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Government Agencies to Pay $418,000 in Political Surveillance Case

The U.S. District Court in Tacoma has awarded $248,817 in attorney’s fees and costs to attorneys for an Olympia activist in a case involving covert surveillance by several government agencies. The award comes after plaintiff Phil Chinn accepted in May three offers totaling $169,000 from the Washington State Patrol, the City of Aberdeen, and Grays Harbor County in settlement of claims that officials of those agencies violated his rights to lawful protest.

Representing Chinn are Larry Hildes of the Law Offices of Lawrence A. Hildes, a member of the National Lawyers Guild Mass Defense Committee; and the ACLU of Washington and its pro bono attorneys Nathan Alexander and Mark Carlson of Dorsey & Whitney LLP, and Evan Schwab.

In its Order on attorney’s fees and costs, the Court stated, “This case was far more than a wrongful arrest case. Besides ordinary damages, it was an attempt to vindicate the plaintiff’s civil rights, and involved issues of whether governmental agencies were unconstitutionally targeting and arresting protesters without probable cause.” The Court further observed that, “… the willingness of the defendants to make the offers of judgment could be viewed by the plaintiff and the public as some vindication of the plaintiff’s position.”

Chinn initiated the lawsuit (Chinn v. Blankenship) last year asserting that city, county, and state officials had developed and implemented a plan designed to prevent him and others from participating in lawful anti-war demonstrations at the Port of Grays Harbor in May 2007. The suit alleged that as part of the plan, state troopers stopped and wrongfully arrested Chinn after receiving word that he was driving a car with “three identified anarchists” in it. Chinn and his passengers were presumed to be “anarchists” based on covert surveillance by law enforcement officers.

“In America, people have the right to engage in lawful protest without being targeted by law enforcement because of their political beliefs. This settlement sends a strong message to public officials around the state that they need to respect free speech rights and political dissent,” said ACLU of Washington executive director Kathleen Taylor.

“There’s no evidence that Mr. Chinn had broken any law or that there was any justification whatsoever for stopping him,” attorney Larry Hildes stated. “This was an attempt to silence dissent and to penalize those who participate in peaceful protest. The First Amendment exists precisely to protect controversial protest, and individuals should be free to protest without fear of retaliation,” Hildes added.

Philip Chinn was driving from Olympia to Aberdeen, Washington on May 6, 2007 to participate in a lawful demonstration against the use of the Port of Grays Harbor for military shipments. Chinn observed all traffic regulations and drove in a safe and careful manner. According to all tests, records, and other proof, he was not under the influence of any controlled substance.

Despite that, Washington State Patrol (WSP) troopers began to follow Chinn’s vehicle based on an “attempt to locate” message that directed officers to seek a green Ford Taurus, identified by its license plate number and described as carrying “three identified anarchists.” Undercover officers had observed Chinn and the car in Olympia at a site where individuals met to carpool to the demonstration.

Officers conducted a pre-textual stop of Chinn that was part of a coordinated effort by the City of Aberdeen, County of Grays Harbor, and the Washington State Patrol to deter and prevent anti-war demonstrations at the Port of Grays Harbor. In advance of scheduled shipments of military equipment, various state and local law enforcement agencies, military entities, and others had developed the “Grays Harbor Military Movement Incident Action Plan.” The plan was designed to deter and prevent individuals believed to be “anarchists” or associated with anarchists from participating in anti-war demonstrations.

The stated pretext for stopping Chinn was “erratic braking” and driving under the speed limit. Chinn was going 50 mph in a 55-mph zone and slowed down periodically, as WSP troopers followed directly behind him, as the speed limit decreased approaching Aberdeen, and as traffic increased. Although the troopers noted no smell of alcohol or other controlled substances, they gave Chinn a breathalyzer test, which he passed, and subjected him to additional roadside sobriety tests. Based on the observation that Chinn had raised taste buds and a white coating on the back of his tongue, the troopers concluded that he was under the influence of marijuana, arrested him, and took him to the Grays Harbor County Jail where they conducted a “Drug Influence Evaluation” and took a blood sample.

By the time Chinn was released from jail, the planned anti-war demonstration was over.

After the arrest, the WSP troopers forwarded incomplete and misleading information regarding the basis for Chinn’s stop and arrest to the Grays Harbor County prosecuting attorney. A narrative report and affidavit of probable cause omitted any description of the substance of the “attempt to locate” communication regarding Chinn’s car and its passengers’ suspected political affiliation. Despite the complete lack of evidence, the Grays Harbor Prosecutor’s office insisted on charging Chinn with driving under the influence, a serious charge that can have long-term implications for his life and career.

Several weeks later, the lab results came back negative for all substances. Chinn’s attorney Lawrence Hildes filed a dismissal motion and asked for discovery related to the “attempt to locate” message. Almost immediately, the prosecutor said he would be dismissing the action.
Then, copies of a Computer Aided Dispatch Log and an audio tape were released in response to a request for public records. These revealed the “attempt to locate” alert, including the statement that Chinn’s vehicle was carrying “three identified anarchists” who were believed to be headed to the demonstration.

“Phil Chinn and many others were subjected to surveillance and harassed by the government while seeking to exercise their freedom of speech, assembly, and right to petition their government. The misconduct by three of our police agencies – state, city, and county agencies - highlights the need for state legislation to restrict government agencies from collecting and distributing information about individuals’ political beliefs without reasonable suspicion of crime,” said ACLU-WA executive director Kathleen Taylor. “The ACLU supported legislation sponsored by Sen. Adam Kline and Rep. Sherry Appleton – SB 6432 and HB 2798 – to achieve this in the 2010 legislature and will promote its enactment again next session.”