City Attorneys Propose a Novel Way to Absolve Portland of Financial Responsibility for Police Brutality

They’re citing a loophole in Oregon’s tort law to avoid paying a protester injured by a flash-bang.

For years, the Portland Police Bureau has used a controversial crowd control weapon to disperse protesters. It’s a flash-bang grenade, designed to explode safely, and loudly, over people’s heads. Instead, the rounds frequently explode on or near protesters—causing debilitating injuries.

Last week, the bureau agreed to settle years of litigation by ceasing its use of the devices and decommissioning its remaining stock.

But other civil suits resulting from the bureau’s use of flash-bangs remain. One suit was brought by Meghan Opbroek, a 38-year-old clinical mental health therapist. She was severely injured by a flash-bang during a June 2020 protest and sued the city for damages later that year.

In that litigation, city attorneys argued the case should be thrown out because, they say, the city can’t be sued once police declare a riot. Their actions are then shielded from civil liability, a city attorney argued, citing a loophole in state law.

The underlying events: In the early hours of June 26, 2020, a crowd massed in front of the Police Bureau’s North Precinct. Opbroek arrived just as police declared the protest an “unlawful assembly.”

It was just after 1 am, and the hundreds of protesters gathered in front of the precinct had spent the night thus far erecting, and then setting fire to, a series of barricades made of cars, dumpsters and wooden pallets. It was, WW reported, an effort to create a police-free “permanent protest zone,” similar to the one protesters had established in Seattle’s Capitol Hill neighborhood.

Over the next hour, protesters and police brawled in the street. Protesters attempted to breach the precinct using dumpsters as battering rams. Police responded with nonlethal munitions, including flash-bangs. By 2:15, the precinct was on fire.

A video livestreamed on Twitch captured Opbroek walking close to police in disobedience of their orders to disperse, city attorneys say. She doesn’t deny it. She was filming the scene as she and other protesters chanted “Black lives matter,” “All cops are bastards,” “Fascist pigs,” and other obscenities.

At some point, officers began firing at the crowd. A smoke grenade landed at Opbroek’s feet with a “loud boom,” she says.

When she turned away, police followed up with a flash-bang that landed near her and “blew off chunks of her flesh,” according to a complaint filed in federal court. It includes graphic photos of blood streaming down her leg. She was later hospitalized, diagnosed with a concussion, and received treatment for a watermelon-sized impact wound to her chest. She’s still being treated for ongoing vision issues.

The law: In the United States, federal and state governments enjoy “sovereign immunity” from lawsuits. It’s a practice that goes back to English common law and is based on the oft-cited legal maxim: “The King can do no wrong.”

But federal and state laws have long limited that immunity. The Oregon Tort Claims Act allows Oregonians to sue the state—with certain limitations. One is “any claim arising out of riot.”

The loophole was added in 1969 to protect governments from paying for the damage caused by rioters—not to give police “blanket immunity” for harming protesters simply by declaring a riot, argue Opbroek’s attorneys, Viktoria Lo, Maya Rinta and J. Ashlee Albies.

In a motion to partially dismiss the case, senior deputy city attorney William Manlove cited two cases in which judges have been sympathetic to the city’s argument.

In 1982, a federal judge ruled that an injured inmate couldn’t sue the state for damages after he was shot by a jail guard during a prison riot.

In 2004, a federal court concluded that the city of Portland was not financially liable for Amber Hicks’ injuries after police threw her in a van during a protest outside a President George W. Bush fundraiser.

U.S. Magistrate Judge Donald Ashmanskas noted that the law “insulates public officers and bodies from liability.” Hicks suffered an eye injury and lost a pair of Birkenstocks, according to the 2003 complaint.

But: “No state court has adopted the City’s extreme interpretation of this law,” Opbroek’s attorneys conclude. In fact, they argue, granting police immunity was never the law’s intention—an issue left unaddressed by judges in the two earlier cases.

In their brief, the attorneys note that one of the original drafters of the law wrote, “It does not bar claims for torts committed by public employees during the course of civil disturbances.”

In 2020, state lawmakers included language closing the Tort Claims Act riot loophole in legislation limiting police use of tear gas. But by the time the bill reached the desk of Gov. Kate Brown, the language had disappeared.

What now: Obroek is seeking an unspecified amount in damages from the city. But the lawsuit is about more than money, she says.

Her attorneys are seeking to depose members of the city’s since-disbanded riot squad and their supervisors.

“I want to expose the misconduct of the city and the PPB and make sure this doesn’t happen to anyone else,” Opbroek tells WW.