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Settlement attempt between Graham, protesters fails

Judge requires plaintiffs to bear 20 percent of cost of depositions

The latest filings in an ongoing federal suit over the march in downtown Graham on October 31, 2020 that ended with pepper spray reveal that the attorneys for the plaintiffs and the city of Graham recently attempted to negotiate a settlement but failed.

The attorneys for the plaintiffs and the city of Graham defendants held a mediated conference on March 2 but were unable to reach a settlement in the nearly two-year-old dispute, unlike a “parallel” suit that the city and county settled – with each of the defendants agreeing to pay $60,000 and meet several other conditions – in the spring of 2021, based on documents that the city’s attorneys filed in federal court on Friday.

The lawsuit, initially filed by the main organizer for the “I am Change Legacy March to the Polls,” Rev. Gregory Drumwright of Greensboro, now includes 19 plaintiffs: 13 are individuals, including Drumwright; four are minor children; and two are racial justice organizations.

Two days later, on November 2, 2020, Drumwright filed suit in federal court, claiming that the use of pepper spray – to disperse the crowd, after the march had been declared an unlawful assembly – was a “planned and orchestrated violent dispersal of a peaceful and nonpartisan march to a polling place” on the last day of early voting, which the plaintiffs claim violated their constitutional rights.

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See separate story on missing cell phones from several plaintiffs:

More than three dozen people are now listed as defendants, both in their personal and official capacities, including: Alamance County sheriff Terry Johnson; Graham police chief Kristy Cole; numerous sheriff’s deputies and Graham police officers who were on duty during the march; and the city of Graham.

The plaintiffs in the suit are represented by: the Lawyers Committee for Civil Rights Under Law; the ACLU of North Carolina; attorney Jason L. Keith of Keith & Associates in Greensboro; and Mayer Brown, a law firm based in Chicago and specializing in civil litigation.

The defendants in the lawsuit are represented by: Envisage Law in Raleigh, representing the city of Graham defendants; the Hall Booth Smith law firm in Charlotte, representing Cole and two other individual defendants; and the Cranfill Sumner and Frazier, Hill & Fury law firms in Raleigh and Greensboro, respectively, which are representing Johnson and his chief deputy, Cliff Parker.

[Story continues below photos.]

Graham police ultimately used pepper spray foggers to force the crowd to disperse out of the road following the march to the Historic Court House on Saturday, October 31, 2020.      Sheriff’s deputies used pepper spray to end the rally hours later after they discovered two gas cans and a gas-powered generator on courthouse crowds, in violation of the permit protest organizer Rev. Greg Drumwright had signed.

In his response, Anthony Biller of Envisage Law contends that Elizabeth Haddix of the Lawyers Committee for Civil Rights Under Law sent the plaintiffs a “15-page discovery dispute letter” a week before a scheduled settlement conference, complaining of numerous purported deficiencies in the city’s responses to the initial interrogatories (or written responses and other evidence).


Plaintiffs’ attorneys seek ‘full and non-evasive answers’
In the letter she sent to the Graham defendants late last month, Haddix also asked the 31 “new defendants” – who had been previously listed as “Graham police officers John and Jane Does #1-16” but are now identified by name – to produce their initial responses by March 11 and written responses to discovery requests by March 29. An email attachment included with the letter also included a proposed schedule to depose the 31 defendants, to be held “on nearly every consecutive day from March 24 through June 9,” according to the response Biller filed for the city in federal court on Friday.

“Perhaps mistakenly, given what appeared to be several absurd propositions, undersigned counsel [Envisage Law Firm, which is representing the city and other Graham defendants] viewed much of this as pre-mediation posturing,” Biller asserts in his response for the city.
Biller claims that “very little” of plaintiffs’ ‘statement of facts’ is relevant to the plaintiffs’ request for evidence in the case.

