Oregon Prosecutor Nathan Vasquez Trying to Expand Mandatory Minimums

Blast Zone No. 40698 - 3 Comments
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Category: Prosecutors - County
Last Known Home Address:
Portland, Oregon *****
Oregon Measure 11 Statistics:

The trial of self-proclaimed Proud Boy Alan Swinney threatens to expand the scope of mandatory minimums in the state of Oregon to include every idiot with a paintball gun dumb enough to shoot anyone with a paintball. That is because Multnomah County Deputy District Attorney Nathan Vasquez is arguing that a paintball gun loaded with traditional paintballs constitutes a dangerous weapon under Oregon's second degree assault statute (Assault II). Assault II is a Measure 11 crime punishable by a mandatory minimum of 5 years in state prison.

Alan Swinney is not an innocent man. He assaulted several people with paintballs and mace before menacing a giant crowd with a loaded pistol. For those things he will likely spend 2-5 years in state prison. We have not had time to do enough research to figure out exactly how much time Swinney faces without being charged with a Measure 11 offense and we probably won't find the time either because we don't have an issue with most of his other charges. We don't care much for Alan Swinney the man, but we are extremely worried about what the effort to lock him up might mean for the rest of us or at least those of use that don't always have the sense not to shoot people with paintballs. Shooting people with paintballs is not legal, but unless someone gets shot directly in the eye the worst anyone has to fear from a paintball is a nasty bruise. That is why we thought at first that the Assault II charges against Swinney must be based on the injuries allegedly inflicted on two people. Vasquez made mention of the alleged injuries during the opening statement in such a way that a lot of reasonable people would come away thinking that was probably the theory he was pursing. The same is true of anyone familiar with the Assault II statue.

A person commits the crime of assault in the second degree if the person:

(a) Intentionally or knowingly causes serious physical injury to another;

(b) Intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon; or

(c) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life. (see https://oregon.public.law/statutes/ors_163.175)

For someone to be charged with Assault II in Oregon due to their use of a paintball gun one would logically conclude that it probably requires a freak accident resulting in "serious physical injury" to someone's eye. We were under this impression when we first wrote about the Swinney trial. We even got into a lengthy argument via email with alleged victim Jason Britton and a brief exchange of Tweets with alleged victim Megan Steward. We were convinced that the reason Vasquez didn't call a single expert witness to back up Britton's claim of long term eye injury must have been that Vasquez thought exposing Britton to eye examinations by a credible expert wouldn't substantiate his claims. We still think that had Vasquez thought an expert could prove that Britton suffered serious injury that he would have used one, but instead Vasquez is rolling with the theory that a paintball gun itself constitutes a dangerous weapon under the second prong of the statute. If Vasquez can convince a jury that a paintball gun is a dangerous weapon then the visible bruises suffered by Britton and Steward are all he needs to show that Swinney caused two people injury with a dangerous weapon. That might sound great at first to Antifa or anyone else that would love nothing more than to lock Swinney up and throw away the key. Unfortunately, when people become so dedicated to nail one guy that they don't care how, the state historically takes advantage of that in ways that have catastrophic long term consequences for the community. If Vasquez obtains an Assault II conviction in this case and that conviction is upheld by the court of appeals then all any prosecutor will need to charge someone with a Measure 11 assault in the future is a single bruise caused by a paintball.

Other cases involving paintballs in Oregon in recent years suggest that Vasquez's fellow prosecutors including some in his own office lack his ambition or just don't think that paintballs are dangerous weapons. Earlier this year a man was charged with Assault IV for shooting someone with a paintball in downtown Portland (https://pamplinmedia.com/pt/9-news/503722-403416-man-arrested-for-paintball-shots-threats-in-downtown-portland-park). Three years ago a teenager was charged with 25 counts including several counts of physical harassment, but no assault charges for going on a shooting spree with a paintball gun in Bend (https://www.bendbulletin.com/localstate/bend-police-arrest-man-19-in-string-of-drive-by-paintball-attacks/article_24dfe8f8-ae9d-5cad-8739-24dff773b28e.html). Had someone been convicted of Assault II just for inflicting bruises with a paintball gun before those incidents then the defendants would have likely been charged with Assault II and both of them would have faced a mandatory minimum of 5 years in prison upon conviction.

