PELTIER: REALLY, MR. X IS BACK? PART II

Dear Supporters:

This is a follow up to the September 12, 2019 NPPA blog entitled, Really, Mr. X. is Back?

What follows continues a review of an early August radio interview with one of Peltier’s attorneys, Larry Hildes of Bellingham, Washington. Set forth below are direct quotes followed by factual responses challenging Hildes’ claims:

First Amendment

The Claim: FBI Agents conducted an illegal picket and violated federal law:

Clinton promised to and didn’t in the face of a demonstration, on-duty FBI Agents, several hundreds of them staged a picket, which is illegal under the Hatch Act, demanding Leonard not be released.

The Facts:

This is a classic example of someone exercising their First Amendment right of freedom of speech and expression while publicly denying it to others.

Categorizing December 15, 2000 as a “picket” is disingenuous and against common usage and definition of the term. The term implies protesting and usually denying access, as with a union strike or when Peltier supporters yell, scream and chant (with bullhorns) and carry all manner of signs. This was nothing of the sort.

This is what Hildes is referring to:

On a cold, crisp Friday morning in Washington D.C., a number of FBI Agents gathered at the Law Enforcement Officer’s Memorial where a prayer was offered and the names of FBI Agents killed in the line of duty were read. Later, several hundred (there wasn’t an exact count but estimated at around 500), FBI Agents gathered at Pennsylvania and 15^thStreet NW and at noon, two by two, in a dignified and solemn procession walked to the perimeter of the Ellipse, ultimately gathering at the West Gate of the White House. All were in business attire and there was no chanting or verbalizing of any kind. The procession was led by two agents carrying a single large white banner that read, NEVER FORGET  FBI Special Agents, Coler and Williams, Killed June 26, 1975, while two others held large photos of FBI Martyrs, Jack R. Coler and Ronald A. Williams. (Footnote 1)

A representative from the group was invited into the White House to deliver over 10,000 signed petitions and signatures asking then President Clinton to fully review the murder of Agents Coler and Williams and to not consider granting clemency to Leonard Peltier.

So much for the “picket” claim and although a large gathering, it was nowhere near the meaning of a “demonstration” either.

It was a legal gathering. The organizers had secured permits from the U.S. Park Police and the Metropolitan Police Department. The organizers gave guidance for those who participated to take Annual Leave for that time, but since it was conducted at noon, some may have used that time as their lunch break.

Hildes opines that this gathering to express the opinion that Peltier should not be granted clemency was “illegal” and violated the “Hatch Act.”

Perhaps Hildes should understand that the Hatch Act prohibits certain federal employees from being viewed as partisan and openly supporting any particular candidate or party and/or using their federal position to engage in a political agenda or activity.

The Constitutional authority to grant federal pardons or clemency rests solely with the President, and is discretionary. Its intent is to be separate from political considerations and based solely on the facts of each petition, it is a legal and not political remedy. 

Hildes is invited to review the list of “Mays and May Nots” available for review on the government Hatch Act website. (Fn. 2) Hildes would be hard pressed to find where the December 15^th procession to the White House violated any of those restrictions.

But, we can make it much simpler:

On September 28, 2019 an email was sent to the U.S. Office of Special Counsel describing exactly what is stated above regarding the 12/15/2000 actions of federal Agents bringing the petitions against Peltier’s bid for clemency to the White house.

On September 30, 2019 the following was received:

            Dear Mr. Woods,

            None of the activities described in your email would violate the Hatch Act.

            Kind regards,

            Ana Galindo-Marrone

            Chief, Hatch Act Unit

            U.S. Office of Special Counsel

So much for improperly accusing citizens of violating federal law by exercising their own rights to free speech and expression. (Fn.3) 

The Old Cowboy Boots story

The Claim: The Agents were looking for a man who stole cowboy boots:

(the FBI Agents)…supposedly looking for a man who had stolen a pair of boots and was involved in a minor burglary ring. Not, not Leonard.

The Facts:

This incident, turned fairy tale has been a cornerstone of Peltier folklore. There was no “burglary ring” or “supposedly.” Instead, there was a serious incident in which federal warrants had been issued for Jimmy Eagle and three others. Agents’ Coler and Williams were searching in the Oglala area of Pine Ridge following up on information that the fugitive Jimmy Eagle may have been in that area, which ultimately led to the events of June 26, 1975.

But perhaps the best way to demystify this claim is to provide an excerpt concerning the victims from an Editorial Essay that was posted on the NPPA website in 2000 and updated in 2005 (Fn. 4):  

On the evening of January 17, 2005 Mr. Jerry Schwarting was telephonically contacted and asked if he would be willing to discuss the incident which occurred on June 23, 1975. He agreed. Mr. Schwarting stated that he considered Hobart Horse a family friend and after a day of branding cattle with several other individuals agreed to provide Hobart Horse a ride to the residence of Teddy Pourier. Also at this residence were Herman Thunder Hawk and Jimmy Eagle. Accompanying them to Pourier's residence was a younger male, Robert Dunsmore. Mr. Schwarting is white; the other individuals were Native Americans.

