PORTLAND — A federal judge Monday found the city of Portland in contempt of his order that restricted the use of less-lethal impact munitions during protests this year.
U.S. District Judge Marco A. Hernandez ruled that police violated his order three times on June 30 as officers declared an unlawful assembly and attempted to push protesters to the east who had marched to the police union building from Peninsula Park.
The judge’s written ruling Monday night followed a two-day hearing last month in a suit filed by the nonprofit Don’t Shoot Portland against the city. The hearing marked the first time protesters and police, who had faced off on city streets during months of racial justice demonstrations, testified in court in Portland, providing first-hand accounts of their clashes.
The judge will meet with both sides at a future date to determine what, if any, sanctions to issue.
The night of June 30 devolved into chaos, with police quickly moving in to push 200 to 250 protesters east along North Lombard Avenue, away from the Portland Police Association office.
Four days earlier, the judge had issued an order barring the police firing of FN303s and 40MM less lethal launchers and use of pepper spray on people engaged in passive resistance. The judge’s June 26 order also urged police to minimize the exposure of pepper spray to people not involved.
“Defendant documents hours of violence, including threats to the safety of police and protestors alike. But despite its efforts to live up to the standards of the Order and exercise restraint in the face of such turmoil, PPB failed,” the judge wrote.
Hernandez identified three incidents that involved the use of the less-lethal launchers that violated his order: Officer Brent Taylor’s firing of 15 shots from his FN303 launcher against people carrying an “Abolish the Police” banner with a PVC-pipe frame; his deployment of 10 rounds from the same type of launcher against people attempting to pull a person on roller skates away from police and back into the crowd; and the firing of a less-lethal launcher at a person who attempted to pick up an unidentified object from the ground.
“None of the individuals targeted by police in these incidents were engaged in active aggression, and the use of force did not reasonably prevent the use of a higher level of force. All three individuals appear to have been struck by police munitions. The Court cannot conclude that these three violations over an hour-long period were ‘merely technical,’ ” the judge ruled.
Taylor had testified in court that he deployed his launcher against someone holding onto the banner because he believed the banner would later be used as a weapon.
But the judge noted that nothing suggested the banner was being used as a weapon. Further, he wrote, “in the moments before Officer Taylor fired his FN303, the protestors carrying the banner were complying with PPB’s directions in moving with the rest of the crowd away from the PPA building.”
“At most, the record shows that the individual who was refusing to let go of their sign was engaged in passive resistance,” the judge wrote. “Because more is required for the use of impact munitions, the Court finds that Officer Taylor’s use of force did not comply with Use of Force Directive 1010 and therefore violated the Order.”
In the second instance, Taylor fired 10 rounds from his FN303 launcher at people attempting to pull a person on roller skates away from police and back into the crowd.
Taylor testified that he fired the launcher in order to stop their actions, as he believed they were attempting to interfere in the arrest of the person on roller skates. He also said he did so to prevent an assault or a higher level of force.
But video of the moment did not support Taylor’s assertions, the judge said.
“In video from the protestor’s vantage point, it is clear that no arrest is being made,” Hernandez wrote.
“During the struggle over the banner, the individual on roller skates falls to the ground and protestors try to pull the fallen individual back into the crowd. In video from the officer’s perspective, officers appear to grab and shove the individual,” the judge wrote. “Aside from a few brief moments of physical contact, however, there is nothing to suggest that this individual was under arrest.”
The third violation stemmed from the police firing of other impact munitions from an FN303 at a person who walked toward the police line, attempting to pick up an item off the ground.
As the person leaned down to grab the item, an officer deployed multiple rounds from an FN303 at the individual.
“But it simply cannot be that any attempt by an individual to pick up an item off the ground at a protest constitutes a threat of assault to officers or others,” the judge wrote. “There was nothing in this moment to suggest that the protestor was grabbing an item with the intent to throw it at the police. The individual moved slowly and was struck by a munition before they even had the object in their hands. Because this protestor was not engaged in active aggression, the officer’s use of impact munitions violated the Order.”
Hernandez, however, did not find the police actions against other plaintiffs, including Pedro Anglada Cordero, Katrina Haas and Eric Greatwood, were improper, noting that both Anglada and Haas kicked smoke canisters in the direction of police officers and that Greatwood had moved quickly and successfully picked up a canister.
“While Mr. Greatwood, Ms. Haas, and Mr. Anglada may not have subjectively intended to assault or threaten to assault officers that evening, kicking or throwing smoke canisters constitutes a threat or act of assault,” the judge wrote.
He also found police complied with his order when dousing Andrew Cleinman with pepper spray after Cleinman had grabbed an officer’s baton.
Don’t Shoot Portland, a Black-led, nonprofit that advocates for social and racial justice in the city, argued that police had violated the court order nine times that night when officers fired foam-tipped impact rounds, launched smoke grenades, bull-rushed demonstrators with batons and fired tear gas on North Lombard Street after pushing them back from the police union office.
City attorneys had countered in court that police didn’t violate the order and that any suggestion of excessive force or police misconduct should be evaluated in a different forum. Police had declared a riot that night after some in the crowd threw rocks, water bottles, beer cans and other objects at officers, according to police and city attorneys.
“The situation was dangerous,” said Naomi Sheffield, a deputy city attorney. Ten Portland officers and state troopers were injured that night.
The police response “was based on good faith and reasonable interpretations of the less-lethal order,” Sheffield said.
Portland police Capt. Tony Passadore, who was the bureau’s incident commander on June 30, had testified that he sent a radio transmission to all officers that night, informing them of the judge’s June 26 restrictions on less-lethal munitions. He also said the judge’s restrictions were discussed earlier that night with members of the bureau’s Rapid Response Team, its crowd control unit of officers.
“The Court cannot conclude that a single radio transmission and a discussion with RRT officers and supervisors on June 30, 2020, constitutes ‘all reasonable steps’ Defendant could have taken to ensure compliance with the Order that evening,” Hernandez wrote.
