By Tim Cushing
Police forces — both local and federal — greeted Portland protests with violence. To be sure, there were some violent protests. But officers of both varieties felt they should be able to target journalists and legal observers with the same force they were deploying against rioters.
Once the feds rolled into town, things got worse. This was met with litigation, with journalists and observers asking the court to make the cops play by the normal rules of engagement. If journalists and observers weren’t committing any crimes, they should be free to report and observe without fear of being beaten, shot at, or gassed.
The court agreed. So did the court above it, albeit belatedly. Injunctions were granted, prohibiting the use of force against the plaintiffs. These injunctions were immediately violated, resulting in more litigation.
It wasn’t just the feds, although the feds were the most immediately noticeable violators of this court-ordered relief. The local police were having problems keeping themselves from greeting non-violent protesters with violence. A federal judge has just ruled that the Portland Police Department (PPD) violated his instructions and his restraining order on multiple occasions. (via Courthouse News Service)
Back in June. Judge Marco Hernandez banned the use of tear gas by cops except in life threatening situations. Another modification to his order banned the use of rubber bullets and pepper balls against “people engaged in passive resistance.” According to Hernadez’s latest ruling [PDF], the Portland Police have continued to violate his orders.
The court cites several instances detailed by protesters. In at least three cases, PPD officers violated the court’s instructions on force deployment during a protest on June 30 — less than a month after Hernandez issued his first order.
As described above, FN303s and 40mm less-lethal launchers must be used “as outlined in PPB Use of Force Directive 1010” and “shall not be used where people engaged in passive resistance are likely to be subjected to the use of force.” FN303s and 40mm less-lethal launchers are impact munitions governed by ¶ 6.4.2 of Use of Force Directive…
The Court finds that three of the eight incidents involving the use of impact munitions violated the Order. These three incidents include: (1) two deployments of fifteen rounds from an FN303 against individuals carrying a banner (Incidents 2 and 3) and (2) the deployment of a few rounds from an FN303 against an individual picking up an unknown object between the protest line and the police line (Incident 9). The remaining incidents did not violate the Order.
In one instance, the PPD tried to justify its excessive force by claiming a banner held by retreating protesters could have injured officers.
Officer Taylor testified that he deployed his FN303 against an individual holding onto a banner because he believed the banner would later be used as a weapon. Specifically, he cited the following circumstances in support of his belief that the banner may be dangerous: (1) the atmosphere of the protest that day; (2) the movement of protestors behind the sign as though it was a shield; (3) the slow pace of the protestors holding the banner, causing interference with the police formation; (4) the protestor’s refusal to let go of the banner; and (5) the use of PVC pipe as the banner’s frame, which he testified can be reinforced with cement or nails.
We’re going to need a lot more than pure speculation, says the court.
But none of the circumstances cited by Officer Taylor suggested that this banner was a weapon or would be imminently used by protestors as a weapon.
And it’s not like the protesters were operating under the cover of darkness to manufacture a PVC-and-cloth weapon of mass police destruction.
Police officers had ample opportunity to observe the banner before Officer Taylor deployed his munitions. The incident occurred while it was still light out, and video shows that the long PVC banner was flimsy.
Unjustified. And a violation of the judge’s order.
And—most importantly—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].” Use of Force Directive 1010 (Definitions). At most, the record shows that the individual who was refusing to let go of their sign was engaged in passive resistance.
While the PPD has mostly complied with the orders, it has not always complied with all the orders. Being mostly compliant simply isn’t good enough. The court says sanctions are incoming.
Defendant has failed to demonstrate that it took all reasonable steps to comply with the Order. The Court acknowledges that Defendant took some steps to ensure compliance on June 30. Captain Passadore, for example, read the requirements of the Order over the radio after calling for attention from all officers involved in crowd control on the evening of June 30. There is also evidence in the record that Captain Passadore directed all supervisors to ensure that all officers were informed of the requirements of the Order. And the Court is cognizant that PPB has been stretched thin over the past few months with the same RRT officers working endless hours in response to ongoing protests. It is also aware of the effect the pandemic has had on PPD’s ability to conduct additional trainings. Nevertheless, 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. Accordingly, the Court finds Defendant City of Portland in contempt.
Unfortunately, if this comes down to fines, the City of Portland will just dig into its bag of “Other People’s Money” and pay them. But it could result in further restrictions, which isn’t going to work out well for an agency that’s already demonstrated it can’t follow printed instructions.