GARRY L.

GILMAN
Attorney at Law
P.O. Box 191318
Boise, ID 83719
ADMITTED: ALL IDAHO STATE & FEDERAL COURTS
UNITED STATES COURT OF CLAIMS
UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

Telephone: (208) 378-8852
Fax: (208) 378-5829
Email: ggilmanlaw@cableone.net

October 26, 2011
Bear and Marcella Gibbons
3680 Bishop Road
Emmett, Idaho 83617
RE: Excessive Force Case
Dear Bear and Marcela:
I am sorry I have been so long getting back to you. The hard drive on my computer broke and I
have had to replace it and restore all the data and programs. In addition I have made a very
careful and time-consuming analysis of your case. I also made contact with another attorney and
reviewed the case with him without using your names.
I have now reviewed all of the documents you have provided me along with research I have done
on my own.
Summary of facts: On August 16, 2012, your neighbor across the street reported to Payette
County Sheriff’s Department that Bear was “hitting” Marcela and a domestic disturbance was in
progress. Payette County called Gem County dispatch and relayed the information. A GCSO
officer advised all officers that Bear was a “constitutionalist,” was hostile to law enforcement,
and was armed. Shortly thereafter numerous Gem County officers, including Sheriff Roland
himself, appeared at your home. Marcela went out the side door to see what was going on and
saw men with guns and warned Bear. One of the officers grabbed Marcela by the wrist as she
attempted to go back into her home. He dragged her out onto the parking pad, injuring her side
and arm. She was taken around to the far side of the garage for interrogation. In the meantime
officers armed with AR-15 assault rifles and semi-automatic pistols called Bear out of the house.
Bear cooperated and came out with hands up asking what was going on. Officers instructed him
to get down on his knees. As he tried to get down with his hands up, an officer struck or kicked
his knee, causing his legs to buckle and he went down hard to his knees. An officer came up
behind and pulled his arms around to the back and secured his wrists with some type of device.
They also told him to lie down on his stomach, which he attempted to do. At all times Bear was
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fully cooperative. The officers instructed him to get up. As he tried to get up from the prone
position with his wrists tied behind his back, he slipped and sat down hard upon his seat causing
pain in his back. Some officers then pulled him to his feet and had him sit on a 5 gallon bucket.
Although both Marcela and Bear attempted to explain there was no domestic violence and no
one had been hitting the other, the officers refused to accept their explanations and swore at Bear
accusing him of being a wife-beater and kept automatic weapons pointed at him. At one point he
could feel a gun barrel on the back of his head. This was despite the fact there was no evidence
of battery on either Marcela or Bear and they both denied any domestic violence.
Officers then searched your house without a warrant and found your hydroponic grow rooms
where you started your tomatoes. They wrongly accused you of growing marijuana and
threatened to get a search warrant to go through your house. You then consented to a search of
the house, admitted to the officers that you had a small amount of marijuana and a pipe and told
them where to find it. You were subsequently given a ticket for possession of a small amount of
marijuana and paraphernalia. Those charges were finally resolved by a dismissal of the drug
possession charge and a plea to the paraphernalia charge resulting in a fine and community
service.
Since then you have suffered chronic, serious pain in your lower back, shoulder and hip. Dr.
Mumford took x-rays. The hip x-ray showed showed small hip joint effusion, or body fluids into
the joint of the hip, with inflammation of the greater trochanter (upper femur) bursa. This
commonly causes pain. X-rays of the lumbar spine revealed some pre-existing degeneration of
the vertebrae. This combined with disk protrusion and mild to moderate loss of disc space and
foraminal narrowing resulted in trapped and compressed nerves, particularly at L3-4 disc space,
which is causing pain and numbness in your lower extremity. You were completely
asymptomatic prior to the August 16, 2012 incident with the police and did not have any low
back pain or left hip pain before being wrestled around by the police. You also had pain in the
right shoulder consistent with calcium deposits in the shoulder joint. You had mild arthritis in
the right shoulder joint. The cause of the calcium deposits is not known.
Dr. Jutzy’s report concludes that you are suffering mostly from the effects of an assault. You do
have some chronic issues, but were functional prior to the assault. He believes you have a facet
sprain injury in your lower back. He acknowledges your hip injury was probably from the
impact where you fell on the cement. He gave some steroid injections in the shoulder and arm
which relieved most of the pain, but was probably only temporary relief. He does think his
prognosis is good for return of function, but he says of you, “he certainly has objective evidence
of injury secondary to the assault on August 16, 2012.”
The medical bills you have provided me total $1,489.39, of which Medicare has paid $771.10 to
date, leaving you with a balance of $718.29 to pay. Medicare will seek reimbursement for its
payments if you are successful in a lawsuit for damages.

