Judge Holds Portland in Contempt Over Violent Policing of Protests

Protesters mass in front of the Mark O. Hatfield federal courthouse Friday, in the 58th consecutive night of civil unrest over systemic racism and police brutality. (Courthouse News photo/Karina Brown)

PORTLAND, Ore. (CN) — Police in Portland, Oregon, shot peaceful protesters with rubber bullets and paintballs during demonstrations against police violence in violation of a court order barring that very thing, a federal judge ruled Monday night.

In the weeks following the May 30 police killing of George Floyd in Minneapolis, Portland’s streets were often filled with thousands of protesters calling for an end to police violence, especially against black people, who are more than three times as likely to be killed by police than white people, according to a nationwide study published in June by researchers at Harvard.

Portland’s ongoing protests against systemic racism and police brutality are often met by police in riot gear, who dispense thick plumes of tear gas and fire concussion grenades, pepper spray, rubber bullets, and projectiles filled with paint, shards of metal or pepper powder.

In early June, protesters and local civil rights group Don’t Shoot Portland sued the city claiming Portland police used chemical weapons like tear gas during the Covid-19 pandemic in order to suppress protests critical of violent policing. The case is separate from one pending against federal agents accused of targeting journalists at protests for assault and arrest. It is also distinct from a case accusing police of targeting protest medics.

Despite concerns that chemical weapons that attack the lungs pose a heightened risk during the pandemic, Portland Police Bureau lead trainer Zachary Domka testified in October that Portland police haven’t had training on the use of less such weapons in over a year.

In June, U.S. District Judge Marco Hernandez ordered the city to use tear gas only in life-threatening situations. He soon extended the order to include police use of so-called “less lethal” impact munitions like rubber bullets and pepper balls that shoot capsules filled with burning powder. Hernandez barred police from using those weapons against “people engaged in passive resistance.”

But police violated the order almost immediately, Hernandez found in a ruling issued late Monday night.

Hernandez found “clear and convincing evidence” that Portland police had violated his restraining order in three incidents at a protest outside the building that houses the Portland Police Association — the city’s police union. At a demonstration four days after Hernandez issued his order,police shot multiple peaceful protesters with paintballs and rubber bullets, violent acts that Hernandez found to be in contempt of the federal court’s authority.

On the night of June 30, hundreds of protesters demonstrated at Peninsula Park in northeast Portland. Police didn’t intervene. But that changed when part of the crowd marched to the nearby police union headquarters. Within minutes of protesters’ arrival there, police declared an unlawful assembly, formed a line to shove protesters back and began firing rubber bullets and pepper spray into the crowd.

In three of the instances outlined by protesters’ attorneys, Hernandez found the city in contempt of his order. That included incidents where police fired over a dozen rounds at protesters holding a banner as they complied with police orders, shot rubber bullets at a protester on roller skates who fell when police tried to grab the banner, and later shot paintballs at a protester who ran toward an unidentified object lying between protesters. In none of the incidents were protesters “engaged in active aggression” or otherwise threatening police, Hernandez wrote.

Officer Brett Taylor testified at the October hearing that he fired 15 rounds at banner-holding protesters from his FN303 — a type of grenade launcher that he uses to shoot rubber bullets, paintballs and munitions containing pepper powder. Taylor said banners and signs can be used as weapons.

But after reviewing video of the incident and testimony from those involved, Hernandez found that Taylor was not firing his weapon in response to “active aggression,” as the order requires. On the contrary, Hernandez found protesters carrying the banner were complying with police orders to move east when Taylor fired.

“And — most importantly,” Hernandez wrote, “nothing suggested that the individual Officer Taylor targeted was engaged in ‘[a] threat or overt act of an assault, . . . which reasonably indicate[d] that an assault or injury to any person was about to happen, unless intervention occur[ed].’”

Hernandez found that “at most” the person holding the banner was “engaged in passive resistance” by refusing to let go when police grabbed it. Passive resistance is specifically protected in the judge’s restraining order.

Taylor violated the order a second time when he shot his FN303 launcher at the protester on roller skates. Taylor claimed in court testimony that he shot the skater in an effort to protect them from worse violence at the hands of police.

“I know that a pile of officers on top of an individual attempting arrest is far more dangerous than the injuries a FN303 poses,” Taylor testified.

But video evidence showed that police had shoved the skater to the ground and other protesters were simply helping the person get back up when Taylor shot them.

“Though undoubtedly a chaotic and difficult moment for an officer in his position, the evidence shows that Officer Taylor did not deploy his FN303 in response to active aggression or to prevent the use of a higher level of force,” Hernandez wrote.

And there was no evidence that the protester who later approached an unknown object on the ground between police and protesters planned to use that object as a weapon against police.

“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,” Hernandez 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.”

Hernandez rejected the city’s claim that the incidents were “merely technical” or “inadvertent” violations of his restraining order. He found the three violations warrant a finding of civil contempt.

They’re just a few of the many violent incidents attorney Franz Bruggemeier said constituted “months of ongoing and fairly brutal violations.” Attorneys described multiple times on June 30 where police shot or sprayed protesters with less lethal munitions not to prevent an assault, but as either a preemptive strike when a protester hadn’t shown they were about to assault police, or after a protester had acted — which attorneys said was tantamount to extrajudicial punishment.

But Hernandez found five such instances to be fair game under both his restraining order and the bureau’s own rules. And he noted that he “offers no opinion” on the numerous other types of police violence that night, writing that physical force, batons, smoke grenades and tear gas are not covered under his June 29 restraining order.

Hernandez will determine potential sanctions at a future hearing. Punishments for contempt can include further restrictions, fines or jail time.

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