The Passing of a Freedom Fighter

A warrior now at peace: Robert Foster finds a refuge during his battle with the Sunriver Police Department.

 

Robert Foster was in the company of his family during the early morning hours of January 16 when his depleted body surrendered his indomitable spirit into eternity. At his bedside were found his Bible and the pocket-sized copy of the US Constitution he always carried with him.

The disease that put Bob into a hospice in Bend, Oregon made its presence known just weeks before he passed away. Cancer of the liver is difficult to detect until it has reached a stage at which it is almost impossible to cure.

There is a chance, albeit an exceedingly small one, that Bob's prospects for survival would have been better if he hadn't been forced to spend the past seven years in an expensive and exhausting battle with the abusive political clique that rules Sunriver, the tourist enclave in central Oregon where Bob and his family had operated a successful business.

From 2010 to 2012, Bob was subject to a court order that allowed Sunriver police to arrest him practically at will. All that was necessary was for Bob to come within visual range of either Sergeant Joseph Patnode or Officer Kasey Hughes, who had filed petitions accusing Bob of “stalking” them. Those orders were issued in an illegal ex parte proceeding, and resulted in Bob being arrested on two separate occasions.

Prior to those arrests, Bob had never known the indignity of being handcuffed. A native of the area, Bob established a hot tub service and repair business in 1992 that eventually boasted more than 500 clients – people of means who eagerly and gratefully allowed him unsupervised access to their property. His “offense” had been to speak out in local town hall meetings against a scheme to turn Sunriver's police force into a revenue-collection service for the Sunriver Owners Association (SROA), the village's equivalent of a city council.

Reign of terror? Bob with his pickup truck.

Most of Sunriver's small population consists of wealthy people who maintain second homes in the resort community, which attracts over 1,000,000 visitors a year. Until 2007, Sunriver's tiny police force was restricted to investigating crimes against persons and property. 

Because it was a private enclave, rather than a municipality, Sunriver's streets were considered private roads accessible to the public rather than “public conveyances,” which meant that the police couldn't write traffic citations or otherwise exploit out-of-state motorists as a source of revenue.

This changed when the SROA prevailed on Oregon State Rep. Gene Whisnat to sponsor a bill that extended police “authority” to include “premises open to the public that are owned by a homeowners association.” A year later, the SROA imposed a multi-million-dollar special tax assessment for the purpose of expanding a “service district” (SSD) it had created in 2002. In this fashion the Sunriver PD – whose role had previously been analogous to that played by security officers in a shopping mall – became a fully realized apparatus of regimentation and plunder.

Many Sunriver residents had opposed this scheme in its early stages. Bob was practically the only one to express that opposition publicly, repeatedly, and forcefully. After the SSD was created, Bob used town hall meetings to urge its abolition, pointing out that it was both prohibitively expensive and entirely unnecessary. Sunriver already received law enforcement “services” from the Deschutes County Sheriff's Office, and for a fraction of the expense imposed by the SSD the village could contract with the nearby city of La Pine for emergency services.

Echoing the warnings of the men who wrote the Constitution he constantly carried with him, Bob also protested that the SROA controlled the service district, thereby consolidating powers that should have been kept separate.

None of this endeared Bob to the village's entrenched elite.

After the newly-enhanced Sunriver PD began making life miserable for visitors, tourists, and businessmen in 2008, Bob became an informal, part-time cop watcher, taking notes on the behavior of officers and reporting what he found in town meetings. He was the best and most commendable variety of civic irritant, and he was an itch that the SROA and their armed flunkies were desperate to scratch.

There was no procedural tactic that would prevent Bob from speaking at public meetings. Sunriver Police Chief Michael Kennedy suggested to the SROA that Bob be “trespassed” from the town hall.  The SROA's legal counsel – much to its frustration, no doubt – had to veto that proposal as legally untenable.

