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Judge restricts Portland PD’s use of less-lethal launchers at protests pending more training

A judge ordered all Rapid Response Team grenadiers and supervisors to receive 9 hours of new training

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Portland Police declared a riot Tuesday, June 30, 2020, as protesters gathered outside Portland Police Union headquarters on North Lombard Street.

Dave Killen/The Oregonian

By Maxine Bernstein

PORTLAND, Ore. — A federal judge has restricted the Portland police use of less-lethal launchers by its Rapid Response Team officers during protests until the city can assure the court that further training has been offered and that each officer “can recognize and articulate a threat without speculating and before using less-lethal force.”

U.S. District Judge Marco A. Hernandez also ordered the Police Bureau to investigate allegations of misconduct by Officer Brent Taylor stemming from his firing of munitions during a protest in North Portland on June 30, 2020, and remove him from policing crowd management/crowd control events pending the outcome of the inquiry.

The city reported in January that it had already removed Taylor from policing any protests or crowd control events while the city’s Independent Police Review office and internal affairs investigates his actions.

Hernandez issued the sanctions Tuesday afternoon in a written ruling.

They follow the judge’s finding in November that the officers had acted in contempt of his June 26 order barring police from firing FN303s and 40mm less-lethal launchers and using pepper spray on people engaged in passive resistance.

The case stemmed from a suit filed by Don’t Shoot Portland, a Black-led nonprofit that advocates for social and racial justice in the city. The nonprofit’s lawyers had sought more drastic sanctions, including a ban on impact munitions and for the Police Bureau to permanently remove from protest duty any officers who violate the court order, with fines issued for future violations.

Hernandez did not go that far. He issued what he called “coercive,” versus punitive sanctions against the city, “to obtain compliance with the Court’s order,” his ruling said. Many of the actions ordered had been suggested by city attorneys during a hearing in January.

The judge had ruled that police violated his court order three times on June 30 as officers declared an unlawful assembly and tried to push protesters to the east after they marched to the police union office in North Portland from Peninsula Park.

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The judge specifically identified three instances where police fired the FN303 less-lethal launcher at people who weren’t actively aggressive. In each, the FN303 fired a non-toxic brittle metal bismuth, according to lawyers for the plaintiffs.

The 40mm launcher fires foam-tipped projectiles that may contain paint or powder marking rounds or pepper spray rounds. The FN303 uses compressed air to fire fin-stabilized projectiles filled with a non-toxic brittle metal bismuth powder in the nose and a payload in the rear that can carry paint, powder markings or pepper spray. The FN303 has a 15-round drum magazine resembling a paintball gun.

The judge also ordered no use of pepper spray against people engaged in passive resistance and urged police to minimize the exposure of pepper spray to bystanders.

Under the judge’s sanctions:

—All Rapid Response Team grenadiers and supervisors will receive 9 hours of new training. At the training, the city attorney’s office will review with the officers and supervisors the limitations on their use of force at protests, including the judge’s finding of civil contempt, video evidence of the incidents that led to the finding, and the requirements of the court order and police directive on use of force.

The court’s order, however, noted that Portland police completed this training as of Dec. 4.

The team’s grenadiers must receive training every six months.

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—The Police Bureau’s Internal Affairs Division or the city auditor’s Independent Police Review office must investigate allegations of misconduct involving Taylor’s firing of less-lethal munitions on June 30. He should be removed from crowd control policing while that review is pending, the judge wrote.

The city reported to the judge in January that the police bureau already had removed Taylor from policing any protests or crowd control events while the city’s Independent Police Review office and internal affairs investigates his actions.

The judge had found Taylor fired five shots from his FN303 launcher at the legs of someone refusing to let go of an “Abolish the Police” banner with a PVC-pipe frame and fired 10 rounds from the same launcher at two people trying to pull a person on roller skates away from police and back into the crowd.

—The Police Bureau shall re-distribute copies of the court’s order and require that all bureau members certify that they have read and understand it. The city reported in January. this had been done as well.

—The city will provide three hours of training to all sworn officers regarding use of force at protests by Dec. 31. It will include reviews of videos and scenarios from protests this summer in Portland and around the country " to assist officers in understanding how to apply” the bureau’s use of force policy, particularly what “passive resistance, physical resistance, and active aggression,” all mean.

—No Rapid Response Team grenadier shall use an FN303 or 40MM less-lethal launcher in connection with crowd control unless and until the city certifies to the court: each has " demonstrated an understanding” of the court’s orders and findings in this case, “including the ability to recognize and articulate a threat without speculating and before utilizing less-lethal force;” the city has a way of tracking how many consecutive days that a grenadier “should be engaged in civil unrest as a grenadier before needing a break;” and that each grenadier on the team is aware of the responsibility to promptly prepare a report when they have discharged their weapon.

The certification can be accomplished through a signed declaration or affidavit submitted to the court by the city attorney’s office, according to the judge.

(c)2021 The Oregonian (Portland, Ore.)