Key testimony coming this week as to whether Oberlin College fanned the flames of false racism claims, and if so, how to measure damages.
We have completed 6 days of witness testimony in Gibson Bros. v. Oberlin College. The events giving rise to the lawsuit have been said to represent “the worst of identity politics.” You can read about some of the background on this case here.
The upcoming week will probably be key in terms of what evidence is being presented to the jury. Gibson’s Bakerywill be trying to show that the school did not merely try to “deescalate” the protests against Gibson’s and accusations of racism, but “fanned the flames” and made the outcome far worse.
Two key witnesses are likely to be David Gibson [see Featured Image], co-owner of the store with his father 90-year-old Allyn W. Gibson, and Allyn D. Gibson, his son, who was the employee at the cash register when the three Oberlin College students tried to steal three bottles of wine two-and-half years ago. [Allyn W. testified last week.]David Gibson was in the back of the store when his son yelled for help, as the shoplifting became more of a real fight than some college student messing around.
Here is David and Allyn Gibson’s explanation to the police:
The important part of the younger Gibson’s testimony is the scrap that took place outside the store in the park across the street, as the shoplifters allegedly tried to leave: the social justice warrior community claims Allyn D. Gibson was beating up the shoplifters, while the police report and testimony from police who answered the call on Nov. 9, 2016 –along with many other witnesses — say just the opposite.
Here is the part of the police report that will likely become the central point of discussion from the witness stand:
“Allyn stated once they were across the street from the store, he again attempted to detain [the Oberlin male student] Aladin but again Aladin became violent knocking Allyn to the ground and began punching Allyn again. Allyn stated once he was on the ground the two females also began punching and kicking Allyn in the head, face and body. Allyn stated at one point, Aladin stated, “I’m going to kill you.” Allyn stated the next thing he knew officers were on scene and pulling the individuals off of him. Allyn had several abrasions and minor injuries including what appeared to be a swollen lip, abrasions to his arms and wrists and a small cut on his neck.”
One of the first Oberlin police officers arriving at the scene, Victor Ortiz, backed up that report in testimony last week. He told the jury that “When we got there, we saw two young ladies standing over [Allyn D. Gibson] and throwing haymakers at him. The two women would stand over him and kick him, and then crouch down and throw punches. As we got closer, we could see him on his back, with the male [shoplifter] on top of him and punching him.”
What will also be interesting to see this week is how the plaintiffs’ attorneys use testimony to back up the claim that the businesses reputation has been severely damaged – big monetarily and for a long period of time – by the accusations of racism. It is larger national issue at play here, and while some certainly like to play the lefty vs. righty equation on this – it is actually more than that.
What has happened at college campuses over the past decade or more – is that the students and their relationship to the college have shifted dramatically on the basis who is serving whom. It used to be that the students came to the college and did what the college wanted, and used the end-point of graduation as their reward for paying that money and spending four years under the direction of the school.
Now, in many schools, it is the students calling the shots on what the school is and how they react. My daughter graduated from a big public school in Texas a few years ago, and we saw that playing out all the time. In my experience, it wasn’t that the school was telling my daughter and her fellow students, “Here’s is what you can do, and not do.” It was the students saying, ‘Here’s is what we will do, and don’t cause us any problems or we go somewhere else.”
Insanity now tends to pervade what was once a happy den.
I saw and heard of this reputation problem Gibson’s has in a walk through the campus a few weekends ago. It was somewhat shocking in real basic terms. I talked to about 20 or so Oberlin College students in my little two-hour venture, and some were individual discussions, and some were in groups.
Every one of these Oberlin College students (and none wanted to go on the record) said Gibson’s was racist. When I asked them why, nearly all gave a vague “they arrest black shoplifters unfairly and then beat them up” answer. Most said they wouldn’t ever shop there. Some of these were students who said they wouldn’t ever shop there weren’t even in school when the events occurred in 2016. There are about 3,000 students in the town of 8,000, so where they shop and spend their money does matter.
When I told them the police report said the Gibson’s employee was beaten up and not the shoplifters (and showed them a copy of the report), the answer from about ten of them was “Police lie.” It was almost as if it was scripted.
What will be difficult for the Gibson’s attorneys will be bringing such evidence of reputation damage to the jury. In 2004, the Republican-led Ohio legislature passed a wide-ranging civil law torts reform bill that greatly favored the state’s private business defendants. The main part was that caps were imposed on damages for non-economic losses:
B) In a tort action to recover damages for injury or loss to person or property, all of the following apply:
(1) There shall not be any limitation on the amount of compensatory damages that represents the economic loss of the person who is awarded the damages in the tort action.
(2) Except as otherwise provided in division (B)(3) of this section, the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a tort action under this section to recover damages for injury or loss to person or property shall not exceed the greater of two hundred fifty thousand dollars or an amount that is equal to three times the economic loss, as determined by the trier of fact, of the plaintiff in that tort action to a maximum of three hundred fifty thousand dollars for each plaintiff in that tort action or a maximum of five hundred thousand dollars for each occurrence that is the basis of that tort action.
