(CN) — While a federal judge in Oregon dismissed some claims brought by a group of Portland protesters who sued the federal government over the use of excessive force and unlawful detentions in 2020, he ruled other claims may proceed.
U.S. District Judge Michael H. Simon, a Barack Obama appointee, issued an order Monday partially adopting the findings and recommendations from U.S. District Judge Youlee Yim You stemming from a lawsuit filed by two organizations and eight people who participated in Black Lives Matter protests in the summer of 2020.
In January, You issued findings and recommendations calling for the court to dismiss the protesters’ claims for trespass and defamation, to which the protesters conceded. You recommended the court deny the motion to dismiss their claims for assault and battery, and negligent infliction of emotional distress.
You also found that plaintiff Mark Pettibone lacked standing to request an injunction against federal officers for expungement of the records obtained after his unlawful search and seizure, but on that point, Simon disagreed.
The records obtained included Pettibone’s personal information, a photograph of him and a catalog of the contents of his backpack, which Pettibone accuses the officers of obtaining through an unlawful search and seizure.
The federal officers argued that because the records related to Pettibone’s arrest are not “searchable,” they cannot lead to harm.
“Those records, however, have already been used in ways that harm Pettibone,” Simon wrote.
Simon wrote that a photograph of Pettibone was found on one of the defendant’s cellphones and Pettibone argued that he now must report his arrest on job applications and other forms, even though he asserts the arrest was unlawful and unconstitutional.
“Pettibone has shown that his records have been used by the federal government and that it is sufficiently likely that he will suffer tangible harm, including reputational harm, if the records are not expunged,” Simon wrote.
In February, You recommended the court deny the government’s motion to dismiss the protesters’ negligent infliction of emotional distress claims, writing that the argument that the claims were somehow subsumed by the assault and battery claims should be rejected.
The government argued that the battery and assault claims for three of the protesters should be dismissed, but Simon pointed to accusations from the protesters that the officers acted intentionally, shooting some with rubber bullets and pepper balls.
“It is a reasonable inference at this stage of the litigation that the officers intended to cause him harm or the apprehension of harm in shooting him multiple times with less lethal munitions versus generally shooting broadly into a crowd for crowd control and incidentally hitting [plaintiff James] McNulty,” Simon wrote.
Simon also rejected the governments’ claims that the plaintiffs could not bring negligent inflection of emotional distress claims when the “emotional harm was a byproduct of their physical injury.” The government argued this would “erase the distinction” between a negligent infliction of emotional distress claim and a claim for negligence.
“Plaintiffs may bring a claim for [negligent infliction of emotional distress claims] asserting emotional harm caused by the federal officers’ negligent conduct that plaintiffs assert caused them physical harm,” Simon wrote.
The federal defendants also argued that the protesters’ negligent infliction of emotional distress claims rely on intentional conduct, not negligent conduct.
Simon, however, found that five of the plaintiffs had grounds to bring negligent infliction of emotional distress, but the other three did not.
Pettibone, for example, accused federal agents of chasing, grabbing and transporting him in an unmarked van to the federal courthouse where he was searched, handcuffed and placed in a holding cell. Simon identified this as intentional conduct.
Another plaintiff argued that federal agents “plowed” into him, struck him with a baton and sprayed a chemical irritant into his eyes after he questioned why they were not honoring their constitutional oath. And yet another argued he was attacked in a similar manner.
“Allegations of conduct that can only be intentional cannot give rise to a negligence claim,” Simon wrote.