Since the SROA and the Sunriver Police Department had no legal means to silence Bob, they devised what can only be called a criminal conspiracy to violate his rights. This is not a matter of speculation. Chief Kennedy disclosed the details of that conspiracy in a letter he wrote to the Deschutes County Commission following his termination in February 2012, and he confirmed his account under penalty of perjury in an affidavit filed with the County Court the following June.

The Service District's attorney instructed Chief Kennedy “that we would be filing a stalking order against Bob Foster,” Kennedy admitted in his letter to the county commission. “While I was not in favor of this solution … I followed our legal counsel's advice. At the request of legal counsel, I contacted Sergeant Patnode and Officer Kasey Hughes to see if they would be willing to have the stalking orders file on their behalf. They subsequently agreed and the stalking orders were filed.”

Sunriver PD Chief Kennedy (r) accepts an award for servility.

According to Kennedy, this was done at the initiative of SROA Board President Bob Nelson and board member Bob Wrightson, both of whom are “also on the Service District board.” 

As officers in a homeowners' association, Nelson, Wrightson, and their colleagues could not making binding policy decisions regarding the police. However, as officials in the Service District they had “effective control over the operations and funds of a public taxing district,” Kennedy pointed out. The Service District “put entirely too much control into the hands of a small segment of the community,” he concluded – thereby validating everything Bob Foster had been saying for ten years.

The purpose of the stalking orders was not to protect victims of “coercive harassment”; it was to intimidate Bob Foster into silence. However, as Kennedy advised the county commission, “Foster didn't immediately roll over.” Kennedy and the people who employed him were used to dealing with cringing, timid sycophants; they weren't prepared to deal with an actual man.

After Bob challenged the stalking orders and filed notice of a tort claim against the SROA and the Sunriver Police Department, the association “appeared to withdraw support” from the chief and his underlings, and instructed them “not to talk about the case.” Board President Nelson, who had devised the plan in the first place, used an executive (that is, off-the-record) session of the Service District to upbraid Kennedy for using tax funds to defend the stalking orders “when this is clearly a civil matter between these two officers and Bob Foster.”

“I reminded him that we had asked those officers if they would be willing to file the stalking orders at the request of legal counsel after he and Bob Wrightson had directed us to do so,” Kennedy recounted in his letter to the county commission. “I advised him that if I was asked, that is how I would have to testify in court.” Following that confrontation, the chief related, the SROA began to dissociate itself from the matter “even they were the ones who initially started us down the path of filing the stalking orders.”

Poor, pitiful creature: Officer Casey Hughes is on the right.

 Kennedy and the two officers who agreed to this arrangement had to place their manhood, such as it was, in escrow. In seeking a protective order against Bob, Sergeant Patnode and Officer Hughes had to attest that the mere presence of the slender, mild-mannered, unarmed businessman induced within them a bladder-loosening surge of unconquerable fear. 

In the language of the state statute and relevant judicial precedents, the officers solemnly swore that the sight of Bob Foster left them incapacitated with “actual fear or terror resulting from a sudden sense of danger.”

When compelled to offer a sworn deposition as part of Bob's lawsuit, Chief Kennedy committed willful perjury in order to maintain the pretense that the victim of a politically motivated conspiracy was, in some sense, a deranged criminal mastermind.

“He breaks the law all the time,” Kennedy asserted in his June 15, 2010 sworn deposition.

“Well, have you ever arrested him?” inquired Foster's attorney, Frank Wesson.

“I have not,” admitted Kennedy.

“Has anyone in your department ever arrested him?” Wesson persisted.

“Not to my knowledge, sir,” was the chief's dishonest and non-responsive reply. When asked about the crimes Bob allegedly committed, Kennedy listed “disorderly conduct, interfering with a police officer, menacing, harassment, and stalking.”

“Was he ever arrested for any of those?” Wesson asked the chief.

“No; fortunately for him, no,” Kennedy replied – without explaining if this reflected culpable incompetence in the administration of the law, or willful perjury.

