Portland Police Claim Near-Daily Force Doesn’t Violate Court Order

Federal officers use crowd control munitions to disperse Black Lives Matter protesters outside the Mark O. Hatfield United States Courthouse on July 21, 2020, in Portland, Ore. (AP Photo/Noah Berger)

PORTLAND, Ore. (CN) — Despite months of daily protests marked by the copious tear gas and rubber bullets, and a court order limiting “less lethal” weapons, Portland police haven’t had a training on the weapons in almost a year, police commanders testified on Thursday.

Protesters clashed with police on Thursday — this time inside the courthouse where they have often faced off during nearly five straight months of protests against police brutality and racial injustice. 

Over two days of testimony, witnesses and attorneys argued over when police should be allowed to use violence as a crowd control method — one of the questions at issue in the protests.

City attorneys claimed that the near-daily use of force by police against protesters doesn’t violate a court order to use less-lethal munitions like rubber bullets only in life-threatening situations. 

Police justified their use of a multitude of so-called 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.

Protesters and activist group Don’t Shoot Portland sued the city in June, just one week after protests ignited across the country when Minneapolis police killed George Floyd by kneeling on his neck for nearly nine minutes. 

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 on June 26, 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 this week’s hearing, attorneys for the protesters focused on a June 30 action outside the police union building in North Portland, 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, “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.”

Portland Police Captain Anthony Passadore testified on Wednesday that he read Hernanzez’ temporary restraining order aloud over a radio frequency heard by all officers on duty that night. 

But Zachary Domka, a lead trainer for the Portland Police Bureau and assistant squad leader for the rapid response teams that often face off with protesters, said Thursday that Portland police haven’t had training on the use of less lethal weapons since last November.

And Officer Brett Taylor said he fired between 40 to 60 rounds on June 30 from his FN303 — a type of grenade launcher that he uses to shoot rubber bullets, paintballs and munitions containing pepper powder. Taylor said one of the main reasons he fired shots that night was out of fear that protesters might toss the very weapons police had deployed back at the cops.

“I’ve had the unfortunate opportunity to have dozens of these canisters thrown at me,” Taylor said, referring to a tear gas canister. “They’re heavy, they’re extremely hot, they’re a great danger.”

In one instance that night, Taylor said he shot from his launcher at a protester in roller skates who had fallen to the ground, explaining that he did so because he didn’t want her to get hurt.

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

Attorneys described multiple instances 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.

Protester Matthew Cleinman described being in the front of the crowd that night when a line of police advanced, yelling at protesters to move back. Cleinman described moving slowly with the crowd when a police officer shoved him with a baton and then pepper sprayed him.

“It’s similar to being in a car collision,” Cleinman testified Wednesday. “There’s a moment where everything goes blank — where you don’t have any senses — and then everything comes back. This is all over the course of a few seconds, but then you realize: Oh, I’m at a protest. An officer just shoved me with a baton and I just got pepper sprayed.”

Hernandez’ order protects protesters from police force when they are engaged in passive resistance. But city attorney J. Scott Moede questioned Cleinman about his compliance with police orders to disperse.

“You could have just walked away,” Moede said.

“I believe that my chanting on the street was OK and I was going to keep doing that,” Cleinman replied.

Minutes later, police had unleashed copious clouds of tear gas on protesters.

Protester Pedro Anglada Cordero testified that he kicked away one canister of tear gas.

“We were not engaging in any kind of violence,” Anglada Cordero said. “But we’re in a pandemic and I know tear gas is harmful. And I see my wife coughing and others around me coughing from the tear gas. So when a canister came my way, I kicked it away from me.”

For that, police shot him twice with rubber bullets. Anglada Cordero said one of those wounds, on the back of his knee, remained swollen “like a baseball” for weeks.

And Eric Greatwood, a disabled veteran of the U.S. Airforce who regularly livestreams the protests, said he was bending down that night to examine a smoke canister police had tossed when they shot him in the penis with a rubber bullet.

“It was overwhelming pain,” Greatwood said. “I didn’t know where I was. I couldn’t see and it felt like my eyes were going to pop out of my head.”

Bruggemeier, the attorney for the protesters, said such incidents of excessive force show why the protests are happening in the first place.

“Despite all these violations, there are still hundreds of people who come out at night to demand changes to policing,” Bruggemeier said. “But they are progressively less safe from police. What we’re seeing in these violations of the court order is extrajudicial punishment. Because of their prejudice, police are not using force in a lawful way. They are not protecting anyone’s safety.”

Hernandez said he will review videos and documentation of the night to determine exactly what he thinks happened in each instance. He didn’t say how soon he would issue a ruling.

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