Portland’s Protest Problem

The militarized and heavy-handed police approach to protest in Portland is expensive, dangerous, and threatens our democracy.

line of riot police in Portland on 1202017January 25, 2017 - In stark contrast to the policing of the Portland Women’s March the next day, which was by many accounts congenial and effective, the law enforcement response to the Inauguration Day protests was violent and excessive. Protesters, journalists, bystanders, and our own ACLU legal observers have shared disturbing reports and video that show the chilling presence of hundreds of officers in riot-gear, many of whom were only recently trained, directing the crowd with confusing, and at times contradictory, orders and force. Finally, in what is becoming an all too common occurrence, the protest was ended through the deployment of so-called “crowd control devices,” resulting not just in the silencing of First Amendment activities, but also causing serious injuries to the public. No matter what others have said, this was a failure. 

First things first, the fact that the march on Friday was unpermitted, a point that officials have gone out of their way to underscore, does not make it unlawful. While narrow restrictions on protest are constitutionally permissible, the law favors the freedom of speech enshrined in the First Amendment. As it stands, Portland’s current permitting scheme appears to violate the U.S. Constitution in numerous respects and is unreasonably expensive, costing over a thousand dollars at a minimum to obtain permits for events like those witnessed on Friday and Saturday. If only the richest in our city can afford to speak, then the First Amendment means nothing at all.

The response to a few protesters engaging the police with projectiles cannot be indiscriminately labeling the entire protest unlawful or a riot.  When one, or six, protesters out of several thousand throws an egg or an “unidentified liquid,” an appropriate response would be to identify the person and prevent them from further assailing officers. Responding with brutal force against groups of peaceful protesters not responsible for these actions is wrong and illegal.

protester faces line of policeWe said it to Mayor Hales, and we will say it again, protest may not always be convenient or pretty, but we think it is powerful. 

Mayor Hales made the mistake of trying to silence the public through use of police force. We hoped that Portland would not see that again. We were wrong. In fact, a number of people have noted, and we agree, that Portland’s response to protest on January 20, 2017, was more violent than responses under the previous administration. 

The militarized police response to First Amendment activity was the wrong approach. It was expensive, disproportionate and incendiary, and has serious consequences to public health and the well-being of our democracy. 

We filed a records request today to better understand the scope of Portland’s response. At a very minimum, tens of thousands of taxpayer dollars were spent planning and orchestrating the response on Inauguration Day. The number and severity of injuries sustained by the public will no doubt lead to meritorious lawsuits on behalf of the injured; resulting in even more public money spent defending against, settling, or paying out damages. At a time when Portland is desperately trying to find solutions just to keep members of the public alive through the freezing winter nights, spending money fighting peaceful protest is both frivolous and inhumane. We deserve better.

The presence of heavily armed officers in riot gear to “control” unarmed peaceful protesters clad in jeans and tennis shoes is disproportionate on its face. Worse, it is prone to dangerously escalate situations. Changing officers’ uniforms and weapons can lead to a corresponding change in an officer’s attitude toward the public. Instead of keeping the public safe, officers are “at war” with the community. We should return to a less dangerous, more collaborative style of policing. A member of the public leaving dinner should not mistake our officers for soldiers or Portland’s affable streets for a battleground.

Which brings us to the use of so-called “crowd control devices.” Deploying less-lethal weapons like tear gas, pepper spray, flash-bang devices, and sting-ball grenades at protesters and bystanders is dangerous.

In a joint report, “Lethal in Disguise: The Health Consequences of Crowd-Control Weapons,” The International Network of Civil Liberties Organizations (INCLO) (which the ACLU is a member of) and Physicians for Human Rights have documented the health consequences of these weapons. On kinetic impact weapons (KIPs), such as the sting-ball grenades deployed by the Portland Police on Friday, the report states:

“…KIPs cause serious injury, disability, and death…[S]evere injuries are more likely when KIPs are fired at close range; some types of KIPs have the same ability to penetrate the skin as conventional live ammunition and can be just as lethal. When launched or fired from afar, these weapons are inaccurate and strike vulnerable body parts, as well as cause unintended injuries to bystanders. Therefore, there are significant doubts that these weapons can be used in a manner that is simultaneously safe and effective.”

It is clear that responding to peaceful protests with militarized and excessive force puts both the public and police officers in harm’s way, but it also risks the very fabric of our democracy. This kind of policing shuts down First Amendment activity. It is no longer free speech and free assembly when the city of Portland directs its militarized police force to control the direction and duration of a protest. If we do not challenge the city’s use of militarized police to control and shut down a peaceful protest we leave the door open to more oppressive policing in the future. The City of Portland has long prided itself as being a hub for First Amendment activities of all kinds, but these heavy-handed police tactics, if not checked, will have long lasting effects on free speech and expression in our city.