“The wicked flee, though none give pursuit,” the Old Testament instructs us, “but the righteous are as bold as a lion” (Proverbs 28:1). Bob and his equally redoubtable daughter Rebecca were eager and prepared for a civil trial; their enemies were just as anxious to keep the matter out of the courtroom, or any other venue they couldn't control.

For over a year the SROA and the police department pursued a “settlement” that would have made the stalking orders permanent. William Flinn, the Bend attorney who acted as third-party mediator, urged Bob to accept that arrangement – despite acknowledging that it was manifestly not in his interest to do so.

"I know 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 Bob's attorney on July 11, 2011. “But, I don't think that was a good reason to reject the offer." In a letter sent four days later, Flinn insisted 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)

Running out of money and subject to arrest at the whim of the Sunriver police, Bob was forced into exile, leaving his business in the care of his employees and spending much of 2011 with family in Florida. He returned the following January 26 for a long-anticipated court date – only to find that Flinn's prediction was correct. Bob wouldn't be able to “prevail in court,” because the local judiciary wouldn't allow him to make his case.

Rather than convening the trial at the scheduled time and at the designated location, the presiding judge spent several hours conducting a series of sidebar conferences with the parties in her chambers as dozens of people, nearly all of them friends of Bob and his family, waited for several hours in a crowded, poorly ventilated courtroom. In one corner of the room (seated right next to me, in fact) could be found an ill-disguised Detective from the Deschutes County Sheriff’s Office, who furtively took photographs of everyone who had gathered to support Foster.

The “deal” presented to Bob by the judge would leave him subject to the illegally granted protection orders, but impose the trivial requirement of a judicial hearing before he could be arrested for a “violation.” This would have made his situation substantially worse, as the “victims” would have been able to tie Bob up in court, wasting his time and further depleting his financial resources.

Bob’s refusal to accept the “deal” precipitated the frantic meeting of the Sunriver Service District that brought about Chief Kennedy’s termination, and his “If I Go Down, I’m Taking You With Me” letter to the Deschutes County Commission. In late 2012, Kennedy – who had received a $100,000 severance package from the SROA – filed a lawsuit against his former employer in the mistaken belief that he was entitled to $1,000,000 to salve his injured feelings. This made public the former chief’s disclosures about the criminal conspiracy to deprive Bob of his rights.

And yet the SROA refused to vacate the spurious staking orders, largely because of a well-founded fear that Bob would refuse to drop his lawsuit. Unfortunately, Bob’s tormentors were in a position to exploit funds extorted from tax victims, which meant that they could simply outlast him.

In January 2013 – a year after the aborted trial – Bob and his two “victims” signed a “Settlement Agreement and Mutual Release” in which both the stalking orders and Bob’s lawsuit were dropped. Rebecca and her husband Ian moved away from Sunriver, and Bob reluctantly prepared for retirement.

And yet, this still wasn’t the end of the matter.

In January 2014, Michael Kennedy, who had used his position and his department’s resources to surveil, harass, and unlawfully arrest Bob, subpoenaed the victim to testify on his behalf in his lawsuit against the SROA.

Kennedy was at the center of the campaign to criminalize Bob – that is, to impose a bill of attainder that made him subject to arrest merely for being present in the town where he lived and maintained a business. He committed and abetted perjury in the service of a criminal conspiracy, and only found his conscience after he had been betrayed by his co-conspirators. 

Bob and his daughter, Rebecca.

After Kennedy was fired, “we tried to get him to meet with us, and he wouldn’t,” Rebecca explained to me. “Then he changed lawyers, and we made the offer again – and heard nothing, until Dad got hit with the subpoena. I told Dad that I felt this was some kind of trap because I don’t trust either party in this lawsuit.”

Rebecca’s concerns were fortified when Bob received an unexpected – and unofficial – visit from an Oregon State Police trooper after Kennedy’s subpoena arrived. Without elaborating on the advice, the trooper told Bob to “be alert and careful.”

