A Multnomah County judge has acquitted two members of Patriot Prayer, the right-wing activist group based in Vancouver, WA, of federal riot charges linked to a May 1, 2019 street brawl. 

Judge Benjamin Souede determined that both Patriot Prayer founder Joey Gibson and ally Russell Shultz are not guilty of engaging in a riot during the incident, which occurred outside the now-shuttered Cider Riot bar on NE 8th and Couch.

The clash began when Gibson and other supporters approached the bar's patio, where a crowd of anti-fascist activists were celebrating after a day of May Day rallies. Gibson and his group goaded the people on the patio into a brawl involving bear mace and thrown bottles, which eventually escalated into a one-on-one street fight between members of the two parties. The incident ended after one of the Patriot Prayer members named Ian Kramer hit an anti-fascist activist in the neck with a baton, fracturing her vertebrae in the process. Kramer has already stood trial for his actions, and was sentenced to 20 months in jail in 2021. 

Tuesday marked the second day of trial for Gibson, Shultz, and another Patriot Prayer member, MacKenzie Lewis. All three were in attendance at the Cider Riot brawl, and their actions are captured on various video recordings of the event. 

"Fundamentally, the question is whether or not a reasonable juror could conclude that each defendant committed each and every element of the crime of riot," Souede said Tuesday.

Souede pointed to the state's definition of "riot":

A person commits the crime of riot if while participating with five or more other persons the person engages in tumultuous and violent conduct and thereby intentionally or recklessly creates a grave risk of causing public alarm.

In accepting Gibson's request for acquittal, Souede underscored how there is nothing in the statute related to a person's speech, which state prosecutors have centered their arguments on. 

"The record is overwhelming and indisputable that Mr. Gibson spoke obnoxiously to the crowd at Cider Riot," said Souede. "He was provocative, he was taunting, he was acting like a troll. That is all speech...Speech cannot be considered in whether or not defendant committed a crime of riot."

Souede reached the same conclusion in Shultz' case, chiding prosecutors for characterizing Shultz's finger waggling and posturing as "tumultuous and violent conduct."

"The state suggests that speech can help contextualize that conduct," said Souede, "but I don’t think that’s consistent with [previous case law from the Oregon Supreme Court.]"

Souede did not accept a request to acquit Lewis on riot charges, as he said there was enough evidence—like Lewis shoving a person—for jurors to conclude Lewis may have acted violently. 

Souede said that, if Gibson and Schultz were allowed to be convicted on riot charges for their speech alone, it would impact the outcomes of other protest arrests, like those charged during the 2020 racial justice protests. 

 “If this defendant could be convicted in this case, there would be no protection for protesters in Oregon on other occasions,” he said. “There would be no protection for protesters the next time a federal police force is deployed in Portland. There would be no protection for the next Wall of Moms. If being there and using your body to take up space during a protest is sufficient, then any protester runs the risk, if it turns out tumult ensues, of being convicted of riot.”

Souede did make a point to clarify his thoughts on the individuals' actions that afternoon—and hint at the fact that they likely could have been convicted on different charges.

"There’s ample evidence from which a reasonable juror could conclude that each defendant in this trial decided that the best use of their time on what looked like a a pleasant May afternoon was to go and bother a group of people who, at that moment, were doing nothing more than minding their own business and enjoying their own company," he said. "There’s evidence from which a reasonable juror could conclude that the point of that exercise was to annoy that group of people…. To play what I would call an adult version of 'I’m not touching you,' but I can’t say that because there wasn’t very much 'adult' about that conduct. Much of that evidence has very little to do with what’s at issue in this trial. These defendants are not charged with inciting anything or with encouraging anything or provoking anything."

He placed the blamed squarely on the Multnomah County's District Attorney's office. 

"I am somewhat bewildered that the state has driven this case to this point, despite having all the evidence in this case... all the video," he said. "As an institution, the District Attorney’s decision to push this case to trial is surprising based on the evidence."

District Attorney Mike Schmidt's office declined to comment on the decision. 

This ruling erases all riot charges against Gibson and Schultz, and allows the trial to continue with a sole focus on Lewis' actions.