Police as 'Stalking' Victims? Chief in Bizarre
Sunriver, Oregon Case Gets Fired
William Norman Grigg
Recently by William Norman Grigg: The
Global Land Grab
police chief of Sunriver, Oregon, was fired on February 16, receiving
a reported severance package of $100,000. That sum, representing
the balance of Kennedy’s 2012 salary and accrued vacation time,
seems oddly extravagant, given that his position was little more
than a glorified sinecure.
is not about Mike being a bad guy, or anything of that nature,"
Ron Angell, chairman of SSD’s Managing Board, told the Bend
Bulletin. Angell described the severance deal as "fair
and generous"; the second adjective is a pronounced understatement,
and the first is at best disputable, given that there’s no evidence
that the people whose property and rental taxes were used to pay
Kennedy and his cohorts benefited at all from that arrangement.
residents have long wondered why a resort community with a permanent
population of roughly 1,000 people with a negligible crime rate
needs a police department. This arrangement is even more peculiar
in light of the fact that the U.S. Census Bureau considers the vacation
enclave to be part of nearby Bend.
removed from his position, the Deschutes County Sheriff’s Office
will be providing "oversight" to the Sunriver PD – which
now consists of two sergeants and eight officers – until a new chief
is appointed. There is no obvious reason why a resort already covered
by the County Sheriff’s Office requires its own police force. Although
Angell – the only member of the SSD willing to speak on the record
– maintained that Kennedy, who joined the Sunriver PD in 1990, "served
our community well," he also told the Bulletin that
the decision to fire the chief was based on a desire to "develop
a closer relationship with the community."
At least some
Sunriver residents insist that the police are already too close
for NBC affiliate KTVZ spoke with a "handful" of Sunriver
business owners who "declined to speak on camera, but mentioned
some tension involving claims of abuse or harassment by the resort
community’s police force." Those problems are most acutely
displayed by the bizarre case of Robert
Sunriver resident and Bend native, Foster runs Tubs
Alive, a hot tub service business with more than 600 clients
in the area. In 2010, two members of the Sunriver Police Department
– Sergeant Joseph Patnode and Officer Kasey Hughes – obtained a
restraining order against Foster, claiming that he was "stalking
and harassing" them. Under the terms of that restraining order
– which was arranged ex parte – the supposed victims can have Foster
arrested any time he comes within their field of vision within Sunriver’s
The order targeting
Robert Foster – who had no prior criminal record of any kind – amounts
to a bill of attainder. Chief Kennedy and three of his subordinates
tidily disposed of the necessity of providing evidence that Foster
had ever committed a crime. Instead, they criminalized the person
of Robert Foster, as if he were the municipal equivalent of an "unlawful
enemy combatant" subject to indefinite detention without legal
Foster, a slender,
gray-haired 52-year-old grandfather, is outspoken and occasionally
confrontational in a way that civic-minded businessmen should be.
Foster’s troubles began several years ago when he distinguished
himself as a critic of a proposal from the Sunriver Owners Association
(SROA) – the resort’s equivalent of a municipal government – to
turn the police force, which were essentially a corps of mall cops,
into a full-fledged revenue-farming apparatus.
and 2007, Sunriver’s police force, such as it was, had no authority
to issue speeding and seat belt citations, which are very lucrative
instruments of "taxation by citation." They issued the
tickets anyway, of course.
property’s roads, which had been classified as public highways under
the jurisdiction of Deschutes County, were transferred to the SROA
in 1987. Although the Sunriver PD continued to act as if they were
public conveyances, and obfuscate the question whenever it came
up in public, the roads were actually private premises accessible
to the public – that is, they had the same legal status as a private
In 2001 a man
named Robert J. Ball challenged a ticket issued by the Sunriver
PD for driving with a suspended license. Although Ball’s conviction
was upheld by the Oregon Appellate Court in 2004, that ruling addressed
the narrow issue of the "reasonable suspicion" behind
the traffic stop; the decision didn’t address whether Sunriver’s
roads were highways.
By that time,
the SROA – at least behind the scenes – had acknowledged that Sunriver’s
streets were not highways. In 2002, while Ball’s case was working
its way through the courts, the SROA re-opened the question after
its Public Works Department purchased an ATV for use in service
calls. Chief Kennedy insisted that Oregon’s Motor Vehicle Code didn’t
permit the use of an ATV on a highway.
When the SROA
modified the community’s rules and regulations to allow the ATV
to operate on Sunriver streets, Kennedy objected that this was still
impermissible under state law. For the next four years, the Sunriver
police continued to issue traffic tickets of dubious legality while
a special committee studied the matter. In December 2006, the SROA
proposed a "public access easement" to Deschutes County
– but this was rejected by the County, which ruled that Sunriver’s
streets were private roads, rather than public highways.