While there, after some prompting and friendly dares from Hobart, Schwarting agreed to wrestle Hobart Horse for fun; he did, and beat Hobart three times. It was at that point the evening turned from an impromptu social gathering into a dangerous and criminal confrontation. Schwarting was beaten by the others, and held, along with the young teenager Dunsmore who was stripped of his clothes. They were both threatened, even with castration, and had guns repeatedly fired over their heads by the others. 

During the telephonic interview, Mr. Schwarting, on his home computer, reviewed the NPPA section (above) concerning this incident and agreed that it was an accurate summary of what had happened. Mr. Schwarting added that at one point they stole his vehicle, jacket and boots, and clarified that the boots were only two months old and cost $200. Two hundred dollars in 1975 was a good sum of money to for a pair of boots.

Mr. Schwarting stated that during this episode he was put in fear for his life, was cut several times by Hobart and still carries the scars to this day…

The fact remains that there was a violent confrontation, felony laws were violated, charges were filed, including robbery and assault with a deadly weapon, warrants issued, and on June 25th, one of the subjects, Teddy Pourier was arrested. Agents Coler and Williams were pursuing a fugitive investigation at that point and were attempting to locate and apprehend Jimmy Eagle on June 25, and at Jumping Bull on June 26. 

To claim that the "Incident at Oglala" was over a stolen pair of old cowboy boots, as Peltier and the LPDC have repeatedly suggested, would be like saying Leonard Peltier has never changed his version of what happened at Jumping Bull that fateful morning.

Life Sentences

The Claim: A Federal life sentence was seventeen years:

And, I will point out that if he had done the standard federal term for murder he would have done seventeen years on each count, he would have been out ten years ago. He’s not out because of his politics. 

This Federal life sentence premise goes along with a couple of better ones Peltier has offered, all of which are equally untrue:

In October 2018 Peltier claimed:

“I have been here too long. The beginning of my 43^rdyear plus over 20 years of good time credit, that makes 60+ years behind bars.” 

Work on the math a bit longer: The Bureau of Prisons guidelines just don’t work that way.

In February 2016 Peltier offered (the all-caps are his; bold are editorial comments):

“I HAVE EARNED ABOUT FOUR TO FIVE YEARS GOOD TIME THAT NO ONE SEEMS TO WANT TO RECOGNIZE. IT DOESN’T COUNT, I GUESS? (That’s correct, it doesn’t count) AND WHEN I WAS INDICTED THE AVERAGE TIME SERVED ON A LIFE SENTENCE BEFORE BEING GIVEN PAROLE WAS SEVEN YEARS. (Seven years? Maybe on another planet) SO THAT MEANS I’VE SERVED NEARLY SIX LIFE SENTENCES AND I SHOULD HAVE BEEN RELEASED ON PAROLE A VERY LONG TIME AGO. (Not quite) THEN THERE’S MANDATORY RELEASE AFTER SERVING 30 YEARS. (No, the  “mandatory” Peltier is imagining is “eligibility for parole”) I’M 10 YEARS PAST THAT. THE GOVERNMENT ISN’T SUPPOSED TO CHANGE THE LAWS OF (Sic) TO KEEP YOU IN PRISON—EXCEPT IF YOU’RE LEONARD PELTIER, IT SEEMS. (No, they haven’t for Peltier. Any changes are for the entire Federal inmate population.)

Can’t get the story straight; is it seven years or seventeen as his attorney suggests?

Peltier seems to always forget the fact that he is serving two consecutive life sentences, one each for Agent Coler and Agent Williams. Peltier also conveniently omits that he owes an additional seven consecutive years for the armed escape from Lompoc Penitentiary. 

Here’s a simple offer, provide any proof that a life sentence in 1976 when Peltier was sentenced for murder was seven or seventeenyears.

What will be found is that a life sentence was typically assumed to be thirty years before an inmate would be eligible for parole, with no guarantees at that point either. On balance Peltier is on the hook for sixty-seven (67) years; thirty for each life sentence plus the additional seven. Since the parole board has nixed any chances of release, that leaves roughly 24 years and counting.

“He’s not out because of his politics.”

Let’s pretend to understand this premise and try to place it in some context, along with the fact that Peltier has claimed to be a political prisoner almost from day one.

Where was the political connection to what happened at Jumping Bull?

Peltier and those in the camp were AIM members. Peltier et al. would retort with Cointelpro, (omitting that the program had been shut down four years earlier). The FBI did not know that Peltier, a fugitive wanted for the attempted murder of a police officer, was on the Reservation.* There is nothing to indicate that the FBI was aware of the AIM encampment along White Clay Creek adjacent to the Jumping Bull property. Agents’ Coler and Williams were searching for fugitive Jimmy Eagle and followed a red and white vehicle from Highway 18. We do know how things rapidly developed because there was an eyewitness. Agent Williams, describing over the FBI radio that those in the vehicle they followed were about to fire on them. And we do know how it ended that day for Agents Coler and Williams. Later, Peltier was indicted and a warrant issued. He was added to the FBI Ten Most Wanted list, arrested, tried, convicted and sentenced to consecutive life sentences. Nothing politically motivated there. A straight-up criminal case with many appellate decisions to fill in the details, only one of which favored Peltier for a period of time. 

