Mayor Wheeler speaking to protesters during a July 2020 rally.
Mayor Wheeler speaking to protesters during a July 2020 rally. NATHAN HOWARD / GETTY IMAGES

A Multnomah County judge dismissed criminal charges against a protester Tuesday on the basis that an emergency curfew policy enacted by Mayor Ted Wheeler during the 2020 racial justice protests was unconstitutional.

The decision could impact how the mayor's office addresses protest restrictions in the future.

Wheeler instituted the citywide 8 pm curfew on May 30, 2020, the day after Portland's first large protest following the murder of George Floyd by a Minneapolis officer. The order specifically prohibited members of the public from traveling anywhere in the city after the curfew, and made exceptions for houseless people, those traveling to work, and emergency vehicles. The order, which was unsuccessful at stopping nighttime demonstrations, was in place for three nights, lifting at 6 am on June 2.

Tommy Pak was arrested in the early morning hours of June 2, following the evening's demonstrations in Southeast Portland. Officers arrested Pak for violating Wheeler’s curfew (or, “refusal to obey executive order”) and for interfering with a police officer (by allegedly failing to stop when they told him he was in violation). After detaining Pak, the officers proceeded to search him 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.

In a motion filed before this week's trial, Pak's attorney Emma McDermott argued that her client's charges should be dropped, since the basis of his arrest was faulty. McDermott contended that Wheeler's order limited free speech by acting as a pretext to stop and arrest anyone who was participating in the protests.

“[The curfew] directly targeted political demonstrations, unreasonably restricting legitimate exercise of citizens’ First Amendment rights,” wrote McDermott.

Judge Stephen Bushong agreed. In a pre-trial hearing Tuesday, Bushong said that Wheeler's curfew was far too broad, and lacked any exception for people participating in peaceful demonstration.

"Had the mayor limited the order with geographic restrictions I think it would survive a first amendment challenge," he said. "Because I conclude that this order is not narrowly tailored to address the problems to serve government interests... the order cannot be enforced in this proceeding."

Because the curfew violation was the reason Pak was stopped by police in the first place, this meant all criminal charges against him—including the ones related to his firearm—were dismissed.

Here's how Bushong articulated it in his official court filing: "The court finds that the mayor's [curfew order] was not sufficiently narrowly tailored to the government interest of preventing property damage and crime. As such, it was facially unconstitutional under the first amendment to the United States Constitution."

Although Wheeler was subpoenaed to testify in this case, Bushong's dismissal ended the trial before testimony was necessary. In a statement to the Mercury, a spokesperson for Wheeler wrote that "the primary intent of that curfew was to prevent harm."

He continued: "The City Attorney and Mayor’s Office will be following the direction of the court’s direction on when and how a curfew can be imposed during extreme cases such as the one the Mayor requested in 2020."

This isn't the first time Wheeler has been scrutinized for constitutionally problematic protest policies. In 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, Portland City Council voted against the ordinance.

McDermott said she's happy to see Pak get the "justice he deserved."

"I’m proud to live in a place where we take the freedom to speak so seriously," she said. "We have never been perfect but the ideals we aspire to, they’re really beautiful."

Asked what impact she hoped this case will have within city politics, McDermott replied: "I hope it reminds those in power that we are paying attention."