2007 – nearly twenty years after Sunriver’s roads had been privatized
– the SROA formally recognized that they were "premises open
to the public," rather than public highways. This meant that
most of the traffic stops conducted in Sunriver during the previous
two decades had been illegal – and the SROA and SRPD offered an
inviting target for a class action civil rights suit.
terms, commented Susan Lawson of the Sunriver Scene
in 2007, this meant that "If someone were robbing the mini-mart
up the road the police would obviously have the power to arrest
the suspect. The police are simply not permitted to enforce a very
small number – it’s either six or eight – of laws dealing with minor
traffic infractions, because our roads are the equivalent of private
No citation. No tail light? No ticket. In too much of a hurry? Not
to worry," reported a
March 3, 2007 AP story from Sunriver. "Sgt. P.J. Beaty
watches people in this upscale development breaking traffic laws,
and sees plenty of them. But he can’t pull them over. A man swerved
head-on into Beaty’s lane, and then back out again and Beaty couldn’t
lay a glove on him."
wouldn’t do, of course. The SROA successfully lobbied Oregon
State Rep. Gene Whisnat to sponsor H.B.
3445, a bill custom-tailored for Sunriver that extended police
"authority" to include roads and streets on "premises
open to the public that are owned by a homeowners association…."
following passage of H.B 3445 – which put the police in the business
of collecting revenue at gunpoint – the SROA enacted a special multi-million-dollar
tax assessment for a special
service district (SSD) it had created in 2002. The SSD now included
a fully functional – and entirely redundant – police department.
residents thought this arrangement was wasteful and unnecessary,
but only Bob Foster made himself conspicuous by his public opposition
to it. He became a familiar presence at public meetings, where he
would barrage the SROA with pointed questions and express forceful
opposition to an arrangement he regarded as both profligate and
public meeting in which the town’s economic challenges were discussed,
Foster suggested that the SROA could save several millions of dollars
each year by seceding from Deschutes County, thereby canceling the
expensive service district agreement. He also recommended that the
duties of the police be scaled back to their pre-2007 role, and
that Sunriver contract with a nearby town called La
Pine for emergency services.
the kind of talk that made me Public Enemy Number One," Foster
recalled during an interview last year. In a sense, Foster became
a material threat to the Sunriver Police – not to the physical safety
of any of its officers, but to the agency’s continued access to
a steady revenue stream. He and his daughter, Rebecca Foster Kossler
(who has spent countless hours immersed in every detail of this
complex and infuriating case), suspect that Chief Kennedy, along
with members of the SROA, conceived of the "stalking"
order as a way of intimidating, silencing – and perhaps exiling
– a local businessman who had become a prominent political dissident.
During a June
15, 2010 sworn deposition, then-Chief Kennedy insisted that Foster
"breaks the law all the time," but admitted that neither
he nor any member of his department had ever arrested him. (Foster
has been subsequently arrested twice for supposed violations of
the stalking order.)
In his testimony,
Kennedy insisted that Foster’s alleged crimes included "disorderly
conduct, interfering with a police officer, menacing, harassment,
ever arrested for any of those?" asked attorney Frank Wesson,
who was representing Foster in the hearing.
for him, no," Kennedy replied.
If Foster had
been the fearsome one-man crime wave Kennedy described, the Chief’s
own testimony provided sufficient reason for him to be terminated
for cause: He had admitted, under oath, that the police department
he led was allowing a repeat offender to prowl the streets of Sunriver.
instructing his officers to arrest Foster if there was evidence
that he had committed a crime, Kennedy explained that he instructed
them "to document every time they had a problem with Mr. Foster."
He did this because "Mr. Foster was harassing and stalking
memoranda depict foster as if he were a cartoon super-villain. For
example, one official report from Sunriver Officer Dree Warren to
Chief Kennedy described Foster as glaring at Sunriver police officers
and emitting a sinister laugh like that of "the villain the
Joker from the Batman cartoons."
A report filed
by Officer Kasey Hughes in the fall of 2010 is heavy on sinister
insinuation and barren of anything remotely resembling evidence
of criminal behavior. Hughes described how he and two other officers
were responding to a citizen complaint at the Crossroads Gas Station
in Sunriver when he saw Foster "sitting at a table directly
in front of his truck," writing in a notepad. A few minutes
later, while interviewing a local resident, "I saw Foster standing
outside his vehicle, staring at me," Hughes continued. "I
also noticed him washing his windshield very slowly."
behavior was supposedly noticed by the individual Hughes was interviewing.