The reform bill also strengthened limits on what evidence can be presented:
2315.19 Review of evidence supporting damages for noneconomic loss.
(A) Upon a post-judgment motion, a trial court in a tort action shall review the evidence supporting an award of compensatory damages for noneconomic loss that the defendant has challenged as excessive. That review shall include, but is not limited to, the following factors:
(1) Whether the evidence presented or the arguments of the attorneys resulted in one or more of the following events in the determination of an award of compensatory damages for noneconomic loss:
(a) It inflamed the passion or prejudice of the trier of fact.
(b) It resulted in the improper consideration of the wealth of the defendant.
(c) It resulted in the improper consideration of the misconduct of the defendant so as to punish the defendant improperly or in circumvention of the limitation on punitive or exemplary damages as provided in section 2315.21 of the Revised Code.
(2) Whether the verdict is in excess of verdicts involving comparable injuries to similarly situated plaintiffs;
(3) Whether there were any extraordinary circumstances in the record to account for an award of compensatory damages for noneconomic loss in excess of what was granted by courts to similarly situated plaintiffs, with consideration given to the type of injury, the severity of the injury, and the plaintiff’s age at the time of the injury.
(B) A trial court upholding an award of compensatory damages for noneconomic loss that a party has challenged as inadequate or excessive shall set forth in writing its reasons for upholding the award.
(C) An appellate court shall use a de novo standard of review when considering an appeal of an award of compensatory damages for noneconomic loss on the grounds that the award is inadequate or excessive.
The judge in this case, John R. Miraldi, has already ruled that a report from a PR/adverting expert that said it will cost Gibson’s $13.5 million over a six-year time period to repair their reputation from this protest will not be presented to the jury in court. It was considered “speculative” by the judge.
Which brings me to Roger Copeland.
In court last week, I found myself sitting next to Roger Copeland, he being a recently retired, 41-year Oberlin College professor of theater and dance. He is now a “professor emeritus.”
His fame in this case come from the fact that Meredith Raimondo, Oberlin College’s dean of students and defendants in this case, wrote an email to other administers stating “FUCK ROGER COPELAND” after letters to the editor Dr. Copeland wrote that were critical the school’s handing of the Gibson’s case were published.
The jury saw the FUCK ROGER COPELAND email and responses on the screen
“So how does it feel to be fucked in court,” I asked him.
“I should be honored,” Copeland answered with a wry smile. “First time I think I’ve ever been publicly designated as a sex object. And in court, as well.” He has not been called as a witness, and will not, as he is just the subject of emails. His wife, Michele Gross, did testify of the business relationship between the school and Gibson’s, as she managed the Oberlin College student cafeterias during the time when the school decided to cut ties with Gibson’s.
Here is what Dr. Copeland wrote that made his bosses so mad at him that they “carnal-knowledged” him personally in emails that wound up in court records:
I’ve known the Gibson family for many years and find it very difficult to believe that any of them would engage in the odious practice of racial profiling. I also know that their family-owned business has been hit hard by shoplifters in recent months, and based on newspaper accounts of the Oberlin Police Department’s investigation of this incident, I see no reason to suspect that Allyn Gibson is guilty of anything other than forcefully confronting a shoplifter. Furthermore, the timing of the protest (which began within 48 hours of Tuesday night’s disastrous election returns) suggests a classic case of misplaced outrage. As in: ‘The realization that Donald J. Trump will become our next President makes me so angry that I need to express my outrage immediately.’ ” “Protest Suggests Misplaced Outrage,” The Oberlin Review, Nov. 16, 2016.
“The facts of this case are no longer in question. And yet, a counter-narrative has taken hold, one that refuses to allow mere “facts” to get in the way. It’s embarrassing when one has to ask Oberlin students the same question one asks climate-change deniers: At what point do you accept the empirical evidence, even if that means having to embrace an “inconvenient” truth? Alas, even those who concede that the defendants violated the law, continue — stubbornly — to insist that there is “plenty of blame to go around” and that “both sides” are at fault. Really? Isn’t that what Donald Trump said about Charlottesville?
The time has come for the Dean of Students [Meredith Raimondo], on behalf of the College, to apologize to the Gibson family for damaging not only their livelihood but something more precious and difficult to restore — their reputation and good standing in the community.” – “Gibson’s Boycott Denies Due Process,” The Oberlin Review, Sept. 8, 2017
“This is an extraordinary problem that the universities, large and small, are going through right now,” Copeland told me outside the courtroom. “It is certainly not reconcilable easily, either. The current ethos we run with in higher education is that the students are now customers first, have more power of operations at the school than the school itself has, and it is something that makes me shudder in how this all works now.”
“I have been shocked by the ease with which any student can walk into the dean’s office and say a professor made me uncomfortable with their comments to me. That has happened to me, and I was investigated for saying something to a student that she didn’t like. So the fact that the school sided with the shoplifters against an established business is not surprising to me these days because that it is what they do now.”
Before you think of Roger Copeland as a right-wing theater professor oddity in a liberal arts college, don’t go too far on that. In his first letter, in 2016, he called the recently-elected Donald Trump “a racist, sexist, greedy, needy, thin-skinned, narcissistic PIG.”
Which I think makes an import point in this case. Even some liberals are finding Oberlin College’s actions against Gibson’s Bakery somewhat outrageous.
Testimony will begin in the early afternoon Monday (the judge has a weekly criminal drug court in the morning). The trial is expected to last about two more weeks.
Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1
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