But for the moment let’s play along with the political prisoner fantasy and assume Peltier’s arrest in Canada for the murder of two government agents was motivated by his affiliation with AIM and that the government agents were searching for Peltier all along. If one accepts that premise then the unprovoked attack on the Agents wasn’t spontaneous, but deliberate and planned and the government agents were lured onto the Jumping Bull property to be attacked, with Peltier administering the final coup de grace. Then it follows that Peltier isn’t a murderer after all, but as a political operative he assassinated two government agents. Peltier, the political prisoner is therefore an assassin. If one buys into the political prisoner fantasy then this is the result. You can’t have one without the other. 

Peltier Under Oath

The Claim: Hildes wants Peltier to testify in the Washington State paintings case:  (Fn. 5)

We are going to file a motion in the near future to ask the court to bring Leonard to the trial. I don’t know if we’ll win. We are going to try very hard. Because he has a right to be there. The jury has a right to hear from him personally, and you know, see him, and have him talk about why this was important and his expression, and you know, this case is an opportunity to bring more discussion about Leonard’s case, about who Leonard is, about why he needs to be out, he’s not in good health, he has a long litany of medical problems, and people who have been in the prison system for many years, and he’s been in prison since he was thirty.

There are really two points being made here:

1) To paraphrase Oscar Wilde, any publicity is good publicity, and Hildes is correct that if Peltier took the witness stand in Tacoma, Washington it would generate publicity and “more discussion.” Whether it would be good or bad publicity depends on a number of factors. Considering the location it’s possible that Peltier may add new followers to his dwindling supporter’s network who may go to his website, read the folklore propaganda, accept it at face value and gather around the Peltier campfire. The controversy may cause some to seek out titillating content and for some, heightened public curiosity. The percentage of those who are genuinely interested in the truth and make an effort to do the research and examine both sides, especially the appellate decisions where most, if not all of the spurious Peltier allegations against the government are completely vetted and discounted, may be a smaller percentage. However, those who do will certainly see through the myth.

2) How many attorneys would consider putting someone like Peltier on the witness stand in Federal Court, no matter what his client, Peltier, may want? (It’s likely Peltier would love to get out of USP Coleman for a while with a field trip to Washington State, along with the audience and spectacle of publicity it could generate. It would certainly salve his overbearing ego.) The obvious problem lies with all of Peltier’s baggage, beyond just the murders, conflicting public statements, a narcissistic autobiography drawn from the pages of Alice in Wonderland, the self-incriminating statements, the armed escape, etc., etc.; the list is very long.

There would likely be quite a number of federal prosecutors who would love nothing more than to question Peltier under oath on the witness stand. They would have an absolute field day. Imagine what foundation questions might be asked? (Certainly considering what latitude Judge Leighton may allow the Washington State Assistant Attorney General.) “Mr. Peltier, can you tell the jury where you are currently residing and why you are there?” Peltier could respond, “I’m a political prisoner who was given life sentences for supposedly killing two FBI Agents.” It would be quite a circus and an eye-opener for the jury. The media would salivate over headlines, notwithstanding the issue that the trial actually relates to Peltier-the-painter and his allegedly infringed First Amendment rights that likely would be lost in the ether of the moment. 

Hildes’ comment during the radio interview may have just been bluster or wishful thinking. No attorney in their right mind would put the likes of Leonard Peltier voluntarily before any jury.

* * *

What is clearly evident from Hildes’ radio interview is that he is willing to pontificate about Peltier and offer statements that are difficult or nearly impossible to support, and as a result we have to agree in the undeniable premise that facts do matter.**

“In the Spirit of Coler and Williams”

Ed Woods

Footnotes:

1) FBI Martyrs, Wall of Honor: https://www.fbi.gov/history/wall-of-honor

    This is a ‘must see’ Video honoring FBI Agents Jack R. Coler and Ronald A. Williams: https://www.youtube.com/watch?v=ozhEumzwgKA

2) May’s and May Not’s:https://www.cdc.gov/about/ethics/pdf/lunch_and_learn/haflyer.pdf

3) 2005 Editorial Essay regarding Peltier’s legal team and the 12/15/00 event:

http://www.noparolepeltier.com/debate.html#paranoia

4) Old cowboy boots: http://www.noparolepeltier.com/faq.html#17

5) Peltier’s Washington State case: http://wwwnoparolepeltiercom-justice.blogspot.com/2019/09/peltier-really-mr-x-is-back.html

Update: On 9/16/19, by order of the court, the trial has been postponed until summer, 2020 due to an illness of the State’s attorney assigned to Peltier’s case.

* Peltier was acquitted of this charge. 

** There are still other points to discuss regarding the radio interview that may be topics in Part III.

PELTIER WINS AND LOSES IN FEDERAL COURT

Dear Supporters:

On July 31, 2018, the following was published by the International Leonard Peltier Defense Committee (ILPDC*):

“Leonard received word the Washington case regarding his First Amendment Right to have his paintings shown in public spaces will be allowed to move forward.”

