Durham got sued when it said no police training with Israel. Where do lawsuits stand?

A federal judge recently dismissed a lawsuit against the city of Durham that challenged a City Council statement barring military-style police training with foreign countries, the city attorney said this month.

The lawsuit filed by the N.C. Coalition for Israel was one of three suits filed over the controversial statement that judges dismissed in 2019. An attorney for the coalition says the group has filed an appeal.

The 2018 statement put Durham on record opposing military-style police training with other countries because such policing, coupled with racial profiling, harms communities of color and is not “the kind of policing we want here.”

The opening paragraph cited Police Chief C.J. Davis saying in an April 2018 memo she had no plans to initiate or participate in any such exchanges with Israel, the only country named in the statement. It then said the council “affirms as policy” that Durham police will not participate in such training.

The statement sparked months of community debate in and outside City Hall. Nearly a dozen local rabbis wrote an op-ed calling the statement “a punch in the gut.”

The two earlier suits — one filed by Israeli volunteer police officers Moshe Eyal and Itay Livneh against the city and police chief and the other filed by Durham County resident Deborah Friedman against the mayor and council — were dismissed in Durham County Superior Court last summer, according to court records.

Discrimination, open meeting violation alleged

The council’s statement came after Jewish Voice for Peace and others critical of Israel’s treatment of the Palestinian people brought a petition to the city opposing Israeli training for Durham police.

The first suit claimed the city’s actions violated the state Constitution’s prohibition on discrimination based on race, color, religion or national origin, The News & Observer previously reported. Superior Court Judge Orlando Hudson dismissed it July 11, 2019.

The second claimed the statement violated the state’s Open Meetings law because Mayor Steve Schewel, who drafted it, had emailed copies to council members before formally introducing it at a council meeting. Hudson dismissed that Sept. 11, 2019.

Durham attorney Jonathan Jones, representing Friedman, said Hudson did not explain his one-page ruling and his client did not appeal. He said there is no precedent in North Carolina determining when email communication constitutes a meeting.

In this case, he said, Schewel sent the draft statement on his personal email account at night to three City Council members, then to the other three council members. Three councilors plus the mayor would constitute a majority of the public body.

“When electronic communication is a meeting — that was a novel question,” said Jones, the former director of the N.C Open Government Coalition, a nonprofit based at Elon University. “Even though the case did not go in my client’s favor, it’s still important that city councils and public bodies do their business in a transparent way.”

Schewel is with family on a personal matter and declined a request for an interview over the weekend seeking comment for this story.

Singling out Israel

The third lawsuit, filed in U.S. District Court, was recommended for dismissal by a magistrate judge. U.S. District Court Judge Loretta Biggs recently adopted the recommendation, “essentially granting the city’s motion to dismiss,” Durham City Attorney Kimberly M. Rehberg told The News & Observer in an email Dec. 16.

The plaintiffs, who had argued in part that the city’s statement had created an unsafe environment for the Jewish community, are appealing, their attorney Cliff Rieders said.

The defendants in the third lawsuit are the city, mayor and City Council and four members of the Durham Human Relations Commission. The commission had considered but ultimately did not recommend that the council remove the word Israel from the policing statement.

In addition to the N.C. Coalition for Israel, the plaintiffs were Kathryn Wolf, Rabbi Jerome Fox and Perri Shalom-Liberty.

When they announced their suit in March 2019, the plaintiffs said the city passed its policing statement knowing that the claims made surrounding it were false and that, by singling out Israel, the city had discriminated against Durham’s Jewish residents.

The statement “demonized the Jewish community in stereotypical, anti-Semitic fashion by making false and highly misleading claims about the State of Israel and its police training programs,” the group said in a March news release.

Davis herself had received professional training in Israel and had never been taught to oppress Palestinian Arabs or others, the group’s release continued.

Plaintiffs lacked standing

But Biggs, agreeing with Magistrate Judge Joe L. Webster’s recommendation, dismissed the lawsuit.

The plaintiffs failed to prove they had been directly injured by the council’s action and so lacked legal standing to sue, Webster wrote in his October 2019 recommendation.

The plaintiffs had argued that the city’s action, which was followed by a spate of anti-Semitic graffiti in Durham and Raleigh, had deprived them of “a public and personal environment free of antisemitism and the risk of anti-Semitic attacks.”

They also suggested the council’s statement deprived the Police Department of “the training it needs to handle threats that are particularly relevant to Plaintiffs’ safety.”

The magistrate and judge were not persuaded.

“Fear, distress, and other subjective emotions, without more, do not constitute an injury in fact,” Webster wrote, citing court precedent.

And police competence, he wrote, is an issue that affects all city residents and not enough to give the plaintiffs legal standing.

Because the court found the plaintiffs lacked legal standing, Webster declined to review the merits of their claims. He also did not act on the defendants’ argument that the city of Durham was the only proper defendant in the case and that the claims against the others named in the lawsuit be dismissed.

Rieders said his clients are pursuing the case.

“An appeal has been filed to the one sentence Order of the Court affirming the Magistrate Judge,” Rieders said by email from Israel. “We feel that the Parties in this case deserved a greater review than a one sentence affirmation.”

In an interview Monday, Rieders said the law is not settled on what constitutes legal standing in a case like this and that the courts also need to look at the everything that preceded the council’s statement.

‘It is often difficult to prove discrimination out of the mouths of the defendants,” he said. “You do have to look at the totality of the circumstances and you have to look at all of the events leading up to (the statement).” he said.

This story was originally published December 30, 2019 at 10:58 AM with the headline "Durham got sued when it said no police training with Israel. Where do lawsuits stand?."