A federal judge may set aside the most costly civil verdict against the city of Salem in recent history after ruling recently that a city police officer had no way of knowing he violated a woman’s rights when he shot her with rubber bullets at a protest three years ago.
The judge should throw out the civil verdict entirely. It was a ridiculous jury award in the first place.
U.S. District Judge Karin Immergut ruled on Friday that Johnston did not target McCrae when he fired the rubber bullets and was following his training to disperse a crowd, which included demonstrators who had turned violent.
The training wasn’t wrong, either. What are the supposed to do, repeat Kent State?
…[Judge] Immergut recounted in her ruling what happened that night.
Around 9 p.m., McCrae and other demonstrators marched onto the Marion Street Bridge, then back into downtown Salem toward the Capitol before moving down Center Center Street back toward the bridges.
Jason Van Meter, then a Salem police lieutenant and now chief of the Black Butte Ranch Police Department in Sisters, testified that police had to keep the Center Street Bridge clear because a delay in getting across the river to the downtown Salem hospital “would potentially cost somebody their life,” Immergut wrote.
Van Meter instructed 25 to 30 Salem police officers to form a line about a block from the bridge at the intersection of Center and Liberty Streets. He testified that as protesters approached the officers, an ambulance was trying to cross the Center Street Bridge, and the lieutenant declared the protest unlawful.
Van Meter also said he was considering that some officers had reported being charged by protesters who had something in their hands, reports of a disturbance on the Marion Street Bridge occupied earlier by the protesters and other emergency calls elsewhere in the city.
At 9:52 p.m. police announced the assembly had been declared unlawful and that demonstrators had to leave.
McCrae’s witnesses testified either that they did not hear the orders or it was hard to ascertain what were the orders.
Video evidence disputes the testimony of McCrae’s witnesses.
Her lawsuit described the march as involving no rioting, looting or destruction of property at the time that Salem police intervened.
This is factually untrue.
She also alleged that protesters near the front of the march couldn’t leave because they were blocked by police in front and other marchers behind them.
This is also untrue, as the judge helpfully notes:
…Immergut found that the orders for demonstrators to leave can be heard “clearly and loudly” in videos of the incident, adding that “the crowd had several places to which they could retreat and were not impeded in any way from turning around and walking away.”
Witnesses for the city and Johnston testified that demonstrators threw bottles filled with frozen liquid or nails, rocks, eggs, fireworks and mortars at officers.
Other witnesses said that while eggs and water bottles had been thrown, “there was no other violence among the crowd,” Immergut said.
Once an assembly turns violent—even by throwing “just” eggs and water bottles—it loses First Amendment protection. The right guaranteed is for peaceable assembly, not mob rule.
(What fun it must be as a police officer to try to determine if that projectile coming toward you is an egg or a grenade.)
“While there is no evidence that (McCrae) was violent, some of the protesters engaged in violent behavior,” Immergut wrote. “The crowd had previously occupied the Marion Street Bridge, was marching in the direction of the Center Street Bridge, had been ordered to disperse, and was refusing to do so, creating a significant risk to public safety.”
Around six minutes after police ordered demonstrators to leave, Van Meter instructed officers to use CS gas on the crowd.
When Johnston tossed a gas canister toward the crowd, one demonstrator threw the smoking canister back at police. Johnston testified that he fired a round of rubber bullets to protect officers.
McCrae said in her lawsuit that when she turned to leave the scene, Johnston shot her twice, hitting her in the eye.
In the city’s response to the lawsuit, attorneys said McCrae’s injuries, “if any,” were caused by “by failing to disperse the area when the protests were no longer peaceful.”
I have no problem with the police’s response or Officer Johnston’s actions. I’m sorry that McCrae was injured, but I don’t know what else police are supposed to do. The idea that mobs should be allowed to do what they want is antithetical to a democratic and civil society.