The ACLU of Oregon has repeatedly claimed that the Portland Police Bureau’s heavy-handed tactics at protests over the last year have been unconstitutional. Now, it’s asking a federal jury to agree.
On Wednesday morning, the civil rights group planned to file the first of a handful of lawsuits against the city. All involve controversial strategies the bureau has used to quell the protests that have become commonplace in the Trump era.
The first suit deals with the “kettling” tactic police used on demonstrators at a massive June 4 protest. By surrounding and detaining a large group of protesters and others downtown, and demanding to photograph their IDs, the ACLU believes the PPB violated their constitutional rights.
“They were detained unlawfully, in violation of their Fourth and Fourteenth Amendment rights,” ACLU of Oregon Legal Director Mat dos Santos tells the Mercury. “Portland police indiscriminately detained and arrested between 200 and 250 people without meeting the basic constitutional requirements: reasonable suspicion and probable cause.”
The ACLU’s class-action lawsuit has five named plaintiffs—Jenny Nickolaus, Chris Whaley, Josef Haber, Jade Sturms (a freelance illustrator for the Mercury), and ACLU legal observer Patrick Garrison—who are acting on behalf of all who were rounded up on June 4. The City of Portland, Mayor Ted Wheeler, six identified officers, and up to 50 unidentified cops are listed as defendants.
The lawsuit is likely the first legal challenge to the PPB’s use of “kettling,” a crowd-control tactic that the bureau first employed in 2014, and has been the subject of repeated controversy ever since.
The incident in question occurred amid one of the more tense protests of Trump’s presidency. On June 4, the right-wing group Patriot Prayer held a “free speech” rally in downtown’s Terry Schrunk Plaza, inspiring a massive police presence and large counter demonstrations.
Police had good reason to be alert. A week before, white supremacist Jeremy Christian had stabbed three men, killing two, after an altercation on a MAX train. Christian had also recently attended a Patriot Prayer rally in Montavilla, where he yelled racial slurs at left-wing protesters and gave the Nazi salute throughout the day.
Patriot Prayer ignored calls to cancel the June 4 rally, and instead hosted racist “alt-right” figures known online as “Based Stickman” and “Baked Alaska.” A couple thousand protesters, including many anti-fascist activists (antifa), showed up.
Jenny Nickolaus, who along with her husband Chris Whaley is one of the five named plaintiffs in the ACLU-led lawsuit, says she demonstrated that day because of the MAX killings.
“I thought it was important that we show up as residents of this city to show solidarity against hate and intolerance,” she told the Mercury.
After hours of tense stand-offs, Portland riot cops deployed flash-bang grenades and less-lethal rounds, sending antifa demonstrators from downtown’s Chapman Square into the streets. In the early afternoon, armored-up cops circled between 200 and 250 protesters, legal observers, and journalists walking along Southwest 4th.
“We were walking on the sidewalk towards the front of the crowd and we saw a large group of riot cops come around the corner running straight at us,” Nickolaus says. “It was pretty frightening and surreal.”
Officers kept much of the crowd for nearly an hour, and wouldn’t let people go until they photographed detainees’ IDs next to their faces. Nickolaus compares the experience to getting “the shakedown from the Gestapo.”
June 6, 2017
What the PPB did that day was blatantly unconstitutional, the ACLU says in the lawsuit it planned to file in federal court.
Wheeler’s office, City Attorney Tracy Reeve, and PPB spokesperson Sergeant Chris Burley declined to comment on pending litigation.
Local attorneys Steven Wilker, Sarah Einowski, Alexander Tinker, and Megan Reuther--all from Tonkon Torp--have volunteered to lead the suit for the ACLU, along with in-house attorneys Kelly Simon and dos Santos. The suit seeks an unspecified amount of money from the city for those detained, legal fees, and an official declaration that kettling violates the constitution. That could either curtail its use by the bureau or make it significantly easier to sue the city again, should cops repeat the maneuver.
In order for a kettle to be constitutional, dos Santos says, police would need to have “individualized reasonable suspicion for every person they detained.”
“If the police detain 50 people, but could articulate reasonable suspicion for every one of those 50 people, that might be constitutional,” he says. “[But] the police can rarely, if ever, articulate individualized reasonable suspicion.”
Mike Marshman, who was chief of the PPB on June 4, originally claimed the kettle and photo-taking didn’t happen: “That’s not our practice, we do not do that,” he told OPB’s Think Out Loud the Monday following the incident. But as first reported by the Mercury, Marshman hadn’t even been monitoring the protest from the police command center. He was at home.
More than two weeks later, Marshman responded to questions from Wheeler about the strategy, saying it was necessary to separate protesters from Patriot Prayer supporters and to investigate crimes. Photographing each detainee with their license next to their face, Marshman said, was to “speed up the process,” and help detectives “investigating criminal behavior.”
That reasoning is, in so many words, bullshit, dos Santos says.
“If Portland police could detain, at any moment, hundreds of people on any given block in downtown Portland for an investigation of disorderly conduct, we would all be subject to detention all the time,” he said. “That’s what’s known as a police state, and that’s not the state we live in.”
The litigation comes, coincidentally, during the same month that Captain Larry Graham—the PPB’s incident commander on June 4 and at other major recent protests—boasted to an oversight board that the bureau’s crowd management is nationally respected.
“I know Portland’s got a reputation: ‘Oh, Portland police this and that,’” Graham, the top protest cop, told the Citizen Review Committee on November 1. “[But] nationally, they’ve looked at us and they’ve asked us to do national training for national law enforcement. They’re pretty impressed about how we’re able to adapt and change.”
Others are less impressed.
“The ACLU of Oregon has called on Portland police to change their tactics when policing protests, time and time again,” dos Santos says. “This is the first piece of litigation about the way Portland has policed protests. There will be more to come.”