Court Shoots Down Portland’s Attempt To Dodge Protest-Related Lawsuits By Citing Insurance Loophole
Protests ignited by Minneapolis police officer Derek Chauvin's murder of an unarmed black man (George Floyd) spread across the nation following that horrific event. And these protests against police violence went on for months, prompting a federal response from an irked president, who declared Portland, Oregon one of many anarchy jurisdictions."
The Portland police had their own problems dealing with demonstrators and journalists. The arrival of federal officers compounded the problems. Litigation ensued, resulting in court orders forbidding federal officers (as well as local cops) from violating rights of journalists, lawyers, and legal observers who were there to ensure the protests were documented and (shocker!) rights weren't violated by the government.
These court orders were routinely disobeyed. And police responding to anti-police violence protests routinely proved protesters' points by engaging in violence. More litigation ensued.
The city of Portland is trying to talk its way out of being held at least partially responsible for rights violations and violence perpetrated by its employees, a.k.a. Portland police officers. A lawsuit filed by Portland resident Meghan Opbroek alleges she was severely injured by a flashbang grenade fired by Portland PD officers.
The city's lawyers have asked for the lawsuit to be dismissed. It won't be, but the way the city asked is particularly novel, if not more than a little insulting to the intelligence of the court, never mind the injured plaintiff. (via Willamette Week)
The federal court quotes heavily from the magistrate judge's Findings and Recommendations (F&R). And the city of Portland quotes one particular clause of the state's tort laws - one it hoped would allow it to avoid this lawsuit altogether. One almost has to admire the chutzpah needed to lob this into court with hopes that it would stick. From the decision [PDF]:
The F&R begins with a statutory interpretation of ORS 30.265(6)(e). This section provides an exception to the Oregon Tort Claims Act's (OTCA) waiver of immunity-that is, this section preserves immunity-for [a]ny claim arising out of riot, civil commotion or mob action or out of any act or omission in connection with the prevention of any of the foregoing." Id. Neither federal nor state courts have thoroughly analyzed this statutory provision. This provision determines whether sovereign immunity shields the City from Opbroek's state law claims in this case. The City argues that ORS 30.265(6)(e) offers expansive protection against liability in circumstances of civil disobedience. According to the City, this immunity protects against any claim either arising out of a riot, civil commotion, or mob action, or based on any act or omission that the City undertook to prevent the same. This Court would thus lack subject matter jurisdiction over Opbroek's state law claims against the City under this interpretation.
That's the legal theory: the city claims it is immune from any lawsuit dealing with anything happening in any riot, no matter what. But, as the court points out, this loophole in the state Tort Claims Act isn't meant to be interpreted as blanket immunity. Instead, the loophole is there to ensure the city can actually obtain insurance.
The F&R, however, agrees with Opbroek that the text, context, and legislative history of ORS 30.265(6)(e) suggest a different reading. According to Opbroek, the Oregon state legislature intended this provision to help public bodies get liability insurance by providing immunity when third parties suffer damages as a result of a riot, civil commotion, or mob action that the public body allegedly causes or fails to prevent.
It's not to shield the city from lawsuits alleging harms caused by its employees. It's meant to prevent the city from being held directly responsible for harms caused to third parties by other third parties. Nothing in the law suggests otherwise. And neither does anything said by lawmakers back in 1969, when this loophole was first created.
See H.B. 1515, 1969 Leg., House Judiciary Comm. Minutes (Or. 1969) ([This section] does not bar claims for torts committed by public employees during the course of civil disturbances but would preclude claims based on a theory that a public body caused or failed to prevent a civil disturbance. Liability insurance policies commonly exclude coverage of this risk.")
That's pretty much the final word on the subject. Legislators clearly never intended this loophole to be used to raise an immunity defense in court and the court sees nothing in the law or the intent that supports the city's creative interpretation.
On top of that, the court takes issue with the city's representation of the event in which the plaintiff was injured as a riot."
Even if the Court were to adopt the City's interpretation of ORS 30.265(6)(e)-which it does not-the Court still would need to determine whether the gathering at issue was a riot, civil commotion or mob action." These terms are not defined by the statute. To draw the line between protest and riot, the Court would need to consider, for example, facts related to the reasonableness of and danger presented by the participants' actions. Such a determination would also necessarily tread on questions relevant to the merits of Opbroek's claims that the City assaulted, battered, and acted negligently towards her by deploying a flashbang grenade that caused severe injury. Accordingly, the resolution of the jurisdictional question is dependent on factual issues going to the merits" and the two thus intertwine. Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987). Making a jurisdictional finding would therefore be inappropriate at this stage even under the City's statutory analysis.
The lawsuit continues. And the city's lawyers will have to spend a bit more time digging into the state statutes to find another way to score an early exit from this lawsuit. It's unlikely such an outlet exists. But for now, someone injured by police violence at an anti-police violence protest still has a shot at holding the city accountable for being unable to control its cops.