Judge Mulls Sanctions After Holding Portland in Contempt for Violent Protest Policing

Last month, a federal judge held Portland in contempt of court for violent protest policing. Now, he’s deciding which sanctions might prevent police from doing it again.

Federal officers advance on protesters during a Black Lives Matter demonstration at the Mark O. Hatfield U.S. Courthouse on July 25, 2020, in Portland, Ore. (AP Photo/Marcio Jose Sanchez)

PORTLAND, Ore. (CN) — A federal judge may bar Portland police from using semi automatic grenade launchers that shoot rubber bullets and paint balls, such as those that a riot cop used against peaceful protesters this summer, and were the basis of an earlier ruling holding the city in contempt. 

The city, meanwhile, says a two-hour training on the contempt order is enough to prevent future excessive force.

Protesters, volunteer street medics and journalists have separately sued the city, alleging a pattern of excessive violence from police during months of protest sparked by the police killing of George Floyd in Minneapolis.

In the case at issue, protesters led by activist group Don’t Shoot PDX filed a proposed class action accusing police of using chemical weapons to suppress their First Amendment rights. 

Police responded to the protests “with indiscriminate, unchecked, and unconstitutional violence against protesters,” according to the lawsuit. In particular, the plaintiffs objected to the use of tear gas during the Covid-19 pandemic.

U.S. District Judge Marco Hernandez signed a temporary restraining order in June, ordering police to follow their own rules on using “less lethal” munitions and prohibiting their use against people engaged in passive resistance. Hernandez added that police may only use rubber bullets “when the lives or safety of the public or the police are at risk.”

But the protesters behind the lawsuit claimed police immediately violated the restraining order and asked Hernandez to hold the city in contempt of court. At a hearing in October, attorneys for the protesters focused on one night — June 30 — as a single shard reflective of an entire summer of violent policing.

At the hearing, police justified their use of a multitude of less lethal weapons, like tear gas, pepper spray and paintballs, claiming they only used the weapons when they were facing direct threats of assault from protesters. 

But several people the police had shot or gassed testified that they had no such intent and were simply there to voice resistance to police brutality or to document the protests.

Ruling last month, 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.

Four days after Hernandez issued his restraining order, police shot multiple protesters with paintballs and rubber bullets, violent acts that Hernandez found to be in contempt of the federal court’s authority. Behind each incident was Officer Brent Taylor, a grenadier who testified that he fired between 40 to 60 rounds that night from his FN303 grenade launcher.

Attorneys had framed the night as a “snapshot” of the type of violations they said were ongoing and escalating over time — and as a night that was well-documented by video footage.

“We believe the city has been violating this court’s order since the day the court issued it on June 26,” attorney Franz Bruggemeier told Judge Hernandez in October, “but we didn’t think the court wanted to have a three-week hearing where we go through four months of ongoing and fairly brutal violations.”

Still, Hernandez said Tuesday that he was reluctant to press sanctions on the city for the acts of “just one officer.” And he signaled further reticence against being too harsh against Taylor himself.

Hernandez questioned attorney Juan Chavez about the potential sanction suggested by the protesters Chavez represents — permanently barring officers from protest policing if they are held in contempt by the court.

“If I say to you, I’m not quite ready to tell Officer Taylor he can never engage in protest policing again, and that is what the court is leaning toward, what can we do to make sure Officer Taylor doesn’t violate this court order again?” Hernandez asked Chavez. “Do you have any ideas on that?”

“Perhaps Officer Taylor doesn’t need to be a grenadier,” Chavez said. “Perhaps he doesn’t need to rapid fire his weapon. Perhaps he needs to articulate that he understands he was wrong. Perhaps that would inspire greater compliance with these orders.”

City attorney Naomi Sheffield told Hernandez permanently removing officers from protests “could be seen as punitive” — an argument that could form the basis of an appeal of Hernandez’s eventual order. Civil sanctions can’t be intended to punish, only to “coerce compliance” with court orders.

Hernandez suggested a few ideas of his own. Police training sessions on crowd control were halted for a year. Attorneys said the city couldn’t hold them because of the Covid-19 pandemic. But Hernandez said there’s been enough time to figure those logistics out. He said he wants training to happen at least every six months. And he wants better training criteria.

“You will hear me say this again and again, that in any training that occurs, the bottom line is that I want grenadiers to be able to articulate — before that weapon was used — what the specific danger was to the person prior to the pulling of that trigger,” Hernandez said. “They need to be able to articulate what the specific danger was and why they are choosing to use that force. It should be a 1+1+1 description and if they can’t do that, they shouldn’t pull the trigger.”

Hernandez added that he might require protest police to wear body cameras, and said he was imagining GoPro cameras on their helmets. He also wants officers to switch out of protest policing regularly, so they aren’t facing the same volatile situations night after night, as Taylor had testified he had done.

He asked the city and the protesters to discuss his suggestions and set another hearing for Feb. 9, when he may issue a ruling.

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