by Mat dos Santos, Legal Director

On Sunday, thousands of people peacefully assembled in downtown Portland to express themselves, just as the First Amendment envisions. A planned alt-right rally, the timing of which was awful and lacked respect for the city’s grief over the murders on the MAX the previous week, drew many more counter-protesters than attendees. The tremendous outpouring of support from numerous immigrant rights groups, organized labor, faith based movements, and other antiracists showed the alt-right demonstrators that, while they have a constitutional right to speak, their message of white supremacy is unwelcome by the people of Portland.  
This is the power of the First Amendment. When we organize and collectively raise our voices, we can reject the messages of hate and intolerance that permeate our communities. 
For the first four hours of the demonstrations, law enforcement successfully kept groups separated in an effort to avoid conflict. Overall, the strategy of keeping people separated, while allowing each group to be heard, kept the peace for hours. Things took a dangerous turn as police deployed flashbang grenades, chemical irritants, and less-lethal bullets at the antifascist gathering—to the cheers of the alt-right group—after the police announced that projectiles and a foul-smelling liquid were thrown from the roof of the public bathroom in Chapman Park.
While we understand that policing is no easy task, the pattern in Portland is clear. After a rock, stick, or liquid is thrown, Portland protests regularly devolve into the indiscriminate use of force and crowd control weapons. Our democracy is not so fragile that a rock thrown turns off the First Amendment for everyone in our city. This kind of disproportionate response is dangerous to our democracy and our lives.
To our knowledge, no other police force in America uses crowd control weapons with the regularity of the Portland Police Bureau. It bears repeating that these “less lethal” weapons are dangerous and indiscriminate. In fact, our staff attorney, who was serving as legal observer in Chapman Square, was accosted with chemical irritants and then shot in the back of her leg as she was trying to comply with police orders. A street medic was shot while treating someone for injuries sustained during the police action. Flashbangs went off immediately behind an elderly person using a cane as they desperately tried to exit the park, causing her to stumble. These are just a few of many examples of innocent people being caught up in Sunday’s police violence. It may be tempting to find comfort in the fact that in a very tense scenario things did not get far worse, but we cannot accept this as normal law enforcement behavior.
Unnecessary and excessive use of force isn’t just bad for those caught up in the action, but it also stops members of the public from coming out and participating in our democracy. After police used crowd-control weapons on Sunday, many of the peaceful protesters gathered for a permitted counter-protest in front of City Hall left, fearful of being swept up in the police action. In other words, the actions of Portland law enforcement chilled the constitutionally-protected speech of peaceful protesters. 
Unfortunately, the excessive response from law enforcement didn’t stop at firing projectiles at Chapman Square. Police orders rapidly changed at this point and officers backed Chapman Square protesters all the way into Lownsdale Park, and then told them that it too was closed. Having been forced out of two public parks, protesters then began a spontaneous march through the streets. Police then blocked in or “kettled” everyone present on an entire city block where the spontaneous march was moving, nearly 200 people, and announced that they were detaining them to investigate disorderly conduct. Disorderly conduct is a minor offense and hardly something the police should prioritize at the expense of the constitutional rights of those who were detained.  
Numerous members of the media and two ACLU legal observers were detained in that kettle. When they asked to be released, they were denied. It is unfathomable that the police had any basis for holding the media and ACLU legal observers for the purported investigation of particular subjects—the legal requirement for temporary detainment—of such a minor offense. Before allowing the protesters, bystanders, media, and legal observers to leave the kettle, law enforcement required each of them to show their ID, be photographed, and have their ID photographed. Some were told they could be arrested at a later day. The whole process took over an hour.
We have received many questions about the kettle, so let me take a minute to answer them:
  1. Oregon law does not require people to show identification to the police, unless they are driving.
  2. While police may detain someone suspected of committing a crime, they must actually be suspected of committing a crime. It is virtually impossible that Portland Police had reasonable suspicion to stop nearly 200 people including media and legal observers.
  3. Photographing the face and ID of every person detained is a likely violation of the Oregon state law prohibiting the collection and retention of personal information based on political beliefs. 
  4. If the information was subsequently entered into a federal database, Portland Police also likely violated federal privacy rules.
We are troubled by the continued crackdown on protest by Portland Police and cooperating agencies, but the kettling of individuals and refusal to let clearly innocent people free until they had been documented was another low for our city. 
This weekend, Portland was a microcosm of all that is fundamental and also frightening about the First Amendment. It is sobering to hear the deeply traumatic and hurtful words of bigots. But on Sunday, we saw the resolute power of our fundamental freedoms of speech and assembly when we collectively came together to drown out bigotry.