Portland freelance journalist Mike Bivins is suing the Department of Homeland Security (DHS) for $1 million after they pepper sprayed him as he covered a Black Lives Matter protest this past summer.
Bivins is represented by Michael Fuller, a partner at OlsenDaines who uses Underdog Lawyer as his brand. A notice of intent to sue was sent to Acting Secretary of Homeland Security Chad Wolf on Nov. 13.
The tort claim notice alleges that on July 21 Bivins was reporting on a protest when DHS intentionally sprayed him in the face with law enforcement grade tactical pepper spray causing ongoing burning in his eyes and respiratory system, as well as a severe rash on his neck. In an interview with Eugene Weekly at the time, he said, “I am in the road, down on my knees, I can’t breathe and it’s in my lungs, and my skin was on fire.”
The letter states that Bivins was “peacefully attending the protests as a reporter” and was not showing any signs of hostility towards any law enforcement, other officers or agents. It says that though Bivins understood that DHS opposed reporters filming them, he “felt he had a duty to attend the protests and to report an unbiased opinion of the situation.”
Bivins intends to bring the $1 million dollar claim against the DHS and its officers, employees and agents for assault and battery and negligence.
In a comment, Fuller says that this is a pro bono impact litigation case, meaning he doesn’t charge Bivins for his services though he does get a portion of the money if the suit is successful. He says that they are committed to continuing this fight through trial and into the appellate courts.
Bivins, who has freelanced for Eugene Weekly and Willamette Week in the past, says that as a reporter he has covered many protests and generally knows how to keep safe. With the Portland Police Bureau (PPB) he explains, they generally give a warning before they start tackling or macing people.
But Bivins says the federal agents showed up without warning to begin subduing protesters.
“All I know is there was a bunch of smoke and they came in looking like commandos,” he says. “I would expect that to happen in Moscow or North Korea or something, but this is America.”
Normally, he says, he keeps a safe distance away from PPB officers so he doesn’t interfere. He says the feds came up about 13 or 14 feet before lunging and attacking him out of nowhere.
“It was unsafe, unprofessional and un-American.”
Though Bivins says he has no lasting physical health effects, he says that he has been affected psychologically. He expresses his disappointment with the federal government saying that though he normally he isn’t quick to legal action, felt that it is warranted in this case. In 2018 he had declined to be part of a different protest-related lawsuit.
“The United States is home of the free land of the brave,” Bivins says. “These agents didn’t live up to what it means to live in America.”