Posted by admin2 on 26th May 2005
All articles below are from The Oregonian and are not available elsewhere online.
Damon Ivan Lowery, died December 5, 1999
READ – Pay claim of the Estate of Damon Lowery, City of Portland 2005
MAN BLED TO DEATH IN DISTURBANCE, AUTOPSY FINDS
December 7, 1999
An autopsy shows that a 29-year-old man who died in police custody early Sunday bled to death after he jumped out a window of a Southwest Portland home where officers were called to respond to a disturbance.
The state medical examiner’s office is continuing an investigation before ruling on the manner of death. Portland homicide Detective Sgts. Stu Winn and Barry Renna have been assigned to investigate what is classified as a suspicious death.
Damon Ivan Lowery of Lynnwood, Wash., cut his neck when he crashed through a window of a home in the 6900 block of Southwest 15th Avenue, said Detective Sgt. Michael Hefley, Portland Police Bureau spokesman.
“He died from sharp-force injuries to his neck. We’re still doing a little more investigation at the scene to determine the circumstances,” said Dr. Nikolas Hartshorne, the deputy state medical examiner who did the autopsy.
Police responded to the scene about 5:30 a.m. when two men were fighting in the house, and the girlfriend of one called, Hefley said. Police got the woman and her boyfriend out of the home, police said.
Lowery crashed through a window in the back of the house and fell about 15 feet. It is unclear whether police were chasing him when he went through the window, police said. Investigators are interviewing nine officers who were at the scene.
Police fired beanbag-type rounds at Lowery in the rear yard of the home, but he kept trying to escape. He climbed over a fence and into an adjoining property and was taken into custody after a struggle.
“I was awakened by a boom-boom-boom noise and loud screaming,” said Mary Kent, a neighbor.
Lowery was taken by ambulance to OHSU Hospital and pronounced dead, the medical examiner’s office said. The other man involved, a 29-year-old Seattle man whose name police withheld, was treated at the hospital for mouth injuries and released.
GRAND JURY CLEARS POLICE ON MAN WHO DIED IN CUSTODY
– February 3, 2000
A grand jury found no evidence of wrongdoing by Portland officers in the death of Damon Lowery, a 29-year-old man who died in police custody in December.
Lowery ‘s father, however, is not satisfied with the police investigation and has retained a lawyer to examine his son’s death further.
“There’s an awful lot of information we don’t have,” Ralph Lowery said. “We’re just asking a lot of questions.”
Portland police initially reported that Lowery, of Lynnwood, Wash., bled to death Dec. 5 when he cut his neck crashing through the window of a home in the 6900 block of Southwest 15th Avenue. Officers had been called to the home to respond to a disturbance, and Lowery jumped through the window to avoid them, police said.
But an officer testified before a Multnomah County grand jury that Lowery cut himself.
“As he was being ordered to show his hands, he takes a shard of glass, and he used it across his own throat,” said Bill Williams, a senior deputy district attorney. “That’s what an officer sees.”
Dr. Nikolas Hartshorne, deputy state medical examiner, ruled that Lowery died of sharp-force injuries to the neck, but he could not determine the manner of death.
“It’s either self-inflicted or accidental,” Hartshorne said Wednesday, adding that he had no way of concluding whether it came from smashing through the window or from other action.
A toxicology test found that Lowery had traces of marijuana, methamphetamine, cocaine and psilocybin, a substance found in hallucinogenic mushrooms, in his body.
According to the police investigation, Lowery and friend Dave Boyle had ingested mushrooms before arriving at Boyle’s girlfriend’s home in Southwest Portland. At the home, the two men got into a fight and were wrestling. At one point, Lowery was on top of Boyle and threatened to rip out his tongue, police said.
Officers responded to the home about 5:30 a.m. after the girlfriend and a neighbor called to report a disturbance.
Boyle and his girlfriend ran out of the house, but Lowery stayed inside, disregarding police commands to come out. When police rushed into the home, Lowery crashed through a window in the back and fell about 15 feet onto a rear patio, police said.
Lowery got up, continued to disregard police commands and was seen placing a shard of glass to his throat, Williams said.
Described as having superhuman strength, even after suffering a cut to his throat, Lowery jumped over a fence into a neighboring yard, police said. “He was clearly acting irrational, if not delusional,” Williams said.
Police fired 10 shots of beanbag-type rounds at Lowery before they were able to pin him down and take him into custody.
Officers carried him to the front yard, and “it was believed that he lost a pulse and died before he left in the ambulance,” Williams said.
Eight officers and one sergeant testified before the grand jury, which made its decision last week.
Ralph Lowery cannot understand how his son could get up and jump over a fence with a cut to his neck, but the medical examiner suggested that drugs in his system could have induced such a state of excitement. Lowery also questions whether his son received any medical care before an ambulance arrived.