Peltier is willing to speak publicly about the federal civil suit, and so is the NPPA.

What follows is summarized or quoted (in italics) from publicly available records regarding Peltier’s lawsuit and his paintings displayed for sale on public property by the State of Washington: U.S. District Court, Western District of Washington-Tacoma Case No. 3:17-cv-05209-RBL, Leonard Peltier, Chauncey Peltier v. Joel Sacks, Et. Al.

Supporters, and others who are interested, are invited to review the entire public record for themselves. (see: https://casetext.com/case/peltier-v-sacks)

Peltier paintings & Washington State

During November 2015 the Washington State Department of Labor and Industries (L&I), held an American Indian Heritage Month event that displayed artwork by Native American Artists on public property in their Tumwater, Washington facility. Among the artwork were four pieces by Leonard Peltier along with a notation about where to purchase the paintings.

A number of retired FBI Agents took exception to the fact that the artwork of the convicted murderer of two already wounded FBI Agents was being displayed for sale on public property and contacted the media and L&I.

Also, letters were written to Washington State and L&I officials. Two letters that became an issue in the subsequent Peltier civil suit were from the Society of Former Special Agents of the FBI (then president, Larry Langberg) and the No Parole Peltier Association founder, Ed Woods. The NPPA letter provided a brief review of Peltier’s history and respectfully asked that the appropriateness of displaying Peltier’s artwork for sale be reviewed. (Footnote #1)

In a letter dated November 19, 2015, L&I Director Joel Sacks, advised that Peltier’s artwork was removed from the display. (Fn.2)

Leonard Peltier, Chauncey Peltier v. Joel Sacks, Et. Al.

3:17-cv-05209-RBL

On March 21, 2017 Peltier filed a complaint in U.S. District Court (USDC) for the Western District of Washington against several individuals alleging violation of due process and equal protection, defamation, tortuous interference with a contract, etc. Specifically named were Joel Sacks, L&I Director, Timothy Church, L&I Public Affairs Manager, Washington State Governor Jay Inslee, Larry Langberg and Ed Woods.

The nineteen-page complaint alleged, in part, as to all defendants:

            The acts and omissions of DEFENDANTS, were extreme and outrageous, and would be so seen and would shock the conscience of a reasonable person.

            The conduct of DEFENDANTS was willful, malicious, oppressive, extreme and outrageous and/or reckless, and was of such a nature that punitive damages should be imposed in an amount commensurate with the wrongful acts alleged herein.

Regarding damages:

            This censorship and removal caused considerable pain, emotional distress, potential economic loss, deprivation of an already established public forum, and other harm to PLAINTIFFS in an amount to be proved at trial…(emphasis added)

Facts:

A number of “facts” provided in the complaint were inaccurate or patently false but will not be discussed here; they have been challenged and refuted many times in the past.
(Fn. 3)

The complaint essentially resulted in the USDC addressing two separate issues, defamation, slander, harassment and libel as to Langberg and Woods, as a “Heckler’s veto” regarding the State’s actions, and the State of Washington’s (Sacks, Church, Inslee), right to remove Peltier’s paintings for just cause. 

Peltier Loss; Langberg/Woods

On June 8, 2017 a Joint Motion to Dismiss All Claims against Langberg and Woods was submitted, and in part, contained the following:

            …are absolutely immune from suit because they were engaged in protected public participation.

            It is also clear that the subject of their communications pertained to a matter of concern to the L&I and the State of Washington.

            The issue presented was whether a state agency like L&I found it favorable to exhibit artwork of a convicted double-murderer of civil servants. The L&I headquarters building, located in Tumwater, Washington, is a publicly funded and supported facility. The exhibition of Mr. Peltier’s art in a government owned building was viewed by them as a governmental endorsement and glorification of a convict found guilty of killing (assassination-style) two FBI Agents in the line of duty. 

            Washington protects individuals who communicate with its agencies and officials on matters reasonably of concern to the agency. RCW 4.24.510. The scope of the protection is as follows: 

                        A person who communicates a complaint or information to any branch or agency of federal, state, or local government, …is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency or organization. 

            This anti-SLAPP statute, “grants immunity from civil liability for those who complain to their government regarding issues of public interest or social significance.” (Citing Baily v. State.) (SLAPP is a contraction for; Strategic Lawsuit Against Public Participation)

On June 26, 2017 Peltier submitted Plaintiffs’ Response to Defendant Langberg and Woods’ 12(b)(6) and Anti-SLAPP Motion.

The twenty-three page Motion at its core essentially claimed that the letters sent to the State were defamatory and that the anti-SLAPP statue cannot be used as a shield for libel.

There are a number of inaccurate claims made in the Motion that will not be addressed here but have been previously reviewed and refuted in great detail based on court records and Peltier’s public statements. (Fn. 4)

On July 25, 2017 USDC Judge Ronald B. Leighton dismissed Peltier’s suit stating, in part:

            The letters Woods and Langberg wrote to Sacks and Inslee regarded a matter of public concern to the State and to the L&I department specifically. Each communicated his displeasure with L&I’s public display of Peltier’s artwork, as it seemed to condone his murderous past. How the public receives a state-sanctioned public display is a matter of reasonably of concern to the State and to its agency housing the display. In fact, the public’s reaction concerned the State and L&I so much that L&I removed Peltier’s work for overshadowing the State’s American Indian Heritage Month Celebration.

