“ ‘Where’s the money?’ ” Fesser said he remembered a West Linn, Ore., officer asking him repeatedly. The police officers asked about Fesser’s employer, a tow company that works as a contractor for several cities in the Portland metro area.
“When they first said that, I knew where this was coming from,” Fesser told The Washington Post.
The police had a reason to stop him, but it had little to do with stolen money. Rather, as two lawsuits Fesser filed allege, his boss pressured West Linn police to harass him with a groundless arrest. According to the lawsuits, which the police department and the employer settled for $1.15 million total, Fesser’s boss, who is white, feared his employee would sue him for racial discrimination. A police investigation would discredit Fesser and possibly thwart his bias suit.
The boss, Eric Benson, hatched the plan with his “fishing buddy,” who was also the police chief in his hometown of West Linn, according to depositions by police officers involved in the case and text messages.
Fesser’s attorney called it “old-boy cronyism.”
Under the settlements, Benson paid his former employee $415,000; the city of West Linn last week agreed to pay him $600,000 in one of the largest settlements for wrongful arrest in Oregon’s history. Although the West Linn Police Department did not admit liability in last week’s settlement with Fesser, which was first reported by the Oregonian, the agency said in a statement that it does not tolerate “discrimination or disparate treatment by its employees.” The officers named in the suit did not return a request for comment through their attorney.
After West Linn settled the lawsuit, the local district attorneys and governor announced investigations of the police involved in Fesser’s arrest, the Oregonian reported. Detective Tony Reeves was placed on paid administrative leave pending those reviews.
Evidence of the plot to intimidate Fesser was found in text messages between Benson, West Linn Police Chief Terry Timeus and Reeves.
“He is playing the race card big time,” Benson texted Reeves. “He’ll sue the s--- out of me.”
“I have a solid case,” Reeves wrote back. A few hours later the detective texted again: “It’s better we arrest him before he makes the complaint. Then it can’t be retaliation.”
The story began around January 2017, when Fesser told his boss at A&B Towing about a series of uncomfortable experiences at work, according to the lawsuits. One co-worker had displayed a Confederate flag and matching sticker on his pickup truck. Fesser told his boss that the man had asked how he liked the flags, according to the complaint. He also reported several instances when co-workers used racial slurs, including “Buckwheat,” to describe him.
In text messages with police, Benson used the n-word. When Reeves joked that Fesser might win Benson’s dog in the lawsuit, the towing boss quipped, “She is not a fan of that type of folk.”
The West Linn Police Department, which serves an affluent and mostly white suburb just south of Portland, has been accused of treating black people poorly in the past. In 2016, an officer was fired after local reports exposed Facebook posts where he had made jokes about shooting black activists, running over protesters and serving bacon to Muslims. The department later paid the former officer $100,000 because his colleagues ignored the posts and failed to discipline him until the racist remarks were reported in the local news.
Benson told Timeus, his friend, that he thought one of his employees had been “skimming” cash from auction sales by falsifying records. He said he thought Fesser had been running the scam for years, possibly stealing as much as $200,000.
“There was a definite decrease in the amount the cars were selling for,” Benson said in a deposition. He also said the prices recorded for sales appeared too consistent from auction to auction.
But Benson offered little evidence to back up those claims. He didn’t send anyone to observe the auctions until the employee told him several co-workers had used racial slurs. Yet Benson told police he had harbored suspicions about Fesser for months.
When the boss finally worked with police to watch Fesser at an auction, they found no evidence of theft.
Benson feared a bias suit in part because A&B Towing had been sued for racial discrimination before. According to text messages he sent West Linn police, Benson said he believed Fesser was contemplating a lawsuit and wavered between wanting him arrested and feeling skittish about pursuing him.
“He is building a case about me and how racist my guys are,” the towing boss texted Reeves. “Maybe abort?”