JURY CLEARS PORTLAND POLICE IN HOG-TIE CIVIL SUIT
– October 2, 2003
Portland police officers did not use excessive force in 1999 when they hog-tied a man who was high on drugs and bleeding to death after jumping through a second-story window, a federal civil jury ruled Wednesday.
The parents of Damon Lowery, Carol Marsall and Ralph Lowery, sued seven officers and the city of Portland, claiming wrongful death. Jurors took less than four hours to disagree with them.
During a federal civil trial that began Sept. 23, testimony showed that Lowery , 29, was under the influence of several drugs, including the hallucinogen psilocybin, when officers found him in the back yard of a house in the 6900 block of Southwest 15th Avenue on Dec. 5, 1999.
After attacking a friend, Lowery jumped through a window and landed on a concrete pad 12 feet below. Police officers ordered Lowery to show his hands, and he cut his neck with a shard of glass.
Officers tried to restrain him but testified that Lowery became combative. He tried to tackle one of the officers, Jon Dalberg, who injured his knee trying to get away, according to the city’s attorney, Mary Danford.
The officers knew that the clock was ticking and that Lowery might bleed to death, Danford said. The medical examiner said Lowery died of the neck wound, and asphyxiation was ruled out, Danford said.
Efforts to restrain suspect
Police shot Lowery with 10 bean bags, sprayed him in the face with six full cans of pepper spray and hit him repeatedly with metal batons. Despite all that, Lowery was able to run through the yard and jump over a 4-foot-tall fence. Police handcuffed him, tied his ankles and fastened his ankles to his wrists.
The plaintiff’s lawyers contended in closing arguments that being hog-tied contributed to Lowery ‘s death. They said that the restraint has been outlawed by some police departments.
In closing arguments Wednesday, attorney Erik Heipt suggested that Lowery didn’t bleed to death but died of asphyxiation after one officer, Shane Nicholson, stood on Lowery’s back and head for two minutes after the restraint was employed. Heipt said Lowery already was low on air from loss of blood, the drugs and the struggle with officers.
Heipt said Police Bureau documents show that people in this condition are more apt to die of asphyxiation, but that the bureau ruled out a policy change disallowing the hold and failed to provide more than 30 minutes of training on the subject.
“Two minutes is an eternity,” Heipt said, emphasizing his point to jurors by staring at his wrist watch for exactly two minutes. “For Damon Lowery, it was a lifetime.”
Because the case was in litigation, Lowery’s death was not included in a recent report to the city by the Police Assessment Resource Center of Los Angeles, which reviewed police-involved shootings and deaths in custody between January 1997 and June 30, 2000. The consultant found glaring deficiencies in the way police shootings and deaths in custody were investigated in Portland.
The center’s report criticized the Police Bureau for not prohibiting officers involved in such incidents from talking to one another before being interviewed by detectives.
In the Lowery case, the officers met at a precinct house before being interviewed, Heipt said. Similarly, officers at the scene of the recent Kendra James shooting went out to dinner and talked by phone before detectives interviewed the officer who pulled the trigger.
Since the report and the controversy surrounding James’ death, the Police Bureau adopted a strict policy prohibiting officers involved in a shooting or in-custody death from talking with one another.
POLICE OFFICERS FACE NEW TRIAL ON ALLEGATION OF EXCESSIVE FORCE
– May 10, 2004
A federal magistrate has ruled that six Portland police officers used excessive force in 1999 when they fired beanbag-type rounds and pepper spray at an unarmed man who died after he jumped through a second-story window.
The ruling Friday by U.S. Magistrate Janice Stewart throws out a federal civil jury’s 2003 verdict in her courtroom that had exonerated the officers in the death of 29-year-old Damon Lowery.
Stewart ruled the officers used excessive force early in their encounter with Lowery and, as a result, said his family may be entitled to damages.
Stewart also said she had given the jury improper instructions before they reached their verdict and ordered a new trial on several grounds, including: Was excessive force used later in the encounter, after Lowery charged at one of the officers, and were the officers properly trained to handle the call?
Through a spokeswoman, Portland Police Chief Derrick Foxworth declined to comment Sunday.
“The chief has not had the opportunity to read and review the judge’s ruling,” said Sgt. Cheryl Robinson. “Until he does, it would be inappropriate for him to comment on it.”
Lowery’s father, Ralph Lowery of Snohomish, Wash., said Sunday that he thinks his son was disabled by the officers and posed no threat.
Stewart’s ruling is another blow to a department that has been sharply criticized in the past two years in high-profile use-of-force cases, two of which involved unarmed African American civilians who were shot to death by officers. Lowery was white.
And it raises new questions about how the department trains its officers in the use of force.
The police officers in the Lowery case were exonerated in 2000 by a Multnomah County grand jury that found no evidence of wrongdoing in his death.
