Prisoner lawsuit over tear gas exposure during 2020 Portland protests can go forward, judge says

By Maxine Bernstein | The Oregonian/OregonLive
A class-action suit can proceed against Multnomah County, ex-Sheriff Mike Reese and two former corrections supervisors alleging they failed to protect prisoners from tear gas that seeped into the county’s downtown Portland jail during 2020 protests, a federal judge ruled.

U.S. Magistrate Judge Stacie F. Beckerman rejected the county’s motions to throw out the case and ruled that the county, Reese and the chief corrections deputy and jail commander at the time are not entitled to qualified immunity from potential liability.

Her 180-page opinion cites evidence that entire modules of prisoners were screaming, choking, yelling, coughing and begging for help, pounding on and kicking their doors as a thick fog of tear gas permeated the Multnomah County Detention Center night after night.

Beckerman’s preliminary findings now go to U.S. District Judge Karin J. Immergut, who will either adopt them or alter them.

Beckerman recommended that a trial go forward on allegations that Reese and the others disregarded complaints from prisoners who said they were unable to breathe and suffered from painful tear gas exposure for more than a month.

Prisoners also said they were denied access to more frequent showers, clean clothes or linens when their jail scrubs or blankets were “drenched in tear gas” and that the sheriff failed to evacuate the jail, Beckerman wrote in the ruling Friday.

“A jury could find that the MCSO leadership’s team’s decision to allow AICs (adults in custody) to remain housed at MCDC and exposed repeatedly to tear gas was ‘akin to reckless disregard,’” Beckerman wrote.

Beckerman cited a 9th U.S. Circuit Court of Appeals ruling in 2002 in Clement v. Gomez that found officers were not eligible for qualified immunity after California prisoners said they were denied decontamination showers for four hours for exposure to pepper spray used to quell a fight. The prisoners alleged the prison officials were deliberately indifferent to their medical needs.

“If the four-hour delay in addressing pepper spray exposure in Clement was a constitutional violation, the ‘same must be true’ for failing to address near-daily tear gas exposure here,” Beckerman wrote.

Qualified immunity is a legal doctrine that protects government officials, including law enforcement officials, from civil lawsuits for actions taken while performing their duties, unless their conduct violates clearly established statutory or constitutional rights.

Beckerman’s ruling followed a hearing in July and lawyers for both sides submitted dozens of pages of sworn testimony and reports from hired experts.

Attorneys Joe Piucci and Nadia Dahab, who are representing the Detention Center prisoners, applauded Beckerman’s ruling.

“No person in America should be involuntarily gassed night after night, but it happened here,” Piucci said by email. “We are deeply gratified that the court vindicated our clients’ basic rights.”

Multnomah County counsel Christopher Gilmore, representing the county, the sheriff’s office and former sheriff and jail commanders, did not immediately comment. He had argued that the ongoing racial justice protests, safety considerations and the COVID-19 pandemic posed significant and unusual barriers that prevented an evacuation.

He also argued that the county took reasonable steps to minimize any harm, that the tear gas use outside the jail was intermittent and the gas dissipated once sprayed on the ground.

According to the ruling, the county and sheriff’s office don’t dispute that the leaders knew tear gas had infiltrated the jail on the upper floors of the Justice Center when police deployed tear gas around or inside the building’s lobby on May 29, 2020.

Demonstrators that night had broken into an office of the Justice Center and set a fire. About 250 people were housed in the jail that night on the fourth through eighth floors. The fire was quickly extinguished and caused no injuries, but the protest devolved into a riot declared by police, who used tear gas to disperse the crowd.

Chaos continued downtown, with looting and vandalism to businesses. Tear gas and smoke seeped into jail cells that night, causing inmates to cough and gag, the prisoners’ lawsuit said.

When Reese arrived, the lobby was “heavily contaminated” with tear gas. A county nurse and many prisoners confirmed that they were exposed to smoke or tear gas that night and into the next morning, Beckerman’s opinion noted. A jail nurse reported that she did not have time to record all her medical notes because she received “so many complaints” from prisoners who complained they could not breathe,, Beckerman wrote.

