JURY FINDS NO EXCESSIVE FORCE IN DEATH OF DAMON LOWERY
Despite use of pepper spray, batons, "beanbags," and the full weight of an officer

In PPRs #20 and 21, we briefly reported on a young man, Damon Lowery, who died in December 1999 in policy custody. Lowery's friend had called police to his house when Lowery, who was visiting, began to act irrationally after taking drugs. When police arrived, Lowery jumped out a window, then officers shot him 10 times with lead-pellet-bag ("beanbag") guns, pepper sprayed, and beat him.

Lowery's family filed a civil lawsuit against the City of Portland and the seven officers involved in the incident. Their attorneys, Edwin Budge and Erik Heipt of Seattle, argued that Lowery's death was not caused by blood loss, as argued by the City, but rather by lack of oxygen to the brain, or asphyxiation. Only about 15 minutes passed between Lowery jumping out the window and the time he died. The family's medical experts testified that it would have taken hours for Lowery to have bled to death, since he had cut only veins (but severed no arteries). They told the jury their opinion that the cause of death was aspyhxiation.

The asphyxia, the lawyers argued, was caused by six full cans of pepper spray police emptied on Lowery, including some sprayed directly into his open neck wound, and having the 180-pound-plus Officer Shane Nicholson (#31153) stand on Lowery for more than two minutes.

Nicholson admitted standing on Lowery while he was handcuffed. Testimony indicated he stood on Damon's back with one foot between the shoulder blades and the other foot on his head, which probably restricted Lowery's ability to breathe. Sgt. Adams, who arrived on the scene after most of the confrontation occurred, clocked in her time of arrival and testified she saw Nicholson standing on Lowery's back. An EMT who arrived over two minutes later testified Nicholson was still on Lowery when he arrived.

The Medical Examiner testified (as the City's witness) that her office did not have the information about Nicholson standing on Lowery at the time she signed the autopsy report. It is possible that with that information, she may have come up with a cause of death other than blood loss.

Another forensic expert said that Officer (now Lieutenant) Josh Ladd (#31811) had fired his "less- lethal" shotgun at Damon from 10 feet or less, even though Ladd had testified he was 20 feet away with his back to the fence. This is significant because Ladd admitted to aiming at Damon's abdomen with those first shots and the manufacturer recommends aiming the "bean bag" rounds at "lower extremities" from less than 30 feet or risk significant injury or death.

Despite this evidence and multiple witnesses testifying that the repeated use of batons, pepper spray, and "beanbags" was excessive, the eight-member jury found no wrongdoing. Rather troubling is the fact that the jury first answered the question "was excessive force used?" as "Yes." Judge Stewart explained that if that were true, they were required to answer the other three questions identifying which officers were responsible, whether the police caused Lowery's death, and whether the City was liable. The foreman replied, "It was filled out incorrectly."

They were given a new verdict form and changed their answer to "no" on the question of whether excessive force was used.

The Police Assessment Resource Center (PARC), which claims that its report contains information on all the shootings and deaths in custody cases in Portland between January 1997 and June 30, 2000 (see article), did not include the Lowery case in their review.

Another troubling aspect to the Lowery case is that the officers admitted to meeting at a precinct house before being interviewed. The practice of officers meeting prior to being interviewed was one of the things PARC strongly recommended that the Bureau prohibit, and was one of the elements of the Kendra James case that outraged the community.

The other officers involved were Brett Livingston, Richard Holthausen, John Clinton, Chad Gradwahl, and Jon Dalberg. Lowery's attorneys Budge and Heipt have challenged the outcome in court.