Ninth Circuit Overturns Salem PD Qualified Immunity

Eleaqia McCrae participated in a George Floyd protest in Salem on May 31, 2020. That protest started peacefully and turned violent later in the evening. In response to the violence, the Salem Police Department ordered the crowd to disperse. In the process, McCrae was hit in the eye and chest by non-lethal projectiles. She sued, and a jury awarded her just over a million dollars.

The Salem PD appealed, and Oregon District Court Judge Michael J. McShane threw out most of the award on qualified immunity grounds. Qualified immunity is the legal principle that a government official performing discretionary functions should have immunity from lawsuits for damages unless the plaintiff shows that the official violated clearly established statutory or constitutional rights. It’s not an explicitly blanket immunity. Qualified immunity exists more like an evidentiary burden on the plaintiff’s end. Still, that burden has had a big impact on court cases, to the point where it can become very difficult to sue government officials, particularly police officers.

That’s what this case ultimately came down to, the actions of one man. Officer Robert Johnston was accused of shooting “stinger” or “skip” rounds using a 40mm launcher at demonstrators. The District Court found that Officer Johnston used these tools designed to manage violent crowds properly.

The Ninth Circuit found that judgment improper because Judge McShane decided a question of fact that was beyond the scope of the appellate court’s discretion. So, the Ninth Circuit’s decision against Officer Johnston’s qualified immunity is less a legal decision on the legitimacy of qualified immunity, but rather a technical application of what aspect of a case is debatable after a jury has reached a verdict.

Eric Shierman lives in Salem and is the author of We were winning when I was there.