To Control Outrageous Police Conduct A Tough/Fair Prosecutor is The Rx
WHEN MIKE SCHMIDT TOOK office as Multnomah County’s new prosecutor, Portland was two months into a wave of protests that continues to this day. Schmidt, a progressive who won a landslide victory in the county that includes Portland, Oregon, was scheduled to take office next January, but his predecessor announced early retirement days into the protests. By the time Schmidt took over, some 550 people, including journalists, legal observers, and many peaceful protesters, had been arrested during nightly standoffs with police — the vast majority over low-level, nonviolent charges.
The pandemic and a spike in violent crime had already bogged down court proceedings, and most of those arrested at protests would have to wait months for their hearings. So on August 11, 10 days into his tenure, Schmidt announced that his office would decline to prosecute protesters over the majority of misdemeanor charges they were being arrested for, including criminal trespass, disorderly conduct, and interference with a police officer. Prosecutors would also decline to pursue charges for rioting, a felony, unless accompanied by more severe charges. Instead, the office would focus on more serious protest-related crimes, like property damage, theft, and the use or threat of force.
“These are just our neighbors, who are concerned about what they see as wrong with the criminal justice system. There’s no public safety value to their prosecution.”
“There was a very real practical consideration that nonviolent cases would really gum up the system, so let’s think about what’s really important to focus on. If I have to dedicate a finite amount of resources, I want to put it on the cases that are actually going to have a positive impact on public safety,” Schmidt told me during a recent interview. “These are just our neighbors, who are concerned about what they see as wrong with the criminal justice system. There’s no public safety value to their prosecution.”
But there was a more fundamental consideration at stake, Schmidt noted. The Portland protests came in the midst of a historic reckoning over systemic racism in the country, and the criminal justice system was under particular scrutiny. In many states, officials have increased the stakes for those arrested in connection with protests, charging them with felonies and in some cases terrorism. “To be in the system that is being protested the most, and to have the capability to use that system to stop people’s protest is inherently a conflict of interest,” Schmidt told me. “It just seemed like some of the arrests we were seeing really had the potential to chill speech, and we wanted to make sure we weren’t complicit in that.”
Mike Schmidt, Multnomah County district attorney, speaks to the media at City Hall in Portland, Oregon on August 30, 2020.
Photo: Nathan Howard/Getty Images
“It was incredibly reasonable and really as far as he could go as a prosecutor,” said Crystal Maloney, a local lawyer and activist. “As a prosecutor, you still have to enforce the law no matter how progressive you are, but he’s not focusing on the really low-level offenses, which are really the majority.”
Bobbin Singh, executive director of the Oregon Justice Resource Center, a civil rights group, noted that most protest-related charges would drag through the system for months before being dismissed or before prosecutors likely lost at trial. “So what he is saying is, I’m going to use the resources of this office to prosecute serious crimes and keep his focus there, and not have to deal with hundreds of protesters and using hundreds of hours of staff time for cases that will ultimately not really pan out.”
But police swiftly condemned Schmidt’s decision. In a statement, Portland Police Chief Chuck Lovell said that the new policy “does not change the law.” “Whether the District Attorney decides to charge cases we send to his office is up to him,” Lovell added. “The Portland Police Bureau will continue to do the job the community expects of us.” Daryl Turner, the president of the local police union, told Schmidt to “step up and do your job.”
In the streets, police ignored the policy altogether and carried on arresting people, often violently, dedicating time and manpower to taking protesters into custody and booking them over charges they know will not be prosecuted.
“They really have continued to arrest for all the crimes I said I wouldn’t charge, and it appears that they have actually done that even more,” said Schmidt, who noted that about 851 protest-related cases had been referred to his office as of mid-September, the “vast majority” for interfering with a police officer, a charge easily levied against anyone who ignores police orders to disperse. Schmidt’s office is pursuing charges in 111 of those cases. Nearly 300 cases remain under review or are awaiting further investigation.
The Portland Police Bureau did not respond to a detailed list of questions.
