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New Wrongful Death Trial Prompts $600,000 Settlement; Judge Gave Faulty Jury Instructions, Finds Excessive Force

On December 5, 1999, 29-year-old Damon Lowery's life came to a
tragic end while in police custody. More than five years later, with a
new trial looming, Portland, Oregon officials paid Lowery's estate
$600,000 to settle the case.

High on hallucinogenic mushrooms, Lowery began ranting and
fighting with friends while visiting their home. Portland police were
called and when they arrived, Lowery "either jumped or fell out of a
second-story window, landing on a concrete patio with severe cuts."

Surrounded by seven officers, Lowery was "shot 10 times with
beanbag rounds from a shotgun and sprayed with at least six cans of pepper
spray," according to court records. During this barrage, Lowery charged
an officer and then jumped a fence into a neighboring yard. Police beat
Lowery with batons and hogtied him as "an officer stood on [his] head and
upper body to hold him down," which caused Lowery's death.

A grand jury cleared the seven officers of criminal liability.
But Lowery's estate and family brought suit in federal court, alleging the
police used excessive force against him.

In 2003, following an eight-day trial, a federal jury found that
police had not used excessive force. As a result, the jury did not decide
whether the police caused Lowery's death or whether they were adequately
trained to deal with emotionally disturbed people, as the complaint
alleged.

After the trial, however, the presiding judge granted a new trial,
indicating that she had instructed the jury incorrectly. She explained
that "she should have told jurors that they could find the force used at
any stage in the encounter excessive, even if it was not excessive at
other points." She said jurors should have been told that a strong
governmental interest is needed to justify the use of beanbag shots and
pepper spray on a person in restraints, and that if their early beanbag
shots and sprays provoked Lowery's response, "the force used to restrain
him afterwards could also be unreasonable."

The judge further found that some of the unchallenged trial facts
amounted to excessive force under the law, concluding
that the first four or five beanbag rounds and the first three cans of
pepper spray amounted to excessive force because they were used while
Lowery was still lying injured or kneeling on the patio.

Finally, the judge explained that in a new trial, jurors would be
allowed to decide "whether beanbag rounds or pepper spray used on [Lowery]
while he lay injured on the ground provoked [him] to attack one of the
officers," and "whether the force used after Lowery charged the officer
and ... jumped a fence was also excessive or was justified because Lowery
posed a risk to the officers."

These rulings set the stage for a jury to decide on damages for
the first police actions the judge found to be excessive force as well as
the claims on the later use of force. See: Marsall v. City of Portland,
2004 WL 1048127 (D.Or. 2004) (Not Reported in F.Supp.2d). The district
court then issued an order certifying its post-trial decision for an
interlocutory appeal under 28 U.S.C. § 1292(b).

Apparently wanting to avoid a second trial, on May 25, 2005
Portland's City Council approved a $600,000 settlement in the case.

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Related legal case

Marsall v. City of Portland