The University of Oregon filed motions with the Ninth Circuit Court of Appeals on Oct. 27, 2015 to appeal the Cleavenger vs. University of Oregon Police Department lawsuit verdict. The motions ask for either a retrial or a judgment as a matter of law, meaning the verdict could be overturned without going to a jury.
“The University has not yet determined whether it will appeal to the Ninth Circuit Court of Appeals,” university spokesman Tobin Klinger said in a statement. “At this point, the University has merely filed post-trial motions with the trial court, which preserve the right to appeal the issues raised in those motions.”
The issues raised concern major points in the plaintiff’s case and the general scope of the jury’s award.
James Cleavenger, a former UOPD officer, was awarded $755,000 last September in a free speech trial. The jury found that three of Cleavenger’s superiors, Sargeant Scott Cameron, Lieutenant Brandon Lebrecht and Chief Carolyn McDermed, retaliated against Cleavenger for exercising his free speech rights. The jury found that the retaliation harmed Cleavenger’s potential career in law enforcement, awarding economic damages based on his potential loss of income.
The defense asserts that Cleavenger’s counsel’s argument and eventual award was based on two things: Cleavenger’s retaliatory placement on a “Brady List,” a list of officers deemed too untrustworthy to testify in court, and as a punishment to the UOPD for infractions not related to Cleavenger’s termination, such as the infamous Bowl of Dicks List, a list of things officers felt should “eat a bowl of dicks,” created by the UOPD night shift.
UO claims that the Brady Listing was not retaliatory, nor was it detrimental to Cleavenger’s career. They also contend that the use of evidence not harmful to Cleavenger constitutes “punishment for unrelated conduct allegedly causing harm to non-parties,” and shouldn’t be considered when assessing damages.
The defense also argued that Cleavenger’s claims of lost potential income were exaggerated. The jury awarded Cleavenger economic damages based on his inability to become a police chief after being “Brady Listed,” a goal he told the jury he was striving for.
“Plaintiff speculated that he had lost the chance eventually to become a police chief, but he made no showing that he was qualified for that position or that he had any probability of achieving that goal over all other potential candidates,” the defense said in their appeal. They believe the loss of potential earnings cannot be proven, therefore the jury awarded no damages that were “non-speculative.”
The defense asked for a judgment as a matter of law, meaning the trial would not go back to a jury. The judge would make the final decision. This is possible if the defense proves that the entire basis of the trial is faulty.
“Here, as submitted to the jury, plaintiff’s claim of actual damages was based solely on the submissions of Brady materials to the District Attorney by Defendant McDermed, assisted by Defendant Lebrecht,” the defense said. “That alone does not constitute an “adverse employment action” sufficient to support a claim of retaliation for First Amendment rights,” they continued, citing previous First Amendment cases.
If UO decides to go through with their appeal, and the judge accepts, they have also asked that the trial or judgment be all-encompassing, not just restricted to determining damages – meaning the potential for a completely new trial.