Our Testimony Regarding the Proposed Portland Protest Ordinance

Dear Mayor Wheeler and Commissioners,

This written testimony is made on behalf of the Portland Chapter of the National Lawyers Guild. The Guild counts as its members radical legal workers, lawyers, law students, and jailhouse lawyers engaged in furthering and supporting the struggle for collective liberation. One of our many projects includes protester support for anti-oppression movements. That work includes legal observing—the famous green hats—and jail support. As this city and country has seen, many of the most radical leaps forward came from protest movements by organizations that were not seen as mainstream by city or federal governments, the media, and certainly not law enforcement. While we understand the desire to stop the right-wing violence brought to our city by Patriot Prayer and the Proud Boys, we cannot view this ordinance as anything but exactly what Patriot Prayer wants: another opportunity to enlarge the police state that has repeatedly attacked counter-demonstrators at their rallies.

This ordinance does three things: it enables the City to arbitrarily place individuals into ill-defined “groups,” it polices the language demonstrators use to craft what will undoubtedly be an overreaching protest restriction, and it enables post-hoc justifications for police violence against protesters.

Generally, it is true that time, place, and manner restrictions are valid exercises of state power per the first amendment. However, what we have seen at these demonstrations shows that when the Police are left to enforce these restrictions, counter-demonstrators get hurt. The police directing their attention and force toward one side can hardly be described as “content-neutral.” We and many, many others have observed this: Police line up, predominately facing the counter-demonstrators, and separate the groups. Often with no provocation, the police begin to violently disperse the counter-demonstrators. Most recently, on August 4, 2018, counter-demonstrators nearly got killed by police weapons and tactics, as the PPB turned downtown Portland into a war zone.

The ordinance describes at length some of the protests that have occurred in our city in the last year. We refute many of the factual conclusions made by the ordinance. Violence ascribed to protesters was actually caused by law enforcement. No one but the police deploy flash bang grenades, full strength pepper spray, pepper ball projectiles, and other impact weapons that amount to use of deadly force. How can police curtail threats to “safety of participants or bystanders,” when the police themselves have been the biggest threat?

It is of note that the ordinance cites the Menotti decision to justify its validity. That case came after the police actions at the WTO protests in Seattle, Washington, and a City ordinance that blocked protest activities near where world leaders were gathering. A decision was made by the Seattle PD to deploy tear gas at protesters trying to get the attention of these world leaders. The then-Chief of Police of Seattle, Norm Stamper, justified that decision at the time, but has since recanted, citing that the violence that followed was likely caused by the decision to clear protesters with police force.[1]

While the 9th Circuit upheld the ordinance following a facial-constitutional challenge, that was not the whole story of the case. The Court found that the individual, as-applied challenges to the ordinance’s enforcement could proceed to trial. That case was ultimately settled.

As here, this ordinance will just invite further violent police suppression of speech and lengthy, costly litigation.

The ordinance activates under three main circumstances: one of which is “When two or more groups have announced plans to demonstrate separately but on the same day, and there is a history of violence between the groups…” A reading of this section of the ordinance suggests that what the police will be doing is watching facebook events get created and shared. If that is the case, how will PPB determine who or what a group is? Does someone who likes, or comments, or clicks “interested” on an event then become part of the group? How can restrictions on demonstrations happening “separately but on the same day” possibly be narrowly tailored? Along with questioning how the City will determine who or what can be defined as a group, how will the City determine whether a history of “violence” (another vague term) exists between them? And where is there space to discuss the violence that has been initiated or escalated by the police?

These are important considerations since the ordinance allows the City to then limit the number of protesters at a demonstration. Given the vagueness of the statute, all it would take for a person to have their right to demonstrate curtailed is a facebook “like” on a comment from a Proud Boy saying they want to show up. That is overly broad, and will stifle far more speech than it will save, which is precisely what Joey Gibson wants. Patriot Prayer wants the City to scramble any and every time they make a peep on social media. You might think that it is incumbent on the counter-demonstrators to just not show up, but that is irresponsible and ignorant of the history of fascist movements, which thrive on public normalization of their activities.

These counter-demonstrators are not organizing by traditional notions of “groups.” More often, people want to go to protests because they are passionate about an idea and want to show up for it! They don not care who organized the event, they want to challenge the Kavanaugh hearing, or visibly oppose Patriot Prayer. This ordinance will stifle that.

This ordinance will also incite more police violence. The Portland Police Bureau has shown time after time that they do not focus on individual actors, but instead broadly cast demonstrators as lawbreakers as justification for use of force. This ordinance will exacerbate this by creating another layer of restrictions that many demonstrators will likely not be aware of. The ordinance provides: “Written orders imposed by the Commissioner in Charge will be released to the public prior to the event(s). The City will take steps to ensure that the public has been provided sufficient notice of any written orders.” How can this be assured? All it would take is a single protester who does not have twitter, or facebook, or access to the internet to miss the written orders. Once the written orders are broken, then PPB will have the opportunity to kick the butts of counter-demonstrators, as Chief Outlaw put it in her Lars Larson interview.

This testimony is meant to provide a broad outline for City Council’s consideration ahead of your vote. The Guild will be writing and submitting to your offices a legal memorandum detailing our concerns. We urge this council to reject this ordinance, and to understand that the community has been shocked and injured by the actions of the Portland Police Bureau at these protests. Rather than provide legal cover to state-sanctioned violence, we need to consider proactive, non-police and prison alternatives to the threat of right-wing violence.

For a collectively liberated future,

 

Portland National Lawyers Guild

[1] Talk of the Nation, Shifts In Police Tactics To Handle Crowds, National Public Radio, November 29, 2011.

https://www.npr.org/2011/11/29/142903638/shifts-in-police-tactics-to-handle-crowds

 

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