Wrongful death trial stemming from Portland police shooting of suicidal man atop downtown garage set to start

The parents of Brad Morgan, who was fatally shot by Portland police atop a downtown parking garage in 2012 after officers say he pointed a toy gun at them, are taking the city to trial this week, accusing police of acting negligently and causing the wrongful death of their son.

They don't dispute that a sergeant's and officer's use of deadly force at the moment they shot and killed their son was lawful.

But they argue that the officers, aware Morgan was possibly armed and contemplating suicide-by-cop, were negligent by talking to Morgan from an unsafe distance rather than from a position of cover and failing to immediately request and wait for the bureau's crisis negotiation team.

Brad Morgan

"The timing, manner and methods by which they chose to engage and communicate with Brad Morgan -- unreasonably created the foreseeable risk that Morgan would use the officers to commit suicide-by-cop,'' plaintiffs' attorney David D. Park wrote in a pretrial memo filed in court.

Portland city attorneys contend the officers involved were not at fault, and that Morgan was solely to blame for his death when he pulled out a realistic-looking pistol atop the garage and swept it toward the officers.

"Morgan knew or should have known that pointing an apparently operable pistol at two armed police officers would cause the officers to draw their weapons, fire those weapons at Morgan and likely cause Morgan's death or serious injury,'' Senior Deputy City Attorney David Landrum wrote in response to the lawsuit.

It's the first civil case stemming from a Portland police officer-involved fatal shooting that's headed to trial in more than a decade. Other similar high-profile lawsuits have settled before they ever reached a jury.

It also comes as the city is working to comply with reforms mandated in a settlement agreement with U.S. Justice Department officials that arose out of a federal investigation that found police engaged in a pattern of excessive force against people suffering from mental illness.


Morgan's parents, Randy and Shelly Hall Morgan, and Brad Morgan's 3-year-old son are seeking $3 million in economic damages.

A Multnomah County judge heard pretrial motions Monday morning, and lawyers spent the afternoon selecting a jury in a trial that could last up to eight days. Opening statements are scheduled Tuesday.

Morgan, 21, was killed Jan. 25, 2012, on top of the SmartPark garage at Southeast Fourth Avenue and Morrison Street.

He had called 911 from above the southwest elevator shaft on the roof of the parking garage at 3:17 a.m. Speaking by cellphone, Morgan told a dispatcher that he was suicidal, possibly armed and that he was going to commit suicide by either jumping from a building or provoking responding officers to shoot him.

The dispatcher kept him on the line for 24 minutes, trying to convince him that he had other options. Meanwhile, police were sent to find Morgan. A sergeant and an officer walked up to a concrete wall just north of Morgan on the garage roof to talk to him.

At 4:01 a.m., Sgt. John Holbrook and Officer David Scott shot and killed Morgan, after they say they saw Morgan reach toward his waistband. Holbrook said he saw Morgan holding a dark object, and Scott believed he was reaching for a gun, according to their grand jury testimony.

Portland police said this was the "replica firearm'' that Brad Morgan, 21, pointed at officers on the roof of a downtown parking garage early Jan. 24, 2012.

Holbrook fired four rounds, Scott one. One hit Morgan in the head, killing him. A plastic gun - its orange tip spray-painted black - was found in Morgan's right hand, his finger on the trigger, police said.

Morgan's parents and their attorneys argue that the officers violated the Police Bureau's deadly physical force policy and training on how to respond to "suicide-by-cop'' encounters by placing themselves in a dangerous position, making face-to-face contact with Morgan with insufficient cover.

They also say the sergeant failed to communicate with emergency dispatch about important information the call taker had gleaned from her lengthy conversation with Morgan or about Morgan's prior contacts with police.

If the sergeant had done that, attorney Park argues, he would have learned that about one month earlier, on Dec. 21, 2011, Morgan had threatened to jump from the roof of his ex-girlfriend's apartment building, where she lived with their son. Police were called, and in that case, officers spent an hour and a half talking to Brad Morgan and then backed away. Police instead allowed Morgan's parents to talk Morgan down from the roof.

City attorneys, in court papers, have urged a judge not to allow a jury to learn of that police encounter with Morgan, arguing that it's irrelevant. Even if the officers who responded to the downtown garage rooftop had looked up Morgan's record in the police database, they likely wouldn't have learned the facts of the earlier encounter because it was described as a domestic violence-related disorderly conduct call, the city attorneys contend.

The Morgans complain that the responding officers established no bond with their son -- they told Morgan to hang up his call with the dispatcher, even though she had clearly established a good rapport with Morgan and kept him talking on the phone. The officers' communication with him lasted about 20 minutes before the shooting occurred.

Sgt. Troy King, supervisor of the bureau's hostage negotiation team, received a page at 3:51 a.m, and tried to call the sergeant on the roof but was unable to get through, according to the plaintiff's court documents.

The Morgans point to the bureau's own training review of the police shooting, which noted the sergeant's actions would have been consistent with bureau training had he maintained as much distance as possible from Morgan, and tried cellphone contact with him while calling in the crisis negotiation team.

The city counters that the sergeant and officer believed it was their duty to try to prevent Morgan from jumping off the building's roof. They moved up closer to Morgan so they could be heard and speak to him without having to yell, the city will argue.

"The city's officers took reasonable steps to address the threat to public safety, and the threat to Morgan's own safety,'' Landrum wrote in a trial memorandum. "Morgan evidently planned the confrontation and prepared for it by obtaining the toy gun and spray-painting it to make it appear real in the darkness, by contacting police and making statements meant to bring officers to his location so that Morgan could then provoke the officers to shoot and kill him.''

--Maxine Bernstein

503-221-8212 ; @maxoregonian