            Under the anti-SLAPP statute, Woods and Langberg are immune from suit for these communications, which regarded L&I’s public display of Peltier’s paintings. Peltier’s claims against Woods and Langberg are therefore DISMISSED with prejudice** under RCW 4.24.510.

(The Washington anti-SLAPP statute provides for the reimbursement of expenses and attorney’s fees and statutory damages of ten thousand dollars.)

            Accordingly, Woods’ and langberg’s Motion to Dismiss [Dkt. #15] is GRANTED, and Peltier’s claims against them are DISMISSED with prejudice. They may file a motion describing the amount of expenses and fees they seek within 14 days. Their request for statutory damages is DENIED.

On September 11, 2017 Peltier filed a motion, Plaintiffs’ Response to Defendant Langberg and Woods’ Fee Petitions, which stated in part:

            To provide a glimpse of Leonard Peltier’s financial situation and his lack of ability to earn an income: He has been in federal prison for the last four decades, without ability to work for a fair—or even minimum—wage. He is 72, almost 73, years old and currently recovering from triple bypass surgery. He is serving two life sentences, and has had every attempt at parole and clemency denied to this date. He will never earn a fair wage, and any amount of money that he could potentially earn would be mere dollars a month—an amount vastly below Washington’s wage garnishment statute.

            Plaintiff Chauncey Peltier lives off of Social Security Disability benefits, and receives only $1,350 a month to cover basic living expenses. 

            For all the reasons stated above, Plaintiffs Leonard and Chauncey Peltier ask that this Court deny Defendants Woods and Langberg’ Motions/petitions for Attorneys’ fees and costs. 

On October 12, 2017, Judge Leighton responded with an Order on Motion for Attorneys’ Fees:

            The fees requested are reasonable and they are awarded. The Motions for attorneys’ fees are GRANTED and the clerk shall enter a judgment in the defendants’ favor reflecting the requested fees. 

Peltier Appeals to the U.S. Court of Appeals for the Ninth Circuit

On November 21, 2017 Peltier filed Plaintiffs’ Notice of Appeal of Dismissal and Judgment as to Defendants Langberg and Woods, which stated:

            Pursuant to FRAP 3 and 4 Plaintiffs LEONARD and CHAUNCEY PELTIER HERBY APPEAL AS A MATTER OF RIGHT THE JUDGEMENT DISMISSING THE ACTION AND ASSESSING ATTORNEYS FEES AND COSTS AS TO Defendants LARRY LANGBERG AND EDWARD WOODS in this matter.

The Office of the Clerk for the Ninth Circuit acknowledged Peltier’s notice of appeal on November 28, 2017 along with a Time Schedule Order that included a Mediation Questionnaire.

What followed was a letter from the Chief Circuit Judge providing details regarding the Court of Appeals mediation program, which stated in part:

            I want to take this opportunity to introduce you to the Court’s mediation program. The Court offers you and your clients professional mediation services, at no cost, to help resolve disputes quickly and efficiently and to explore the development of more satisfactory results than can be achieved from continued litigation. 

What then followed was a period of discussion and debate amongst the parties/attorneys resulting in a Release and Settlement Agreement. 

Filed by the clerk of courts on April 2, 2018 was the following:

            Appellant has settled and fully released his claims as to Edward Woods and Larry Langberg (“settling defendants”). His claims against the “other defendants” appear to remain pending.

(The “other defendants” referred to were Washington State officials, Sacks, Church and Inslee.)

On May 3, 2018 Circuit Mediator Chris Goetz filed with the court, in part, the following:

            Pursuant to the court’s April 2, 2018, order, this appeal is deemed dismissed voluntarily, Fed. R. App. P. 42(b).

            Dismissal is “with prejudice” with respect to the “settling defendants.”

Release and Settlement Agreement

Leonard & Chauncey Peltier—Edward Woods, Larry Langberg

The Release and Settlement Agreement, a clean-slate release, with no non-disclosure clause, was signed by Chauncey Peltier on March 9, 2018 and Leonard Peltier on July 28, 2018. The Peltiers’ were relieved from having to pay the attorney-fees judgment. 

Peltier prevails in District Court

On July 16, 2018 USDC Judge Leighton filed an Order on Motion for Summary Judgment after reviewing arguments from Peltier and Washington State regarding the removal of Peltier’s paintings from L&I. 

Judge Leighton dismissed, with prejudice, several of Peltier’s claims:  

That the State defendants, Sacks, Church and Inslee acted in an official capacity; that they did not act with Intentional Infliction of Emotional Distress against Peltier; that they were not negligent in their actions (Peltiers provide no evidence to support a negligence claim other than the conclusory allegation that Defendants “trampled on their duty of reasonable care and caused direct and foreseeable harm.”); Peltier will “accept a finding of violation and an order to rehang the paintings.” However, according to the Court; The Peltiers cite no authority imposing a mandatory injunction to remedy a state constitutional violation, and they do not articulate why a constitutional cause of action is more appropriate than a breach of contract cause of action.