If Vasquez has his way with Swinney then the next stupid kid to go around shooting people with paintballs will spend his college years in prison. Before long those that would be contributing to society with their master's degrees will be recent parolees living in halfway houses struggling to find work. That might sound like just some stupid elitist frat boys losing their white privilege to some, but it will have a disproportional impact on minority communities as well even though paintball is typically thought of as pastime of young white people. Studies over the years have consistently shown a heavily disproportional number of minorities serving mandatory minimums in state prisons due to Measure 11.

A report released by the Oregon Criminal Justice Commission earlier this year showed that white men account for 65% of all Measure 11 indictments and black men account for 11% even though just 3% of the state's population is African American (see PDF link above). A black man in Oregon if four times more likely than a white man to be charged with a Measure 11 offense (https://katu.com/news/on-your-side/oregon-criminal-justice-commission-releases-measure-11-report). Assault II accounts for most Measure 11 convictions (28.8%) at more than double the rate of the next most common offense (11%). Expanding the scope of Measure 11 just to lock up one guy who might be a white supremacist is no way to protect or improve black lives.

The best way for anyone with Antifa associated with the Swinney prosecution to show they really mean it when they say "Black Lives Matter" is to ask Nathan Vasquez to back off on the Assault II charges. If he won't then they need to find some way to tell the jury what an Assault II conviction really means for Oregonians.

UPDATE: Nathan Vasquez failed to convict Alan Swinney of Assault II in the bruised boobie case, but succeeded in the black eye case. At first we thought the jury probably considered shooting someone in the face with a paintball at close range to be far more likely to result in a paintball hitting someone in the eye and therefore that use of a paintball gun was significant enough to qualify as using a dangerous weapon. Then we read in The Oregonian that the jury didn't believe that Swinney intended to shoot Britton at all (https://www.oregonlive.com/crime/2021/10/jury-finds-self-proclaimed-proud-boy-alan-swinney-guilty-of-assault-menacing-unlawful-use-of-firearm.html).

It turns out the jury supported the theory of "transferable intent" with regards to Britton. They decided that Swinney intended to shoot someone else, but missed and instead shot Britton in the eye. This raises new questions regarding the treatment of a paintball as a dangerous weapon. Questions such as, what height difference if any exists between Britton and Swinney's intended target? Is it possible that Swinney was aiming below a taller man's head only for him to duck out of the way and the paintball to hit Britton's eye? If so, does the act of aiming below a taller man's head where the likelihood of hitting him in the eye is quite small translate to using of a dangerous weapon because of dumb luck?

Vasquez successfully got the Normandale Park shooter a life sentence today. An appropriate sentence seeing as how Benjamin Smith fired into a crowd of Black Lives Matter demonstrators killing one and wounding dozens more.

Still, seeing Vasquez on the case is disturbing because it reinforces the image I have of him serving as general counsel for Antifa. Whenever a far-right labeled individual is accused of committing a serious crime against Antifa it seems he handles it. This kind of arrangement almost always results in a bias in favor of those the prosecutor routinely works with.

Vasquez is considering running for DA against Mike Schmidt. Ironic seeing as how Mike Schmidt was elected as a known associate of Antifa who Vasquez so zealously represents in court on a regular basis.

The problem with Vasquez's relationship with Antifa is its striking similarity to the relationship his colleague had with the person who set up the founder of this website over a decade ago. He was not the first person his colleague prosecuted on her behalf, so it was no surprise when discovery showed a relationship between the two more like that of an attorney and his repeat client than that of an independent fact finder.

Vasquez may have a new victim, but we're not familiar enough with the case to tell yet. Tiny Toese is a Proud Boy just like Swinney and he too was recently convicted of Assault II for a brawl in which he was on camera shooting Antifas with paintballs.

The basis for Toese's Assault II is not clear to us at this time. We hope for everyone's sake that his paintballs were not considered dangerous weapons.

Whatever the circumstances of Toese's case are, what disturbs us most is that the same prosecutor seems to be handling cases in which Anitfa claims victimization and the alleged perpetrator is a right winger. The MCDA has allowed such conflicts of interest to exist for over a decade.

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