This took place in January of last year. Within a few months Bob was diagnosed with the sickness that ended his life. He was literally hounded to his death by the feculent cabal that runs Sunriver, and the vicious little costumed parasites who enforce their will.

That struggle left Bob physically depleted and severely disillusioned. Like countless others who had been subjected to the capricious malice of the “justice” system, Bob came to understand that the Constitution he cherished provided him with no effective protection against the malevolent intentions of people in power. Even in the depths of his justifiable disillusionment, however, Bob never stopped believing in truth and freedom.

There is no government so small that it cannot kill or impoverish innocent people. As a result, there are far too few people who are sufficiently brave and principled to speak the truth about the behavior and ambitions of those who presume to rule them.

Bob Foster was a man. Take notes.

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The "Malheur Mafia" Takes Its Cut

 

"Who's the Justiciar here?"

“If I don’t have my black robe on, I’m just like anybody else,” Oregon District Judge Gregory Baxter once pontificated from the bench. “But if I am wearing my black robe I expect my orders to be followed.” 

Once he is clothed in the robes of the punitive priesthood, Baxter isn’t subject to the law, but rather its embodiment – or so he would have those not similarly attired believe.

Whatever Baxter might claim as his official job title, his actual role is not to administer justice, but to act as an arbitrageur for the prison and probation industry, and the political class whose interests it serves. That conceit was displayed to good effect during an August 28 “restitution” hearing following the trial of William Esbensen and Scott Kangas, two owners of the 45^th Parallel medical marijuana co-op in Ontario, Oregon. 

The judge had presided over a bench trial in which he had found Esbensen and Kangas guilty of “racketeering”  for supposedly delivering marijuana “for consideration.” That conviction was achieved under a law that was no longer in effect at the time of the trial – and that became an unpleasant memory last November when Oregon voters enacted Measure 91, which decriminalized most adult recreational use of marijuana.

Activist: Esbensen (center, back) with medical marijuana activists.

The Malheur County DA’s office had sought prison terms for Esbensen and Kangas, but had to settle for probation. Now it was seeking “restitution” fees to pay the costs of the prosecution. 

From Esbensen, whom the prosecution had characterized as the “ringleader” of a business enterprise that provided a legally recognized palliative medicine, the Malheur County DA’s office initially demanded $24,000 in “restitution” to defray the costs of prosecution, which were estimated to be in the neighborhood of $40,000. 

“The statute which allows the court to assess prosecution costs to defendants convicted in RICO cases is unique,” Baxter explained during the restitution hearing. It is also true, he somewhat grudgingly conceded, that “Any cross examination into those costs … is fair game.” 

That admission must have been welcome and unexpected news to Esbensen’s defense counsel, Susan Gerber. In a previous hearing, Gerber had tried to exercise that plenary right to cross-examination by posing a single question to Malheur County deputy DA Michael Dugan: “How much reimbursement or funding did you receive from the sheriff’s office as a result of your prosecution of the 45^th Parallel, totally?”

The words had barely been spoken before Malheur County DA Dan Norris, making one of his austerely infrequent courtroom appearances, sprang to his feet to lodge an objection.

Gerber’s question lacked “relevance,” Norris insisted, since any amount paid to the deputy DA by the sheriff’s office “still comes out of county coffers and has nothing to do with how much the defendants owe for the costs of prosecution.”

Pressed by Judge Baxter to explain the relevance of her question, Gerber pointed out if the DA’s office had been “claiming a specific amount they spent on the 45^th Parallel and that they should be reimbursed that amount [but if] they’ve already been paid that amount or close to it … they’re double-dipping.” 

When Gerber explained that she intended to call Norris as a witness, Baxter’s composure evaporated. 

“I am not going to do this,” he groused. “I don’t have time. I am jammed to the gills today and you’re bringing up new issues that no one has said a word to me about.”

