A Salem woman who police shot with rubber bullets at a 2020 protest is once again entitled to $1 million from the city of Salem after a federal appeals court ruled a Salem police officer used excessive force when responding to a protest. The decision Monday comes a year and a half after a federal judge threw out one of the most costly civil verdicts against the city in recent history. It means the protester, Eleaqia McCrae, will get her payout unless the city seeks additional review through the court system. A jury in October 2022 unanimously found that a Salem police officer was liable for McCrae’s permanent vision loss when he fired rubber bullets while trying to disrupt a downtown demonstration. But U.S. District Judge Karin Immergut six months later dropped the lawsuit after ruling that the officer had no way of knowing he violated the protester’s rights when he shot her with rubber bullets, a legal principle known as qualified immunity.  Now, three judges in the Ninth U.S. Circuit Court of Appeals have reversed Immergut’s ruling and restored the jury verdict. READ IT: Appellate judges’ memorandum The federal judge’s decision to toss the lawsuit last year was remarkable, according to Athul Acharya, executive director of the law firm Public Accountability, who represented McCrae in her appeal.  “Judges are generally quite deferential to jury verdicts,” he said. McCrae was pleased to see that decision reversed and remains cautiously optimistic, according to Acharya. “There are still things that could happen in between here and actually executing the judgment,” he said. “I’m waiting to see what the city does.” The city could seek review from a larger panel of judges in the Ninth Circuit or from the U.S. Supreme Court.  City Attorney Dan Atchison declined to say whether the city would pursue such a review or otherwise comment on the verdict. McCrae sued the city and officer Robert Johnston in August 2020 in Eugene U.S. District Court. McCrae, a West Salem High School graduate and student athlete at Mt. Hood Community College, attended a May 2020 protest in Salem with her sister and a friend after Minneapolis police officer Derek Chauvin murdered George Floyd. She went with her sister and a friend, marching with demonstrators to the Center Street Bridge and back to the Oregon Capitol around 9 p.m. The lawsuit said the crowd was stopped by Salem police outfitted in full SWAT gear with a military vehicle, blocking marchers from proceeding. McCrae described the march as involving no rioting, looting or destruction of property at the time that Salem police intervened. She also alleged that protesters near the front of the march couldn’t leave because they were blocked by police in front and other marchers behind them. “There was no violence prior to the SPD show of force. It was a peaceful assembly. The marchers, including Elea McCrae, linked arms, and silently knelt in the street. The marchers and Elea McCrae then stood up,” the lawsuit said. When McCrae got up to leave, Johnston shot her twice, the suit claimed. One rubber bullet hit her chest and the other hit her eye. After being shot in the eye, McCrae passed out, according to her complaint.  The jury found in September 2022 that Johnston violated McCrae’s Fourth Amendment right not to be subjected to excessive force, awarding her $250,000 for economic loss and $800,000 in other damages. The city contested throughout that Johnston should not be held personally liable because there is no history of other court rulings which found similar use of force by officers was excessive. That issue remained unresolved even after the jury verdict, and the city continued to press its case. Attorneys representing the city had argued before and after the trial that Johnston was entitled to qualified immunity. That legal principle is intended to shield government workers from personal liability when any “reasonable” person in their position wouldn’t know that their conduct was illegal.  Because those facts were disputed even after the trial, the judge needed to rule separately on the issue of qualified immunity. Law enforcement officials across the U.S. have contended that qualified immunity gives officers some leeway in making split-second decisions such as using force, while critics have argued that such an approach has historically allowed police to avoid accountability for misconduct, according to the Congressional Research Service. Immergut ruled that Johnston did not target McCrae when he fired the rubber bullets and was following his training to disperse a crowd, which included demonstrators who had turned violent. She also found that the officer was protected from the lawsuit because McCrae didn’t prove that other officers have historically been found liable for the same conduct. The judge dismissed the case in favor of the city and Johnston. That same day, McCrae filed a notice of appeal. McCrae asserted in her appeal that the officer who injured her should not be entitled to qualified immunity. She also argued that Immergut was wrong to dismiss a claim of negligence against the city.  Acharya said that the city and Johnston needed to clear a high bar to get a result that was the opposite of the jury’s verdict. “The Court of Appeals didn’t think that the defendants had cleared that,” he said. Ninth Circuit Judges Morgan Christen, Jacqueline Nguyen and David Alan Ezra agreed with Immergut’s decision to drop the negligence claim against the city. But they reversed her decision on qualified immunity and found that the officer was liable for excessive force. A key issue was whether Johnston fired directly at the protester. Johnston argued at trial that he didn’t target McCrae. Meanwhile, McCrae argued that the officer fired directly at her and injured her. Acharya said whether he targeted her specifically was irrelevant to the claim of excessive force. “The right inference to draw based on the fact they rendered a verdict for my client was that he fired it directly, and if he fired it directly, there’s clear case law saying you can’t do that to a nonthreatening protester,” Acharya told Salem Reporter. CORRECTION: An earlier version of this story misquoted Acharya’s description of case law due to spelling errors. Salem Reporter apologizes for the error. RELATED COVERAGE: Judge wipes out $1 million city payout to protester injured by officer Judge’s ruling could erase $1 million city payout to protester injured by officer State pauses investigation of Salem officer pending court ruling on qualified immunity Jury awards $1 million to protester injured by Salem police Salem protester who has permanent vision loss from last summer’s protests has herself to blame, city says in court filings Salem woman suffered permanent eye damage after getting shot by Salem police with rubber bullet, lawsuit claims Contact reporter Ardeshir Tabrizian: [email protected] or 503-929-3053. A MOMENT MORE, PLEASE– If you found this story useful, consider subscribing to Salem Reporter if you don’t already. Work such as this, done by local professionals, depends on community support from subscribers. Please take a moment and sign up now – easy and secure: SUBSCRIBE. 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