            Defendants Motion for Summary Judgment [Dkt. 42] is GRANTED with respect to Plaintiffs’ fifth and fourteenth amendment, intentional infliction of emotional distress, negligence, and Washington constitutional claims. The motion is GRANTED with respect to Plaintiffs’ ¶ 1983 claim against Defendant Jay Inslee, and against all Defendants in their “official capacities.”

However, Judge Leighton ruled in Peltier’s favor on his first amendment claim:

            Plaintiff has raised a genuine issue of fact as to whether removing his paintings violated his first amendment rights, and Defendants are not entitled to qualified immunity.

The order previously stated that: …in the public forum it designated, L&I needed a compelling government interest to remove Peltier’s paintings.

* * *

It would appear that the State may have several options:

            Although not likely, the State could appeal this decision to the Ninth Circuit. 

            The State could provide Peltier with the two weeks to display his paintings at L&I. Although, there is no authority to impose such a mandatory injunction.

            The State could move ahead with a trial. Again, although not likely.

            The State could offer Peltier a monetary settlement to not pursue any further action.  

* * *

When Peltier is criticized or challenged, by relying on court records and public statements—in other words exercising a fundamental first amendment right to confront Peltier in the public forum, Peltier responds as the quintessential victim with claims that criticism of him is a vendetta aimed to discredit, harass and defame him. 

As an obvious metaphor Peltier can be likened to an overripe onion where each layer of myth and folklore shades what came before. But peal away each successive layer until they are all removed and what is left is nothing. Nothing but a brutal convicted double-murderer; so said the jury and every court reviewing his conviction and sentence.

Peltier speaks of innocence but he and his followers who subscribe to that notion have short or very selective memories. A truly innocent person would have no difficulty recounting the events at Pine Ridge. The details could be recited with precision but instead have changed over the years while adding self-incriminating public statements; statements taken within the context of where he was that day only reinforces his guilt.

Peltier and Peltierites hope others will ignore or forget Peltier’s only real alibi, the years-long-lie that was memorialized in books (not his own though), televised media interviews and even from his own lips on film. “This story is true,” he told everyone, that someone they knew, Mr. X in the infamous red pickup, killed the agents. The lie of the alibi was made public by one of the AIM participants that fateful day and later corroborated by a Peltier attorney.

Since Peltier stood by such a blatant lie for so many years, why should anyone believe his claims of innocence?

“In the Spirit of Coler and Williams”

Ed Woods

*Over the years it has been well established that any communication from the various Peltier committees are authored or approved by Peltier himself. Thus, public announcements from the ILPDC are credited directly back to Peltier.

** with prejudice: A dismissal with prejudice is dismissal of a case on merits after adjudication. The plaintiff is barred from bringing an action on the same claim. Dismissal with prejudice is a final judgment and the case becomes res judicata (a matter already judged) on the claims that were or could have been brought in it.

Footnotes:

1) Letter to Governor Inslee: http://wwwnoparolepeltiercom-justice.blogspot.com/2015/11/peltier-dear-governor-inslee.html

2) Blog re L&I letter: http://wwwnoparolepeltiercom-justice.blogspot.com/2015/11/peltier-paintings-removed-part-2.html

Follow-up re removal of paintings: http://wwwnoparolepeltiercom-justice.blogspot.com/2015/11/peltier-paintings-removed-peltier.html

3) Addressing just one of those issues that is now a matter of public federal court record, Peltier states, and has erroneously claimed in the past that “…Woods…a retired FBI agent…since his retirement (first under paid contract with the FBI)…” This claim “first under paid contract with the FBI” is patently false. It is submitted to federal court without factual basis and is in fact, a lie.

4) By direct reference in several pages in this Motion, claims of humanitarian and charitable activities are taken directly from Peltier’s website. Many of these claims are overstated, inaccurate, some unprovable or unsupported by actual documentation or scrutiny.  

PELTIER: COWARDICE & THE FIRST AMENDMENT

Dear Supporters:

Felons, like Leonard Peltier, surrender certain rights by virtue of their convictions, as here with double first degree murder and aiding and abetting. Included among those forfeited rights are voting and jury service, being barred from obtaining, receiving, transporting or possessing any firearm or ammunition, serving in the Armed Forces, obtaining certain federal licenses, federal employment and certain benefits. Voting restrictions, however, vary from state to state.

It’s doubtful, though, whether Peltier cares about voting since he does not consider himself an American citizen.[i]  Peltier possessing a firearm is another matter altogether.

A right that a convicted felon does not forfeit is established within the Bill of Rights: the First Amendment, which generally guarantees the right of free assembly and speech.

There are limitations on free speech, of course, that include concepts like fighting words, inciting illegal action or panic (like yelling ‘fire’ in a crowded theater), obscenity, slander, and libel, among others.

Much depends on the venue one chooses to express certain ideas and speech and arguably the most widely recognized forum today is the Internet.

