In an unfortunate but not surprising decision, a federal judge recently dismissed the excessive force and Fourth Amendment rights violation lawsuit against a U.S. Marshal who shot a Portland protestor in the head with “less-lethal” ammunition, causing a traumatic brain injury (TBI). Attorneys Christopher R. Best and James Healy, who represented the plaintiff, Donavan LaBella, explained to newsgroups that both the U.S. Supreme Court and Oregon appellate courts had taken intentional steps since the protests to bar such lawsuits against federal officers. However, the federal judge only blocked the case against the unnamed U.S. Marshal and others who clashed with protestors in Portland after the police killing of George Floyd. The decision did not stop LaBella’s claim against the United States government as allowed by the Federal Tort Claims Act.
Details of the Portland Protestor TBI Case
Donavan LaBella was protesting in Portland with countless others after George Floyd was killed by police officers in Minnesota. He was mostly standing in front of the Mark Hatfield Federal Courthouse and playing music from a boombox. When he stooped over to pick up a tear gas canister that was fired at his group, he was shot in the head by “less-lethal” impact ammunition as soon as he stood back up. The force of the impact crushed his skull and caused him to suffer a traumatic brain injury that has permanent consequences on his day-to-day life now.
LaBella decided to take legal action against the U.S. Marshal, who has still not been named to the public, and the U.S. government. In the complaint that was primarily handled by Attorney Healy of The Gatti Law Firm, it was cited that his Fourth Amendment rights to peacefully protest were violated, and it also cites negligence, battery, and the intentional infliction of emotional distress through excessive police force.
The federal judge found that pre-existing statutes and case law were in place to prevent LaBella from demanding a damages remedy specifically from the U.S. Marshal. As noted, Attorney Healy was anticipating this result due to recent legislative pivoting that all but ensured it. However, with the case against the U.S. government still alive, LaBella can decide if he wants to proceed, which would likely take the case to trial.
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