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New Wrongful Death Trial Prompts Potential $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 and, in police custody.  Now, more than five years later, the new trial looming, Portland, Oregon, officials are considering paying 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 in 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, then jumped a fence into a” neighboring yard.  Police of then beat Lowery with batons and hogtied him, as “an officer stood on [his] head and upper body to hold him down," causing his death.

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

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 please caused Lowery’s death or whether they were adequately trained to deal with the emotionally disturbed people, as the complaint alleged

After the trial the presiding judge granted a new trial, including 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 restraint, and that if their early beanbag shots and sprays provoked Lowery's response, and the force used restrain him afterwards could also be unreasonable."

The judge also found that some of the unchallenged trial facts amounted to excessive force under the law, concluding “that the first of four or five the beanbag rounds in the first three cans of pepper spray a mounted to excessive force because they came 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 of 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 actions the judge found to be excessive force as well as the claims on the later use of force."  In hopes of avoiding a second trial, Portland officials are meeting to consider paying a $600,000 settlement to Lowery's estate.

Source: The Oregonian

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