Baxter announced a recess and stomped out of the courtroom – which in his case was in Baker City, where he was presiding by way of a video conference. This actually concluded Baxter’s work day, since he had no other cases on the docket -- his claim of being “jammed to the gills” notwithstanding. He must have regarded this deception as a venial offense committed in the service of a worthy objective – in this case, preventing Gerber from examining the finances of the Malheur County DA’s office.

Within an hour, the DA’s office had filed a motion in limine to prevent Gerber from asking about “the use of County General Funds” in the prosecution of her client when the hearing resumed a week later.

“I’ve given a great deal of thought to these issues in preparation for today’s hearing,” Baxter explained at the start of the second session. “In fact, I almost never wake up thinking about cases but I did this morning; I woke up with extra time thinking about this case.”

While Baxter pondered – and perhaps even prayed about – this perplexing matter, the veil was taken from his mind and eyes of his understanding were opened.

“As I thought about this I likened it … to the allowance of requiring an adverse party to pay the attorney fees and costs of a prevailing party in a civil case,” Baxter began. He proceeded to share a parable in which a plaintiff borrowed money from family members and took out a mortgage to pay a retainer to his attorney. 

After the plaintiff prevails in court, the judge will calculate the fees due to the victorious attorney and the losing party will have to pay that amount despite the fact that the plaintiff was “fronted” money by friends and lenders in order to pay the costs.

“Similarly, the Malheur County Sheriff’s office … or some other entity fronted money to the Malheur County District Attorney’s office in the prosecution of the 45^th Parallel RICO cases,” Baxter continued. “It does not alter the fact that the statute allows for the state to recoup the prosecution costs from the defendants.” Accordingly, “I am not going to allow inquiry into the monies that may have been provided to the DA’s office during the prosecution of these cases.”

Suffused with pious self-satisfaction over his supposedly Solomonic wisdom, Baxter pointedly ignored the proverbial pachyderm in the parlor: 

The “other entity” who had “fronted” money to the prosecution was William Esbensen, from whom the MCSO and the DEA had seized – the more appropriate term is “stolen” – nearly $54,000 in cash that was found during a September 11, 2012 raid on his home in Boise.  

The prosecution was never able to demonstrate that the money had been obtained through illicit means. Detective Brad Williams, the MCSO Deputy who headed the investigation and served the search warrant at Esbensen’s home, admitted under oath that none of the money used in “controlled buys” at the 45^th Parallel was found during the search.

These details were of no consequence once this act of armed robbery was baptized an act of “civil forfeiture.” The money – along with a little more than a gram of marijuana – was transferred to the custody of the Ada County Sheriff’s office and then forwarded to the DEA as part of the “equitable sharing” program. This is a form of multi-jurisdictional plunder in which the Feds skim a small percentage of the loot before kicking back most of it to its local affiliates – in this case, the Malheur County Sheriff’s Office. 

In presentations before the Malheur County Commission, DA Norris and Deputy DA Dugan both mentioned the fact that their office would use “forfeited funds” to defray the costs of prosecuting Esbensen. That fact was also acknowledged in Dugan’s sentencing memorandum following the verdict.

 

Under the RICO statute, Gerber pointed out after Baxter issued his ruling, the prosecution “can certainly attempt to recoup costs regarding the investigation and prosecution as long as it’s reasonable. You know, if they’re receiving money from one party, and then getting money from other parties, they’re making a profit and that’s not `reasonable costs.’”

Baxter not only permitted the Malheur County DA’s office to “double-dip,” he imposed a peculiar form of double jeopardy on Esbensen, who was compelled to pay twice for the same prosecution – once through the funds that had been seized from his home, and a second time in the form of $18,097 in “restitution” costs imposed on him as a condition of probation. 

This arrangement didn’t exhaust the depraved creativity of the DA’s office in dealing with Esbensen. 

