The ACLU of Oregon says it's exploring legal options, after what it calls a "pattern and practice of retaliatory arrest of local organizers" on the part of the Portland Police Bureau.

Following the arrest of three organizers during a protest last night, the organization's legal director, Mat dos Santos, penned an open letter to Mayor Charlie Hales and Police Chief Mike Marshman this afternoon suggesting the city's potentially in violation of the constitution.

"An arrest made in retaliation for a person’s exercise of protected speech violates the First Amendment," dos Santos writes. "While we continue to evaluate the facts, we caution PPB that it is a violation of the rights of the protesters arrested if police actions are motivated by a desire to chill speech and law enforcement actions would 'chill or silence a person of ordinary firmness from future First Amendment activities.'"

The ACLU released the letter less than 24 hours after cops arrested Gregory McKelvey, 23, Kathryn Stevens, 24, and Micah Rhodes, 23, three organizers affiliated with the newly formed group Portland's Resistance.

All three were participating in a protest march they say was organized by Portland Public Schools students yesterday. Beginning at Northeast Portland's Holladay Park and winding up outside of City Hall, the small protest delayed traffic and blocked the Burnside Bridge for a short period, but also often complied with police guidance on where to march.

Cops say that when marchers disobeyed police—as during a "die in" on the Burnside Bridge—they did so under the guidance of McKelvey and other adults in attendance.

"During the march, police officers observed McKelvey and Rhodes actively encouraging and directing student protesters to counter lawful police orders which were being broadcast over a loudspeaker by police," a Portland Police Bureau release said.

McKelvey denies that. Footage of the die in incident shows him guiding protestors through the exercise—which have been a mainstay of protests—but also suggests it began at the behest of students leading the march. Check the 1 hour, 22 minute mark in the video below (which also shows Rhodes complaining cops were threatening to arrest him). (Update: Activist Cameron Whitten, who shot the video, says the die in was his idea.)

Prosecutors wound up not filing charges against McKelvey, Rhodes, and Stevens when they showed up for court this afternoon. It's unclear if disorderly conduct charges will be filed at a later date.

"The Bureau would expect appropriate charges would be filed," PPB spokesman Sgt. Pete Simpson tells the Mercury.

Anyway, no students were arrested, despite also engaging in potentially illegal conduct. The ACLU says the disparate treatment raises questions.

"PDX Resistance organizers were singled out for arrest despite engaging in activities similar to peaceful protesters in their vicinity," the letter reads. "From our view, the only distinguishing characteristic is their role as leaders in other recent protests that were publicly opposed by your offices."

Dos Santos tells the Mercury he wrote the letter because he's concerned a pattern is emerging. He points to arrests of prominent organizers like Teressa Raiford and Glenn Waco as evidence police might be retaliating against the leaders of local protest movements.

"We find the arrests from last night very troubling, and we also find Portland police's history of arresting organizers equally, if not more so, troubling," dos Santos says. "We needed to put Portland on notice."

Full text of the ACLU's letter is below:

Dear Mayor Hales and Chief Marshman,

Last night, we learned that Portland Police Bureau (“PPB”) arrested Gregory McKelvey, Kathryn Stevens, and Micah Rhodes, members of PDX Resistance and well-known organizers. Targeting individuals for arrest for constitutionally protected speech is prohibited by law.

PDX Resistance organizers were singled out for arrest despite engaging in activities similar to peaceful protesters in their vicinity. From our view, the only distinguishing characteristic is their role as leaders in other recent protests that were publicly opposed by your offices.

An arrest made in retaliation for a person’s exercise of protected speech violates the First Amendment. While we continue to evaluate the facts, we caution PPB that it is a violation of the rights of the protesters arrested if police actions are motivated by a desire to chill speech and law enforcement actions would “chill or silence a person of ordinary firmness from future First Amendment activities.” Unlike most other courts, the Ninth Circuit has held that a First Amendment retaliation claim can lie even if the arrest is supported by probable cause. If a First Amendment retaliation claim can be established, then officers would likely not be entitled to qualified immunity.

Despite clear law to the contrary, PPB appears to be engaged in a pattern and practice of retaliatory arrest of local organizers. We have received other reports of well-known organizers and activists being targeted by PPB for arrest during peaceful protests and are investigating those allegations.

Not only is retaliatory arrest unconstitutional, it is wasteful, consuming limited law enforcement resources in pursuit of charges prohibited by law. For example, activist Teressa Raiford was acquitted after an arrest last year for similar activities. The ACLU of Oregon filed an amicus brief in her case and successfully showed the court that the state has a high burden when wielding the criminal law against protesters engaged in protected First Amendment activity.

While we understand the difficulties faced by local law enforcement, silencing the voices of community leaders through a practice of harassing arrests is clearly unconstitutional and destroys trust between the community and its public servants.

As those selected to serve the community, we urge you to ensure that public speech, including protest, is protected and not punished.

Sincerely,

Mat dos Santos
Legal Director