Feds failed to document less-lethal force used at Portland demonstrations, report says

At least five agencies sent up to 325 federal officers a day to Portland from June through Sept. 30, 2020


By Maxine Bernstein
oregonlive.com

PORTLAND, Ore. — Federal law enforcement reports on their officers’ use of less-lethal force during racial justice demonstrations in Portland last year often didn’t include basic information that would allow supervisors to determine if the force met policy.

Reports from the Federal Protective Service, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, U.S. Secret Service, U.S. Marshals Service and U.S. Park Police were missing details such as time, location, type of munitions used or circumstances surrounding the force, according to a new analysis released Wednesday by the Government Accountability Office.

A federal officer aims a weapon from behind the fence at the Mark O. Hatfield Federal Courthouse.
A federal officer aims a weapon from behind the fence at the Mark O. Hatfield Federal Courthouse. (Dave Killen)

The office is an auditing arm of Congress that evaluates federal programs and policies.

Some reports provided a summary of events each night but never identified which officers used force or the type of force used, the analysis found.

The review follows an earlier report by the Inspector General’s Office that found not all federal officers sent to Portland had completed required training on crowd control or how to respond to riots, had the necessary equipment or used consistent uniforms, munitions or tactics.

The federal agencies face pending lawsuits in Portland stemming from their response to demonstrations that followed the killing of George Floyd by a Minneapolis police officer. Attorneys for the plaintiffs in those cases are struggling to learn the identities of the officers who used force against their clients.

The latest findings also mirror a U.S. Department of Justice critique of Portland police that faulted local officers for inappropriate force and said police failed to adequately document or review the more than 6,000 times officers used force during last year’s mass protests.

[RELATED: DOJ is failing to report police UOF data, government office says]

The U.S. Department of Homeland Security sent a surge of federal officers to Portland throughout the summer of 2020 to help protect the Mark O. Hatfield United States Courthouse downtown and other federal buildings during nightly protests that often devolved at night into standoffs with officers.

The area around the courthouse had become a frequent gathering place for thousands of people protesting police violence and racial injustice after Floyd’s murder that May. Some demonstrators targeted the courthouse for vandalism in a running clash that escalated after people tried to barricade the front doors on July 3 and they shattered.

At least five federal agencies sent up to 325 federal officers a day to Portland from June through Sept. 30, 2020. Four agencies reported a total of more than 700 uses of less-lethal force , including batons, chemical spray, smoke, chemical and kinetic impact munitions, diversionary devices and Taser stun guns.

Diversionary devices create a bright flash and loud noise and are either thrown or fired from a launcher. Kinetic impact munitions include rubber, plastic, foam, sponge or bean bag rounds.

Customs and Border Protection reported the most force used in Portland last year, with 542 instances including 229 firings of chemical munitions, 107 firings of mixed munitions and 106 uses of kinetic munitions, along with 61 uses of smoke and 31 diversionary devices.

Mixed munitions could be projectiles, canisters or grenades that contain both a chemical and kinetic impact munition, such as a grenade made up of rubber balls and a chemical irritant.

Customs and Border Protection officers used less-lethal force to disperse crowds, stop demonstrators from assaulting other officers or to prevent some from throwing fireworks and other dangerous objects, the report said.

In contrast, investigators couldn’t tell what force Immigration and Customs Enforcement officers used or how often, according to the report.

The Marshals Service acknowledged its officers used batons, chemical spray and less-lethal munitions but didn’t identify how often, claiming such information was too “sensitive” to be made public, according to the report.

Federal officers who used force said they did so to prevent demonstrators from breaching a police line, to prevent further damage to the courthouse or other federal property or to protect themselves or other officers from thrown objects, including rocks, bottles and fireworks.

The Department of Homeland Security hasn’t created a standard way to monitor use of force reporting across all its agencies.

[RELATED: 7 easy steps to improving police use of force reports]

As a result, reporting requirements varied vastly among the different agencies.

While some agencies required their officers to report each baton strikes, others required a report only if a serious injury resulted.

While the Secret Service, Immigration and Customs Enforcement and Marshals Service didn’t document if officer force used followed policy, the agencies that did concluded that “nearly all of the incidents” were within policy, the report noted.

Some of the force incidents were referred to the relevant inspector general offices for investigation, such as the firing of an impact munition by a Marshals Service officer at the head of Donavan LaBella.

LaBella was hit while demonstrating across the street from the federal courthouse in July 2020. He is suing the federal government, saying he suffered a significant brain injury as a result. His lawyer has struggled to learn who fired on his client.

Under the Homeland Security Department’s use-of-force policy, officers should strive to use tactics and techniques “that effectively bring an incident under control while promoting the safety of officers and the public and minimizing the risk of unintended injury or serious property damage.”

The Justice Department’s less-lethal force policy says officers aren’t authorized to use less-lethal devices if voice commands or physical control could otherwise achieve the objective. Further, officers are prohibited from using such devices to punish, harass, or abuse anyone.

According to the Federal Protective Service, which provides security for the courthouse, “the actions of the Portland City Council caused federal law enforcement to assume exclusive protective responsibility for five federal buildings during a time of historic high threats and attacks,” the report said.

The council passed a resolution in late July prohibiting local police from assisting federal officers. Before then, an incident commander from Homeland Security worked in the same emergency operations center as Portland police, state police and federal officers. Afterward, the Federal Protective Service ran a separate operations center with other federal agencies and later state police.

The Federal Protective Service took the lead for the Homeland Security Department and the Marshals Service was the lead agency for the federal Justice Department in Portland.

When state police agreed to help provide security outside the federal courthouse, the federal presence of officers eventually dropped in the fall to about 120 federal officers a day through the end of September 2020, the report said.

The accountability report made 10 recommendations, urging the Homeland Security secretary and U.S. attorney general to develop standards for their agencies on when officers must report use of less-lethal force and the types of information that must be reported.

Homeland Security, in a written response, said it would expand the reporting standard for officer use of less-lethal force by March 31 and would ensure regular, consistent and complete reporting by Sept. 30 through a new departmentwide template that’s under development.

The estimated cost of the federal action in Portland called Operation Diligent Valor as of Aug. 31 was $12.3 million, according to the Inspector General’s Office. Damage to the federal courthouse was about $1.6 million.

The damage total to all federal facilities in Oregon reached $2.3 million from May 2020 through February of this year, according to the Government Accountability Office.

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