Making War on WAR

By JAMES WILLWERTH PORTLAND

Angry knots of buzz-cut skinheads and helmeted police circled each other warily in the halls of Oregon's Multnomah County courthouse last week. Close by, in a marble-pillared courtroom hidden behind security gates, two men stood before a civil court judge and began a legal duel that involved an unusual amalgam of crimes and punishments: charges of murder and racism, to be measured by the strictures of tort liability. "Ladies and gentlemen of the jury," intoned civil rights crusader Morris Dees, "we're going to ask you to return a verdict so big that it will put Tom Metzger out of business."

In taking aim at Metzger, 52, and his son John, 22, Dees is trying to cripple an admitted "racial separatist" and leader of a neo-Nazi movement known as the White Aryan Resistance (WAR). Dees, director of the Southern Poverty Law Center in Montgomery, was using an unusual weapon: the common-law principle of "vicarious liability," most frequently invoked against employers for their workers' negligence. Simply put, Dees and his fellow lawyers sue national racist organizations on behalf of the families of victims of violent acts, charging that the organizations should incur heavy civil penalties for their indirect role in the violence. In 1987 Dees bankrupted the Alabama-based United Klans of America with a $7 million judgment for the family of Michael Donald, 19, who was shot and hanged by U.K.A. thugs in 1981 in Mobile.

In Portland, Dees and colleague Elden Rosenthal are asking a $10 million punitive judgment against WAR and the Metzgers. A member of WAR's Portland affiliate, East Side White Pride, was convicted last year of murder in the 1988 beating death of Mulugeta Seraw, a 27-year-old Ethiopian man; two other members were convicted of first-degree manslaughter in the case. Metzger, a television repairman, and his son run WAR from their family's home in Fallbrook, Calif., north of San Diego. The organization's cable-television show, Race and Reason, is carried on 50 cable-access channels, and WAR operates 23 telephone hot lines. Its newspaper, WAR, runs articles and cartoons ridiculing Jews and nonwhites and often urges violence against them in the name of self-defense.

The link between the Metzgers and the Portland murder, Dees alleges, was WAR national vice president David Mazzella, 20. The senior Metzger sent Mazzella to Portland in September 1988, the civil rights advocate charges, to organize East Side White Pride into a more militant street-fighting group. Dees' evidence includes a letter from John Metzger to Portland members that says Mazzella is coming "to show you how we operate." Dees charges that Mazzella promptly led the local racists out to beat up black and Hispanic victims.

Seraw, who worked as an Avis airport shuttle-bus driver, lived near an apartment where the White Pride group were drinking one night, and was attacked with two friends while returning from a party. A skinhead named Kenneth Mieske came up behind Seraw with a baseball bat and struck his head "as hard as you'd hit a center field ball," Dees told the jury last week. Then Mieske stood over the fallen Seraw and hit him repeatedly, splitting open his skull.

Dees is trying to prove any of a variety of related kinds of liability: that WAR and the Metzgers "through their agents" encouraged the killing; that the Metzgers and the Oregon skinheads formed a "civil conspiracy" leading to murder; that Seraw's death was caused by the Metzgers' "reckless" and "negligent" selection of a violence-prone agent to organize the Portland group. "This is a plain old wrongful-death suit in a state court," explained co-counsel Rosenthal. "It is a common-law course of action that doesn't bother with fancy federal or state civil rights laws."

The Oregon chapter of the American Civil Liberties Union, for one, is concerned about aspects of the case. In an amicus curiae brief, the chapter urged that charges involving "negligent" and "reckless" speech be dropped, reasoning that a finding for the plaintiff on those grounds could have a chilling effect on First Amendment freedoms. A.C.L.U. lawyer Michael H. Simon adds, however, that adequate proof that Tom Metzger intended to cause serious harm by sending agents to Oregon would void his concern.

Acting as his own lawyer, WAR leader Metzger is casting himself as a beleaguered populist, but not an instigator of violence. "I'm a white racial separatist," Tom Metzger says, "and I can sit down with any person, white, black or Oriental, and talk about it." Metzger's easygoing cracker-barrel manner in Portland is belied by the angry messages he tapes for WAR telephone lines. There he calls nonwhites "mud people" and "assorted scum"; attorney Dees is "Morris the pervert"; trial judge Ancer L. Haggerty, who is black, is an "Uncle Tom"; and the trial, says Metzger, is a "legal lynching."

Dees will attempt to introduce in evidence other Metzger tapes, including one in which the senior Metzger observes that those who killed Seraw performed a "civic duty." If Dees convinces the jury there is a vicarious liability connection and wins a heavy award, Metzger will probably lose his family's home and the WAR offices. Future earnings could also be attached, as they were in the Klan case. The Klan, says Dees, "hardly exists now."