Publishing ones thoughts, words and statements on an Internet website amounts to offering those statements for a response in the court of public opinion. That action establishes the First Amendment right of anyone reading those statements to comment and respond on its validity, accuracy and truthfulness. That right of free speech is not a one-way country back road but a multi-lane superhighway. If one chooses to make public statements in such a manner, he must accept the concurrent responsibility to defend those statements and rise to the occasion when challenged. It’s really quite simple, it just goes with the territory. That certainly applies to those who challenge as well.

Peltier maintains the right to free speech, however, has added one more critical element to that equation. He has consistently promoted himself as a public figure, trying to garner both sympathy and financial support by thrusting himself to the forefront of a particular controversy in order to influence a resolution and affect public opinion of himself. The legal standard for libel of a public figure is much higher than for the average citizen. For example, Peltier has proclaimed, “My autobiography is the story of my people.” [ii] That alone places him in the public arena.

What if some concerned person or association was to call Peltier a coward?

Standing on its own would that amount to slander or libel, or just an opinion? Asked another way, can someone even slander, defame, or libel a convicted double murderer?  Yet another way: can someone slander a convicted double murderer without making knowingly false statements of fact? Or, can someone slander or libel a double convicted murderer by providing the truth from public documents and Peltier himself?

Was Peltier a coward during his brief involvement with the American Indian Movement or during any other time in his life? With Peltier, his actions speak louder than his words.

Would it be cowardly (as suspected by AIM that Anna Mae Aquash was a government informant), for Peltier—on orders from AIM hierarchy, to put a gun in her mouth to make her confess? Imagine how she felt during those terrifying moments. Peltier glaring into her frightened eyes, putting the filthy barrel of a gun into her throat, accusing her of betraying AIM. Imagine the panic and horror she must have felt. (She didn’t confess because there was nothing to confess to; she wasn’t, but that mattered little, because as everyone knows, she was kidnapped, murdered and her lifeless body dumped in a ravine.) [iii]  

Would doing that to a young woman and mother make Peltier a coward?

Hold that thought for a moment.

What about Peltier’s respect for women in general?

"When I was younger," Leonard says, "I thought it was a lot of fun running around like that, shaking off all those wives. Now I'm older, I realize I hurt a lot of those women, and I feel very bad about it, I really do. I think about them all the time now, especially the ones that had my kids.[iv]  Now that the fun is over, at least he supposedly “thinks” about it.

On June 26, 1975 Peltier tells us he acted bravely that day, as a warrior he claims, saving women and children, but, and here again we can rely on Peltier’s own public proclamations, namely in the Redford film, Incident at Oglala.[v]

“And I heard crying and everything. We gotta get those women and children out of that place, man. Cause there were babies there. There was a…I thought the old folks were there. I said we gotta get those people out of there man, what the hell is going on.”

(Sounds good, but there were no babies as Peltier claims, some children yes, like Angie Long Visitor, with her husband and two children who made their way from Jumping Bull to Highway 18.[vi]) 

But for all Petlier’s feigned bravado on film, let’s dig a little deeper and uncover a compelling little detail. More publically available facts to consider:

Meanwhile, Nilak (Butler) and the children were making their way back up the creek. “We hooked up with the guys about that point—we were just crossing this little river, going across this bog, and I lost my moccasins…And we got growled out because they said, We didn’t know where you guys were, and we were worried about you.” [vii] 

A brave woman, with children, making her way to escape the carnage of two murdered Agents, and where is Peltier and the other brave warriors? Hightailing it to the hills as fast as he could leaving at least Nilak and her children and Angie Long Visitor and her children to fend for themselves.

A responsible and decent person would consider that a cowardly act. Since it was Peltier who started the shooting and as a result placed all the others in jeopardy, bravado aside, he was only worried about one person. Himself.

But hold that thought for a moment.

Going back to the Pine Ridge Indian Reservation, Jumping Bull property, June 26, 1975, one of the participants in the attack on the agents, Norman Brown:

“From the green house in the compound, looking downhill to the west, Norman Brown saw two cars and two white men well over a hundred yards away; a gold and white car was parked behind a green one, both aimed in the general direction of the camp. The trunk of the gold-white car was open, and its driver was behind it, a rifle or shotgun at his shoulder; the other man, using a handgun was crouching and shooting next to the green car. Brown recalls seeing Leonard Peltier lying down by a row of junked cars near the woods, rising up to fire, lying prone again.” [viii]  

Pinning down two Agents in an open field, firing down upon them with rifles until they are wounded and can’t defend themselves is pretty much what a civilized person would consider a cowardly act by Peltier and all the AIM members involved.

On November 14, 1975, while the fugitives from Jumping Bull were making their way north, Peltier was travelling in a motor home when stopped by an Oregon State Trooper. The individual in the front passenger seat, later identified as Peltier, was ordered to the ground. A shot was fired and distracted the trooper as Peltier “…sprang up and took off on the run toward the right-of-way fence along the highway” escaping into the woods, but not before the trooper swung his shotgun, fired, wounding Peltier in the shoulder. Peltier eventually made it to Canada.