Nurses were evacuated from the fourth floor but prisoners were not even though the “entire jail smelled of smoke,” her ruling said.

The next morning, the county’s HVAC department received the first of many requests from county employee to adjust the HVAC system’s outside air dampers to try to prevent the tear gas from entering the building.

“Significantly, however, the Justice Center’s outside air dampers ‘do not seal airtight as they were never designed to be used as a barrier against [tear] gas,’’’ the opinion said, based on the evidence in the court record.

The tear gas inside the jail got much worse once federal officers showed up in Portland on July 1, 2020, the evidence indicated, Beckerman wrote.

According to the court record, tear gas was “pouring” in through cell vents for hours, in particular on July 19 through July 25, 2020, Beckerman wrote.

An inmate woke up vomiting and others developed rashes and suffered from impaired breathing and sleep, worsened asthma, blurry vision, nightmares, anxiety, excessive coughing, chest pains, dizziness, lightheadedness, headaches and migraines, as well as burning of the eyes, face, nose, skin and throat, she wrote.

The long exposure may have exacerbated preexisting mental health conditions and caused fear, anxiety and post-traumatic stress disorder, according to both the plaintiff’s expert, Dr. Samuel Freedman, and defense expert Dr. Christian Sloan.

Freedman is an emergency medicine doctor with 36 years of practice, including as the longtime emergency medical services director for Washington County from 1995 through 2015 . Sloan is a clinical emergency medicine professor for the University of California, San Diego and a physician the university’s medical center.

Brian Parks, then a sheriff’s lieutenant at the downtown jail and a former military infantryman with more than 20 years of law enforcement, recalled that he had “never seen anything like” the level of tear gas that federal officers deployed, describing “massive clouds” obscuring any view from the Justice Center of Chapman and Lownsdale squares across the street, according to the opinion.

Beckerman noted that a sheriff’s corrections captain, Nicholas Jarmer, had emailed a draft evacuation plan to the county correction’s division chief deputy on June 25, 2020, a day before federal officers began surging to Portland.

His email advised that the county’s Inverness Jail had dorms available to accommodate all the prisoners from the downtown jail, though the Inverness dorms were closed at the time and not staffed.

The court records showed Jarmer never received any response, according to Beckerman.

On July 21, 2020, jail officials started opening and closing the Justice Center’s outside air dampers as part of an official procedure intended to prevent tear gas from entering the building. Within a week, however, the sheriff’s office realized what seemed to be obvious all along: “Apparently we cannot stop the gas from entering,” the ruling said.

But Reese, according to sworn depositions, testified that he believed that opening and closing the air dampers effectively combatted tear gas infiltration throughout the Justice Center, including on jail housing floors.

He said the sheriff’s leadership team chose not to evacuate prisoners based on the “threat to the facility” because people were continuing to try to break into it, “take it over and … destroy it.”

Reese said he was more concerned about the potential for a “violent mob” to take over the building, according to the ruling.

Beckerman quoted Reese saying that he was present at the Justice Center for most of the events and “never felt personally that the threat of infiltration of tear gas was such a high risk that (the MCSO) needed to evacuate the building.”

Gilmore, the county’s lawyer, said in court filings that Reese rejected an evacuation given the serious risks of COVID-19, the mixing of violent offenders in an open dorm elsewhere, the need for medical and mental health care available in the downtown jail and logistical difficulties due to ongoing riots.

One prisoner at the time, Melvin Street, suffered an asthma attack on July 1, 2020, after reporting he felt “very light-headed and ill,” when his cell filled with tear gas. He fell down and cracked his head, prompting his floormates to bang on their doors and push their emergency call buttons for “what seemed like over half an hour,” he wrote in a sworn declaration to the court.

The county and Reese pointed to findings from Elliott Gall, an associate professor in Portland State University’s mechanical materials engineering department who did an indoor air quality modeling that evaluated exposures to tear gas inside a typical cell at the Multnomah County Detention Center.

He concluded that the tear gas in the jail never reached “unsafe levels.” Gall found that the concentration of tear gas inside the Justice Center was sufficient to cause a perceptible response but not high enough to cause any serious health risks.