A Multnomah County jury ruled Monday that the city of Portland must pay a 27-year-old man nearly $306,000 after police used a stun gun and pepper spray on him, punched him and dog-piled on top of him before they unlawfully arrested him for criminally trespassing on a downtown sidewalk.
The money represents one of the bigger jury awards in recent excessive force cases against police, who. are revising their Taser policy after federal investigators found officers often misused stun guns, especially against mentally ill people.
Jurors found that police falsely arrested, battered and maliciously prosecuted Gallagher Smith after he quarreled with a doorman on Nov. 13, 2010, at the Aura nightclub on West Burnside Street. The doorman told Smith he’d have to wait at the end of a long line again even though he’d just been in the club and had gotten a stamp on his hand before stepping outside. The doorman eventually flagged down police.
Smith walked away from the club as police followed. Smith questioned police about what law prevented him from standing on a public sidewalk.
Both sides agreed that police wouldn’t explain why. As officers tried to handcuff Smith, he pulled his arms into his chest. Smith said he was immediately punched in the face. The scuffle that ensued was his attempt to protect himself, he said.
But one of the officers testified during the four-day trial that Smith clenched his fists from the beginning and his body language indicated he was looking to pick a fight. Smith never hit or kicked police, his attorneys said.
Officer Patrick Johnson fired his Taser at Smith, but the probes didn’t pierce his skin. Officer Sean McFarland then used his Taser and hit his mark. Police said Smith was defying orders to stay on the ground.
Johnson pepper-sprayed Smith twice and police punched him in the back before half a dozen officers piled on top of him. Smith was handcuffed with his feet tied to his wrists and charged with criminal trespass, interfering with a police officer and resisting arrest.
Smith said he had smoked pot and was drinking that night, but his attorneys argued that had no bearing the officers’ overreaction.
Smith said he wasn’t ignoring police orders, but simply trying to crawl out of traffic after he ended up in the street during the encounter. He suffered a black eye, road rash on his face and Taser marks on his abdomen. He also was diagnosed with post traumatic stress disorder and said he’s lost his trust in police.
Jurors awarded nearly $16,000 in legal fees for his criminal defense, medical bills and counseling. They also awarded $290,000 for his pain and suffering.
After the verdict, juror Patty Smith said police were wrong to rough up and arrest Smith, and most of the verdict was an acknowledgement of his lasting psychological injuries.
In June 2011, a judge acquitted Gallagher Smith of all criminal charges, but found him guilty of second-degree attempted criminal trespass, a violation similar to a traffic citation and not a crime.
During closing arguments, Smith’s attorney Jason Kafoury contended that police hoped to win a criminal conviction against his client to forestall a lawsuit when they learned Smith had a clean record and they were wrong to rough him up.
Deputy City Attorney David Landrum told jurors that he accepts the earlier decision by Judge Youlee You that police didn’t have probable cause to arrest Smith. But Landrum said police try to use their best judgment during difficult situations.
“We get these ideas that police officers are these automatons — they’re robots, right?” Landrum said. “… They’re just people, and we put them in this position when you’re having trouble, when something is going wrong, it’s as simple as ordering a pizza. You dial them up. … They’ve got to figure out what’s going on and ‘What do I do about it?'”
The Police Bureau’s internal affairs unit investigated the confrontation and cleared the officers of wrongdoing, police spokesman Sgt. Pete Simpson said after the verdict.
Kafoury applauded Smith for courage in standing up to police when he asked them what law he was breaking by standing on the sidewalk.
“Some of you may be wondering ‘…Why don’t you just say, ‘Yes, sir,’ and keep on moving?” Kafoury said. “There’s one thing that history has proved: If we don’t defend our rights, we lose them.”
After the verdict, Smith hugged his attorneys. He summed up his feelings in one word: “Relieved.”