Ellen Bennington still doesn't know why Multnomah County jail guards made her take a pregnancy test.
On the night of August 31, a crowd of several hundred had assembled near Mayor Ted Wheeler’s apartment in Portland’s Pearl District. As had become commonplace at these events, protesters played loud music and chanted. Some members of the crowd set a fire in the street. After windows were broken on a ground-floor dentist’s office and a small fire started inside, Portland Police Bureau (PPB) officers in riot gear arrived, declared a riot, and ordered the crowd to disperse.
Bennington says she was following that order when a PPB van approached the crowd. By her description, an officer riding on the side of the van pointed at her and her friend, and said “words to the effect of ‘get them!’” She was charged with disorderly conduct, interfering with a peace officer, resisting arrest, and possession of a concealed weapon (for carrying a small sheathed knife inside her backpack).
“No one in my group engaged in anything even remotely illegal... we were, truly, on our way home and separated from most of the people when the arrest took place,” says Bennington.
Other arrests from that evening included a couple arrested while walking back to their car after dinner in the Pearl.
Bennington was transported to the Multnomah County Detention Center for booking, where she declined to answer questions and asked to speak to a lawyer. She believes that invoking her right to remain silent made her a target for intimidation by jail personnel. Bennington was approached by someone from the jail medical staff, who asked several questions about her mental health, then asked her to give a urine sample, “for analysis and to make sure you’re not pregnant.”
When Bennington responded, “Well I’m not pregnant,” she says she was told “Either you submit a urine sample or you’ll be placed in disciplinary solitary.”
Rachel Myles was arrested at the same protest, and encountered Bennington in booking. Myles says she saw Bennington being addressed by two Multnomah County Sheriff's Office (MCSO) guards. “The guard tells her, ‘You have two options, you can take the pee test or you can be subject to disciplinary action,” Myles told the Mercury.
“I turned, out of fear, and said, ‘Did anyone else have to pee in a cup? Should I just do it?” Bennington says.
Myles says she told Bennington, “I can’t tell you what to do, but this is not a choice. This is coercion under duress.”
Myles says that she was then surrounded by officers who told her she was being put on a “time out.”
“They told her,‘Shut up, no one’s talking to you,’” Bennington recalls , “I said, ‘Well I’m talking to her!’”
After Myles was led away, Bennington said she gave in and peed in a cup. She was then made to strip in front of several female guards, given prison scrubs, and then led by guards to a “horrifically soiled” cell, where she would remain until almost noon the following day—never being told what she was being charged with. For objecting to Bennington’s treatment, Myles found herself in solitary confinement as well. She was not asked for a urine sample.
Chris Liedle, a spokesperson for MCSO, said that taking urine samples from women in custody isn’t uncommon.
“Urine samples are to determine if a woman is pregnant,” Liedle said. “If a sample confirms a woman is pregnant, an electronic body scan, which is mandatory for an individual assigned to housing, is not performed due to safety recommendations set by the equipment’s manufacturer. The samples also help inform medical staff and corrections deputies as to what level of care the individual needs while in custody.”
But Juan Chavez, an attorney with the Oregon Justice Resource Center, said this practice “smacks of unlawfulness."
“I can’t see a risk management scenario that would justify a mandatory pregnancy test,” Chavez said.
In a 2018 Oregon Supreme Court case called State v. Mansour, the court ruled that arrestees' cell phones could not be searched without a warrant, in part because such a search might reveal their pregnancy status. With that in mind, says civil rights attorney Alan Kessler, “Forced pregnancy tests are legally beyond the pale.”
“In Oregon, the police may not obtain our heart rate, or collect our breath, blood, or urine without consent or a valid warrant,” Kessler says. “It's not hard to imagine disturbing reasons why the police might want this information... It's more difficult to come up with a legitimate reason.”
Chavez adds that a practice of forced testing poses a major litigation hazard to law enforcement agencies.
“This issue has been challenged—and acceded to—by counties, because they recognize the liability,” he says.
Asked whether an arrestee put in Bennington’s situation could meaningfully consent to such a test, Kessler was unequivocal.
“No. The government can't bully you into waiving your rights," he says. “There's no real consent, and the threat itself was illegal.”
Both Bennington and Myles were released late the following morning. According to other arrestees held that night, no one else was pressured to give urine tests after Bennington was taken away. Both women have continued to attend protests regularly in the weeks since.
Of the experience, Myles says, “It feels like they were just trying to intimidate her, to make things harder than necessary.”
Both Bennington’s and Myles’ charges have been dropped.