Schmidt conceded that the crowd dynamics had changed in recent weeks, particularly after far-right groups and supporters of President Donald Trump started showing up in response to the protests. On August 29, Aaron J. Danielson, a man affiliated with the far-right group Patriot Prayer, was shot and killed in downtown Portland as Trump supporters clashed with protesters. Michael Forest Reinoehl, a self-declared anti-fascist and the prime suspect in Danielson’s killing, was himself shot and killed by police five days later. But as the nightly gatherings have grown more chaotic and violent, and as opposing factions have faced off in the streets, police have also apparently scaled back their response to the more serious incidents. Critics say that’s intentional and seems aimed at creating the impression that it is Schmidt’s policy that has led to chaos.
“What you see is not actually a focus on more targeted law enforcement around activities that are causing harm,” said Singh. “The evidence suggests that they are doing it intentionally to make Mike look bad. The narrative that’s been spun out by law enforcement here is that Mike is creating lawlessness.”
“They are lashing out,” echoed Gregory McKelvey, a Portland activist and campaign manager for Sarah Iannarone, who will face Portland Mayor Ted Wheeler at a runoff election in November. “They try to sort of blackmail the community to say, well, that’s what happens when you defend yourself, that’s what happens when we feel unsafe. They think that’s going to help their cause, but I think it’s doing the opposite.”
Photo: Nathan Howard/Getty Images
Punishing Protesters
Peaceful protesters noted that police seemed to have doubled down on their crackdown, arresting them more violently and indiscriminately charging them with rioting.
Forrest Woods, who has attended almost every protest in the last four months and was recently arrested for the first time, said police seemed to have responded to Schmidt’s policy by taking their frustration out on protesters. “Like, if the DA is not going to keep us safe, we’re going to have to go out there and punish these protesters,” he said.
“The week that he announced that he wasn’t going to prosecute those charges, I feel like they got more physically brutal,” said Rachel Myles, another protester, who was violently dragged by officers through the street days after the policy was announced over conduct that Schmidt had said he wouldn’t prosecute.
Complete CoverageProtests for Black LivesWoods, a 31-year-old Portland comedian, was arrested after ignoring orders to disperse along with several others. He was charged with interfering with a police officer and disorderly conduct, misdemeanors that are among the most easily applied in a protest context. When he was booked several hours after his arrest, an officer again repeated those charges to him. Then, the officer took his charging documents and added “riot” next to the existing charges. Woods later asked another officer what exactly constitutes a riot charge. “The lady couldn’t tell me,” he said. “What she told me is that it was a Class C felony.”
All charges against Woods were dropped a few days later — though he said he had to call several numbers to find out. “But at the time it’s like, I’m in jail for a felony right now,” he added. “The psychological aspect of that when you’re sitting in jail … it just puts you under duress.”
Myles, another comedian who has been showing up at protests wheeling around a portable speaker to play music, said she had a similar experience. She has been arrested three times since the protests started, twice after Schmidt’s policy was put in place. The charges against her were dropped every time, including once when she received an email notifying her while waiting online for her virtual court arraignment. Myles said officers kept personal items they confiscated during her most recent arrest, claiming that they were “evidence” even though there are no standing charges against her. And as in Woods’s case, she noted that officers added a riot charge at the last minute.
“I’m still not entirely sure what the Portland police use to justify the declaration of a riot,” said Woods. “I’ve been at protests where they’ll say this is a civil disturbance and then 15 seconds later, they’ll say this has been declared a riot, and in that 15 seconds, nothing has happened. There’s been no explosions, no violence. But once the riot’s been declared, that’s when the riot charges are allowed.”
Because rioting is a felony, which can have enormous implications, protesters believe that police are using the charge liberally in an effort to silence them. “I always kind of figured that I could get arrested if I went out there,” said Woods. “But there are people who if they have the unfortunate luck of getting arrested the first time, they’re not coming back.”
“When the Trump rally came through and that man was killed downtown, the police were escorting them like they were a parade.”
That’s precisely why Schmidt chose not to pursue rioting charges, unless accompanied by destruction of property or other harmful behavior that he is prosecuting. “The word ‘riot’ evokes this emotional response. I’ve heard from members of the public saying, ‘I can’t believe you’re letting rioters off,’” he told me. “Because when you think riot, you think pitchforks, torches.”
