Update, 10:40 AM:
According to Commissioner Nick Fish, the emergency ordinance will not be voted on today after public testimony. Instead, it will head to next week's city council session for a non-emergency vote.
That's probably because both commissioners Amanda Fritz and Chloe Eudaly have said they don't support the ordinance—and an emergency ordinance requires an unanimous vote from the council. A city council vote on a regular ordinance simply needs three votes to pass. It's still unclear if Mayor Wheeler has those votes—only himself and Commissioner Dan Saltzman have publicly supported the ordinance. That leaves Commissioner Nick Fish, who has yet to pick a side, to break the tie.
On Thursday, members of the public will have their first—and, perhaps, only—opportunity to comment on Mayor Ted Wheeler's emergency ordinance meant to restrict potentially violent protests.
The ordinance, a clear response to recent clashes between right-wing and left-wing protesters in downtown Portland, would broaden the city's ability to apply time and location restrictions to any protest that the police commissioner (who, at the moment, is Wheeler) predicts will turn violent. These restrictions would only apply to protests that occur without their organizers receiving a city-issued permit to protest first.
The city council is scheduled to hear public testimony on the ordinance starting at 2:15 this afternoon. Following testimony, Wheeler's expected to hold a council vote to pass the emergency ordinance.
"There are reasonable, legal solutions to address violence on the streets—this ordinance is not one of them."
While the Portland City Attorney's office has pointed to several national and statewide legal cases that support this ordinance's general purpose, constitutional lawyers say there is no legal precedent that sufficiently backs Wheeler's restrictions. While cities like Seattle have instituted these so-called "time, place, and manner" restrictions in the past, they've always occurred after a protest turns violent—not based on the presumption a demonstration may become violent.
Mat dos Santos, legal director of the ACLU of Oregon, believes the new rules would give unbridled power to Wheeler and the Portland Police Bureau (PPB) to stifle free speech.
"There are reasonable, legal solutions to address violence on the streets—this ordinance is not one of them," said dos Santos in a press statement. "The ordinance hands law enforcement and the mayor far too much power, and risks undermining people's ability to practice their constitutionally-protected right to speech and assembly."
Both Wheeler and PPB Chief Danielle Outlaw say the police bureau's current tactics to curb violent protests aren't effective enough. During Portland's past protests, these police tactics look like arrests, loudspeaker calls to disperse, using pepper spray or flash bang grenades against protesters, or rounding up groups to mass detain (called "kettling").
"When we're interjecting once the violence has already begun, we're already too late."
"The tools and ordinances we already have all call for a reactionary response," Outlaw told the Mercury in an afternoon interview. "We need a more strategic and proactive way to get ahead of violence before it occurs. When we're interjecting once the violence has already begun, we're already too late."
In past protests, specifically involving Vancouver's right-wing Patriot Prayer group and Portland's anti-fascist (antifa) groups, protesters have sustained injuries from counter-protesters. But often, protesters leave with injuries sustained from officers. In an August 4 clash between these two factions, a event that Wheeler said inspired him to pen this ordinance, one man suffered a traumatic brain injury from a flash-bang grenade tossed by a police officer. He's now suing the police bureau.
Outlaw argued that this preemptive ordinance could prevent officers from inflicting kind of violence against protesters.
"The less resources we have increases the likelihood of us using force, and we don't want to use force," said Outlaw. "That puts everyone involved at risk."
It's still hazy how the police commissioner will determine if a protest will turn violent before the protest takes place. In an interview with the Mercury, Wheeler said the evidence must be "rock solid."
An example, according to Wheeler: "If someone on social media specifically calls out, 'I'm going to commit violence on someone in Portland Oregon."
"The impulse to 'do something' without a deep look at how it will affect democracy is the hallmark of a certain other elected leader who now sits in the White House.”
Wheeler said the ordinance currently does not include a mechanism for groups to appeal the city's preemptive decision to restrict their protest. Yet, he added that the public will be able—"in most circumstances"—to weigh in on the police commissioner's decision to apply these restrictions on a protest before it takes place. It's unclear how that will be orchestrated.
In a press statement, dos Santos compared Wheeler's proposal to the Trump administration's recent plans to restrict protesting near the White House and on the National Mall.
"Does the mayor want to follow the president's lead on this one, or define a more democratic, constitutional path for the city?” dos Santos asked.
Portland Copwatch's Dan Handelman also evoked the president in his criticism of the ordinance.
"The impulse to 'do something' without a deep look at how it will affect democracy is the hallmark of a certain other elected leader who now sits in the White House," wrote Handelman in an emailed statement. "Portland can do better than this, and we must."