The Portland Police Bureau (PPB) estimated that, in 2020, its officers used force more than 6,000 times against members of the public participating in racial justice protests. This force came in the form of tear gas canisters shot into crowds of people, baton strikes, stun grenades filled with rubber bullets shot from an officer's gun, and forceful shoves. These actions resulted in countless injuries amongst members of the public, several lawsuits, one officer arrest, and more than one hundred public complaints filed against the bureau.
Yet, according to the Independent Police Review (IPR), the city department that investigates officer misconduct complaints, none of those forceful incidents violated city policy. In a recent deposition interview with lawyers involved in one protest-related lawsuit against the city, IPR Director Ross Caldwell explained how PPB's directives make it impossible for the city to hold individual officers accountable for using riot control weapons against the public.
"...The directives make it really challenging for us to find something out of policy for the use of tear gas on unintended people," Caldwell said in the deposition by Ashlee Albies, one of several attorneys representing plaintiffs in the Don't Shoot Portland v City of Portland case.
The lawsuit accuses the city of indiscriminately using tear gas and munitions against members of the public during Portland's 2020 protests. On Wednesday, plaintiffs' attorneys filed a motion asking that a federal judge grant them permission to treat the lawsuit as a class action case. The 83-page document relied on interviews with Caldwell and others to explain how there are a sufficient number of people with common legal claims against the city to qualify for class action certification. Attorneys used the faults of the IPR process to illustrate how the city has a pattern of failing to hold officers accountable for misconduct.
Caldwell points to PPB's crowd control directive as reason his office can't hold individual officers accountable for their forceful actions during protests.
According to that directive, riot control agents can only be used by officers if they get authorization to do so by their manager, or "incident commander." This distinction effectively removes all responsibility from the officer who fired a munition. Even if city policy allowed IPR to hold an individual officer responsible for shooting a tear gas canister into a crowd, Caldwell said that it would be difficult to identify which particular officer fired the canister—let alone expect the person who made the complaint to know the officer's name.
The court motion mentions that the "vast majority" of cases that were closed by IPR shortly after being submitted by the public were closed because IPR could not identify which officer was responsible for the conduct, based on the information that was provided.
Caldwell also points out that some specific complaints aren't addressed by PPB policy. In his deposition interview, Caldwell mentions people who reported being impacted by tear gas despite not being involved in any protest actions.
"[The directive] doesn't say anything about making sure this doesn't leak into people's houses that live near the PPB headquarters or anything like that," said Caldwell. "And... it doesn't spell out that the kind of innocent bystander being exposed to tear gas is a violation."
IPR went as far as green-lighting several incidents that a federal judge had already determined to be unlawful.
Shortly after the Don't Shoot case was filed, District Court Chief Judge Marco Hernandez ordered Portland police to limit their use of tear gas and other crowd control munitions to instances in which the lives and safety of the police or the public were at risk. Hernandez also prohibited officers from using force against people engaged in "passive resistance." This order was already in alignment with PPB policy, yet Hernandez later found officers had violated the order during a protest in late June 2020.
Yet an IPR investigation into those officers' use of force against protesters was found to be in alignment with city policy. This contradiction didn't seem to bother the city.
"The City has little concern about making findings in direct contradiction to a federal court judge," the motion reads. "In fact, the City affirms that... if the same incident happened today, the City would find the same conduct to be within policy."
The legal filing outlines some of the use of force incidents that were unquestioned by city investigators. Lawyers found that, from a sampling of 41 reports officers must file after using force (called Force Data Collection Reports), there were 45 uses of force documented that appeared to violate the Fourth Amendment, which prohibits an officer's search and seizure of a person without probable cause.
For example, the motion explains that one officer justified pepper spraying someone because the person had yelled "Don't fucking touch me" from at least five feet away. Another officer reportedly shot someone with a less-lethal munition because that person was behind a tree “taunting the officers by jumping out from behind the tree and then ducking back behind it." A third officer pepper sprayed someone who was walking towards a police car, claiming that the person was going to kick the car. None of these examples show evidence, or probably cause, that suggest a person was going to commit a crime.
PPB officers' heavy-handed use of force during the 2020 protests has been under close scrutiny from the US Department of Justice (DOJ). In 2014, the city entered a settlement agreement with the DOJ after federal investigators found PPB officers to have a "pattern and practice" of using force against people with a mental illness. While the city had made significant moves to adhere to the fed's agreement in recent years, the actions of police during the 2020 protests reversed much of that work.
In July, the DOJ demanded that PPB improve its crowd control tactics with several new measures, including a directive to hold responsible incident commanders who granted officers permission to use force during 2020 protests. The city has reportedly agreed to these new requirements.
Juan Chavez, another attorney representing Don't Shoot plaintiffs, said his legal team's findings show how Portland's past decade of police reforms—ranging from additional officer trainings to new paperwork to track officers' use of force—have neglected to improve its police force.
"A lot of people have been demanding this kind of accountability for long before the uprising of 2020, but all we’ve gotten is pats on the head and reassurances that things are fine, that [the city] has all these processes in place to deal with misconduct," said Chavez. "That all dissolved within a week in May 2020."
He continued: "The public now has proof that an abundance of uses of force were not reviewed in any way that would have passed normal scrutiny if, in fact, the city was wanting to hold someone accountable."