A jury awarded a woman who sued the city over police use of force at a 2020 protest $40,272 on Tuesday, agreeing police used unreasonable force against her and committed battery.
Erin Wenzel sued the city for assault, battery and negligence, claiming that on Aug. 14, 2020, an officer “ran at her and violently slammed into her with a nightstick” while she was following police instructions to disperse. After getting up, she says another officer pushed her. During the trial, jurors heard from medical experts who confirmed she suffered a broken arm and has PTSD, at least in part, as a result of the incident.
This was the first civil trial from the 2020 racial justice protests to reach a jury. As an indication of how important the case is to the more than 50 pending lawsuits against the city, a rotating cast of nearly two dozen Portland city attorneys and risk managers tuned in to watch the proceedings. They were joined by several attorneys involved in pending civil litigation against the city.
The jury awarded Wenzel $14,106 for the battery claim and $26,166 in non-economic damages. They decided that the police did not assault her and awarded no damages for that claim. Wenzel had asked for $450,000.
Battery is when someone intentionally hurts another person. Assault is when someone makes another person afraid they are going to be battered. For example, if someone stabs a person, that is battery. If they point a knife at someone else and the other person thinks they are going to be stabbed, that is assault.
Wenzel testified she didn’t think the police would use force against her since she was complying with their orders, likely negating the assault claim.
The jury also said the city was not negligent in how it trains police officers.
The officers who pushed Wenzel were never identified and there is no video of the incident. During the six-day trial, the jury heard from Wenzel who said she was at the protest as a medic and that her helmet was marked with a red cross. She also testified that she never threw anything at the police or committed any acts of vandalism.
After police rushed the crowd of protesters and pushed the group to disperse, Wenzel said she moved in the direction they had ordered.
Several officers testified they believed that protesters who moved slowly during dispersals were often providing cover for other protesters to escape and they were therefore allowed to use force against the slower members of the crowd.
Detective Erik Kammerer testified moving slowly or dispersing on its own does not warrant use of force but also said officers pushed intentionally slow walking people out of the way.
The U.S. Department of Justice specifically cited that logic as violating bureau directives.
Before the trial started, Multnomah County Circuit Court Judge Katharine von Ter Stegge limited admissible evidence to the approximately two-hour window Wenzel was at the protest. That meant video of Portland police pushing dispersing protesters on other nights couldn’t be used to show the city was likely aware of and took no action to stop officers from using the tactic.
In closing arguments Monday, Wenzel’s attorney John Burgess said the video that does exist of Wenzel at the Aug. 14 protest shows her calmly walking with a group of other protesters and complying with police orders.
Burgess said the city presented no evidence refuting Wenzel’s account of what happened. He said instead, the city’s attorneys presented implications about what might have happened and painted the night in an air of ambiguity and chaos.
“What they’re asking you to do is to imagine that shortly after this video, she flipped a switch and became a different person,” Burgess told the jury.
To prove the city was negligent, and because there was no video of the incident, Burgess relied on videos from the same night showing officers pushing other protesters to the ground in a similar manner to what Wenzel described. Officers testified that, absent more context, it was difficult to determine if the videos showed unreasonable use of force. Officer Brent Taylor, who was seen in one of the videos pushing a protester to the ground, said he was not reprimanded for his actions.
Burgess said the Portland police were operating with impunity on Aug. 14.
“The attacks on Ms. Wenzel were a product of that impunity,” he said. “Defendant does not have any genuine defense here. They fluctuate between implying that Ms. Wenzel must be lying and that this didn’t happen.”
To attempt to identify the officers who pushed Wenzel, Lt. Franz Schoening testified that his investigation was limited to a review of use of force reports for Aug. 14 looking for incidents that fit what Wenzel’s allegations. Schoening said he didn’t interview any Rapid Response Team officers or show them any photos or videos to see if she looked familiar.
“The only conclusion you can draw from this intentionally cursory review is that they don’t really want to know who did it,” Burgess told the jury.
In mounting their defense, attorneys representing the city attempted to discredit Wenzel’s memory of the night she was injured and to suggest her PTSD was in fact a result of her husband’s arrest in late September 2020 and not from her being hit by the police.
Leaning on the same lack of a culprit as Burgess had referenced moments before, the city’s attorney Caroline Turco said that without knowing who shoved Wenzel, it’s impossible to determine their intent, a requirement to prove assault and battery.
“This instruction requires you to look into the mind of the officer,” Turco said. “We don’t know who it was, how it happened, whether it happened, whether it was an officer or another protestor.”
During the trial, officers testified that Aug. 14 was a violent night during which objects were thrown at police, dumpsters were set on fire and protesters were pushed. In her closing remarks, Turco said Wenzel was wearing a respirator and helmet and standing in the same vicinity as “the agitators.” Turco explained those facts are part of the “totality of the evidence” officers consider when deciding to use force or not.
Turco told the jury that Wenzel’s testimony was inconsistent with the evidence and so it was alright to “trust your gut” as to whether or not they wanted to believe her. Turco said that because Wenzel sent an email to her coworkers saying she had broken both her arms when in fact she had only broken one arm, the jury could be suspicious of all her testimony.
“You may think that that email is only relevant to the issue of lost wages,” Turco said in her closing argument. “Whatever conclusions you draw from this email can be applied to the entire case.”
Addressing the negligence claim, the city said video evidence shown at trial depicts a spectrum of force used against protesters ranging from a person carrying a shield and leaf blower who was “gently nudged along,” to protesters in the street who were pushed more forcefully. That supports the city’s assertion, the lawyers argued, that police are trained to only use force when it is reasonable and appropriate.
Finally, the city argued that perhaps Wenzel’s own behavior on Aug. 14 was negligent and contributed to her injuries. In discussions with the judge about comparative negligence Friday afternoon after the jury had left for the day, the city’s attorneys said Wenzel had been given multiple warnings to disperse over the course of more than an hour. Because she should have known the police might use force against the crowd, they believed she was partly responsible for being injured.
Ultimately the jury agreed that it is not acceptable for officers to push protesters for dispersing too slowly and that the city should be required to cover the resulting medical expenses. They appeared less willing, however, to hand down sizable monetary awards for severe emotional distress and pain, a decision which will likely factor into settlement negotiations for the more than 50 still pending lawsuits against the city.