had been disclosed and that their failure to disclose it was inadvertent. Additionally, the content of the recording and the statements made by Chief Henslee were alleged in the Complaint, allowing for questions in deposition and interrogatories, even though the audio recording was not disclosed. Therefore, the Court finds that, while the failure to disclose the existence of a recording and the audio or transcript itself was not harmless, that failure was not overly prejudicial, and it was not done in bad faith. The alleged comments were disclosed to Defendants, so at the very least, those comments should not be suppressed or stricken. Moreover, Defendants did not dispute the alleged contents of the recorded comments made by Chief Henslee in their Motion for Summary Judgment, yet now claim that the recording provides a more accurate context for Chief Henslee's comments to show that they were not racially motivated. For this reason, the Court finds that the audio recording should not be stricken from the record but should be made available to a jury so that the full context and meaning of the conversation can be weighed along with all evidence in this case.

Related Links:

1. "It's not your bar that's the problem, it's the people and your culture"

2. UPDATED: The Matter of An Order Appointing Dave Henslee As Klamath County Commissioner

3. Question of Electability for Dave Henslee

James C. Garland-a very creative, talented and unknown poor person, but rich with ideas!

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Klamath Falls, OR 97601

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