After months of tense back and forth with city officials, the U.S. Department of Justice has sent a formal letter of noncompliance to the Portland Police Bureau over alleged violations of a 2014 settlement agreement guiding use of force.
The letter marks the first time in seven years that the Justice Department has issued such a warning to Portland.
The row between the two parties comes almost two months after the DOJ’s February annual report cited a number of problem areas, including accountability processes that were ill equipped for the amount of force the bureau chose to use in response to the summer’s racial justice protests.
The notification came 10 days after U.S. attorneys overseeing the settlement agreement sent a scathing letter to City Attorney Robert Taylor and Police Chief Chuck Lovell. That March 23 letter provides previously unknown specifics around some of the incidents which led the DOJ to find the city out of compliance with the settlement.
Last month, during a meeting of the Portland Committee on Community Engaged Policing, DOJ lawyers were visibly exasperated that they had been unable to wrangle a remedial action plan from the city on how it intended to address those shortcomings.
“We have asked for a plan of remediation and the city has not agreed to provide one,” Assistant U.S. Attorney Jared Hager said at the time.
With Friday’s notification, the DOJ has now turned to formal mechanisms that would force the city into compliance.
Hager and Jonas Geissler, the two assistant U.S. attorneys who wrote the March 23 letter and are overseeing the agreement, detailed a number of incidents which, taken together, show a police bureau failing to adhere to its own policies and to properly hold officers accountable.
The letter breaks down one protest last summer where a Portland police sergeant fired a 40mm impact munition at people engaged in a “furtive” conversation half a mile from the Multnomah County Justice Center. The individuals had no visible weapons and their only crime was being in an area where they weren’t supposed to be. They ran when notified they might be arrested.
The sergeant claimed shooting the fleeing people was justified because they would likely run to the ongoing protest, which had been declared an unlawful assembly.
“That justification does not comport with PPB policy or the Constitution,” the letter reads. “PPB’s approved force directive makes clear: ‘Mere flight from an officer is not sufficient cause for the use of the impact munitions.’”
Quoting from the sergeant’s own report, the letter helps explain the stunning amount of force PPB used during protests last summer and exposes some of the failures critics point to when arguing the police cannot police themselves.
“Everybody that’s involved in the riot is perceived to be armed,” the letter quotes from the sergeant’s statement. “That has been determined utilizing a City Attorney, a District Attorney, and our IC command, anybody who’s involved in this riot has already risen to the level of active aggression which is why they’ve ordered the dispersal.”
The Justice Department attorneys wrote that, despite none of the presented facts meeting the Portland police policy definition for active aggression, multiple levels of the chain of command signed off on the use of force.
An internal affairs investigation found the sergeant violated department policies, but Commander Brian Ossenkop used the sergeant’s same justification when he defended the use of force before the Police Review Board.
Geissler and Hager reiterated the Portland Police Bureau’s obligation under bureau policies and the settlement agreement to enforce its own discipline guides.
The letter describes another incident where an officer’s impact munition missed its intended target and hit someone else. The Justice Department write up of that incident showed how the bureau misapplied its force standards by arguing the bureau’s use of force directives don’t extend to crowd control and don’t prohibit use of force on unintended targets.
“That error potentially justifies future unintended uses of force,” Hager and Geisler wrote. “The precedent established — i.e., that officers are not accountable under (the force directive) for rounds hitting unintended targets — is concerning, especially if applied to more serious uses of force.”
Capt. Anthony Passadore and Assistant Chief Jami Resch — who had recently stepped down from the chief’s position — both signed off on that interpretation.
The bureau wasn’t called out solely for violating or misapplying policies in this incident. Officers also violated the collective bargaining agreement between the city and the union, according to the Justice Department.
One investigator questioned Officer Brent Taylor, an officer who protesters frequently accused of using excessive force at summer demonstrations. Taylor’s union representative interrupted the questioning to equate dragging objects into the street as an act of aggression. The interruption violated a prohibition on union representatives participating in questioning, the Justice Department lawyers wrote.
The DOJ also found the bureau’s after action reports to be substantively deficient, a problem federal prosecutors have previously said makes it impossible to hold officers accountable.
Finally, Hager and Geissler reserved their harshest rebuke for an incident in which an officer lifted a protester’s mask and sprayed the person with pepper spray. After the protester walked away, a second officer sprayed the person again.
Similar to previous uses of force, Commander Art Nakamura justified this instance based on the protest as a whole and not on the actions of the person who was pepper sprayed.
“This is a fundamentally flawed understanding of the constitutional and policy standard for use of force,” the lawyers wrote. “[Nakamura’s] flawed supposition was tacitly accepted by every member present at the PRB. The City’s legal counsel did not correct the error, nor did the [Independent Police Review] Representative. Commander Nakamura’s superiors have not corrected the error. This basic misunderstanding of constitutional limits on force reflects a failure of the City’s accountability structure.”
Portland has 30 days to respond to the DOJ’s formal notice. If the federal government’s concerns aren’t resolved, that would lead to a face-to-face meeting and then to mediation. If those efforts fail, the federal judge overseeing the 2014 settlement agreement could choose to force a remediation plan on the city.