Portland city attorneys are asking a federal judge to throw out a use-of-force lawsuit against the Portland Police Bureau (PPB) because the plaintiff can't identify which PPB officer shot him with a munition from behind during a 2020 protest.
Portlander Dexter Pearce was participating in a racial justice protest on July 4, 2020 in Southwest Portland when, as was custom during most nightly protests, PPB officers ordered the crowd to disperse. According to Pearce's lawsuit, Pearce complied with these orders and began walking away from the crowd and officers.
"Then, without warning, a Portland Police Bureau officer shot Mr. Pearce in the back of his calf with an impact munition," reads the lawsuit. "Plaintiff was not facing the officer at the time he was shot. The shot took him by surprise."
The lawsuit identifies the officer as "John Doe 1," since Pearce did not know which heavily armored officer had shot him. This incident took place after a city policy allowed PPB officers to remove their nametag from their uniforms, replacing it with a lengthy number to intentionally keep protesters from identifying officers. It claims the officer did not attempt to arrest Pearce, and that Pearce wasn't committing a crime at the time he was shot.
"To the best of his knowledge, no one around him had been actively aggressive, nor had anyone in his group been targeted for arrest following this shot," the lawsuit reads. "By information and belief, John Doe 1 shot Plaintiff in retaliation for protesting police that evening."
According to the lawsuit, the munition damaged his calf and Achilles tendon, and Pearce continues to suffer from pain in that area of his lower leg.
On Tuesday, city attorneys filed a response to this complaint, requesting the court dismiss the lawsuit entirely, due to the fact Pearce could not name his alleged attacker. The city writes that it is "pure speculation" that it was even a PPB officer who shot Pearce that night.
"Plaintiff has no objectively reasonable basis to assert and cannot prove that he was shot by a police officer from PPB," the city's court filing reads. "That is because Plaintiff's allegations that he was shot by a PPB police officer are contradicted by his own admissions that he and those in his group never saw who shot him, never interacted with the person who had shot him, and they do not know who had actually shot him."
This isn't a new legal argument for city attorneys. In 2021, city attorneys attempted to toss out another use-of-force lawsuit from a person injured by police while fleeing a 2020 protest using the same argument. That case ended in a $22,500 settlement agreement between the city and plaintiff.
Pearce's attorney Juan Chavez said he's not surprised the city's using this argument again. Chavez, who has represented several protesters in use-of-force lawsuits filed against PPB, believes this is just an attempt by the city to prolong the case.
"It couldn’t be clearer that this is a time waster," said Chavez. "They're just delaying the inevitable. I don't see how it's in the public interest to not resolve these claims. It’s not going to get better for them. To me, it feels like the city’s in denial.'
Chavez speculated that the city may be prolonging the case to force Pearce to accept a lesser settlement in exchange for ending the process or to just give city attorneys more time to come up with a better argument. Either way, he doesn't see how the dismissal benefits the public.
"It delays justice," he said, "and delayed justice is justice denied."
To Chavez, this isn't about holding a single officer accountable for this alleged abuse, it's an attempt to hold the city of Portland and PPB accountable for its pattern of using disproportionate force against members of the public and encouraging the practice among its officers. That's why Pearce's lawsuit also accuses the city in this complaint.
"Defendant John Doe 1 received inadequate training, supervision, and/or discipline for violating the U.S. Constitution," the lawsuit reads. "[The] City of Portland has effectively condoned this practice by repeatedly failing to correct constitutional violations by officers throughout the PPB."
Chavez is also involved in the US Department of Justice (DOJ) settlement agreement with the city of Portland, which was reached after the DOJ accused PPB of having a "pattern and practice" of disproportionally using force against people experiencing a mental health crisis. Chavez represents the Mental Health Alliance nonprofit, which is included as a "friend of the court" or amicus curiae in the DOJ settlement hearings.
Chavez said his legal team will respond to the city's request to dismiss Pearce's case within the next two weeks.