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Judge narrows Tulsa Race Massacre survivors' reparations lawsuit, but allows it to move forward

Chris Polansky / KWGS News
Damario Solomon-Simmons, attorney for the three known living survivors of the 1921 Tulsa Race Massacre in their lawsuit for restitution from the city, state and other entities, addresses reporters at the Tulsa County Courthouse following a hearing on May 2, 2022.

A lawsuit for restitution filed by the three known living survivors of the 1921 Tulsa Race Massacre can proceed with a narrowed scope, a judge ruled Wednesday.

Three months after Hughes "Uncle Red" Van Ellis, 101, Lessie Benningfield Randle, 107, and Viola Fletcher, 108, appeared before her in a hearing, Tulsa County District Judge Caroline Wall released a written order allowing the three to attempt to prove their claim that the city of Tulsa, state of Oklahoma and other entities created a public nuisance via their actions during the massacre.

"[A]pplying Oklahoma's liberal pleading standard, 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 judge wrote.

The judge dismissed parts of the plaintiffs' petition involving rectification of any ongoing public nuisance for descendants, entities like Historic Vernon AME Church, and the Greenwood community at large.

Still, attorneys for the survivors said it was a major victory.

"I can not say it enough times, this is truly historic," lead attorney Damario Solomon-Simmons said during a Thursday virtual press conference. "First time in this nation's history that an event of racial terror, a race massacre that happened 100 years ago to Black people, is going to be properly investigated with proper discovery and a proper litigation."

"For over 101 years, survivors of the Tulsa Race Massacre have tried to move forward in court," said co-counsel Eric Miller, noting that contemporary Black attorneys from Greenwood including Buck Franklin were "hounded out of court" in 1921, and no case since had proceeded as far as the current one.

"It's taken over 101 years for a judge in the state of Oklahoma to say that the victims of the Tulsa Race Massacre of 1921 can proceed to discovery and a hearing on the merits," Miller said.

Solomon-Simmons and Michael Swartz, partner at New York-based law firm Schulte, Roth and Zabel, which has taken on the case pro bono, said time is now of the essence.

"Judge Wall has been sensitive to our clients' ages," Swartz said. "We very much appreciate her sensitivity in that regard, and we just hope and we expect, frankly, that to continue."

"Justice delayed is justice denied," Solomon-Simmons said. "This is the greatest example of that. I have no doubt in my mind, right, that the defendants would love to continue to delay this case with these elderly people, because they don't want them to get justice."

The attorneys said they have contingency plans for continuing with the case should the plaintiffs pass away before its resolution.

"We are preparing for that eventuality," Swartz said. "We have made — we don't really like talking about this — we've made provisions with regards to the estates of the survivors, that we hope and expect that should that terrible circumstance happen, that we will have a basis to continue the lawsuit."

"It would be the most tragic scenario," Solomon-Simmons said. "I don't even want to think about that."

"And Uncle Red has pledged to live to 130 if it takes that long to win this case, so there's always that," Swartz added.

The attorneys said they hope to proceed with discovery as soon as possible. Last year, Swartz said he expected discovery would involve many depositions, including those of Tulsa Mayor G.T. Bynum and Oklahoma Gov. Kevin Stitt.

Swartz said he hoped the defendants would choose not to appeal, but expected that should they do so the judge would allow discovery to continue during the appellate process.

The survivors allege the city of Tulsa, state of Oklahoma, Oklahoma National Guard and other defendants either directly participated or aided and abetted the massacre, which left as many as 300 Black Tulsans dead and Greenwood, known as "Black Wall Street," virtually entirely razed by a white mob. Reparations have never been paid.

Chris joined Public Radio Tulsa as a news anchor and reporter in April 2020. He’s a graduate of Hunter College and the Craig Newmark Graduate School of Journalism, both at the City University of New York.