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Gresham loses $80,000 in lawsuit

Homeless woman wins judgment in excessive force case against police officers

The city must pay a homeless woman $80,000 in damages after a jury found in her favor during a trial in which she accused a Gresham police officer of using excessive force.

Jurors in the three-day trial in U.S. District Court that ended Wednesday, April 30, awarded Mary Catherine MacQuire $10,000 more than the $70,000 she hoped for, said her attorney Ed Johnson of the Oregon Law Center.

It's the second recent transient-based judgment against the city in which the Oregon Law Center represented a homeless plaintiff.

In May of 2006, Gresham police banned three homeless men from city parks for 90 days because the men were illegally camping along the Springwater Trail in a transient camp known as 'The Swamp.'

However, the land actually belonged to a cemetery, so the men filed suit and were awarded $13,500. As a result, city councilors last February changed Gresham's parks exclusion code to specify criminal offenses that warrant exclusion and to limit the geographic area such exclusions can apply to.

While gathering information for that case, Johnson met MacQuire, now 24, at a local soup kitchen. In passing, she mentioned an incident involving Gresham police a month before police excluded the homeless men.

'People have rights, and you may have a legal claim,' Johnson told the woman.

According to court testimony, Officers Jeff Durbin and Ted VanBeek went to The Swamp early on April 7, 2006, to remove illegal campers.

They announced their presence, telling everyone to come out. One of the people who did so approached Durbin yelling. That man, Greg Schultz, was MacQuire's boyfriend.

The officers, who are certified drug recognition experts, thought Schultz and MacQuire appeared to be under the influence of methamphetamine. Both denied being on the drug.

Angry about how the officers were treating her boyfriend, MacQuire ran toward Durbin. He grabbed her left arm and when she resisted being handcuffed, she reportedly kicked him.

Durbin punched her in the stomach, grabbed her hair and shoved her to the ground. Then Durbin, who weighs twice as much as MacQuire, used his knee and part of his body weight to keep her there.

However, because he couldn't see her left hand, which he said was tucked underneath her, and she hadn't been searched, Durbin testified that he feared for his safety. She could have had a weapon.

MacQuire told the court Durbin repeatedly dug his knee into her back, placing so much weight on her, she couldn't free her arm to show him she wasn't armed.

Durbin then shocked her with a 50,000-volt Taser four times.

'All she wanted to do was get her arm out and make it (the Taser) stop,' said her attorney Johnson.

MacQuire insisted the force was excessive and a violation of her fourth amendment rights. Durbin told the court his level of force was justifiable because she wasn't cooperative. But he also testified that at one point he felt the electricity transmitting from her left arm while holding it with his left hand. The Taser struck her in the right thigh.

After the fourth shock, MacQuire's right arm came out and Durbin cuffed her. MacQuire also said Durbin choked her, but Durbin denied it. He also denied ramming his knee into her back.

MacQuire was found not guilty of resisting arrest and obstructing an officer in November 2006.

Johnson said he hopes the ruling encourages Gresham police to treat homeless people with more respect, noting that Durbin admitted to referring to homeless people as worthless and filth during his dealings with them.

In addition, Johnson wants Gresham police to become more discerning about Taser use. Instead of using them as an alternative to a firearm, Johnson is noticing a national trend of officers deploying Tasers when being met with passive resistance.

Dave Ris, Gresham's acting city attorney, was unavailable for comment, and Durbin and VanBeek didn't reply to requests for comment.

Capt. Tim Gerkman, however, said 'there were two different perceptions of what occurred, and we fully stand behind our officers.'

Officers are trained to allow possible suspects a chance to free their arms and/or hands because keeping them in sight is critical to officer safety.

When asked if the department has considered upgrading its Tasers to newer models with built-in video cameras, Gerkman said 'we haven't looked into that at this time.'

Gresham police have been using Tasers since August 2003.