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On Nov. 4, a Clackamas County circuit judge used a controversial legal safety valve to keep in custody a mentally ill man who engaged cops in a 2021 firefight that nearly cost an Oregon City police officer his eye.
THE LAW
The legal safety valve is known as the “extremely dangerous person” statute, and allows prosecutors to keep someone in state custody for an extended period even if they’re too mentally ill to stand trial.
The law is facing increased scrutiny on multiple fronts. State officials worry it’s not being used as intended. The law, Oregon Revised Statutes 426.701 and 702, was passed in 2013 after a mentally ill woman shot and killed a motorcycle cop at a traffic stop. It was supposed to give the state more time to treat people before restarting criminal proceedings.
But that’s not happening. Since the law was passed, 49 people have been committed to the Oregon Psychiatric Security Review Board under the statute. Only a handful have been released, and none has been reindicted, says board director Alison Bort.
“Is this really meant to be an indefinite statute?” Bort said at a hearing last August. “Because it sure seems like that’s what it’s becoming.”
Meanwhile, prosecutors say the law isn’t broad enough because it doesn’t apply to “attempted” crimes. “I could unload an AR-15 at a school bus full of children. If none of those kids are hit, I am not eligible,” Clackamas County chief deputy district attorney Chris Owens tells WW.
Hearings to determine if someone is to be committed under the statute are hardly ever covered by the media. They are extremely rare and, although technically public, are not publicized in court calendars.
The case of Gerald Leroy Barnes II, decided on Monday after two days of hearings before a nearly empty Clackamas County courtroom, offers a rare view into how the law works in practice.
THE CRIME
On May 8, 2021, a Clackamas County sheriff’s deputy spotted Barnes’ black Chevy Monte Carlo speeding on Highway 213. The resulting high-speed chase down 213 and subsequent shootout on an Interstate 5 on-ramp were captured on police body cameras. Chris Brosseau, an Oregon City police officer, was hit by shrapnel in the eye.
When interviewed back at the station, Barnes explained he was “at war with the government” and demanded that detectives pull up a Willamette Week story describing his 2012 arrest by federal agents.
The story detailed how Barnes was charged with possession of an unregistered sawed-off shotgun after federal agents searched his home while pursuing a multistate drug ring. Barnes ultimately beat the case when a judge threw the charges out.
Now he is charged with three counts of attempted murder—and, crucially, first-degree assault for injuring Brosseau, which makes Barnes eligible for commitment under the extremely dangerous person law.
Barnes has said he fired at the officers in self-defense, believing he had been racially profiled and that the cops would kill him. He’s threatened members of his own family, believing they too are involved in a government conspiracy. And he’s said he’s confident he can beat the charges again.
THE CASE
Barnes’ attorneys suspected he was delusional, and his criminal case was put on hold while Barnes underwent psychiatric treatment at Oregon State Hospital.
But Barnes was a difficult patient. According to testimony in the Clackamas County courtroom last week, he does not believe he is sick and would not take medication until he was ordered to by a judge.
He’s been prescribed five different antipsychotics, including one with such serious side effects that he needed to use a walker. None worked. “His beliefs did not seem to change,” testified state psychiatrist Dr. Gen Tanaka.
The amount of time patients like Barnes can spend at Oregon State Hospital has been substantially reduced by federal court order, to shorten a waitlist that has left mentally ill people languishing in jail.
Prosecutors successfully persuaded judges to extend Barnes stay at the hospital, but they have run out of time. The charges, prosecutors say, will soon be dropped.
THE RULING
Clackamas County has one last option to keep Barnes in custody. Because he is charged with first-degree assault, he’s eligible to be deemed an “extremely dangerous person,” putting him under the ongoing supervision of the Psychiatric Security Review Board. Typically, that would result in continued commitment to the Oregon State Hospital.
At an Oct. 30 hearing, state witness Al Belais, a mental health examiner who repeatedly interviewed Barnes, said he clearly qualified. “He continues to have paranoid thoughts regarding law enforcement and government officials—and he continues to be focused on obtaining guns,” Belais said.
If Barnes was stopped again by police, Belais said, “there’s no reason for me to believe he’d behave differently.”
Belias testimony convinced Judge Michael Wetzel, who ordered Barnes’ continued commitment from the bench Nov. 4.
The result is not unexpected and certainly not unreasonable. But what now? Barnes is locked in Oregon State Hospital for a term that appears indefinite, being treated with drugs he does not want and which do not work, at a cost to the state of upwards of $40,000 per month.
There are other, cheaper alternatives to place dangerous people with mental illness, but as WW reported last week, the state has struggled to build them.
In an interview after the hearing, Barnes’ attorney Amanda Marshall said the case was further evidence that the state’s mental health system is broken.
“Does he just stay there forever?” she wondered. “What do you do with someone like Mr. Barnes?”