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Deputy US marshal ducks suit by protester shot with ‘less-lethal’ munition

With the U.S. Supreme Court steadily chipping away at the Bivens claim it created in the 1970s, the judge had little choice in the matter.

PORTLAND, Ore. (CN) — A federal judge on Tuesday dismissed a deputy U.S. marshal from the lawsuit filed by a Portland, Oregon, protester who he shot in the face with a "less-lethal" impact munition, finding Congress needs to address how and when a federal employee can be sued for violating someone's constitutional rights.

The marshal, sued as John Doe, was in Portland trying to quell protests that had erupted in response to the police killing of George Floyd. Multiple videos show then-26-year-old Donavan LaBella standing across the street from the Mark Hatfield Federal Courthouse, holding a boombox overhead as federal police dressed in army fatigues shoot canisters of tear gas. LaBella leans over to toss a canister back into the center of the street. Moments after he stands, he collapses before protesters carry him away bleeding.

According to the amended complaint filed by LaBella’s conservator, an unknown federal officer shot LaBella with a “less-lethal” impact munition, crushing the front of his skull. Since then, the conservator says LaBella “will forever suffer from a traumatic brain injury, among other serious and life-changing injuries.”

LaBella’s attorney confirmed on Tuesday that, while it can depend on the medical expert asked, his client's condition is not expected to improve.

LaBella — who also sued the U.S. government — seeks damages on Bivens claims for violations of his Fourth Amendment rights and federal tort claims for negligence, battery and intentional infliction of emotional distress.

Ruling from the bench Tuesday, Senior U.S. District Judge Michael Mosman said he was inclined to grant the anonymous agent’s motion to dismiss all claims against him, particularly given the recent precedent set by Egbert v. Boule and Pettibone v. Russell.

Citing Egbert in his motion to dismiss, John Doe noted how the Supreme Court case states "while our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.”

John Doe argues Congress is better positioned to create remedies for a constitutional violation by, in this case, a deputy U.S. marshal using force to protect a federal courthouse at the direction of a president.

“Plaintiff’s excessive force claim presents a new Bivens context, and multiple special factors counsel hesitation against allowing the claims for damages against defendant Doe 1 to proceed,” Doe said in the motion. “The court should therefore dismiss count IV against defendant Doe 1 for failure to state a claim upon which relief can be granted.”

But while Mosman may have dismissed Doe — and all the other Does — from the case, the judge the case against the U.S. government would go on.

Justice Department attorney Ashley Garman represents the government.

LaBella’s attorneys were not entirely surprised about the order, though, given the recent precedent.

In a phone interview, attorney James Healy of The Gotti Law Firm gave more context on a Bivens claim — a cause of action created by the U.S. Supreme Court in the 1970s that permits citizens to sue a federal employee for violation of a constitutional right.

“Ever since the 70s, the Supreme Court has been kind of narrowing the availability of that claim, just in general. And after we filed Donovan's claim, the U.S. Supreme Court released its most recent opinion on the matter, and it very significantly curtailed the availability of such a claim,” Healy said. “And since that time the 9th Circuit, the Court of Appeals for our district, has even further narrowed the availability of such a claim, such that after we filed the claim, the case law came out and pretty much indicated what the judge's decision would be.”

Now that Mosman has dismissed LaBella’s Bivens claim, Healy said the case would look different against the U.S. government.

“Donovan still has the ability to make a tort claim under the Federal Tort Claims Act against the United States of America if we are proceeding,” Healy said, later adding that the prospect of a trial is still much farther down the line.

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