Under the seat where Peltier sat in the motor home was a paper bag. Inside the paper bag was Agent Coler’s revolver. Found on the bag was a latent thumbprint of Leonard Peltier. This was part of the government’s strong circumstantial evidence connecting Peltier to Jumping Bull and the brutal slaying of Agents’ Coler and Williams, as well as evidence of his guilt and flight from justice.[ix]   

Also travelling in the motor home was AIM leader Dennis Banks, Anna Mae Aquash, a pregnant Kamook (Darlene) Nichols, and Nichols’ little girl, Tasina Wanblee.[x]

It’s important to note that during their flight north, Peltier confessed to the murders of Coler and Williams, punctuating it by holding up his hand in a defensive gesture stating, “The M….. F…. was begging for his life, but I shot him anyway.” This was very dangerous knowledge for the already suspected and threatened Anna Mae to learn, and in 2004, at the trial of Arlo Looking Cloud for the murder of Anna Mae, Nichols testified under oath about Peltier’s admission.[xi]  

It’s more than reasonable to believe that any decent and honest person would disagree that shooting two severely wounded human beings in the face at point-blank range with a high powered rifle makes Peltier a coward. [xii]

Back to the motor home:

So Peltier is nearly caught, lying on the ground while two women, one pregnant, and a child are again placed in jeopardy because of his actions. And what does he do? What he does best: he got up, concerned only about himself, and ran away like a frightened little girl.

No brave warrior here. None of that “…we gotta get those people out of here, man.”

Everyone is invited to add up all that Peltier has said about his own contrived bravery and compare it to his actions. Most reasonable people, considering the actual facts, not the folklore, would see his actions as cowardly. And they would be right.

There is more, but we’ll leave it here for the moment, except to comment that a recent Native American publication contained an article about various gatherings on February 6^th to recognize Peltier’s forty-year incarceration and demands for clemency. By most accounts the gatherings were small; there certainly weren’t thousands attending. What was notable, however, as it rehashed some Peltier myths: it never mentioned that he was allegedly innocent. That was likely not an inadvertent oversight.[xiii]

* * *

The clock and clemency:

Peltier is painfully aware that the clock is ticking and will stop dead sometime around noon on January 20^th. Parole is a distant hope; his next parole hearing is eight years away, leaving clemency or commutation as the last resort.[xiv]

The President likely would care less whether Peltier is or was a coward. The President has made it clear that his clemency efforts are directed toward long sentences for minor drug offenses and exclude crimes of violence. And that leaves Peltier out in the cold.

Clemency is no more viable than parole and Peltier will continue to serve the remainder of his consecutive life sentences for the brutal slaying of Jack Coler and Ron Williams. The myth and folklore surrounding Peltier are irrelevant, but the facts his supporters conveniently ignore, most certainly are.

“In the Spirit of Coler and Williams”

Ed Woods

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[i] Leonard Peltier, Prison Writings: My Life is My Sundance, (New York: St. Martin’s, 1999) 63.  “I would like to say with all sincerity—and with no disrespect—that I don’t consider myself and American citizen.”

[ii] Peltier, 43

[iii] https://www.youtube.com/watch?v=0pm1Ic9A4aU (last accessed 3/4/16)

[iv] Peter Matthiessen, In the Spirit of Crazy Horse; The story of Leonard Peltier and the FBI’s war on the American Indian Movement. (New York: Penguin Books, 1991) 533.

[v] Incident at Oglala, The Leonard Peltier Story, (Carolco films 1988), Miramax Films release, 1992

[vi] http://noparolepeltier.com/debate.html#critical; http://noparolepeltier.com/debate.html#13; see both re

Angie Long Visitor.

[vii] Matthiessen, 161

[viii] Matthiessen, 156

[ix]  http://noparolepeltier.com/585.html  8^th Circuit Court decision: 2.Ontario, Oregon, A. Evidence of flight: “We hold that there was a sufficient number of such evidentiary manifestations to make evidence of flight and of resistance to arrest highly probative of consciousness of guilt, and hence guilt itself in this instance. First, Peltier fled the scene of the crime immediately after its commission. His actions in Oregon were a continuation of that immediate flight. Second, the motor home and station wagon were travelling arsenals linked by communication devices and code words designed for avoidance of arrest was significant of Peltier’s state of mind. Finally, and most important, evidence linking Peltier to the murders was discovered upon a search of the vehicle from which he fled. The presence in the motor home of Agent Coler’s revolver, in a bag having Peltier’s thumbprint on it, was one of the key pieces of evidence against Peltier.” (Emphasis added)

[x] Matthiessen, 249-251

[xi] http://www.noparolepeltier.com/usapressrelease.pdf  U.S. Department of Justice press release 8/21/09

[xii] http://noparolepeltier.com/585.html  8^th Circuit Court of Appeals, Direct Appeal. http://www.noparolepeltier.com/noon.html Image of the crime scene.

[xiii] http://indiancountrytodaymedianetwork.com/enewsletters/ictweeklymarch022016-163608

Indian Country Today Newsletter, March 2, 2016, page 8 (last accessed 3/4/16)

[xiv] http://noparolepeltier.com/debate.html#paroledenied 2009 Lewisburg parole hearing.