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One defendant in, one out in task force lawsuit

A federal judge dismissed a prosecutor as a defendant in a malicious prosecution lawsuit filed by founder of the Southern Oregon High Tech Crime Task Force, but ruled that an Oregon State Police officer would remain listed as a defendant.

The lead state attorney who unsuccessfully charged Central Point police Lt. Joshua Moulin with computer crime had immunity, U.S. District Judge Michael McShane ruled, according to an order filed last week in Medford. However, a claim of malicious prosecution Moulin filed against the Oregon State Police lieutenant who oversaw investigators in the botched investigation was “sufficiently pleaded,” according to Magistrate judge Mark D. Clarke’s recommendation behind McShane’s court order.

In June of last year, Moulin filed a $2 million lawsuit largely focused on the city of Central Point and two current leaders of the city’s police force. But Moulin also named in his suit a Klamath Falls police detective and state employees Assistant Attorney General Darin Tweedt and Oregon State Police Lieutenant Darin Lux for their roles in the criminal case, which was opened in 2012 and dismissed by a Jackson County Circuit Court judge in 2015.

By then, Moulin had left the Central Point police force and moved to Nevada.

The High Tech Crime Task Force was founded in 2007 by Moulin, who was then a lieutenant in the Central Point department. Within three years, the task force was investigating cases in nine Oregon counties and oversaw hundreds of digital investigations, many of them child pornography and identity theft. By 2010, its lab held more than 40 computers and a server with a capacity three times the size of the Library of Congress’ contents.

The task force involved officers from several local departments, but beginning in 2012, began to unravel. Moulin said then-newly appointed Central Point police Chief Kristine Allison ordered him to make a Central Point murder case a priority over an Ashland murder case, which he said caused Ashland to leave the task force and sparked the demise of the collaborative unit. In 2014 the task force reorganized under Medford police, where a small staff of Medford detectives work with federal agencies.

Moulin said Allison and others tried to blame him for the collapse of the task force and mounted what he described as “an unfounded, politically motivated criminal prosecution.”

Attorneys representing Allison and the city of Central Point have previously denied wrongdoing, but said they couldn’t comment further because of the way Moulin’s criminal case was sealed in Oregon court records.

The criminal case against Moulin had alleged that he committed felony computer crime and misdemeanor official misconduct when he removed a personal password managing program from a Central Point-owned laptop after being placed on leave for reasons never made public.

Tweedt oversaw the criminal case after the Jackson County District Attorney’s office recused itself due to its previous work with Moulin and the task force, while Lux “supervised investigators who conducted the Moulin investigation,” according to a January motion to dismiss filed by the Oregon Attorney General’s Office.

In the motion, Senior Assistant Attorney General James Smith argued that Moulin’s lawsuit “contains nothing but conclusions as to the conduct of Defendants Tweedt and Lux.”

“Plaintiff’s complaint is a colorful 142 paragraph, 39 page document which reads more like a novel than a pleading,” Smith writes. “Despite its length, the State Defendants (Tweedt and Lux) are barely mentioned.”

Clarke’s recommendation to drop one defendant and keep the second lists six necessary elements needed to prevail on a malicious prosecution case:

“(1) the institution or continuation of the criminal proceedings; (2) by or at the insistence of the defendant; (3) termination of such proceedings in the plaintiff’s favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the proceeding; and (6) injury or damage because of the prosecution.”

Clarke notes that Tweedt and Lux lacked a signed copy of an administrative leave memo, “and thus the only evidence reasonably demonstrating his (Moulin’s) guilt.”

“As stated Plaintiff plausibly suggests a lack of probable cause; he alleges DOJ and OSP — led by State Defendants — knew they lacked a signed copy of the administrative memo, a critical piece of evidence necessary for their case, even pointing to specific quotes and discussion by members of OSP and DOJ discussing this lack of evidence ... Consequently, each element of malicious prosecution is sufficiently pleaded.”

However, Clarke’s ruling states that Tweedt has immunity for supervising the prosecution of the case, but he could be liable if Moulin refiles with claims Tweedt engaged in any form of “functions normally performed by a detective or police officer.”

“Plaintiff could cure this deficiency by adding sufficient facts to plausibly suggest Tweedt acted in an investigative function,” Clarke writes.

Clarke said Moulin’s claims malicious prosecution claim against Lux, however, have “sufficient factual detail.”

“If Lux believes he did not have such direct involvement or that the allegations are generally false, he need only deny them,” Clarke writes.

Clarke made his recommendation the first week of April, and McShane adopted the recommendation last week, court records show. Moulin has until early June to refile his complaint.

Reach Mail Tribune reporter Nick Morgan at 541-776-4471 or nmorgan@rosebudmedia.com. Follow him on Twitter at @MTCrimeBeat.

Mail Tribune file photo Josh Moulin, then a Central Point police sergeant, is photographed in 2010 after the Southern Oregon High Tech Crimes Force expanded to cover half the state.