Excluded Eagle Plaintiff Files Claim after Council Approves Settlement
(APN) ATLANTA — One of two victims of the Atlanta Eagle raid who were excluded from the federal lawsuit, Christopher Lopez, has filed a claim with the City of Atlanta alleging that he suffered some of the same violations as the Plaintiffs who were awarded a one million and twenty-five thousand dollar settlement yesterday, Atlanta Progressive News has learned.
The settlement–which by-passed the Public Safety/Legal Administration Committee and was added to the Full Council agenda at the last minute–is discussed further below.
The two excluded victims, Lopez as well as Ernest “Ernie” Buehl, were two of the four Eagle staff members who were arrested and taken to jail that night; so therefore, they believe they have suffered even more than the bar patrons who were allowed to go home that night.
Incidentally, Lopez and Buehl, the two employees who had been in jail who were excluded from the lawsuit, were both fired by the Atlanta Eagle in recent weeks, in the weeks leading up to the settlement.
Buehl told APN by telephone that he was interested in filing a claim as well but it would take him longer to prepare and file the paperwork.
It is not immediately clear why Lopez and Buehl were excluded from the lawsuit.
Earlier in 2010, Eagle co-owner Robby Kelley told APN that none of the eight individuals who were arrested that night–including four Eagle staff members and four male dancers–were able to join the lawsuit. Indeed, this is what Kelley told the PS/LA Cmte of the City Council of Atlanta in January 2010.
However, Kelley as well as David “Yuke” Sheperd, the Eagle’s former manager, who were both also arrested, are Plaintiffs in the lawsuit, thus bringing that reasoning into question. According to a copy of the original federal lawsuit filed by 22 Plaintiffs, the Plaintiffs included Sheperd as an individual, as well as Kelley as a co-owner of Ramey and Kelley Inc. doing business as the Atlanta Eagle.
So what is the real reason Lopez and Buehl were excluded? It may have more to do with a legal strategy decision by Dan Grossman and/or other attorneys representing the Plaintiffs in the federal case.
“Dear Municipal Clerk: This is to notify the City of Atlanta that I have suffered damages in the amount of $250,000.00 false arrest, false imprisonment and malicious prosecution for which I find the City is liable,” Lopez wrote, according to a copy of the claim obtained by APN.
According to Georgia law, OCGA 36-33-5, individuals wishing to file a claim with a municipality must have put the city on notice within six months of the incident, in order to give the city an opportunity to correct the problem.
Lopez appears to have satisfied that requirement by having been one of the few Eagle raid patrons to file a complaint with the Office of Professional Standards, or the internal affairs department of the Atlanta Police Department, on September 14, 2009, only three days after the raid.
“(a) No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in subsection (b) of this Code section,” the law says.
“(b) Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury,” the law states.
“No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment,” the law states.
APN spoke with two Council Members who believed that Lopez had given the City proper notice, when
APN explained the situation to them; one Council Member recommended that Lopez file the claim and proceed as if he had filed proper notice.
Another Council Member stated that they did not see why Lopez would not be able to receive a settlement if everyone else had.
Lopez said that after the criminal charges were dropped against him, that he inquired with Grossman whether he could join the case, but that Grossman said no.
Lopez included a timeline of events in his claim against the City, which also detailed some of his efforts to join the lawsuit.
“October 2009 — Introduction of Lawyer Dan Grossman – discussion begins about class action lawsuit – told employees may have to wait until after all charges are cleared up in order to join,” Lopez wrote.
On November 24, 2009, the lawsuit was filed. “I am told I am not able to join suit until trial is over.”
The charges were dropped against Lopez on March 11, 2010.
On March 16, “I emailed asking if I can join the class action lawsuit. Received email about lawsuit – was told I would receive a call to talk over the suit. We never spoke.”
On March 17, “The Atlanta Eagle Raid Class Action lawsuit is amended to include 6 more plaintiffs. I was not asked nor included.”
On March 18, “I ask once again in email if I am able to join the lawsuit. I receive an email about joining the Class Action Suit which states ‘probably not the existing’ lawsuit.”
APN requested copies of the emails from Lopez, but he was not prepared to release them.
APN should add that a source familiar with the matter did advise APN about 2.5 weeks ago that there were excluded Plaintiffs, but that they could not say more until the lawsuit was over.
Claims are received by the Municipal Clerk. Yesterday, Municipal Clerk Rhonda Dauphin Johnson told APN that her office merely receives claims and forwards them to the law department.
After APN first reported that Lopez and Buehl were excluded from the lawsuit on Friday, numerous APN readers emailed to express concern. One reader, senior advocate Ben Howard, raised the suggestion that the two could file claims directly with the City.
While claims with the City are often a precursor to a lawsuit, there is nothing preventing the City from settling directly with individuals, particularly when they have already settled with other victims in the same incident.
To be sure, out of the 62 Atlanta Eagle patrons and staff who were falsely arrested and mistreated by the APD on the night of the raid, there are a couple dozen who chose not to be part of the lawsuit, nor the OPS complaint, nor the Atlanta Citizen Review Board complaint. What makes Lopez and Buehl’s case different is that they did put the City on notice about what happened to them but they were not allowed to join the lawsuit.
SETTLEMENT APPROVED
In a historic victory, the Council voted unanimously 14-0, with Alex Wan (District 6) absent, to approve the settlement. The Council debated the settlement in a closed Executive Session after Howard Shook (District 7) asked what methodology was used to determine the amount, and City Attorney Cathy Hampton recommended the Council go into the session due to the gag order on the lawsuit settlement.
APN’s Editor–the present writer–raised concern that the settlement was not duly advertised in the agenda, nor did it go before PS/LA, and that therefore, the public did not have the opportunity to make meaningful public input on the settlement. However, avoiding public scrutiny appears to have been the City’s plan.
After APN raised those concerns, Councilwoman Felicia Moore (District 9) provided APN with a copy of the resolution. Later the Council provided a stack of copies for the entire Council audience.
The resolution approving the settlement still was quite vague, not giving a breakdown of which Plaintiffs were receiving how much money. Attorney Dan Grossman has worked on the case pro bono. The full funds will therefore go to the Plaintiffs, payable through a Lambda Legal settlement account. It is plausible that the Eagle bar and the leather shop, Rawhide Leather, may receive more than the individual Plaintiffs due to their lost revenues after the raid.
The resolution also did not specify what policy and practice changes the City was agreeing to, just saying that the City had agreed to certain changes. Presumably, however, when the Council has to change any of its codes to actually carry out of its promise to change policies, that will be done through ordinance at the PS/LA Committee.
Previously, Councilwoman Natalyn Archibong (District 5) noted that PS/LA could elect to adopt even stronger policy changes than those agreed to in the settlement.
The resolution also did not mention anything about an apology. If the settlement does not include an apology, a resolution by Council Michael Julian Bond (Post 1-at-large) seeking such an apology remains in PS/LA Cmte for action. Bond previously told APN that he would seek for his resolution to be passed no matter what the settlement included.
(END / 2010)