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Tulsa Judge Allows 1921 Race Massacre Lawsuit To Move Forward

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Tulsa Judge Allows 1921 Race Massacre Lawsuit To Move Forward

Tulsa race massacre survivors, Hughes Van Ellis , Lessie Randle and Viola Fletcher ride in a carriage at the front of the Black Wall St. Memorial March Friday, May 28, 2021. Black Wall St March 10

By Omar Jimenez, CNN

    (CNN) — A Tulsa judge is allowing a lawsuit brought by plaintiffs that include three living survivors of the 1921 Tulsa Race Massacre to officially move forward.

The written order, filed August 3, provides the reasoning behind a May decision by Tulsa County District Judge Caroline Wall that denied in part and granted in part a motion to dismiss the case brought forward by defendants that included the City of Tulsa and Tulsa County, among others. No further details were offered at the time.

The plaintiffs brought claims for public nuisance and unjust enrichment.

As to the public nuisance claim, the court allowed the claim brought by the three survivors to proceed but dismissed the claim from the other plaintiffs. The court found the survivors established standing to sue, noting that “a private person may maintain an action for a public nuisance if it is especially injurious to himself, but not otherwise.”

“The court finds Plaintiffs Randle, Fletcher and Van Ellis Sr. meet this statutory criteria,” Wall wrote. Viola Fletcher, Lessie Benningfield Randle, and Hughes Van Ellis Sr. are all survivors of the Tulsa Race Massacre and are all over 100 years old.

Wall cites a separate case when writing, “A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief.”

She then adds, “The court cannot find beyond any doubt that Plaintiffs Randle, Fletcher, and Van Ellis Sr. can prove no set of facts which would entitle Plaintiffs to relief on their public nuisance claims.”

The plaintiffs had argued the damage inflicted during the Race Massacre was a “public nuisance” from the start and “one of the worst acts of domestic terrorism in United States history since slavery.”

Generally, a public nuisance is when a person or entity “unreasonably interferes with a right that the general public shares in common,” according to the Legal Information Institute.

“We look forward to proving our case around the Massacre’s ongoing catastrophic effects and demonstrating the actions that defendants must take to repair and rebuild the Greenwood community during our clients’ lifetimes,” said Damario Solomon-Simmons, attorney for the survivors, as part of a released statement.

While part of the claim for a public nuisance was allowed to proceed, claims for an “ongoing” public nuisance were “dismissed with prejudice because these claims request relief that violates the separation of powers provided by the Constitution of the State of Oklahoma.”

“Therefore, the court dismisses with prejudice the public nuisance claims described in Plaintiff’s Amended Petition seeking relief for all alleged unreasonable, unwarranted, and unlawful acts or omissions of defendants in the decades subsequent to the 1921 Race Massacre, including but not limited to policing, urban planning, and public schools,” Wall wrote.

Part of the rejected plaintiffs’ argument was that the damage in 1921 led to ongoing damages and disparities that still play out today in Tulsa.

But Wall cited a recent historic Oklahoma Supreme Court Johnson & Johnson public nuisance decision that said in part, “The Court has allowed public nuisance claims to address discrete, localized problems, not policy problems.”

The court dismissed the claim for unjust enrichment but is giving the three remaining plaintiffs an opportunity to file an amended petition. The court also granted leave for the plaintiffs to amend their petition to attempt to replead an abatement remedy.

A news conference is scheduled for 2 p.m. ET by the attorneys for the plaintiffs.

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