In fact, under Oregon law, a person can be accused of rioting if “participating with five or more other persons the person engages in tumultuous and violent conduct.” During protests, police would often label a crowd a riot because an individual set a trashcan on fire or threw rocks — and then charge any other individual arrested in that context with rioting, even if that individual was not engaged in the riotous behavior. Schmidt has said his office will prosecute individuals actively engaging in harmful behavior, but not those who merely find themselves in a place where someone else is. “That’s not good enough to implicate you in a felony,” he said.
Police have pushed back against that reasoning, arguing that peaceful protesters refusing orders to disperse are preventing officers from reaching individuals in the crowd who are committing harmful acts and that making arrests is necessary to clear the streets in order to get to them. But those engaged in the riotous behavior are usually gone by the time police has arrested everyone around them, Schmidt noted. His office has issued rioting charges in 29 cases so far — all involving other serious charges.
“The hope was, if I’m going to send the signal that I’m focusing my office’s resources on violent crime, then the police will maybe follow suit,” he said, noting that police wouldn’t usually waste time arresting someone for low-level marijuana possession if a prosecutor has said he will not prosecute such offenses. But, he added, “I don’t have control over the police; the police can make lawful arrests in our society. I can only say what I am going to do once it comes to me.”
Prosecutors vs. Police
Tensions between prosecutors and the police they work with are nothing new, and a number of reformist prosecutors elected in recent years have faced fierce backlash from police and their unions.
Schmidt ran as an unabashed progressive and won a stunning 77 percent of the vote just days before George Floyd’s killing in Minneapolis. He expected pushback from some in law enforcement, but he hoped his resounding victory would send a clear message to police and other officials that their constituents want reform. “My hope would be, of course, that the Portland police would say, Hey, we should be rethinking the way that we’re doing things. Let’s work with this progressive prosecutor who clearly has a mandate from our community,” he said. “Unfortunately, that’s not been the reception so far.”
Instead, at a recent meeting with police, the first officer to speak told him, “I don’t trust anything you do or say because you’re antifa.” The president of the local police union accused him of being “George Soros-backed.”
Police and their supporters have also gone out of their way to link Schmidt’s tenure to the growing violence surrounding protests in Portland, even though the protests and violence predated his time in office. In recent weeks, tensions have escalated following a series of drive-through rallies by Trump supporters and right-wing groups, and in anticipation of a gathering by the Proud Boys, a far-right, violent group, planned in Portland for later this month. So far, police have largely left right-wing demonstrators alone, allowing them to drive through the city with covered license plates and to shoot counter-protesters with paintball guns and pepper spray.
Schmidt said he thought it was ironic that police were accusing him of fostering disorder by refusing to prosecute minor infractions by peaceful protestors when officers were ignoring those committed by armed white supremacists. “This is a different group. They’re bringing guns to the fight. And although some of their rhetoric is very pro-law enforcement … I think there’s a bit of caution on the law enforcement side about how they engage with this.”
To protesters, it simply appears that police are on the side of the armed pro-Trump militias, who actually pose the greatest public safety threat.
“When the Trump rally came through and that man was killed downtown, the police were escorting them like they were a parade,” said Woods. “Somebody actually was murdered. I feel like that should be more of a big deal than people spray-panting buildings.”
Similar narratives blaming protests against police violence for spikes in crime have also been peddled across the country. “To say that reformist prosecutors are lending to this would be absurd, but people will seize on that, people who have their own agendas to fight against reform,” said Schmidt, pointing to the overlapping crises gripping the nation as a more compete explanation. “We all know from Willie Horton and other experiences that that narrative can be created.”
But so far, it seems Portlanders aren’t buying that. Recent polls put support for peaceful protests in the city at 92 percent and for the Black Lives Matter movement at 76 percent. Fifty-six percent of respondents said they believe that there are systemic problems with police in Portland, and only 26 percent viewed Mayor Wheeler, who is also the police commissioner, favorably.
“The community here has actually already spoken out,” said Singh. “To me, the most perplexing thing is why city leaders and the mayor aren’t recognizing that.”
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