In a rare move United States District Judge Marco Antonio Hernandez of Beaverton, Oregon issued an opinion and order that at first glance might appear to have some interests of justice at heart. I say "rare move" and "appears" because based on my personal experiences with Hernandez he rarely has the interests of justice at heart and is far more likely to be motivated by ego when making decisions. That makes me wonder how much of his recent order was motivated by the behavior of Portland Police officers towards protesters and how much of it was motivated by the simple fact that he is a power hungry tyrant outraged that anyone would dare disobey the Great Marco The Magnificent Hernandez.
The order in question involves a restraining order issued by the United States District Court for the District of Oregon this past summer. The order prohibited the Portland Police Bureau (PPB) from using tear gas and other less than always lethal crowd control munitions on protesters in ways not authorized by PPB Use of Force Directive 1010 and specifically stated that such munitions "shall not be used where people engaged in passive resistance are likely to be subjected to the force." He also specifically stated that when using pepper spray "members shall minimize exposure to non-targeted persons." The PPB Use of Force Directive 1010 limits the use of less lethal than lead munitions to situations in response to "active aggression" and to avoid using real guns. The Directive defined "active aggression" as "[a] threat or overt act of an assault (through physical or verbal means), coupled with the present ability to carry out the threat or assault, which reasonably indicates that an assault or injury to any person is about to happen, unless intervention occurs." He then reviewed several incidents in which the PPB is accused of violating his order before rejecting the Plaintiffs' claims in all but three incidents.
That first incident recognized by Judge Hernandez as a violation involved Officer Brent Taylor. Brent Taylor is the notorious "Officer 12" known for being among the most brutal thugs ever to wear a uniform in the city of Portland (https://copblaster.com/blast/25905/portland-police-officer-brent-taylor-identified-as-officer-12). Judge Hernandez ruled that "Officer Taylor did not use his FN303 in response to active aggression" when he fired 15 rounds from a FN303 Less Lethal Launcher at a group of protesters. Taylor argued that because the protesters had a banner that he had every right to believe that they were engaged in active aggression due to previous incidents of protesters using banners as weapons or as a means to conceal weapons. Judge Hernandez did not accept Taylor's explanation that would have set a dangerous precedent allowing cops to attack anyone carrying a banner just in case they were using it to conceal weapons or might to decide to use it as a weapon. Hernandez further found that an individual refusing to let go of a banner is at most engaged in "passive resistance" and not engaged in "active aggression."
The second incident recognized by Judge Hernandez as a violation also involved Officer Brent Taylor. Officer Taylor fired 10 rounds from his FN 303 at protesters that were trying to pull an individual on roller skates back into the crowd. Taylor testified that he thought other officers were trying to arrest the person and that protesters were trying to unarrest the person. Hernandez found that video evidence of the incident did not support Officer Taylor's position. Hernandez wrote that video shows the person on roller skates fall down during a struggle over a banner and the crowd pulled the protester back into the crowd. No evidence shows any efforts being made to arrest the roller skater at the time. Hernandez also wrote that none of the protesters were engaged in verbal or physical acts that could be reasonably construed to constitute a threat of assault.
The third incident recognized by Judge Hernandez as a violation involved an unknown officer using impact munitions on an individual that was trying to grab an unknown object on the street. Hernandez says that video shows a person approach an item between the police line and crowd when an unknown officer opened fire with a usually less than lethal weapon. PPB Officer Zachary Domka testified that the victim's behavior indicated that he or she may have intended to throw an object at the police. Judge Hernandez wrote "it simply cannot be that any attempt by an individual to pick up an item off the ground at a protest constitutes a threat of assault to officers or others."
I couldn't agree with him more on those cases. Police injure and kill countless people every year just because they see them doing something they think might be a precursor to violence towards them. It can be something as innocent as not taking their hands out of their pockets, reaching for their glove compartment, or moving towards an object that an officer does not want to risk being hit with for them to shoot first and ask questions later. The worst thing that will usually happen to the officer is some time on paid administrative leave before his fellow officers find some excuse to justify whatever they did. Hernandez's findings are a step in the right direction, but they are still not good enough. I believe that Officer Taylor committed perjury. He should be fired and charged with perjury, but that will almost certainly never happen. The best sign of hope for any real justice in the case of Officer Taylor would be in Judge Hernandez's recitation of the federal contempt statute:
"A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) Misbehavior of any of its officers in their official transactions; (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command." - Judge Marco Hernandez
Judge Hernandez clearly wants the city of Portland to be on notice that further acts of contempt will result in imprisonment for those responsible. Based on my personal experience dealing with Hernandez for many years I know first hand that there are few things he hates more than disobedience. I believe that there is a good chance that if Officer Taylor violates Hernandez's order again that he will be personally jailed for it. That would certainly be the case if Hernandez had held Taylor in contempt personally, but instead he found the city in contempt based on his action, so there is a good chance that by having this municipal buffer between himself and Hernandez that he can avoid jail time for future violations. The city would most definitely face fines, but I doubt that Hernandez will actually jail an officer based on a restraining order issued to the city. The best chance anyone has to get him personally jailed would be to keep protesting, keep filming, and hope to catch Taylor violating the restraining order again. Only then might Taylor face real justice.
