Multiple criminal cases against PSU protesters dropped after attorneys discover footage

Last spring, dozens of police descended on the Portland State University campus. It had been three days since protesters began to occupy the Branford Price Millar Library to protest the U.S.’s role in the war in Gaza.

Police and demonstrators clashed inside the library and on the lawn outside. All told, police arrested 30 people during the ordeal.

In the midst of the occupation, which canceled classes at the university and gave many Portlanders flashbacks to months of virulent protests in 2020, law enforcement officials pledged stern consequences.

Fast-forward to January, six defendants had all their charges dismissed. Each for the same reason: prosecutors had failed to turn over video evidence, in violation of the law.

The footage came to light after a defense attorney representing one of the student protesters subpoenaed the city of Portland for any records related to his client’s complaint in preparation for trial.

To his and other defense attorneys' surprise, he received several gigabytes of previously undisclosed footage. Defendants are entitled to see all relevant evidence in the discovery process.

Prosecutors with the Multnomah County District Attorney’s Office, who had assured defense attorneys they had provided everything months ago, told OPB they were just as surprised.

District Attorney Nathan Vasquez described the situation as an “appalling” miscommunication with attorneys at the city of Portland.

Vasquez and other prosecutors said they were unaware of how Portland police officers handle protest footage — some of it is copied and kept and some of it is deleted, based on guidelines laid out in state statute. But most of it is also given to the city of Portland to hold in case of civil litigation.

Defense attorneys say regardless of why it happened, the effect was the same: prosecutors failed to find, review and provide the footage. The buck should stop there, they said, and Multnomah County Circuit Court judges seemed to agree.

“Prosecutors can’t bury their heads in the sand — they have a constitutional duty to look for information that might tend to show a person is innocent and, when they find it, they need to hand it over,” defense attorney Rian Peck said.

Filming the protests

Last year’s weeklong protest against the conflict in Gaza at Portland State University library culminated with the occupation of a school library. Dozens of people set up tents inside and barricaded the entrance for three days.

Some occupiers tagged the walls with graffiti. Some broke windows and damaged furniture and library computers. The incident caused about $1.23 million in property damage, university officials later estimated.

On the morning of May 2, police moved to break up the demonstration. More than 100 Portland police officers participated in the operation, according to a police spokesperson, and were aided by several Oregon State Police troopers.

Police swept through the library and made several arrests en route.

Law enforcement also clashed with protesters on the lawn outside the library. Police had declared an unlawful assembly and told crowds to leave, then moved to disperse and arrest those who stayed.

Defense attorneys in the metropolitan area count 32 arrests tied to the occupation and protest at the campus that day, as well as the small group that briefly occupied the library again that night.

Fifteen of those people arrested reached plea agreements in the latter half of 2024, a review of court records shows. Many agreements called for the defendants to complete community service in exchange for prosecutors dismissing the case.

“These were pretty sweetheart pleas,” said defense attorney Troy Nixon. “It was kind of a no-brainer for someone who didn’t want to get in too deep with the issues in discovery.”

It wasn’t until the end of the year, however, that several outstanding cases got thrown into doubt when a defense attorney obtained unreleased video footage from the event.

Defense attorneys discover unreleased footage

In January, Thomas Freedman, an attorney for a graduate student who was arrested on the lawn outside the library, came into possession of tens of gigabytes of additional camera footage from the May 2 protest.

According to a probable cause affidavit, Freedman’s client had grabbed at a fallen police officer’s leg and yanked at his belt near the officer’s firearm. The student faced charges of trespassing, interfering with a peace officer and harassment.

Freedman’s client had countered that he was the victim of excessive force and filed a complaint with Portland’s independent police review.

Freedman, in preparation for his client’s eventual trial, subpoenaed the city of Portland for any records related to his client’s complaint. He told OPB he expected to get things like interview transcripts from an internal affairs investigation, but he also got new footage.

According to Freedman, the video showed an officer grabbing at the graduate student first, taking him to the ground and “forcibly dragging him off the screen.” Freedman said it was clear his client “does not initiate any contact with police officers.”

“The fact that it existed was very surprising,” Freedman said. “And very troubling, actually, to me as a defense attorney.”

The May 2 operation occurred prior to the launch of Portland police’s body-worn camera program. Officers began wearing the cameras about a month later.

But Portland police still managed to film that day. They dispatched “criminalists,” who are employees who record footage of protests on cameras affixed to poles. Their purpose, a PPB official said, is to document criminal activity.

Oregon State Troopers were equipped with body-worn cameras at the time, as well, and numerous individuals had used cell phone cameras to capture the chaos.

