'This Won't Be the Last Crisis We See'
Juan Chavez on the tear gas-filled summer of 2020
Published in 2021 Oregon Super Lawyers magazine on July 12, 2021
One moment Juan Chavez was decompressing with a beer with his fellow Oregon Justice Resource Center colleagues over Zoom; a few hours later, Portland’s Justice Center was on fire.
It was May 29, 2020.
The beer was an antidote to a tough day in court, in which Chavez and his team argued for increased health protections for prisoners in Oregon jails on the heels of the state’s first COVID-19 inmate death. The fire was a protest response to George Floyd’s killing four days earlier.
“That fire was a bad omen for how our case was going to go,” Chavez says. “It wasn’t lost on me, these twin issues.”
Not much is lost on Chavez. His goal is to end mass incarceration. “What we need is an entire cultural shift that begins before a crime is even committed,” he says. “It starts with valuing human life so much that you can see value even in the human who transgressed against you or the community.”
A “profoundly unenthused” law student, Chavez required an internship at a public defense office and a human rights clinic to give him a jolt. “I began going into jails and listening to stories,” says the project director at the OJRC, “particularly of people being held pretrial just trying to get a fair shake. Then I took on a few Guantanamo Bay detainee cases. Guess what? You don’t have to go to Cuba to find a bad prison. They’re right here, and I couldn’t unsee it.”
For Oregon inmates in the COVID era, Chavez and his team asked for distancing, masks, better hygiene standards and a halt on mixing units. While there was a step in the right direction with a DOJ attorney who handles prisoner cases, “in the end, the state wasn’t going to budge on any of those issues,” Chavez says in a March interview. “We filed that nearly a year ago.” He pauses. “That’s still really hard for me to say.”
At that point, there had been 150 cases and the one death. “But everyone knew what was coming,” Chavez says. To date, there have been more than 3,500 reported cases and 42 deaths.
While none of the prison protections came to pass, Chavez realized there was an opportunity to advocate for one more life-saving measure: the vaccine. “In terms of spread, prisoners were right up there with meat-packing workers and nursing-home patients,” says Chavez, who argued that prisoners should move up the chain of eligibility. It made sense on paper—the state was injecting around 13,000 people a day, roughly the size of the prison population. “So we’re talking about just one day of vaccinations,” Chavez says. “But we kept getting delayed, and teachers and everyone over 65 moved ahead—that was about 800,000 to 900,000 people.”
Thanks to his team’s advocacy, the Moderna and Johnson & Johnson vaccines were offered to every inmate in the state—with a 69% acceptance race, much higher than the 30% of prison guards who chose to receive it, Chavez says.
“Just weeks after the vaccine rollouts, the daily reported case counts plummeted pretty dramatically,” Chavez says. “What still keeps me up is this won’t be the last crisis we see in prisons. And I don’t think they learned anything, and that they will continue to try to power through any controversy or bad tactic with sheer brute force.”
As Chavez and the OJRC staff worked to protect against the virus raging inside, the streets outside were raging, too. Portland’s summer of 2020 will best be remembered by tear gas that enveloped entire city blocks in cotton-like plumes. “It was so thick,” Chavez says. “The FAA testified that the amount of tear gas used in Portland came up on their radars. Did you know tear gas is banned in warfare? I didn’t. But, sure, use it on your populace as you’d like.”
Mass punishment to dull protest is a longtime police tactic in Portland, Chavez says.
“Licking my wounds post [COVID prisoner relief] injunction, me and two other offices—this was a nine-attorney romp—joined together and poured through a week’s worth of footage of the protests,” he says. “What we saw was kind of the fever pitch of what’s been building up here over the years.”
On June 5, the group filed a lawsuit on behalf of Don’t Shoot Portland that alleged tear gas deployment is the explicit definition of indiscriminate use of force. “In terms of probable cause under the Fourth Amendment, you are thinking about the person in front of you, and what they are doing, and the best case you can make for using force to accomplish your law enforcement goal,” Chavez says. “But tear gas is injuring people for whom you’ve not formed that probable cause.”
The court granted an order that banned using tear gas to disperse protestors; a few weeks later, the banned tactics grew to include use of pepper spray and rubber bullets. It felt like a win.
Except videos and photos on social media showed the city continuously violating the ban. Chavez filed for contempt, and after a three-month wait they had a two-day hearing. “The judge rendered a ruling that the city was in contempt three out of the 10 times that we cited it,” Chavez says. In March 2021, the full list of sanctions came out; they call for extended training, as well as the removal of a problematic officer from crowd-control until a full investigation is completed.
“One of Judge Hernandez’s personal concerns was how these officers were going out each night as a catalyst to what they were seeing and were exhausted and hair-triggered,” Chavez says. “So the question is, ‘How many nights can a rapid response team officer go out, and until you can figure that number out, I’m not going to let you go out.’ Speaking personally, that’s not what we asked for, but we will certainly take it.”
Unfortunately, Chavez notes, Portland police have seized on a new tactic, kettling, in which officers encircle a march or protest and arrest everybody. “There’s no weapons, so I guess that’s the silver lining,” Chavez says, before sighing. “No good deed goes unpunished, so this is our next fight. Folks are scared, and to fear speaking truth to power in your own city is incredibly unfortunate.”