Immediately after the verdict was announced on June 6^th, Esbensen was taken to the Malheur County Jail, where he was held until September 10. During his incarceration, the deadline passed for Esbensen to pay the $18,000 demanded by the court. On September 5, the Malheur County DA’s office issued a notice of delinquency that demanded that he either pay the full sum, or make arrangements to pay it in installments, within ten days.

That letter was not received by Esbensen until November 11 – two months after his release. Thoroughly broke and understandably anxious, he scraped together a small amount and traveled to Vale to make payment arrangements. After all, according to the document in his hands – which was postmarked November 10—he had ten days to set up an installment plan.

The real crime scene: Malheur County Courthouse in Vale.

Upon arriving at the Malheur County Courthouse, Esbensen was told by a “visibly shaking” county clerk that “she could not accept my payment – they were demanding the full amount,” he recounted to me. He was also slapped with a $5,000 collection fee. 

While Esbensen tried to digest that unwelcome news, a sheriff's deputy swaggered up to him and served notice that the DA's office was seeking to revoke his probation and cancel the interstate compact that allowed him to report to a probation officer near his home in Boise, Idaho. 

“What it came down to,” Esbensen concluded “is that the Malheur County DA didn’t want to lose control over my probation and my chances to fail.”

He had completed his jail sentence, which left him in limbo: Where would he have gone if his probation was revoked, and the interstate compact terminated?  The most obvious destination would have been the Malheur County Jail, a prospect that left Esbensen understandably terrified.

“I fear for my life,” he told me at the time. “If they put me in that jail again I don't think I'll be coming out alive.”

He remained on tenterhooks until January 5^th, when the DA’s office graciously allowed Esbensen to pay the full “restitution” amount – without the gratuitous collection fee – in exchange for terminating his probation outright. His ransom was paid with the help of a generous relative who, to use Judge Baxter’s idiom, “fronted” Esbensen the funds necessary to pay off his captors. The chief difference, of course, is that this benefactor used his own money, rather than confiscating the sum at gunpoint from an unwilling victim.

“It was always just about the money,” Esbensen remarked to me in the Malheur County Courthouse following his release from probation. “That’s all they ever wanted. It had nothing to do with protecting the community. It was just a shakedown operation by the `Malheur Mafia.’”

In late October, the Vale City Council voted to approve a tax on the sale of medical and recreational marijuana when Measure 91 takes effect later this year. Three members of the council also belong to the Malheur County Sheriff’s Office, which investigated Esbensen and imprisoned him for 100 days. One member of that cartel is Detective – and City Councilman – Brad Williams, who, as noted above, led the 45^th Parallel investigation, and also personally escorted Esbensen to jail following the June 6^th verdict.

"Everyone knows that the State claims and exercises [a] monopoly of crime ... and that it makes this monopoly as strict as it can,” wrote Albert Jay Nock in his indispensable work Our Enemy, the State.  As one facet of its sovereign criminality, the State “punishes private theft, but itself lays unscrupulous hands on anything it wants, whether the property of citizen or alien." 

It has been Bill Esbensen’s unsought privilege to examine that aspect of the State at close range, and to experience an unusually pure sample of its organized malevolence. 

When he opened the 45^th Parallel in 2010, Esbensen behaved in a completely transparent fashion, doing his best to comply with existing statutes and regulations that were so complex and contradictory that they weren’t fully understood by the state Attorney General. He did this in the eager – and entirely misplaced – hope that his good faith would be reciprocated by the local political class.

After opening the facility, “we decided to have a town hall meeting and invite the sheriff, [and] the [Ontario] city police,” Esbensen testified during his trial. “We ran a newspaper article in the Argus Observer and invited the whole town to show up. We had speakers. We had a federal medical marijuana patient speak there. We had Lee Burger, a Portland attorney, speak there on the laws of medical marijuana.”

This wasn’t racketeering; it was entrepreneurial civic activism. To the politically protected predators who preside in Malheur County it was an invitation to indulge their appetite for plunder. Regrettably, that rapacious impulse will survive the effective end of marijuana prohibition in Oregon.

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