In court, Freedman and other defense attorneys requested copies of all the footage and photos taken that day, a standard request for such criminal proceedings. Prosecutors repeatedly told the defense attorneys that they had given them everything they had, including snippets recorded via pole cameras and state troopers’ body cameras.

A 1963 U.S. Supreme Court precedent, Brady v. Maryland, requires prosecutors to give all evidence to the defense during the discovery process.

“The line I had been getting all along was, ‘You have everything,’” Freedman said.

After Freedman presented his footage in January — less than a month before trial — prosecutors dropped his client’s charges of harassment and interfering with a peace officer. A jury ultimately acquitted his client of the trespass charge.

None of the other defense attorneys involved in the PSU protests had seen the footage, either. Cameron Hansen, who had three clients arrested at the protests, said he didn’t see the footage until after he peeked into Freedman’s presentation during trial.

“I was shocked to see it up there,” Hansen recalled. “I was just going to watch the trial and I wasn’t expecting to find new discoveries, especially comprehensive video footage.”

Hansen and a half-dozen other attorneys soon asked the courts to throw out the charges against their clients. They each argued that prosecutors had an obligation to seek out and provide all the records created during the criminal investigation.

In addition to the reduced charges for Freedman’s client, six defendants had their cases dropped between Jan. 15 and Feb. 11, court records show. All but one were misdemeanor cases.

The lone felony case dismissed in that window involved a person charged with assaulting a police officer, interfering with a peace officer and unlawful use of a weapon. Attorneys Drew Flood and Henry Oostrom-Shah successfully argued the case to be dismissed with prejudice.

“The state has to respect the fundamental rights of protesters because those rights impact all of us,” Oostrom-Shah said.

In that case, Multnomah County Circuit Court Judge Angela Lucero wrote that prosecutors’ failure to give footage showed “inexcusable neglect.”

“The state has recklessly disregarded its discovery obligations,” Lucero wrote on Feb. 10.

After a protest, what evidence is kept — and where?

Officials with the Multnomah County District Attorney’s Office said multiple times in court, and when asked by OPB, they never knew the footage existed.

“To put it bluntly, we were appalled to be receiving critical evidence from one of our cases, gathered by law enforcement, from a criminal defense attorney,” Vasquez told OPB. “Our obligation is to be gathering and providing that evidence to them, not the other way around.”

The issue, basically, came down to state law and data storage.

Oregon law prohibits law enforcement from “collecting or maintaining” material about groups, such as protesters, unless it is to document evidence of a crime.

Footage taken by pole cameras, for example, is reviewed by Portland police investigators who determine what is or isn’t relevant to their case. They discard the rest.

Court records show Portland police believed they had given prosecutors everything. A Portland sergeant told the district attorney’s office that all the other footage was “erased” as required by state law.

But that wasn’t the case. The Portland city attorney’s office retained a wholly intact copy. The law does not prevent their office from storing the footage. Chief Deputy City Attorney Heidi Brown said the footage may still be relevant for civil litigation.

“When the footage does not relate to a criminal investigation, PPB sends it to the city attorney’s office, who retains it,” Brown said.

Brown said this policy has been “updated and modernized over time and has been in place for at least a couple of decades.” All told, Brown said, the city attorney’s office has roughly six terabytes of protest footage.

“Our office intends to continue its practice of retaining footage that may be relevant to civil litigation,” Brown said.

It was news to the district attorney’s office that Portland city attorneys keep copies of the footage.

“We did not know the city attorney’s office retention policy on this. We have only known about the … footage since the defense in these cases gave it to us,” Vasquez said. “As soon as we did learn about its existence, we immediately reached out to the city attorney’s office and police to understand how this could have happened.”

When asked if prosecutors had ever accessed the footage in the past, Brown responded: “It makes sense that D.A. Vasquez was unaware that footage not related to criminal activity was retained in our office, as the D.A.’s office only deals with criminal charges.”

Vasquez added that they intend to work with the city’s attorneys to prevent further miscommunications.

A spokesperson from his office later told OPB that they do not intend to refile charges against the dismissed cases.

Portland Police Chief Bob Day issued a statement through his spokesman that he was disappointed that evidence handling played a role in cases being dropped.

“Simply put, misplacing video evidence is unacceptable. I take seriously the Portland Police Bureau’s role in making sure all available evidence is accessible to our partners,” Day said. “I can assure the community that PPB will examine policies and procedures, and work with partners at the Multnomah County District Attorney’s Office and the city attorney’s office to keep this from happening in the future.”

Correction: The original story misstated the number of arrests of PSU protesters. The story has been changed to accurately reflect the 32 arrests. OPB regrets the error.