Then Lowery’s parents filed a federal civil rights suit against seven officers and the city of Portland. But last fall, the federal jury ruled that the officers did not use excessive force.
According to police accounts and testimony in the civil suit, officers were called about 5:30 a.m. on Dec. 5, 1999, to a disturbance at a home in the 6900 block of Southwest 15th Avenue.
Lowery was under the influence of several drugs, including the hallucinogen psilocybin, when he got into a fight with a friend inside the house. After officers arrived, he jumped or fell through a window and landed on a concrete pad about 12 or 15 feet below.
Lowery suffered a cut to his neck; there has been some dispute about whether he slashed himself with a shard of glass or was cut as he jumped through the window.
Officers tried to restrain him but testified that Lowery became combative. Police say he tried to tackle one of the officers, Jon Dalberg. Lowery then jumped over a fence into a neighboring yard, according to police.
Overall, officers fired 10 beanbag-type rounds at Lowery, hit him numerous times with their batons and sprayed him in the face with six full cans of pepper spray. Eventually, Lowery was hog-tied and one officer stood on his upper body and head.
They carried him to the front yard; he died before an ambulance could take him to a hospital. His death was ruled accidental or self-inflicted as a result of sharp-force injuries to the neck. His family thinks he suffocated.
In their suit, Lowery’s parents claimed the officers were improperly trained to deal with emotionally disturbed people. But the city argued that the officers used reasonable force to subdue Lowery so he could receive medical attention.
In her ruling Friday, Stewart said all the officers named in the suit except one used excessive force when they fired four or five beanbag shots and three cans of pepper at Lowery before he charged Dalberg. At the time, she said, Lowery was unarmed, injured and had not attacked or verbally threatened the officers.
But when Lowery charged Dalberg, he may have posed a greater risk to the officers, according to Stewart. She ordered the new trial to determine whether the force used after that was excessive. The suit named seven officers. Stewart’s ruling dropped one of them, but he will be included in the new trial.
The jury may be asked to determine the damages on Friday’s ruling on excessive use of force and whether the officers were responsible for Lowery’s death, according to Erik Heipt, a Lowery family attorney.
PORTLAND MAY SETTLE EXCESSIVE FORCE CASE
– May 15, 2005
Portland officials are considering paying $600,000 to the estate of a man who died in police custody in 1999 after a violent confrontation fueled by drugs.
A Multnomah County grand jury cleared seven officers of any criminal charges in the case. In 2003 a federal jury hearing a civil suit found that the officers had not used excessive force, so the city prevailed.
But last year, the judge in the 2003 trial decided that she had given the jury improper instructions and that some of the unchallenged trial facts amounted to excessive force under the law.
U.S. District Judge Janice Stewart said she would allow a new trial to determine other issues, including whether beanbag rounds and pepper spray used on the man while he lay injured on the ground provoked the man to attack one of the officers.
The settlement on the consent agenda for Wednesday’s City Council meeting comes from the city’s Risk Management Division and, if approved, would avoid a new trial. Consent items are voted on without discussion.
About 5:30 a.m. Dec. 5, 1999, frightened friends called police to their Southwest Portland home because a visitor, Damon Lowery, 29, was ranting and violent after consuming hallucinogenic mushrooms and fought with his friends. When police arrived, he either jumped or fell out of a second-story window, landing on a concrete patio with severe cuts.
He was eventually surrounded by seven officers, shot 10 times with beanbag rounds fired from a shotgun, and sprayed with at least six cans of pepper spray, according to court records. About midway way through the rounds and pepper sprays, Lowery charged an officer, then jumped a fence into a yard next door.
He was hit with batons and hog-tied. An officer stood on Lowery’s head and upper body to hold him down, which his family thinks caused his death.
In an eight-day federal trial, a jury found the police had not used excessive force. Because of that finding, the jury did not decide whether the police caused Lowery’s death or whether Portland police are adequately trained to deal with emotionally disturbed people, as the suit claimed.
Last year, Stewart found that the first four or five beanbag rounds and the first three cans of pepper spray amounted to excessive force because they came while Lowery was still lying injured or kneeling on the patio. She said that in a new trial jurors could decide whether the force used after Lowery charged the officer and then jumped a fence was also excessive or was justified because Lowery posed a risk to the officers.
Stewart said 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 also 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 the early beanbag shots and sprays provoked Lowery ‘s response, then the force used to restrain him afterward could also be unreasonable.
Those 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.
Damon Lowery’s father, Ralph Lowery of Snohomish, Wash., said he could not talk about the settlement until he had discussed it with his attorney.
CITY COUNCIL WATCH
– May 26, 2005
* Approved a $600,000 lawsuit settlement with the estate of Damon Lowery, who died in police custody in 1999 after a violent confrontation fueled by drugs.