The detective reassured the towing company owner that an arrest would put a damper on a discrimination lawsuit. Reeves pointed out in text messages that the business owner had insurance to cover legal costs and suggested a criminal investigation would undermine Fesser’s credibility in court.
“When people steal from you and you catch them,” he texted, “lawsuits don’t go very well.”
At one point, Reeves told Benson the plan was to arrest Fesser about a mile from the Clackamas County border, a conservative pocket of the Portland metro area where the sheriff’s and district attorney’s offices are known for tough practices.
“If he went there I would make sure he never got out and make sure he was with some real racist boys,” Benson texted Reeves, according to texts filed as evidence. “Dreams can never come true I guess.”
Benson testified that he believed Fesser had “gang ties.” “I hope he gets a lot of time,” he texted the police officer.
The police investigation dredged up a past Fesser had worked for decades to move beyond. Fesser said that his cousin was in a gang in the 1990s, and the historically black neighborhood in northeast Portland where he grew up endured plenty of gang activity. But Fesser said he never joined a gang. Fesser graduated high school and played basketball at Portland Community College before transferring with a scholarship to East Oregon State College (now Eastern Oregon University).
In 1998, police caught Fesser talking about a drug deal on the phone. Convicted of soliciting drugs, Fesser served 27 months in a federal prison.
After he got out of federal prison, Fesser became a minister, started working for a nonprofit to help rehabilitate formerly incarcerated men and got a steady job working for A&B Towing that he held for 13 years. He married his wife in 2011 and raised eight children, including two teenage boys who are in high school.
“I wanted a second chance, and God gave me that,” Fesser said.
On Feb. 25, 2017, police, including a few gang enforcement officers, stopped Fesser on his way home from work. They handcuffed and booked him in a downtown Portland jail. West Linn officers took his cellphone and asked for the passcode, but Fesser refused to provide it. They also searched his car and found notes Fesser had taken about his racial discrimination complaints during conversations with his lawyer.
“The next thing I knew, I got a phone call from his wife, hysterical, saying he’d just been arrested,” Paul Buchanan, Fesser’s attorney, told The Post.
West Linn police sent extra patrols by Benson’s house. Meanwhile, Fesser was afraid to collect his phone after police failed to give it back to him when he was released from jail. He eventually went to the police station with his wife, where Reeves told Fesser he had been fired from his job at A&B Towing. In his deposition, Reeves said he could not remember telling someone they had been fired by a private business on any other occasion.
Months later, in September 2017, the district attorney indicted Fesser on five felony theft charges.
Fesser sued his employer and the police for orchestrating the plot to arrest him in retaliation for reporting racial slurs at his workplace, and the weak criminal case began to fall apart. Buchanan told The Post that the tow boss’s attorneys initially offered to drop the criminal charges against Fesser if he agreed to withdraw his discrimination suit against Benson and A&B Towing. Fesser refused, but the charges were eventually dismissed anyway.
The West Linn Police Department agreed to pay Fesser in a settlement on Tuesday. By Wednesday, two Oregon district attorneys and the governor announced investigations into the arrest. The state agency that investigates workplace abuses launched a review to determine why Fesser’s discrimination claims were dismissed in 2017. The West Linn mayor, city council and three Oregon congressmen have urged U.S. Attorney Billy Williams to investigate possible civil rights violations by the police involved in the case.
The West Linn Police Department conducted an internal review of the investigation into Fesser after he filed his first bias suit in 2017, but it is unclear what came of it. Reeves was promoted to sergeant in 2018. Timeus retired as chief amid an unrelated controversy after he allegedly drove drunk while off-duty, the Oregonian reported.
Fesser said he is afraid to visit West Linn to this day. But even more, he said he is afraid the police, who are sworn to “protect and serve,” will retaliate against him or his family.
“I’m afraid of what they will do because I know what they’re capable of,” Fesser said. “I’ve exposed some wrongdoing, and when you expose someone in power or high position, there can be repercussions.”