Portland to Pay $1.2 Million to Settle Civil Rights Suit in Aaron Campbell Shooting

By Maxine Bernstein, The Oregonian, Wednesday, February 01, 2012

Reverend Reneé Ward talks through a bullhorn microphone to Portlanders upset by the police shooting of Aaron Campbell at Pioneer Courthouse Square Friday, Feb. 19, 2010. Afterward they marched up Broadway to Portland State University where they held a rally. Oregon Attorney General John Kroger, who was at PSU for a meeting, spoke to the crowd.

Fredrick D. Joe/The Oregonian
Reverend Reneé Ward talks through a bullhorn microphone to Portlanders upset by the police shooting of Aaron Campbell at Pioneer Courthouse Square Friday, Feb. 19, 2010. Afterward they marched up Broadway to Portland State University where they held a rally. Oregon Attorney General John Kroger, who was at PSU for a meeting, spoke to the crowd.

The city of Portland has agreed to pay $1.2 million to settle a federal civil rights  lawsuit brought by the family of Aaron Campbell, who was shot to death by Portland police two years ago.

Civil rights attorney Tom Steenson said the $1.2 million Campbell settlement is “the most that the city’s insurer has ever paid out” stemming from a lawsuit against the Portland Police Bureau.

Portland Mayor Sam Adams issued an apology to his family, and wrote on his Facebook page:

“As Mayor of the City of Portland, I would like to personally apologize to Aaron Campbell’s family, particularly to his mother, Marva Davis, and his four children. Today’s settlement does not erase the Campbell family’s pain, nor does it bring back their father, son, brother, and cousin—and for that, I am very sorry.”

Campbell’s mother, Marva Davis, said she’s asked her attorney to contact the U.S. Department of Justice to report the settlement. The Federal Department of Justice is currently investigating the Portland Police Bureau’s use of force. (A press release issued by the family outlines the settlement).

“As a mother, I regrettably do not believe my living sons are safe. That bond of community trust has been broken. I cannot say to them that if there is a mental health crisis … ‘call the police,'” Davis’ statement read.

Steenson criticizes Chief Mike Reese for not changing the police bureau’s use of force policy to require police to consider a person’s mental health state.

“There is no good reason not to make this change,” Steenson wrote in his prepared news release.

Later he added, “Given the number of people who are emotionally upset, in crisis, who end up being killed by police, it seems like something simple to do.”

The Aaron Campbell settlement was reached a week before federal trial was set to begin. On Monday, attorneys for the city, Ronald Frashour and Ryan Lewton, and Campbell’s family argued several pre-trial motions before U.S. District Judge Michael Mosman. Trial was set to start next Tuesday.

Frashour was fired from the Portland Police Bureau last year for his use of deadly force against Campbell on Jan. 29, 2010. Campbell, who was unarmed, was shot in the back as he emerged from a Northeast Portland apartment, with his back toward officers and his hands behind his head.

Officer Ryan Lewton had first fired six beanbag rounds at Campbell, trying to get him to put his hands in the air. Reese and Adams found Frashour’s use of force inappropriate because Campbell was not posing an immediate threat of death or physical injury.

Attorney Tom Steenson at a news conference Wednesday at the Sellwood Community Center.

Brent Wojahn/The Oregonian
Attorney Tom Steenson at a news conference Wednesday at the Sellwood Community Center.

Frashour’s attorney argued that Frashour acted as a reasonable officer would, forced to make a split-second decision when he saw Campbell drop his hands off his head toward his waistband and run toward an apartment complex, reaching for what Frashour believed was a gun in his jacket pocket.

The Portland Police Association has challenged Frashour’s firing before a state arbitrator. No ruling has been made.

Frashour’s lawyer, Robert S. Wagner, said in court this week that Frashour’s firing was “politically motivated.”

Wagner intended to call multiple Portland police training officers to the witness stand had the case gone to trial who would have testified that they were never consulted by then training officer Lt. Robert King when discipline was being considered for Frashour, according to court records. The training officers were ready to testify that Frashour acted according to police policy and training, and they did not support his termination, court records show.

