A federal appellate court Monday found a district judge was wrong to throw out a jury’s award of $1 million in damages to a protester who was shot in the eye during a May 2020 racial justice march in Salem.

The district judge should not have granted the officer immunity, effectively nullifying the jury’s verdict after trial, ruled a three-judge panel of the 9th U.S. Circuit Court of Appeals.

A federal jury in October 2022 heard four days of testimony before finding that a Salem police officer used excessive force against Eleaqia McCrae and awarded her $1 million in damages. U.S. District Judge Karin J. Immergut then threw out the award, finding the officer was entitled to immunity.

McCrae was on a full athletic scholarship at Mt. Hood Community College at the time of her injury. She had been in Salem with family when she joined a march on May 31, 2020, in the wake of the killing of George Floyd by a Minneapolis police officer.

The crowd crossed the Center Street bridge over the Willamette River and then headed back toward the city center. About 9 p.m., Salem police started to close off certain roads to try to direct the crowd and the marchers stopped back at the state Capitol, where they kneeled, held a moment of silence and lay in the street in memory of Floyd.

McCrae, her sister and some friends were at the front of the march and stopped before a police line, according to her lawyers. They linked arms and silently knelt on the street. When they stood up, police began blaring sirens and advanced on demonstrators, according to McCrae and her lawyers.

“Elea McCrae then began to turn around to leave and was shot at least twice,” according to her lawsuit. “At least one bullet or projectile struck her chest and one bullet or projectile struck her eye.”

Salem Police Officer Robert Johnston testified that he did not directly fire into the crowd nor fire the shot that injured McCrae.

But McCrae’s lawyers presented evidence that the so-called stinger 40mm less-lethal rounds that he fired, which propel 60-caliber rubber balls, are “unpredictable,” even when “skip-fired,” meaning aimed into the ground to disperse projectiles more widely.

Immergut had found it “regrettable” that McCrae was injured but concluded after trial that the officer used the stinger round as trained to disperse a crowd and not intentionally target her.

McCrae’s lawyers appealed Immergut’s ruling.

“Shooting projectiles into a crowd, even without a specific target in mind, can still violate the Fourth Amendment rights of those hit,” McCrae’s attorneys Athul K. Acharya and Kevin Brague wrote in their appeal.

The possibility that Johnston’s round struck McCrae by “direct fire” could not be ruled out, the appellate court ruled. The jury also was not asked whether the officer skip-fired or direct-fired the round on its verdict form, the appellate court noted.

“The district court decided, post-trial, that he had skip-fired the round in accordance with his training. We find the controlling standard did not allow the district court the leeway to make this finding,” the opinion said. “Therefore, we conclude that the district court erred in entering judgment for Appellee Johnston on qualified immunity.”

The 9th Circuit panel did find that a negligence claim against the Salem officer was properly dismissed.

Johnston’s lawyers had pointed to the jury’s finding that even though Johnston shot McCrae, he hadn’t targeted McCrae. But McCrae’s attorneys countered that the officer used excessive force against nonthreatening members of a largely peaceful crowd.

McCrae lost her track scholarship having suffered permanent damage to her vision and dropped out of college, according to her lawyers.

U.S. Circuit Judges Morgan Christen and Jacqueline Hong-Ngoc Nguyen and U.S. District Judge David A. Ezra were the three judges who sat on the appellate panel.

Attorney Dan Atchison, representing the city, said the city had no comment on the ruling. He did not say whether the city will ask the full 9th Circuit to hear the appeal.