Portland and Multnomah County are paying a combined $80,000 to settle a federal lawsuit filed by a man shot with less-lethal munitions by a Portland police officer and a county sheriff’s sergeant during a declared riot downtown on July 4, 2020.
The city will pay $75,000 and the county $5,000 to Erik Hoofnagle, 35, of Portland.
Senior Deputy City Attorney Caroline Turco said the case was resolved with the help of mediation before a retired judge. They reached a “mutually agreeable settlement” to cover Hoofnagle’s injuries and attorney fees, Turco told City Council members Wednesday.
Hoofnagle had been walking away from police with a crowd that was ordered to move northbound on Southwest Fourth Avenue when police fired a smoke grenade at the group. Hoofnagle kicked the smoke canister diagonally across the street to get it out of the way of protesters near the Fourth Avenue intersection with Southwest Washington Street, according to his lawyers.
He was then shot with a volley of munitions, according to video played for the council and court reports.
Hoofnagle suffered 14 wounds, including a broken right knee cap, according to his lawyers.
Hoofnagle was arrested, accused of riot and interfering with police, but the charges were dismissed in early August at the request of a deputy district attorney.
Hoofnagle didn’t commit any crimes, nor did he actively resist any lawful orders, said J. Ashlee Albies, one of his lawyers.
The council approved the settlement in a 4-0 vote. The mayor was out of town.
Portland Officer Brent Taylor shot Hoofnagle at least nine times with pink paint projectiles fired from an FN303 launcher as Hoofnagle was stepping backward away from the police line, Albies said. He also was shot in the back after he had fallen on the ground, she said.
Multnomah County Sgt. Kyle Smith, part of the sheriff’s Rapid Response Team, fired a single 40mm blue-tipped projectile from a shotgun in response to Hoofnagle’s kicking of the smoke canister back at police, according to Christopher Gilmore, a senior assistant county attorney.
Erik Hoofnagle was shot multiple times by less-lethal munitions after kicking a smoke canister during a declared riot in Portland's downtown on July 4, 2020.
The suit alleged that Taylor filed a false report, claiming he had shot Hoofnagle “in the act of picking up and throwing” a smoking canister at police. But the video revealed Hoofnagle didn’t pick up, “much less throw” any canister, his lawyers wrote in court papers.
Hoofnagle was shot four days after a federal judge issued a temporary restraining order against police in a separate suit. U.S. District Judge Marco A. Hernandez barred police from firing less-lethal FN303 and 40mm launchers and using pepper spray on people engaged in passive resistance.
Taylor and police argued that Hoofnagle’s actions were “perceived” by multiple officers as “active aggression,” saying he kicked the canister toward officers during a riot, according to Aaron P. Hisel, Taylor’s lawyer.
City lawyers also argued there was no evidence Hoofnagle’s kneecap was broken or shattered. They said Hoofnagle may have been struck twice by Taylor’s projectiles and not in the knee. He didn’t disperse with the crowd but “turned around and kicked the canister,” Turco wrote in a court filing.
Gilmore, the county’s lawyer, argued in court papers that the smoke canister “placed the officers at direct risk of harm from impact, prevented officers from identifying incoming projectiles from the crowd, and interfered with a lawful police action that was intended to disperse an ongoing riot.”
Albies countered: “Despite the government’s proffered interest in clearing the downtown streets, they are not justified in using force against a person who is not an active threat at the time the force was used.” Hoofnagle was protecting the public by kicking the smoke canister away from himself and other protesters who were retreating from police, she said.
Hoofnagle, 35, moved to Portland in 2011 from Bellingham, Washington. He graduated from the Pacific Northwest College of Art in 2015. He began participating in local Black Lives Matter protests after the murder of George Floyd, a Black man killed by Minneapolis police on May 25, 2020.
On the day he was shot, Hoofnagle was wearing shin guards and a baseball helmet and holding a shield fashioned out of cardboard and duct tape to protect himself out of fear of harm from police, his lawyer wrote in court documents.
-- Maxine Bernstein
Email mbernstein@oregonian.com; 503-221-8212
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