Portland police before a June 6, 2020 protest.
Portland police before a June 6, 2020 protest. Blair Stenvick

According to attorneys with the US Department of Justice (DOJ), Portland's current police oversight board is relying on flawed—if not unconstitutional—logic to clear Portland cops of alleged misconduct. This is especially true in cases where officers used force against a member of the public during 2020's racial justice protests.

In a March 23 letter sent to the City of Portland, DOJ attorneys list recent examples of the city's Police Review Board (PRB) relying on erroneous information, provided by Portland Police Bureau (PPB) leaders, to determine whether or not an officer acted in violation of PPB policy.

The letter was sent by the DOJ legal team tasked with monitoring PPB's accountability measures—particularly around officer use of force—as part of a 2014 settlement agreement between the federal government and the City of Portland. The agreement was made to resolve a 2012 federal investigation which found that Portland police had a practice of using excessive force against people with a mental illness.

The DOJ's letter offers a rare peek behind the curtain of the city's most consequential police oversight board, one that Portlanders voted to replace last November. But, with that more transparent, citizen-led substitute still years away, it's important to understand PRB's current ability to penalize and protect officers.

The PRB is a critical piece of the settlement agreement, as it examines the most serious cases of police misconduct that come through the city's Independent Police Review office (the clearing house for all officer misconduct reports). Specifically, the PRB reviews cases that city investigators believe warrant an officer's suspension or termination, cases that involve discrimination claims, cases where an officer shot a member of the public, cases in which a person dies while in police custody, and other serious allegations.

After reviewing these cases during its closed-door sessions, the PRB votes to uphold the discipline proposed by the investigator who initially reviewed the case, or to dismiss (or lessen) the penalties. While it's ultimately up to the chief of police to make the final decision on these cases, the chief usually follows the PRB's recommendation. The five-person PRB is composed of three police bureau employees, one representative from the Independent Police Review, and one community member approved by Portland City Council.

"This basic misunderstanding of constitutional limits on force reflects a failure of the city's accountability structure."

DOJ attorneys were allowed to observe several recent PRB sessions and send their observations to the city, which was the purpose of the March letter.

According to the letter, which was shared with the Mercury Monday afternoon, the PRB has repeatedly failed to adequately judge an officer's decision to use force. Instead of measuring an officer's action against the police bureau's own use of force policy, as the PRB is instructed to do, the board has been taking the officer's defensive explanations for use of force at face value.

In short, the DOJ believes Portland officers have been wrongly cleared in cases where they used inappropriate force against a member of the public.

"This basic misunderstanding of constitutional limits on force reflects a failure of the city's accountability structure," reads the letter, which is co-authored by Jared Hager, an assistant US attorney for the DOJ, and Jonas Geissler, a senior trial attorney with the DOJ's Civil Rights Division.

The letter refers to several cases reviewed by the PRB that involve officers' conduct during 2020's countless rallies against police brutality and racial injustice.

One centers on an unnamed sergeant who shot so-called "less lethal" impact munitions at two people during a demonstration. The people were standing about a half mile away from the main protest, which was taking place outside of the Multnomah County Justice Center. According to the sergeant, the people were engaged in what looked like a "furtive" conversation. After the demonstration was declared an unlawful assembly by the police, an announcement was made for them to clear the area, and they two people ran. That's when the sergeant decided to shoot impact munitions at one of the fleeing people, hitting them in the legs.

"The purported justification for the force was a presumption that the two subjects would run to the event PPB had declared an unlawful assembly at the Justice Center where others were violent," write the DOJ lawyers. "That justification does not comport with PPB policy or the Constitution."

This justification, however, was still enough to convince the PRB to dismiss the misconduct claims.

"That error potentially justifies future unintended uses of force."

Another case: An incident where an unnamed officer removed a protester's face mask and shot pepper spray directly at their head. When the person retreated, the officer sprayed them again. There was no evidence that the person had committed a crime. The DOJ attorneys write that the officer's supervisor, Commander Art Nakamura, argued to the PRB the officer's actions were appropriate based on the violence of the "overall incident" and believed that "force has to be used."

"This is a fundamentally flawed understanding of the constitutional policy standard for use of force," writes the DOJ lawyers, noting that none of the city attorneys nor police bureau management present at the PRB session corrected Nakamura's misinterpretation.

Despite this constitutional error—and a video from the incident showing that the person acted passively throughout the incident—the PRB ruled the officer's actions were entirely justified.

The DOJ letter references another use of force incident from a 2020 demonstration. In this case, an officer was trying to shoot an impact munition at someone in the crowd who was throwing eggs at the police—but hit someone else by accident. According to the DOJ lawyers, the offending officer's supervisors inaccurately argued that PPB's use of force policy does not prohibit force being used on unintended targets.

"That error potentially justifies future unintended uses of force," the DOJ letter reads. "The precedent established...is concerning, especially if applied to more serious uses of force."

The DOJ's letter and its revelations come at a critical moment in time.

In February, the DOJ announced that the city had fallen out of compliance with the settlement agreement due to officers' unprecedented and forceful response to last year's protests. During a March meeting, city representatives said they did nothing wrong. And then, last Friday, the DOJ sent the city a formal "notice of non-compliance" with the settlement agreement for not acknowledging and remediating the issue.

The city now has 30 days to respond to the notice, before the issue will have to be settled in mediation. If the two parties can't reach an agreement, the issue will have to be hashed out in federal court.