Multnomah County District Attorney Mike Schmidt will not charge a Portland police officer who was caught on video shoving a protester to the ground from behind during a Sept. 23, 2020, protest.
In the video posted online, an officer in riot gear instructs David Bowen to “move back.” Bowen, wearing a neon reflective vest, then walks away in the direction the officer had pointed. Bowen has his hands up and appears to give the officers the finger as he walks away. Officer Craig Lehman then enters the frame, rushes past two officers, and shoves Bowen from behind, throwing him to the ground.
Cop comes behind guy with his hands up and shoves from behind. pic.twitter.com/kJPfJkKOro— John #AbortTheCourt (@Johnnthelefty) September 24, 2020
Lehman then turns around and walks away. The small crowd, which in multiple videos of the moments leading up to the incident appears calm, becomes agitated and people start yelling at the officers.
“It was very, very cold,” Bowen said after seeing the video of the incident. “It was like he methodically just stepped off the van and started running full bore at me and knocked me over and then just calmly walked back to stand on the van.”
On Tuesday, the District Attorney’s office declined to comment but said they were “in the process of reviewing additional information related to this case.”
The 2020 protests resulted in hundreds of complaints filed against Portland police officers. Last September, Schmidt said his office was reviewing 21 use of force cases for possible criminal charges. Despite documenting over 6,000 uses of force, the police bureau found nearly every incident to be within policy. That includes two incidents over which a federal judge found the city in contempt, saying they violated a court order. The city also faces multiple lawsuits for the behavior of its police force during the months of racial justice protests.
Lehman, the officer in the video, and Sgt. Justin Damerville were pulled from crowd control duties in December 2020 after six alleged incidents in which they allegedly violated a federal judge’s preliminary injunction by assaulting or threatening journalists and legal observers during the 2020 racial justice protests. Lehman’s bar from public-order policing was still in place last July when he shot and injured Joshua Lyle Merritt at a Northwest Portland convenience store after Merritt smashed a bottle and held a glass shard.
In a June 23 memo explaining why no charges were being brought against Lehman for pushing Bowen, Deputy District Attorney Nikki Thompson says that to criminally charge a police officer for their use of force “the State must prove beyond a reasonable doubt that it was not justified.”
The memo said the office considered two charges, harassment and fourth-degree assault.
“The State cannot prove that Officer Lehman acted with a conscious objective to harass or annoy Mr. Bowen,” Thompson wrote.
To prove assault in the fourth degree, the memo said the state would have to prove Lehman recklessly caused physical injury to Bowen, meaning the officer was aware of and chose to disregard the risk that Bowen might be injured. Thompson said she did not believe prosecutors could prove beyond a reasonable doubt that Lehman “acted with a reckless mental state.”
To reach that conclusion, the state brought in police use of force expert Jesse Porter, a former lieutenant with the Washington, D.C. Metropolitan Police Department. At the time he was hired to consult on this case, Porter led use of force trainings and served as a subject matter expert for use of force trials and investigations.
Porter has since been charged with involuntary manslaughter after he allegedly shot and killed library police officer Maurica Manyan, 25, during a training in Washington D.C. Porter said he thought he was holding a training gun when he shot Manyan.
In concluding Lehman did not act with intent, Porter relied on Lehman’s after action report from that night in which he said he shoved Bowen “to create distance so the [Rapid Response Team] Delta squad could safely disengage and the RRT van could leave the area.”
“He reasoned using physical force was necessary to keep officers safe and compel Mr. Bowen to comply with a lawful order,” the memo said.
Porter also described the alleged assault as Lehman making a “split second decision” even though video evidence shows he ran past two other officers who were calmly directing Bowen away from the RRT van.
Bowen said he bruised a rib and sprained his wrist when Lehman shoved him to the ground. His wrist still hurts intermittently.
The decision not to prosecute shocked him, he said.
“They told me it was a quote, unquote ‘open and shut case,’” Bowen said about his first meeting with prosecutors. “They said, ‘We got him.’ And, ‘We feel very confident.’”
In an interview during the investigation into the alleged assault, Erik Kammerer told Nathan Moore, both detectives with the Portland Police Bureau, that officers are vulnerable when they are mounting their van to leave. Unlike many departments who have an outside agency lead use of force investigations, the Portland police investigate themselves.
Kammerer, who was notorious among protesters for what they said was his routine use of violence against them, was also investigated for potential harassment, assault and official misconduct charges. He was ultimately not charged.
Porter also said “human factors” have to be considered when assessing an officer’s mental state.
“[Porter] suggested Officer Lehman was likely sleep deprived given the late hour and consecutive number of protests, and that the RRT Delta squad may not have had any food in a number of hours,” the memo states.
Porter also argued “even if Officer Lehman was frustrated with Mr. Bowen, the amount of force used was not severe.”
“His opinion is absolutely bananas,” Portland-based civil rights attorney Ashlee Albies said after reviewing the District Attorney’s memo. “He kind of engages in this rampant speculation about what Officer Lehman’s state of mind was, including that he may not have eaten, that he might have been tired. This is not based on any information from the officer. It’s just based on the context under which these protests were occurring.”
In declining to charge him, Albies said they appear to be relying solely on Lehman’s own statement that he was trying to create distance between Bowen and the RRT van so officers could safely disengage.
“There’s direct evidence — the video — of Mr. Bowen walking away with his hands up when he’s pushed from behind,” Albies said. She said Lehman could not reasonably use force to accomplish something that Bowen’s own actions were already accomplishing.
The DA appears to be relying on Porter to assess Lehman’s mental state, something Albies said a jury should be doing.
The reliance on protest after action reports is also dubious given the city’s protest after action report acknowledged the use of force reports during the protests were of low quality and that the system in place was not equipped to handle the massive number of reports generated.
Out of the thousands of incidents and hundreds of complaints, two Portland police officers have been charged with crimes.
Scott Groshong, who retired soon after the investigation was opened, pleaded guilty in July to felony assault and official misconduct after video showed him driving an unmarked police van toward a man he believed had just looted a store. Groshong knocked that man to the ground, injuring him.
Officer Corey Budworth faces a fourth-degree assault charge over allegations he had no legal justification when he hit a photographer in the head with a baton. Those charges prompted the entire Rapid Response Team to resign, leaving the city without a dedicated team to handle crowd control.
The Budworth trial is expected to start early next year.
As the statute of limitations for most of the possible civil complaints to come out of the 2020 racial justice protest has run down, several protesters have filed lawsuits against the city.
Erin Wenzel’s lawsuit is the first to reach a jury. She alleges she was following police directions when an officer struck her with a baton, throwing her in the air. In her complaint, Wenzel said after landing on her face, she got up and tried to continue following police directions. In the process, she was struck by another police officer which pushed her into still another officer who threw her to the ground, breaking both her arms.
That trial starts Monday in Multnomah County.