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Oklahoma Supreme Court receives brief from Massacre survivors

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GREENWOOD Dist.–In a move that may bring the Tulsa Race Massacre survivors one step closer to reparative justice, attorneys for their historic lawsuit filed a brief with the Oklahoma Supreme Court on Tuesday, explaining why the District court was wrong to dismiss their case.

Civil rights attorney Damario Solomon-Simmons gave an update on Wednesday and made a public plea to the Oklahoma Supreme Court as it considers their appeal.

It followed the death of 102-year-old Massacre survivor “Uncle Redd” Hughes Van Ellis on Monday.

oklahoma supreme court
Survivors of the 1921 Tulsa Race Massacre from left to right: Viola Ford Fletcher, 109, her little brother Hughes Van Ellis, 102, and Lessie Benningfield Randle, 108. (Photo credit : Justice for Greenwood)

“If the [Oklahoma] Supreme Court never understood the urgency, I hope they understand it now,” attorney Solomon-Simmons said during a press conference at the Greenwood Cultural Center on Wednesday.

With just two last known survivors remaining, attorney Solomon-Simmons warned time is of the essence.

Defendants in the case are the city of Tulsa, Tulsa County, the Tulsa Chamber of Commerce, the Tulsa County Sheriff and the Oklahoma Military Dept. (National Guard).

To view the case history, click here.

“Last opportunity” for judicial justice

If the Oklahoma Supreme Court reverses the dismissal, they may be forced to take the stand in a trial for the role they played in sanctioning the attack on Greenwood and failing to protect Black residents or their property, attorney Solomon-Simmons argues.

During a hearing in Congress in 2021, survivor Hughes Van Ellis testified, along with survivors “Mother” Viola Ford Fletcher, 109, and “Mother” Lessie Benningfield Randle, 108.

“We are not asking for a handout,” Van Ellis told members of Congress, choking back tears, “we are asking for a chance to be treated like a first-class citizen.”

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According to the court’s rules, the defendants have 15 days to respond to attorney Solomon-Simmons’ brief. He filed it on Tuesday, Oct. 10, which gives the defendants until Oct. 25 to respond. Attorneys for the survivors then have 10 more days (Nov. 6) to reply.

Unlike the U.S. Supreme Court, Oklahoma’s high court has no set schedule. The justices could rule on the case as quickly or as slowly as they please. Meanwhile, Solomon-Simmons says he’s just asking for a trial, something the survivors have never before been granted.

“This is it. This is the last opportunity for these survivors in this community to get judicial justice,” attorney Solomon-Simmons said.

A unique case for reparations

Justice for Greenwood founder and national civil rights attorney Damario Solomon-Simmons first filed the historic lawsuit in September 2020. Unlike a previous attempt to secure reparations for 1921 Tulsa Race Massacre victims, which was dismissed at the U.S. Supreme Court due to statute of limitations, attorney Solomon-Simmons is using state law instead of federal law.

Citing public nuisance law, he was able to sidestep the statute of limitations.

“A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission…annoys, injures or endangers the comfort, repose, health, or safety of others.” Oklahoma State Statute 501 reads. “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons…”

It took over a year for survivors to receive their first hearing on the lawsuit, which occurred in Sept. 2021.

An Oklahoma Supreme Court case regarding the opioid crisis strengthened the survivors’ public nuisance case, attorney Solomon-Simmons claimed.

Meanwhile, the defendants filed their first rounds of motions to dismiss the case, claiming the survivors don’t have grounds to sue.

Oklahoma Supreme Court to hear appeal after Tulsa County dismissed case

On May 2, 2022, Tulsa County District Judge Caroline Wall shocked millions around the country when she allowed the case to proceed.

Judge Wall approved a part of the defendants’ motion to dismiss, removing descendants of survivors from the lawsuit. She also ruled the lawsuit can’t include police brutality and other contemporary racial disparities as evidence in the case.

Yet it provided a rare win for a small clutch of Black Americans ravaged by racist terrorism. Attorney Solomon-Simmons said the defendants agreed to not file any more motions to dismiss as long as he made the changes prescribed by Judge Wall.

Ultimately, the defendants moved forward with new motions to dismiss anyway. And a year later, on survivor Mother Viola Ford Fletcher’s 109th birthday, Judge Wall heard oral arguments.

“We just need the opportunity to prove it to you…to prove that a public nuisance occurred,” attorney Solomon-Simmons told Judge Wall on May 10, 2023.

Tulsa Judge tied to neo-confederate groups?

Judge Wall said she’d rule within seven days. Instead, she quietly released her ruling online on a Friday evening in July, dismissing the case “with prejudice.”

“We went through several rounds of briefing and very clearly articulated what the law is in Oklahoma. And then to receive a decision that didn’t feel consistent with Oklahoma law is very frustrating,” Erika Simonson, co-counsel Litigation Associate for Schulte Roth & Zabel, told The Black Wall Street Times.

Attorney Solomon-Simmons and his legal team filed an appeal with the Oklahoma Supreme Court on August 4th, and just three days later the court agreed to hear the case.

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In her ruling, Judge Wall said the plaintiffs didn’t provide a remedy for the public nuisance. Meanwhile, the Justice for Greenwood team disputes that.

“Since 1984, Oklahoma law states we don’t have to provide specifics of our remedies,” attorney Solomon-Simmons said on Wednesday.

Notably, Judge Wall deleted her X/Twitter account in July after The Black Wall Street Times reported on algorithmic connections to neo-confederate groups on her X profile.

On an archived campaign page, Judge Wall, who has served as a Tulsa County Associate District Judge since 2003 before becoming District Judge in 2014, considers herself a “Constitutional Conservative.”

In appealing to voters, she said she would rule on cases by exercising justice through “Judeo-Christian values,” “Ensure people’s right to swift justice,” and “protect the rights of victims and juries.”

Oklahoma Supreme court: “Apply the law equally”

For years, Tulsa Mayor Bynum has refused to comment publicly on the lawsuit. However, when Judge Wall dismissed it in July, he told Tulsa World he “appreciates” that.

When asked what has prevented Mayor Bynum or the other defendants from reaching across the table to negotiate a settlement, attorney Solomon-Simmons said he didn’t know.

“From our perspective nothing has prevented” Mayor Bynum from meeting with him, attorney Solomon-Simmons said, adding that he is still open to a meeting.

Ultimately, it’s unclear how soon the Oklahoma Supreme Court will render a decision. If they rule in favor of the plaintiffs, the case will return to Tulsa County for a discovery phase and trial.

“We are rightfully concerned about Mother Fletcher losing her little brother, the impact that could have on her,” attorney Solomon-Simmons said on Wednesday. He said he’s “simply asking the court to apply the law equally to the survivors as everyone else in Oklahoma.”

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