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For two years, right-wing brawler Tusitala "Tiny" Toese has visited Portland to pick street fights with people who disagree with his politics. He has never spent a night in jail.
Newly obtained documents raise questions about the Multnomah County District Attorney's decision not to prosecute Toese for a violent June assault.
Toese punched a man named Tim Ledwith in the face on a Northeast Portland sidewalk on June 8, 2018. Portland police arrested him less than a month later at a June 30 right-wing rally that turned into a riot. Yet Toese has not faced prosecution for the alleged June 8 assault.
WW reviewed investigatory files from the Multnomah County District Attorney's Office that include police reports, a 911 call, and interviews with the suspects, the victim and a witness. Despite confessions from Toese and another man, Donovon Flippo, who was with him June 8, prosecutors have not pursued the case.
Toese is the right-wing protester most frequently arrested in Portland. Yet with three arrests and one written citation, he's only been convicted of a crime once.
That's because prosecutors have asked police for more evidence, and police haven't provided it.
Cellphone texts revealed last week by WW between a far-right organizer and a Portland police lieutenant suggest the hesitancy to pursue criminal charges against right-wing extremists—and Toese in particular—should not come as a surprise.
The texts, which WW obtained through Oregon public records law, show Portland Police Lt. Jeff Niiya regularly communicated with far-right organizer Joey Gibson.
Related: Texts between Portland police and Patriot Prayer ringleader Joey Gibson show a warm exchange.
The exchanges raised new concerns that Portland police show bias when dealing with far-right activists who belong to extremist groups like the Proud Boys. City officials, including Mayor Ted Wheeler and City Commissioners Jo Ann Hardesty and Chloe Eudaly, have called for an independent investigation of police contact with right-wing groups.
But the most consequential aspect of the texts may be the discussions they contain of Toese—and how to keep him from going to jail.
On Dec. 8, 2017, Niiya texted Gibson with a warning for Toese, then 21, one of Gibson's closest friends.
"BTW, make sure Tiny has his court stuff taken care of," Niiya typed. "I was told on the radio at the Jamison [Square] event he had a warrant. I told them we would not be arresting Tiny right now. So please be sure he's good to go before coming down."
"Shit," Gibson, the Vancouver, Wash., leader of the group Patriot Prayer, responded. "He told me he was good."
"Just make sure he doesn't do anything which may draw our attention," Niiya replied. "If he still has the warrant in the system (I don't run you guys so I don't personally know) the officers could arrest him. I don't see a need to arrest on the warrant unless there is a reason."
Toese gave the police more than one reason. On Dec. 9, 2017, officers arrested the massive, 295-pound Samoan man at the protest and charged him with three new crimes—disorderly conduct, harassment and an attempt to commit a class A misdemeanor—for throwing a punch at an antifascist, or Antifa, protester who gave him the middle finger.
It was Toese's second arrest in Oregon. On Feb. 13, 2018, he pleaded guilty to harassment, a class B misdemeanor related to the clash at the Dec. 9 protest. He agreed to 40 hours of community service and 12 months probation.
Four months after the plea deal, on June 8, Toese showed up in Portland again. Again, by his own admission, he hit someone in the face.
According to his police interview, Toese was cruising June 8 in the passenger seat of a black Dodge Ram pickup belonging to Russell Schultz, a fellow member of the Proud Boys. A third Proud Boy, Donovon Flippo, sat in the back seat. Flippo told police the trio had crossed into Portland to buy a security-guard shirt for Flippo, who was starting a new job as a bouncer at a Vancouver bar.
The truck flew a flag printed with President Donald Trump's face, Toese told police. As Schultz drove down Northeast Broadway, Flippo and Toese shouted, "Go Trump!" according to their police interviews.
Tim Ledwith, who was walking near the Safeway at Broadway and 12th Avenue, recognized Toese from counter-demonstrations he attended in 2017. The three men agree Ledwith taunted Toese about a pair of sandals he had lost after brawling with Antifa at a 2017 rally.
"Hey, Tiny, I got your shoes from the other rally," Ledwith said, according to Toese.
In Toese's police interview, he claims Ledwith spat at the truck, but neither Flippo nor the witness who called 911 corroborated that allegation.
Schultz pulled over. Toese and Flippo hopped out, according to everyone who saw the incident, including both men and the witness who called 911.
Toese "squared up" with Ledwith.
Toese, who is 6-foot-6, told police he punched Ledwith in the face. He split Ledwith's lip and left his nose bleeding.
The witness told an emergency dispatcher Toese and Flippo, who is 6-foot-1 and weighs 280 pounds, stood menacingly over the 5-foot-6 man, who was knocked to the ground by the force of the blow.
"Two large white guys in a Dodge Ram truck from Washington got out and just straight up attacked a guy," the 911 caller said. "One of them was wearing a shirt that said 'Antifa Removal Service.'" (The caller misidentified Toese's race but described his T-shirt accurately.)
Ledwith declined to file a police report right away, but later decided to after hearing allegations of a similar attack by Toese and Flippo against a black teen at a Vancouver mall.
Ledwith says he missed a call from Anna Fuller, the prosecutor assigned to the case, after Toese and Flippo were arrested June 30. He says he called her back twice, but never connected with her.
Prosecutors considered charging the men with assault in the third degree, a class C felony. But to raise the charge from misdemeanor assault to a felony, prosecutors needed to prove both men "aided" in the assault. Instead, in early July, the prosecutor dropped the lesser charges for which the pair had been arrested and directed police to investigate further.
Portland police say they have reached out to Ledwith and a second witness but have not heard back, but the case could be revived if officers hear from the victim and and the witness. Ledwith says he has not been contacted by police since the charges were dropped.
Multnomah County District Attorney Rod Underhill declined to comment specifically on Toese's case because the statute of limitations has not yet expired.
"Cases that result from mass demonstrations held in Multnomah County are incredibly complex despite what may seem like an 'open and shut' case to some individuals," says DA spokesman Brent Weisberg. "The Multnomah County District Attorney's Office does not investigate or prosecute individuals based on their ideologies or affiliations with political or nonpolitical organizations."
The lack of consequences for Toese, Flippo and other far-right agitators has irritated activists on the left, who say police and prosecutors treat antifascists more harshly.
Dozens of antifascist protesters have been arrested and prosecuted since mid-2017.
In comparison, very few right-wing protesters have been detained by police at protests.
Meanwhile, Toese shirked the requirements of his Feb. 13, 2018, plea deal and has been involved in other apparent assaults, including one captured on video.
According to court documents, he failed to check in with his probation officer, refused to show up in court, and did not perform a single hour of community service. On Feb. 11, Multnomah County Circuit Judge Katharine von Ter Stegge signed a bench warrant for Toese's arrest.
Portland police have yet to arrest him.
Three months and two days: That's how long it took for WW to obtain the public records showing Officer Jeff Niiya's texts with Joey Gibson. Read how we did it.