Steenson said he’s concerned about the apparent disconnect between Portland police trainers and command staff.

“Officers Frashour and Lewton were going to call as witnesses at trial 11 of the trainers who teach our officers the rules. All of these trainers were to testify under oath that Chief Reese is wrong,” Steenson wrote in his release. “This disconnect between what the Police Bureau’s policy is supposed to mean and what officers are trained to do is dangerous, and puts us all at risk.”

Steenson said the bureau should be considering a person’s emotional and mental state, based on the the 2001 Ninth Circuit Court of Appeal’s Deorle opinion. That stemmed from a California case in which an officer fired a less-lethal, beanbag round into the face of an emotionally disturbed, unarmed man, who lost an eye and had lead shot implanted in his skull.

In that case, the Ninth Circuit Court of Appeals found that “even when an emotionally disturbed individual is ‘acting out’ and inviting officers to use deadly force to subdue him, the government interest in using such force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual.” And police must consider the fact a person is emotionally disturbed in determining whether to use force, the opinion said.

Steenson planned to argue at trial that Portland police failed to consider Campbell’s emotional state when he was shot and killed. He was emotionally distraught over the death of his brother that morning.

“Lewton and Frashour were well aware that they were responding to a welfare call, not a criminal incident, and did not give sufficient consideration to Campbell’s emotional state, as opposed to speculating he was armed and presented an immediate danger,” Steenson wrote.

Further, Steenson found that Multnomah County’s then-assistant county attorney Susan Dunaway had instructed county deputy sheriffs in September 2003 about the new legal standard cited by the Ninth Circuit Court of Appeals. He said the Portland Police Bureau had provided no similar guidance to its officers.

Steenson sought to submit Dunaway’s 2003 document, titled “Use of Force Standards for Peace Officers Dealing with Emotionally or Mentally Disturbed Threats,” as an exhibit at trial.

“Recent court decisions make it clear that one factor affecting the courts’ decisions regarding whether the use of force is objectively reasonable is whether the peace officer knew or should have known that the threat was mentally or emotionally disturbed at the time the force was used and whether in light of that knowledge, the peace officer should have taken different actions,” Dunaway wrote in a Sept. 4, 2003 memo.

Reese, through his spokesman Lt. Robert King, declined to make a statement today and referred questions to the city attorney’s office.

Deputy City Attorney David Landrum faced a complex defense had the case gone to trial, considering that the city had found Frashour acted unreasonably and fired him for violating bureau policy but yet was before the court and defending his actions as legal and constitutional.

Judge Michael Mosman asked Landrum on Monday that if the chief had called Frashour’s actions unreasonable, wouldn’t that amount to an admission of “wrongfulness” under the wrongful death statute.

Landrum argued that the chief meant Frashour’s actions violated bureau policy, but the chief was not talking about a legal standard.

“On what basis, do I not take the speaker at his word?” Mosman asked Landrum.

“If everytime a police officer is disciplined, the city is automatically liable under state law, then I don’t know why we need a jury,” Landrum replied.

The settlement was reached after a marathon day of talks that stretched from 10 a.m. to about 7:30 p.m. Tuesday, with U.S. District Judge Ann Aiken serving as a mediator.

Aiken also had helped the city and attorneys for the family of James Chasse Jr. reach a settlement in May 2010. In that case, the city paid a $1.6 million settlement – the city’s largest in history. Chasse, a 42-year-old who suffered from schizophrenia, died in police custody in September 2006.

While the Chasse case is the largest settlement in city history, in that case the city’s secondary insurance carrier paid about $833,000 of it.

In the Campbell case, the city hired multiple outside attorneys to represent Frashour and Lewton and two other officers who were subsequently dismissed from the case.

Steenson said he was told that the city already had eaten up its $1 million available from the city’s insurance and claims fund, and will have to pay the bulk of the $1.2 million settlement through its secondary insurance carrier.

Steenson said he plans to provide all the documents obtained while preparing for trial to the U.S. Justice Department.

“If the city’s not willing to make the changes and do the right thing” Steenson said, “we hope the justice department will force the department to do what it’s not willing to do on it’s own.”