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Friday, October 5, 2012

Occupy Protester in Pepper Spray Photo Sues for Policy Changes, $155,000

Posted by Denis C. Theriault on Fri, Oct 5, 2012 at 12:14 PM

As we reported late Wednesday, Liz Nichols—the Occupy Portland protester pepper sprayed in the face while shouting at another officer who'd hit her in the neck at a rally November 17—filed suit today against the city and the Portland Police Bureau.

Nichols, a 21-year-old PSU student, is accusing two officers of using excessive force, the cop who sprayed her, Sergeant Jeff McDaniel, and the cop who hit her and then dragged her by her hair behind the arrest line, Doris Paisley. She's accusing the city of clinging to a (maybe finally changing) policy that allows the use of less-lethal weapons like pepper spray and Tasers against people who aren't actively resisting cops—despite ample time over the years to make changes after past lawsuits.

And she's seeking $155,000 in damages, with her lawyers saying Nichols suffered from eczema in the immediate aftermath of being sprayed while still enduring sleep and anxiety issues. She appeared with her attorneys, Kenneth A. Kreuscher and Benjamin Haile, who provided copies of the lawsuit's 14-page complaint (PDF). Nichols, made famous in an award-winning Oregonian photo that captured McDaniel in the act of dousing her, was one of a few other protesters also sprayed that day.

"The policies of the Portland Police Bureau allow the use of pepper spray even when a person is not physically a threat to anyone," Kreuscher said at a news conference this morning. "This lawsuit is about attempting to change that policy."



The confrontation between police and protesters that led to Nichols being sprayed came at the end of a long day of anti-bank protests throughout downtown. And it probably could have been avoided if cops had offered protesters better direction on what to do.

Mounted cops showed up to clear the sidewalks around the Chase branch at SW 6th and Yamhill. Then the riot cops and their PA van showed up. And while the riot cops confusedly started pushing people like Nichols off the sidewalk on Yamhill, the van was telling people to "vacate the street" and stay off nearby MAX tracks.

"Liz Nichols was obeying the only order she ever heard from the police. She took care to stay on the sidewalk," Haile said. "All she was doing was shouting at police. Her hands were down at her side."

Nichols was charged with three misdemeanors after the protest, which were first reduced to lower-level violations (which are easier to prove and decided by a judge, not a jury), and then dropped altogether after the DA's office learned it might have to do jury trials all the same. The charges were refiled as traffic charges—"essentially fancy speeding tickets," Kreuscher says—that accuse her of not listening to unspecified traffic orders.

The excessive use of less-lethal weapons against passive resisters was among the problems cited in a recent federal report ripping the police bureau for its treatment of the mentally ill. But it's implications also apply to "crowd control."

Says Kreuscher: "This is one of the events the Department of Justice was looking at."

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