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Alex Zielinski

The morning after Portland streets first erupted in protest, fires, and broken windows in response to the murder of George Floyd in 2020, Mayor Ted Wheeler took on the tone of a disappointed dad, and placed the entire city under an 8 pm curfew.

“There was a pain that erupted into violence in our city last night,” he told reporters the morning of Saturday, May 30. “That is not something we can tolerate.”

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The curfew, which was extended until the morning of Tuesday, June 2, prohibited Portlanders from traveling anywhere in town from 8 pm to 6 am. The policy exempted people commuting to work, emergency vehicles, and unhoused people.

Now, nearly two years after Wheeler instituted his police-enforced curfew, a Multnomah County defense attorney is challenging the constitutionality of the sweeping policy. Her argument centers on a familiar question in Portland: What authority does the mayor have to limit or restrict demonstrations?

In the process of answering that question, Wheeler may have to testify in court.

The challenge has sprung from a criminal case that’s headed to trial next week, after spending months winding through the county court system.

In the early morning hours of Tuesday, June 2, 2020, Portland police officers arrested 23-year-old Tommy Pak as he was walking to his car in Southeast Portland with his girlfriend, following the evening’s demonstrations. Officers claimed his arrest was for violating Wheeler’s curfew (or, “refusal to obey executive order”) and for interfering with a police officer (by failing to follow an order to disperse). The officers proceeded to search Pak for weapons, and found a gun in his front pocket. That left Pak with two additional charges: unlawful possession of a firearm and possession of a loaded firearm in a public place.

Pak’s public defender, Emma McDermott, has challenged all four charges in court. Most notably, however, is her multifaceted argument disputing the validity of Pak’s arrest based on the curfew order.

In a January 11 memo, McDermott contends that Wheeler’s emergency curfew order didn't give officers permission to arrest anyone who violates it.

“A violation of [Wheeler’s order] is exactly that—a violation,” McDermott writes. “It is not a misdemeanor. It is not a felony.”

McDermott referenced an Oregon law which prohibits law enforcement from arresting someone who has “committed a violation.” State law instead directs officers to issue citations to those who make violations.

Yet this delineation wasn’t made in Wheeler’s order, which read: “Law enforcement has been delegated the authority to enforce the Mayor’s emergency order. Refusal to obey this order may result in citation or arrest.”

“The Mayor’s office does not have the legal authority to do this,” writes McDermott.

Even if police were allowed to arrest people for violating the curfew, McDermott said Wheeler’s order remains wholly unconstitutional, as it restricted free speech.

“[The curfew] directly targeted political demonstrations, unreasonably restricting legitimate exercise of citizens’ First Amendment rights,” writes McDermott. She suggests that Wheeler used this curfew as a pretext to broadly arrest people participating in the protest who were not breaking the law.

In their response to McDermott’s memo, Multnomah County Deputy District Attorneys Sydney Tumble and William Garms contend that Wheeler’s curfew was constitutional because it was an “emergency” curfew which, according to the prosecutors, doesn’t require free speech protections. The attorneys based this argument on other court cases outside of Oregon that upheld city curfews during an emergency to prevent civil disorder. The prosecutors note that the curfew didn’t limit people from demonstrating during daylight hours.

“The only restriction was on one form of expression (public gathering) during nighttime hours,” their response reads. “Given the riotous behavior that had escalated in the city during the previous nights, this was a completely reasonable restriction.”

Prosecutors also argue that Wheeler was allowed to threaten those who violated the curfew with arrest, because violating a city code—like a mayor's emergency order—is considered a criminal offense.

Pak wasn’t the only person charged with disobeying Wheeler’s curfew on June 2. County court records show that five other people were charged with “refusal to obey executive order” the same day. Four of those people were simply given a written citation from an officer, and prosecutors later dismissed the violation. The other individual, Andrew Morris, is facing additional charges identical to Pak.

Like Pak, Morris was initially stopped for disobeying the curfew on June 2, but was then discovered to be illegally carrying a gun after an officer’s search. Morris’ lawyer contends that, because this search was conducted without a warrant, it was unconstitutional. McDermott has posed the same argument in Pak’s case.

McDermott will argue to dismiss Pak’s charges in court next week. Pak’s trial is scheduled to begin on January 18, and is expected to last three days.

On Thursday, McDermott sent a subpoena to Wheeler, requesting his appearance in court next week.

Wheeler's office did not respond to the Mercury's request for comment.

This isn’t the first time Wheeler has been accused of bending First Amendment rights to restrict public demonstrations. In November 2018, Wheeler attempted to pass a city policy that would have allowed the city to restrict the location and time of two opposing protests. After hearing from civil rights attorneys that this policy would restrict the free speech of non-violent protesters, City Council voted to keep Wheeler’s ordinance from moving forward. “So where does this leave us?" Wheeler asked after the council vote. “I'll continue to work with anybody who has a good idea."