Motion to dismiss for civil compromise (1)

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR THE COUNTY OF HARNEY

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STATE OF OREGON,

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Plaintiff, LAWRENCE P. O'DEA,

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ORAL ARGUMENT REQUESTED

Defendant.

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MOTION TO DISMISS FOR CIVIL COMPROMISE

v.

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Case No. 16CR67881

Time required for argument: Telecommunications requested: Offices more than 25 miles from courthouse: Court reporting services requested:

30 minutes No No No (Audio Only)

1.

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Defendant, Lawrence P. O’Dea (Mr. O’Dea) moves this court for an order

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dismissing the charge of Negligently Wounding Another, pursuant to a civil compromise.

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2.

This motion is supported by the points and authorities listed below, by the written

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acknowledgment of satisfaction by the victim, and the declaration of Derek Ashton in

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support of Civil Compromise.

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/// Page 1 - MOTION TO DISMISS FOR CIVIL COMPROMISE Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019

POINTS AND AUTHORITIES

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I. Statement of Material Facts On or about April 21, 2016, Robert Dempsey was wounded as a result of an

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unintentional discharge of a .22 caliber firearm owned by Mr. O’Dea. Mr. O’Dea did not

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knowingly discharge his weapon, and was unaware until some time after the accident

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that the shot came from his firearm. The accident occurred during an annual camping

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trip among a group of friends.

Mr. Dempsey and Mr. O’Dea have long been friends, and Mr. Dempsey never

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desired to criminally prosecute Mr. O’Dea for this accident, nor did he desire any

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governmental or administrative agency to do the same. Mr. Dempsey has

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acknowledged, in writing, full satisfaction for his injuries. Declaration of Derek Ashton,

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Exhibit 1, ¶¶ 5-7 (Declaration of Robert Dempsey). Mr. Dempsey desires all criminal

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charges and prosecution against Mr. O’Dea be dismissed with prejudice. Id. at ¶¶ 2-3,

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6-7.

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II. Application When a defendant is charged with a misdemeanor, the court may dismiss the

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charge pursuant to a civil compromise so long as the party injured has acknowledged,

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in writing, he has received full satisfaction for the injury. See ORS 135.703 to 135.709;

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State v. Dumond, 270 Or 854 (1974).

Here, Mr. O’Dea is charged with Negligently Wounding Mr. Dempsey, a class B

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misdemeanor. Mr. Dempsey has acknowledged, in writing, full satisfaction for his

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injuries. Ex 1, ¶¶ 6-7. Indeed, Mr. Dempsey has gone on record as stating he did not

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ever, nor does he now, wish Mr. O’Dea to be prosecuted, by any entity, as a result of

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the accident. Ex 1, ¶¶ 2-3.

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/// Page 2 - MOTION TO DISMISS FOR CIVIL COMPROMISE Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019

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III. Interests of Justice Mr. O’Dea is asking the court to grant this civil compromise in the interests of

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justice. The goal of justice should be the fair and equitable treatment of all individuals

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under the law. When considering a charge such as the one pending, the court is vested

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with discretion to dispense justice based upon the unique facts of the subject case and

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the individual before the court. In exercising its discretion, the court should know

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pertinent facts about the individual before it. Before this court is Mr. O’Dea, one of the

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most decorated officers ever to wear a uniform for the Portland Police Bureau. In his

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more than 30-year career as a public servant, he received in excess of 60 citizen

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commendations. In a world where actions speak louder than words, Mr. O’Dea stands

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out. His honors include the following:

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1987. Mr. O’Dea was awarded the Meritorious Service Medal for Valor (the Portland Police Bureau's second highest award) for his actions in preventing the shooting of a father and son who were being threatened by armed methamphetamine users. The armed perpetrators had just shot up a car of innocent people moments before and had been the suspects in several shooting-related calls in the previous 24 hours.

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1996. Mr. O’Dea was awarded the Medal of Valor (the Police Bureau's highest award) for his actions in an active shooter incident where he moved several people to safety and rescued a wounded officer after a domestic violence suspect began shooting at police with a high powered rifle. Mr. O’Dea himself was shot in the chest, the wrist and suffered loss of vision in his right eye from the injuries sustained while rescuing the wounded officer.

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1996. Mr. O’Dea was awarded the OPOA Medal of Honor (the Oregon Peace Officers Association’s highest award) for his actions in the 1996 shooting incident described above.

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2002. Mr. O’Dea was awarded the Medal of Valor (the Portland Police Bureau's highest award) for his actions as the first responder to a fully engaged house fire. When bystanders informed him that five people were trapped inside, Mr. O’Dea entered the burning building and removed two people from the first floor to safety. Despite the raging fire, Mr. O’Dea made entry again and removed another two people from the second story floor to safety. Having saved four of the reported five people from the burning building, Mr. O’Dea entered a third time and went to the third floor to search for the last victim. He searched the third floor until it was no longer possible. He was able to exit the house and get himself to safety, where he learned the missing person was not in the burning house after all. Mr. O’Dea sustained lung damage during his rescue efforts.

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Page 3 - MOTION TO DISMISS FOR CIVIL COMPROMISE Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019

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Mr. O’Dea has no criminal record. His contributions as an officer and Chief of the

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Portland Police Bureau are well-documented. He served on numerous boards and was

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widely recognized for his community outreach and promotion of diversity and equal

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treatment.

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IV. Conclusion

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Given the fact that this case arises from an accident and the alleged victim does

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not (and never did) want Mr. O’Dea to face criminal charges for the accident, the

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interest of justice supports dismissing the charge against Mr. O’Dea pursuant to a civil

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compromise. ORS 135.703 to 135.709; State v. Dumond, 270 Or 854 (1974).

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DATED this 23rd day of December, 2016.

COSGRAVE VERGEER KESTER LLP

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s/ Derek J. Ashton Derek J. Ashton, OSB 871552 Telephone: 503-323-9000 Fax: (503) 323-9019 E-mail: dashton@cosgravelaw.com

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For Mr. O’Dea

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Page 4 - MOTION TO DISMISS FOR CIVIL COMPROMISE Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019

CERTIFICATE OF SERVICE

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I hereby certify that I served a true and correct copy of the foregoing MOTION TO DISMISS FOR CIVIL COMPROMISE on the date indicated below by:

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mail with postage prepaid, deposited in the US mail at Portland, Oregon,

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hand delivery,

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facsimile transmission,

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overnight delivery,

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email,

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electronic filing notification.

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If served by facsimile transmission, attached to this certificate is the printed

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confirmation of receipt of the document(s) generated by the transmitting machine. I

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further certify that said copy was placed in a sealed envelope delivered as indicated

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above and addressed to said attorney(s) at the address(es) listed below:

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Colin D. Benson DOJ Criminal Justice Division 2250 McGilchrist St SE, Ste. 100 Salem, OR 97302 For Plaintiff

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DATED: December 23, 2016

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s/ Derek J. Ashton Derek J. Ashton

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Page 1 – CERTIFICATE OF SERVICE Motion to Dismiss for Civil Compromise.docx Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019