A federal judge in Tacoma has dismissed a federal civil rights lawsuit alleging that former Joint Base Lewis-McChord employee John Towery violated the civil rights of Olympia anti-war protesters when he infiltrated the group under an assumed name in 2007 and reported on their activities to his superiors.
“It’s a great day for John Towery and this confirms he was acting lawfully,” Towery’s attorney, Tom Brennan of McKay Chadwell in Seattle, said Wednesday outside the federal courthouse in Tacoma.
In his oral ruling from the bench, U.S. District Court Judge Ronald B. Leighton said that Towery had legitimate safety concerns when, in May 2007, he began attending meetings of Olympia Port Militarization Resistance, or OlyPMR. At the time, Towery was an employee of JBLM’s force protection division, which is charged with “supporting law enforcement and security operations to ensure the safety and security of Fort Lewis,” a JBLM spokesman has said.
Leighton said that Towery was not motivated by an “animus” toward the protesters’ political views, and did not intend to chill their political speech, as contended in their civil lawsuit. Rather, Towery was legally acting as an “invited informant” when he attended OlyPMR meetings. Brennan said it is not unlawful for undercover informants working in law enforcement to hide their identity, even when questioned by those they are investigating.
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Also, Leighton said that Towery and other defendants named in the suit did not act illegally in 2007 when Towery accessed an email listserv maintained by OlyPMR, and forwarded the information from the listserv to police. Leighton said in his ruling that the listserv was “a public forum” that could be accessed by any member of the public and that those using it had “no reasonable expectation of privacy.”
OlyPMR members had maintained that the listserv was private, secure, and access was granted only through an approval process.
“All claims about the listserv are denied,” Leighton said Wednesday.
Towery was not present in the courtroom to hear Leighton’s ruling.
“Frankly, he was not a spy,” Brennan said of Towery. “He was concerned with making sure his office was aware of possible disruptive activity related to the Army. He was doing his job.”
In addition to dismissing all of the federal civil rights claims against Towery, Leighton also dismissed all remaining claims against the other defendants sued by OlyPMR, including the Olympia Police Department, the Tacoma Police Department, and Thomas Rudd, who was Towery’s former boss at JBLM force protection.
Individual members of OlyPMR sued in 2010, after the organization learned in 2009 that Towery had infiltrated their group under an assumed name and monitored their activities.
Attorney Larry Hildes’ lawsuit alleged that the intelligence gleaned by Towery after infiltrating OlyPMR helped law enforcement in Olympia and Tacoma target individual protesters for harassment and arrest. Hildes’ lawsuit also alleged that law enforcement acted with excessive force when arresting OlyPMR protesters.
In 2007, OlyPMR conducted protests at public ports, including Olympia, seeking to block JBLM from transporting Stryker brigades and other equipment used in the Iraq War. Members of OlyPMR have said the group was committed to nonviolence and never threatened or tried to harm soldiers. OlyPMR’s protests at the Port of Olympia in November 2007 resulted in more than 60 arrests. Many of the arrests occurred during acts of civil disobedience in Olympia, as protesters tried to physically block convoys on roads, and refused to move when ordered to do so by police.
Leighton rejected the claim that Towery’s intelligence on the protesters, which was sent to local law enforcement agencies in periodic “threat assessments,” influenced law enforcement’s reaction to OlyPMR’s protests. Leighton pointed out that regardless of the information Towery provided, law enforcement would respond to the protests in any case. Leighton also said the individual officers who responded to the protests are entitled to “qualified immunity” a legal doctrine that absolves defendants of liability when they are acting in their professional capacity as municipal employees.
Hildes said outside court Wednesday that he will appeal Leighton’s ruling to the U.S. Court of Appeals for the Ninth Circuit. He added that Leighton’s ruling “fundamentally compromises the Constitution.”
“I respect Judge Leighton, but he’s just wrong,” Hildes said.
Hildes argued passionately Wednesday that Towery’s activities not only unfairly targeted protesters merely because of their political views, but also that his law enforcement activities on behalf of the Army violated the Posse Comitatus Act. The Posse Comitatus Act is a federal law that bars the military from engaging in domestic law enforcement on U.S. soil.
OlyPMR member Drew Hendricks, who helped unmask Towery after he infiltrated OlyPMR, said he was extremely disappointed with Leighton’s ruling, but “completely unsurprised.” Hendricks, who was present in court, also criticized Leighton for failing to read the 5,000 pages of discovery that was provided by Hildes to the court.
Leighton, on the other hand, criticized Hildes for speculating about alleged civil rights violations without backing them up with evidence.
“Speculation is not evidence,” Leighton said. “It’s time for the plaintiffs to come up with evidence to support their claims and they have not done so.”
Leighton said that he admires the protesters for having the courage to engage in acts of civil disobedience to support their beliefs. But he added that sometimes people who engage in such activities get arrested when they step outside of the law. Towery, Leighton added, had legitimate public safety concerns in protecting not only JBLM’s property, but also the protesters’ lives when they engaged in activities such as jumping in front of military convoys in an attempt to stop them.