Meanwhile, the city has turned over 3,181 documents in response to requests for production of evidence, according to a motion the plaintiffs’ attorneys filed earlier this month. The plaintiffs’ attorneys contend that the Graham defendants have failed to provide “full and non-evasive answers” to the plaintiffs’ interrogatories but have not completed their production of evidence or indicated when they might do so, according to the motion to compel that the plaintiffs filed earlier this month in federal court.


Plaintiffs file ‘retaliatory motion’
For his part, Biller accuses the plaintiffs’ attorneys of filing a “retaliatory motion…that lacks merit” – against the admonition by a federal magistrate judge during a hearing in late January of this year. “Adding literal insult to injury,” by filing the retaliatory motion to compel, Biller says the plaintiffs’ attorneys are attempting to embarrass the city of Graham and its officers with accusations that are completely unrelated to the requests for production of evidence and “are rife with falsehoods.”
A footnote to Biller’s latest filing in the case notes that the plaintiffs’ attorneys accuse two Graham police officers, Scott Neudecker and Noah Sakin, of deploying pepper vapor to clear protesters from the roadway around the county’s Historic Court House and of “encouraging” assistant police chief Rodney King to “Hit ‘em again!”
Biller contends that’s not an accurate portrayal of the chain of events.

“That is simply false and a slipshod recitation of the facts for the purpose of embarrassing these officers in a public filing,” the city’s attorney writes in the response he filed in federal court on Friday. “King deployed OC vapor at the ground a second time when several protesters defied orders to leave Highway 87 [which also serves as Graham’s Main Street] and defiantly remained in the roadway after the first deployment of OC vapor.”

Graham police twice deployed pepper spray at the ground after the protest was declared an unlawful assembly, based on testimony given at trials in district court in 2021 for dozens of people charged during the October 31, 2020 march and similar demonstrations held in downtown Graham in the six months following the May 25, 2020 murder of George Floyd in police custody in Minneapolis, Minnesota.

The documents that the plaintiffs’ attorneys are seeking include: all documents related to the planning for and response to the march, including all communications, including text messages related to the march, which were filed earlier this month, along with 19 separate exhibits that run several hundred pages in length.

The plaintiffs are also seeking “all documents regarding internal investigations concerning the events of October 31,” to include all supplementary reports; documents related to Graham police department training; printed copies of text messages from Cole’s city-issued cell phone; all documents related to operations plans, public safety plans, assignments, staffing rosters, or any other document created to plan for the event, including emails that could be located by a keyword search for “March to the Polls”; all documents related or authorizing the use of force on any participant in the event; all recordings, photos, police bodycam footage, drone footage, and patrol car footage; and all documents and communications pertaining to demonstrations or protests in Graham between April 1, 2020 and late August 2021.


Plaintiffs ordered to pay 20 percent of costs for depositions
By comparison, the attorneys for both the city and county have asked the plaintiffs to provide: detailed descriptions of specific actions that each plaintiff contends makes each of the defendants liable; all documents and witnesses that support their claims; detailed explanation of damages allegedly caused by each of the defendants; disclosures of all medical treatment, corresponding medical records, and all “treating medical personnel” that would substantiate their claims; each plaintiff’s voting status, including the county he or she was registered to vote in for the 2020 general election; and each plaintiff’s prior involvement with legal proceedings for the last 10 years.

Meanwhile, attorneys for the plaintiffs and the Graham defendants have asked a federal judge to order the other side to pay their fees and other expenses related to the lawsuit.

So far, U.S. magistrate judge L. Patrick Auld previously entered one order requiring the plaintiffs to “pay 20 percent of all expenses incurred by the defendants” for taking depositions. Auld’s order was upheld last week by U.S. District Court judge Catherine C. Eagles.

Drumwright, the main organizer for the “I am Change Legacy March to the Polls” in Graham on Halloween day in 2020, recently announced that he is running as a Democrat for an at-large seat on Guilford County’s board of commissioners that will be up for grabs this year. Drumwright will be on the May 17 primary ballot where he is challenging fellow Democrat and incumbent county commissioner Kay Cashion to represent his party on the November ballot for the one at-large seat on the ballot in November.

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