"Man, he’s eye-f**king you," the resident supposedly told
Hughes, according to the officer’s unsupported account. As Hughes
describes the incident, Foster’s mere presence was enough to frighten
away one of Sunriver’s intrepid defenders – although, oddly enough,
his supposed stalker "was still at the gas pumps when I left."
that kind were sufficient to persuade a judge to issue a restraining
order for the purpose of protecting the timid creatures employed
by the Sunriver PD from the supposed menace of a skinny, peaceful
grandfather who looks like an aging hippie whose only "offenses"
were to speak his mind and refuse to be intimidated.
In an October
8 2010 petition seeking the extension of the stalking protection
order, Officer Hughes accused Foster of making "violent and
aggressive" statements that displayed a "distorted perception"
of the police department. Among those supposedly criminal utterances
was "You’re a public servant, I’m your boss." On another
occasion Foster "referred to the Sunriver Police as `the local
Gestapo’" – a description that would possibly qualify as evidence
of "criminal intent" if police are given authority to
to be a highly volatile person," simpered Hughes, accusing
him of "obsessive behavior that could turn to aggression at
any point." Besides, Foster "has access to guns,"
pouted Hughes, who – unlike his supposed persecutor – carries one
with him at all times. Furthermore, to the extent that either overt
or oblique threats have been made, Foster was the victim, not the
Foster’s civil case was submitted to third-party arbitration. Under
the terms of the police department’s settlement offer, Foster would
be subject to a 10-year permanent stalking protection order that
could not be modified, or he could choose a 5-year permanent stalking
order and pay $10,000 in legal costs. In either case, Foster would
agree not to file a civil rights complaint he had filed against
the police, and the existing legal record of the case – including
the critical admissions offered by then-Chief Kennedy – would be
expunged. This would leave the police with the ability to arrest
Foster on sight.
All of this
was admitted by William Flinn, the attorney from Bend appointed
to serve as arbitrator.
Bob feels that, had he accepted the [settlement] offer, the police
still would have found some way to construe episodes of his future
conduct as stalking," Flinn wrote to Foster’s defense counsel
on July 11, 2011. "But, I don’t think that was a good reason
to reject the offer."
In a follow-up
e-mail four days later, Flinn reiterated his demand that Foster
submit to the ludicrous settlement offer, telling his attorney that
"there is virtually no chance that Bob will prevail in court,
despite your excellent trial skills and some evidence of paranoia/lack
of candor on the part of the police." (Emphasis added)
A more appropriate term to describe that "lack of candor"
to being "paranoid," the Sunriver police also pose a threat
of potentially lethal violence to Foster, according to Flinn:
between the Sunriver police and Bob Foster has been going on for
over five years. So far, no one has resorted to the use of weapons,
but it appears the risk increases with every new encounter. If I
were the judge hearing this case, my priority would be to defuse
the situation before it gets violent. No judge wants to be blamed,
in retrospect, for passing up an opportunity to prevent armed conflict
and the loss of life."
In his sworn
deposition, then-Chief Kennedy admitted that Foster has never been
seen carrying a firearm. The only threat of violence in any of those
encounters was that posed Kennedy and his cohorts – and it could
have been neutralized at any time by withdrawing the ludicrous protective
hearing into the case was scheduled for January 26. Foster, who
had been forced to leave Sunriver for three months to avoid violating
the spurious stalking order, returned from visiting family in Florida.
Dozens of people – including nearly the entire Sunriver Police Department,
dressed in uniform and wearing body armor – crowded into a tiny
room in the Deschutes County Courthouse. Although the hearing was
scheduled for 9:30 a.m., the assembled crowd waited for several
hours while District Judge Barbara Haslinger held a series of off-the-record
conversations with each of the parties in her chambers.
a former social worker, proposed to replace the Protective Order
with a "civil order" that would require a hearing to examine
a stalking complaint against Foster before he could be arrested
for "stalking" a police officer. In practical terms, this
would mean that rather than being hauled away in handcuffs any time
he was spied by any of his "victims" on the police force,
Foster would merely be hauled into court. Not surprisingly, Foster
rejected the proposed deal, and the hearing was rescheduled for
April. This meant that Foster had to depart Sunriver once again,
while the SROA and the police department – buttressed with money
gleaned from local home and business owners – were given time to
devise another round of dilatory tactics.
Foster and his family are eager to get the matter into court – and
their supposed victims on the police force are just as determined
to avoid offering sworn testimony in public. Was the decision to
fire Chief Kennedy pre-emptive damage control by SROA in anticipation
of the April hearing into Bob Foster’s case?
with permission from Republic
Norman Grigg [send him mail]
publishes the Pro
Libertate blog and hosts the Pro
Libertate radio program.
© 2012 William Norman Grigg
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