Protest is critical to a functioning democracy. In a city that prides itself on free expression, progressive politics, and democratic values, it should not be a surprise to anyone that Portland has seen a significant increase in First Amendment activity since the 2016 election. What should surprise everyone is the severe response of City of Portland and the Portland Police Bureau toward these protests.
For years, the ACLU of Oregon has raised concerns about ways in which the Portland Police Bureau’s policies, directives and tactics infringe upon the rights and freedoms guaranteed by Oregon law and the U.S. Constitution. Twice already this year, the ACLU of Oregon drafted extensive comments on the Portland Police Bureau’s Crowd Control Directive. Despite overwhelming public support for those comments, the revised directives failed to reflect the ACLU’s proposed changes. While the City and the Police Bureau could use the increase in First Amendment activity as an opportunity to learn from and improve on its approach to protests, the response has been to limit rather than protect these freedoms. ACLU of Oregon legal observers witnessed this consistently as they documented, reviewed and analyzed police tactics and responses over the past year.
In more recent months, we have also seen an increase in clashes between white supremacist rallies and the counter-protesters challenging them. On June 4, 2017, a relatively small number of white supremacists held a rally at Terry Schrunk Plaza. Three separate groups of counter-protesters held their own rallies at the Edith Wyatt Federal Building, Chapman Square, and City Hall to counter their messages. We previously discussed our experiences and thoughts on these events here.
While the events of June 4th involved complicated dynamics between protesters and counter protesters, the ACLU of Oregon concluded that the Portland Police Bureau’s response on June 4th perfectly encapsulated the concerning patterns of treatment of First Amendment activity in Portland.
In September, the ACLU submitted a Report and Recommendations to the Independent Police Review Commission. This report outlines these patterns, including:
Counterproductive crowd control policies and directives that escalate. These include, among other things: a militarized approach to protests, vague definitions to justify police intervention, emphasis on peace and order over civil liberties, and broad discretion in the use of crowd control weapons against individuals.
Bias and the appearance of bias through selective enforcement based on political affiliation. This includes the positioning of officers, surveillance, regulating signage and use of illegal detention as crowd control.
Unnecessary and overly broad declarations of unlawful assemblies. The First Amendment is not so fragile that one protester breaking a window or throwing a marble should negate the constitutional rights of thousands of individuals. Further, such declarations escalate tensions, cause confusion, and place the public safety at unnecessary risk.
Excessive use of force. The use of force, including chemical and impact munitions, endangers the health and safety of hundreds of people and infringes on First Amendment rights.
- Use of arrests and detentions as crowd control. The Portland Police utilize illegal and unnecessary arrests and detentions as a form of crowd control, in violation of Oregon law, the Fourth Amendment to the U.S. Constitution, and in substantial impairment of First Amendment rights.
The response of the City and the Portland Police Bureau prioritizes aggressive control in the name of order at the expense of our rights, liberties, and safety. The problem with this approach is that protest is, by its very nature, is a disruption to the normal order of day-to-day life. It is that very disruption that brings light to the injustice being protested. Although protests may be imperfect, prioritizing control and order above democracy is dangerous. Protests are (and should be) with us for the long haul, and it is time for the Portland Police and the City to modify their directives and policies in a manner that is consistent with democratic values.