CLACKAMAS COUNTY, Ore. (KOIN) — Since late May, nearly 1,000 people have been arrested in connection with the protests in Portland; however, the overwhelming majority will likely never be prosecuted by the Multnomah County District Attorney’s Office. There are reasons for that decision, the district attorney explained, but others say it gives criminals a free pass.
District Attorney Mike Schmidt took over in August and promptly announced his office would presumptively decline to prosecute many protest-related charges. The decision has drawn harsh criticism, but Schmidt says it has been necessary to preserve resources for more serious crimes as well as protect speech rights.
“I had to make a decision, based on resources in this office, where we were gonna prioritize,” Schmidt told KOIN 6 News. “Breaking windows of businesses, lighting things on fire, stealing from those stores in the protest environment so that’s what we’re focusing on. We’re not using our limited resources on people who aren’t doing those things.”
Portland’s demonstrations raged for more than 100 consecutive nights before hazardous air quality conditions from the state’s wildfires in September interrupted the streak. Windows have been smashed, stores looted and fires started. There have been assaults. One man was murdered. Police have subjected crowd members, as well as bystanders and residents, to copious clouds of tear gas and other crowd control munitions.
President Donald Trump has made Portland’s violence a cornerstone of his campaign, catapulting the city into the national spotlight.
KOIN 6 News has tracked arrests and citations by local authorities since May 28. The numbers aren’t perfect — not every arrest is reported, names are frequently misspelled, some suspects aren’t arrested or charged until later, and some cases simply don’t show up in online court records. Here’s what we do know:
Local police agencies have made at least 978 protest-related arrests and citations so far. Around 28 arrests involved juveniles, for which public records are not available, and the outcome of 43 arrests could not be located.
Charges have effectively been dropped in just over 90% of the cases we know the outcome of.
There is no set description of the kind of person arrested. Some are teenagers or adults who have never been charged with a crime more serious than speeding. Some have long histories of drug abuse and theft. A few have rap sheets including violent crimes like strangulation and assault. One man was arrested again following the protests, this time accused of murdering two people.
Repeat suspects account for about 14% of arrests. White people make up around 78% and Black people account for about 10% of arrests, according to the DA’s office. For comparison, Portland’s demographics are around 70.5% white and 5.8% Black.
Men are twice as likely as women to be arrested at demonstrations. The overwhelming majority of people arrested are from Oregon, specifically, Portland.
Interfering with a peace officer is the most common charge, followed by disorderly conduct. Both essentially boil down to ignoring an officer’s order or being in the street, according to Juan Chavez, director of the civil rights project at the Oregon Justice Resource Center, which has been involved in several protest-related suits.
“Being in the street is central to people’s speech rights fundamentally and that’s been recognized time and time again,” Chavez said, adding that non-violent crimes account for “99% of the conduct” at protests.
Schmidt said if his office prosecuted every one of those arrests, they “would be effectively chilling speech.”
By using force on and arresting so many people, police already are criminalizing free speech, Chavez argues. “The police have been punishing crowds, they haven’t been punishing individuals. And if you’re punishing a crowd, that’s per se just too broad and excessive.”
The Portland Police Bureau and the Portland Police Association denied KOIN 6 News’ interview requests. A spokesperson for PPB would only say that officers “will continue to make arrests based on probable cause that a crime has been committed.”
“Charge the arsons, charge the serious assaults, but everything else … we have to figure this out through other means,” Chavez said.
The District Attorney’s office maintains it is carefully screening each case and deciding whether or not to follow up with charges. KOIN 6 News’ analysis found nearly 91% of cases have been dismissed or no complainted and are listed as “closed” in online court records. Schmidt cautioned against using that number, saying his office is still deciding whether to follow up on those cases.
But when asked if it was likely charges would be reinstituted within the statute of limitations, Schmidt admitted, “The vast majority, no, it’s not likely to happen. The vast majority of those are going to fall within our policy parameters of no evidence of harm or damage.”
Schmidt said the policy is also necessary to conserve resources at a time when the pandemic is creating a backlog and the city is seeing an uptick in gun violence and homicides.
However, the number of cases referred to his office is actually much lower than the same time last year. Between May 1 and Oct. 26 of 2019, around 10,212 cases were referred to the DA’s office. For the same months this year, that number was 6,983, according to the DA’s office. Protest-related cases make up about 14% of those.
Longtime prosecutor and former Oregon District Attorneys Association president Josh Marquis slammed Schmidt’s policy as “virtue signaling” and inherently biased because it treats one class of defendants differently than others.
“It basically says the prosecutor has a particular set of politics. And although prosecutors are elected,” Marquis said, “your only allegiance is to the law. Never to any political party or political movement.”
Defendants are already latching on to the possible loophole. Patriot Prayer leader Joey Gibson and a supporter have sued the district attorney, alleging selective prosecution of riot charges stemming from a 2019 brawl outside the bar Cider Riot. While Schmidt can’t comment on Gibson’s case, he maintains the policy is not discriminatory.
“We’re treating everybody absolutely equal from the start of this policy which is May 29th and going forward,” he said.
The policy was also tailored to “this specific moment” in which people are protesting flaws in the criminal justice system.
“This was recognizing that in a moment where people are criticizing how we do business and what they expect to see, we have the ability to chill speech if we are too aggressive in using our authority toward people who are not causing harm,” Schmidt said.
If protests against a different cause pop up in the future, he said he may reevaluate the policy.
Combined with the ongoing pandemic, the disturbances have wreaked havoc on downtown Portland’s business community.
“The immediate term issue is getting beyond the occasional nightly violence that we’re seeing,” Portland Mayor Ted Wheeler told KOIN 6 News in mid-October. “The ultimate answer to how we end this is crystal clear. For people who are engaged in violence or criminal destruction, you arrest them and then you hold them accountable.”
However, the meaning of the words “violence,” “destruction,” and “accountable” have been anything but crystal clear, and vary widely from department to department.
Marquis, who spent more than two decades as a prosecutor, says the choice not to prosecute is unique because no one has the authority to overrule that decision. If a prosecutor is too aggressive, a judge or jury can strike down the case. But no one can force a prosecutor to bring charges.
“If the prosecutor decides there will be no justice, there will be no justice,” Marquis said.
Without prosecution, Marquis suspects the demonstrations could continue indefinitely, regardless of the outcome of Tuesday’s election. The core group that continues to show up most nights, dressed head to toe in black, is small and unappeasable, he said.
“The endgame is the riot”
“There is no endgame apparently other than the destruction of order and civil society in Portland,” Marquis said. “(After the election) do they continue to riot? I think unfortunately the answer is they probably will because for them, the endgame is the riot.”
Schmidt, on the other hand, largely credits his policy with slowing the disturbances.
“If I had decided that I was gonna have a very heavy hand and prosecute every one of those cases, I think we could still be seeing protests on a nightly basis right now,” he said, pointing to the surge in demonstrations in July after federal officers were sent to Portland.
Chavez has a similar view. “This is not a problem that the police or the mayor can gas and beat their way out of,” he said. Chavez believes grappling with larger policing issues, white supremacy, and other criminal justice problems are the only thing that will stop the protests.
“We can’t pass the buck on dealing with our social issues. People seek redress through protest. And they expect an answer, they don’t expect to be gassed.”