As for the other cases, Hernandez failed to hold other officers responsible when he should have. Hernandez loves to make himself appear as though he is reaching a compromise between the parties even when that appearance of compromise comes at the expense of justice. A lot of judges do this because they expect their decisions to be challenged on appeal and want to be able to say that they considered the needs of both parties. I've seen this happen a lot when Hernandez sentences people in criminal cases. The prosecution will seek the high end of whatever they think they can justify while the defense will argue the low end. Then Hernandez will usually hand down a sentence in the middle absent extenuating circumstances justifying a minimal or maximum sentence. In this case Hernandez knew that if he sided with the police on everything that it would make him look bad publicly. Having more eyes on Hernandez is a good way to make sure that he does not side with the government on every issue. Otherwise the temptation to find excuses to support the police is too great for people like Hernandez. Just having a journalist follow a case can be enough to make sure that if you lose you can at least count on the outcome being no worse than a compromise. Hernandez is a narcissist that cares more about his image than justice. A just judge would have found the city in contempt in other cases as well.
Two of those other cases involved nothing more than kicking smoke canisters back towards the police line before officers opened fire. A smoke canister is not the kind of object likely to cause injury to an officer in riot gear. An officer not wearing a gas mask might be able to argue fear of smoke inhalation causing damage to their respiratory system, but that is not the case with the officers in those cases. Hernandez appears to be relying on the loose definition of assault used in federal courts. In the federal system one can be found guilty simple assault simply by engaging in an intentional act that would cause someone in the alleged victim's shoes reasonable apprehension of bodily harm (https://copblaster.com/blast/25998/throwing-food-worse-than-throwing-rocks-according-to-feds). Under such laws people have been convicted of assault in federal courts simply by throwing harmless objects in someone's direction. One might argue that kicking the smoke canisters would cause an officer reasonable apprehension of harm. I would probably agree if the officer was not wearing riot gear because if you kick a canister in their face it would leave a mark, but I don't believe that a reasonable officer in riot gear would be placed in fear of bodily harm by someone kicking a smoke canister. Hernandez wrote "When kicked, smoke canisters can envelop officers in smoke, eliminating their line of sight and providing an opportunity for individuals to injure officers with projectiles." Nowhere in that justification does Hernandez say that fear of being struck with the canister is what met the criteria. Instead he relies on a fear that they would be vulnerable to other attacks with their vision obstructed. Reasonable apprehension of vulnerability to future attacks does not meet the reasonable apprehension of harm prong necessary to sustain an assault charge in federal court.
Likewise I don't believe that the incident of someone picking up a smoke canister constitutes assault because one does not necessarily know what someone intends to do with it. Sure, a reasonable officer would apprehend that the person picking up the smoke canister might intend to throw it at them, but ultimately unless they can read their mind they do not know. Hernandez wrote that "kicking or throwing smoke canisters constitutes a threat or act of assault." The protester in this case did not kick or throw a smoke canister. A fear that someone might use pick up a smoke canister and use it to eliminate their line of sight is not an assault or an attempted assault.
Hernandez says nothing to defend his position that officers did not violate the order by using impact munitions on somebody that was setting a dumpster on fire. Setting a dumpster on fire is a crime, but nobody is trying to argue that setting a dumpster on fire constitutes a threat of assault. The Directive does not include threat of property damage in its definition of active aggression.
The final incident in which Hernandez sided with the PPB appears to be the only one in which officers were justified using force. It involved unknown objects actually being thrown at them. That usually constitutes assault and it has been well established that throwing heavy objects such as rocks constitutes assault.
Judge Hernandez was a prosecutor in Washington County before becoming a judge. His loyalties clearly still lie primarily with law enforcement. If he were a judge of the people with their interests at heart he would not defend officers that use force on people that do not present them with a clear threat of bodily harm. Hernandez only issued findings of contempt in cases so obvious that he would have made himself look like a fool in the eyes of the public and the Ninth Circuit had he not. Brent Taylor seems to have bruised Hernandez's ego just enough to be made an example of despite Hernandez's overwhelming loyalty to the state. Taylor's actions gave Hernandez the opportunity to make himself look reasonable to a sizeable portion of the public without doing enough to alienate his law enforcement allies.