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There are some negatives in this case, as there always are. I have yet to be involved in a perfect
case. Some things to consider are the recent shooting of two Canyon County deputies who were
trying to serve a warrant. One is in serious condition. Another is the fact that you were breaking
the law (although what is usually considered to be a fairly minor violation) by illegally
possessing marijuana and paraphernalia. Another is that there are fairly close neighbors who
would be more than willing to testify against you. Yet another is the fact that the defendants in
this case would be law enforcement officers. Because of the dangers of their job, they are always
backing each other up. When there is an issue they tend to close ranks and get their stories
together. Anyone who breaks from the group is seen as a betrayer, so there is intense pressure to
stick together and back each other up, sometimes whether their story is true or not. I am also
concerned that Pro Life was not remembering what you thought he said in the same way that you
do. I think he wants to back you up and that he is being kind and genuinely concerned. It is
typical that witnesses don’t remember things exactly the same. But I was hoping he could verify
some of the things that the Sheriff said. As you know he didn’t.
These cases are very hard to win. I estimate it will cost, without counting attorney fees,
somewhere between $10,000.00 and $15,000.00. I have a break down of estimated costs which I
am sending you with this letter, so you will understand what I am taking into account as costs. I
probably missed some, there are always unexpected costs, so this is only an estimate and
probably conservative. As you look at the cost breakdown, let me explain a couple of points.
The videographer is necessary especially for the video of the medical expert, Dr. Jutzy. Most
doctors are reluctant to come to court and expect that they will be able to testify by deposition. If
you force them to court, the charges are much, much higher because of surgeries and clinic time
they are missing. We use video so the jury can see the doctor and judge his credibility. A police
procedure expert is necessary because you will need expert opinion from someone with the
necessary qualifications to say that the police conduct was below the ordinary standard of care
and that the force used under the circumstances was excessive. I have probably estimated that
item too low. Normally you have to get someone out of California, Nevada, Ohio, Illinois or
someplace like that. There are most likely no police officers in the state that will testify against
other law enforcement officers. Most do not have the qualifications anyway. Even the Idaho
State Police are very, very reluctant to get involved in a case like this. So you are stuck with
having to hire an out of state expert.
I am concerned because of the sheer amount of costs involved in a case like this. Those costs are
yours to bear. They do not include attorney’s fees, which are usually arranged as a percentage of
the recovery. You are not financially in a position to pay these costs. I heard you say that you
can’t make the house payments, nor can you afford to pay for water for your crops and there is
considerable neighborhood controversy about that. On top of that you have medical expenses to
bear and a decreased earning ability because of your disabilities. Even if a lawyer advances
these costs, you would be liable to pay the attorney for these costs, in addition to the attorneys’
fees.

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I do not have the funds myself to cover the costs of this case. I called a friend of mine, an expartner, to see if he would want to get involved with me. He was outraged at the officers’ tactics
and that they would injure you without any probable case. He agreed with me that the costs
estimate I have made is conservative, it could cost more. Unless your injuries require very
expensive therapy, the amount of recovery is not likely to cover attorneys fees along with the
costs. Just as an example, if the jury feels they are doing you a big favor and give you
$20,000.00 for what the officers did, by the time you take out 1/3 for attorneys’ fees, that would
leave you with $13,333.00 net recovery, which might not even cover the costs in the case,
depending on whether the case gets settled before all the trial expenses are incurred. If the case
is tried it is almost certain that it will be appealed by the losing side. To get to trial would take
about two years, and the appeal another two years or so. I have been down that road several
times. Then there are other non-economic costs, the stress of being involved in a lawsuit, the
polarizing effects in the county that may cause more difficulties for you. Should you lose your
home, you would be forced to stay in Idaho somewhere until the case is resolved.
On the other hand, it is possible, though very unlikely, that if the case is filed, the County may
just want to settle it. However, what I have heard from others in the county over there, it is
pretty wishful thinking to hope they will settle. I have talked to a couple of people who have
indicated that the deputies have a great deal of influence in how the Sheriff’s Department is run,
and they will not likely want to settle the case.
My friend indicated he would like to take a wait-and-see position, to see how things pan out with
Bear’s physical condition and what therapies are recommended and how expensive those will be,
and how you fare under that medical care. If the case appears to be worth the financial risk he
would like to work the case with me. He knows he would have to shoulder the cost burden until
a recovery is made.
As stated, I can not take this case alone. There are time constraints that also must be considered.
Under Idaho Code § 6-906 provides:
All claims against a political subdivison [subdivision] arising under the provisions of this
act and all claims against an employee of a political subdivision for any act or omission
of the employee within the course or scope of his employment shall be presented to and
filed with the clerk or secretary of the political subdivision within one hundred eighty
(180) days from the date the claim arose or reasonably should have been discovered,
whichever is later.
So you have 180 days from the date of the injuries (August 16, 2012 is what was reported to me)
to file a notice of tort claim with the County and Sheriff’s Department and the individual officers
that you claim injured you. That must be filed and resolved before suit can be filed against the
defendants.

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Suit must be brought within two (2) years of the date of the injuries. So there are things that
need to be done right away. At this point I cannot undertake representation of you by myself. If
you would like to talk to some other attorneys about your case I would recommend William A.
“Bill” Morrow, Morrow & Fischer, 332 N. Broadmore Way, suite 102, Nampa, ID 83687
(208-475-2200); or, Bill Mauk, Mauk & Burgoyne, P. O. Box 1743, Boise, ID 83701
( 208-345-2654). Both of these men have considerable experience in handling civil rights
litigation as well as injury claims. Please feel free to use my name and tell them I recommended
you to them.
If you are not able to arrange suitable representation soon, please re-contact me. I may be able to
help you put together a notice of tort claim that you could file yourselves. However, do not
undertake to represent yourselves in this matter. It is far too complex a legal matter for you
without legal training -- even given your high level of intelligence. You would be in a snake pit
before you know it. You would be better off to have the attorney that is going to represent you to
make up the notice of tort claim.
I regret that I am not able to undertake representing you at this time. Good luck in your quest for
justice. I believe you have a case, but I am just not able to take it at this time. If you have
questions, please feel free to contact me.
Sincerely,
Emailed without signature in the interests of time
Garry L. Gilman

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