The first civil suit to reach a jury alleging Portland police used excessive violence against a 2020 racial justice protester opened Tuesday in Multnomah County Circuit Court. The case is being watched closely by civil rights attorneys as a potential bellwether for the more than dozen cases coming in its wake.
For more than 150 consecutive nights starting in late May 2020, racial justice protesters clashed with Portland police as well as hundreds of federal law enforcement officers from the U.S. Department of Homeland Security and the U.S. Marshals Service. A slew of litigation followed and has culminated in criminal convictions against protesters as well as allegations that officers regularly injured and violated people’s civil rights. The trial is the latest step in a slow legal process as the city continues to grapple with the fallout from months of social upheaval. The outcome could answer questions about the potential liability the city faces over similar cases.
Erin Wenzel claims she was following police instructions on Aug. 14, 2020, the 79th night of protests, when an officer “ran at her and violently slammed into her with a nightstick.” According to her lawsuit, filed in October 2020, the force of the strike lifted her off the ground and she landed on her face. Wenzel says in her suit that she stood up and tried to keep walking but another officer then struck her, pushing her into a third officer who knocked her to the ground.
“The attack was completely unprovoked and without warning,” Wenzel’s attorney, John Burgess said during opening statements.
“During the course of the trial, [the city] is not going to put on any witness who’s going to say that this did not happen,” Burgess told the jury. “They’re not going to put on any witness that says she was resisting arrest, that she was behaving violently. They’re not going to put on any evidence that she was engaging in any misconduct.”
Wenzel broke her arm and suffered injuries to her wrist, face and torso, according to her lawsuit. Police did not arrest Wenzel after the alleged assault. Wenzel’s complaint alleges the city’s failure to discipline Rapid Response Team officers it knew to be violent encouraged officers to continue being violent with protesters.
Wenzel is asking for damages totaling $500,000.
In their response to the complaint, attorneys for the city said protesters, including Wenzel, were wearing protective equipment including gas masks and helmets. Attorneys also wrote that some protestors were carrying shields.
“She’s going to explain that this was a family event and that there was just going to be a march through the neighborhood,” William Manlove, an attorney for the city of Portland, said during his opening statements Tuesday. He told jurors that Wenzel arrived at Peninsula Park, in Northeast Portland, around 9 p.m. along with 200 to 300 other protesters.
“She arrived at the park wearing a helmet,” Manlove said. “She was also wearing a black hoodie, a black shirt, black jeans, black gloves, a black backpack and also a gas mask and a respirator.”
As 2020 protests wore on, protesters, journalists and legal observers began wearing protective equipment in response to police use of tear gas and impact munitions.
In court filings, attorneys for the city argued that police officers were attempting to prevent protesters from reaching the Portland Police Association headquarters since previous demonstrations at the building had resulted in break-ins and fire damage. The police declared an unlawful assembly and used a loudspeaker to order the crowd to disperse. The city also claims people in the crowd set dumpsters on fire and threw paint balloons, rocks, golf balls, concrete, glass, commercial grade fireworks and ball bearings at officers.
The city has not claimed Wenzel threw anything at officers or broke any laws. It does argue that, “to the extent any of the City’s employees had physical contact with Plaintiff, that contact was justified and privileged as it was reasonable and necessary to carry out those employees’ law enforcement duties.”
“There’s no video of either use of force,” Manlove said during opening statements. ”The only person who is describing and can describe the use of force that happened to her is Ms. Wenzel.”
Manlove said that during the trial a doctor will testify about Wenzel’s broken bone and tell jurors “the force required to create this particular type of injury can happen with somebody tripping over something in the street.”
During a pretrial hearing on Monday, Burgess told the judge he anticipates a parade of officers saying the crowd was volatile and chaotic. Whether or not that is true, he said, is irrelevant since none of the officers will testify about Wenzel’s actions that night.
“The city’s own policies indicate that they … should not use force against people who are peacefully protesting despite the misconduct of other protestors,” Burgess said. “The force against Ms. Wenzel would’ve had to have been justified by her conduct, not the conduct of other people.”
Wenzel was unable to identify any of the officers she said assaulted her. The city’s attorneys, referring to “some phantom employee” who allegedly injured her, said it’s a significant weakness in her claim. But Burgess put the blame on the city, saying part of the reason she couldn’t identify the officers was a result of the city’s June 2020 decision to let officers remove their name tags.
“She’s assaulted by a black-clad, riot-geared police officer whose name appears nowhere on his uniform and is badly injured and then their defense is, basically, ‘You can’t name him so it didn’t happen,’” Burgess said, pushing back against the city’s attempt to exclude evidence showing officers had a habit of shoving protests in the days and weeks leading up to Aug. 14.
For example, there is ample evidence, Burgess said, that Portland police officers Taylor, Craig Lehman and Corey Budworth among others routinely pushed dispersing protesters from behind, just as happened to Wenzel. He argued that evidence should be admissible since it shows the city’s Rapid Response Team “was replete with officers who engaged in virtually identical conduct on a nightly basis for months and months and months.”
When asked in depositions if they were the officers who had pushed Wenzel, the officers demurred. Taylor said he was unsure if it was him or not. Lehman asserted his fifth amendment right against self-incrimination. Video from another incident shows Lehman shoving a man to the ground in a move that appears similar to what Wenzel describes happening to her.
Budworth has also been captured on video shoving a protester to the ground from behind. In Budworth’s case, he hit the protester in the face after she was on the ground. He is now facing criminal charges for that incident.
Earlier Tuesday, before the jury was seated, Taylor asked, through his attorney, to be excused from testifying. Taylor, whom protesters frequently accused of using excessive force during 2020 protests, was involved in two June 2020 incidents that landed the city in contempt for violating a federal judge’s order restricting the use of crowd control weapons.
He’s been out on leave since May, according to court records.
Burgess objected, calling Taylor’s testimony critical to Wenzel’s case. Multnomah County Circuit Court Judge Katharine von Ter Stegge ordered Taylor to appear in person to testify.
The judge said she would consider allowing evidence showing police behavior from the same night as Wenzel’s alleged assault but would have to review it first. Evidence of protestors committing crimes and police use of force from prior nights will not be permitted.
Oregon Justice Resource Center civil rights attorney Juan Chavez said in an interview with OPB that a state court judge’s decision on what’s admissible offers some insights into how the courts understand police practices and has bearing on how he prepares for future cases.
“In the absence of data points of how courts and juries react to these cases, we absolutely pay attention to the few cases that go in front of a jury,” Chavez said. “We are paying attention and getting a picture of where the city is at in defending these cases.”
The trial is expected to run through Oct. 3.
Correction: This story has been updated to reflect the correct spelling of Judge Katharine von Ter Stegge’s name.