Challenges in Managing Protests and Civil Litigation
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Naomi Sheffield, Senior Deputy City Attorney,
Portland, OR
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Policing Issue: Separate groups with competing beliefs
protesting and counter-protesting. Conduct of these groups
regularly leading to violence toward each other.
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Proposed Solution: Content Neutral Time, Place and Manner
Restrictions
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Legal Analysis:
Georgetown Institute On Constitutional
Advocacy and Protection
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Policy Considerations: Unable to pass in Portland
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Haber, et al. v. Portland, et al. (Ibarra v. City of Portland, et al.)
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Detained 435 People
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Not Arrested
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Acting as a collective unit
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Kettling: confinement by police of a group of demonstrators or
protestors in a small area, as a method of crowd control.
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Lyall v. City of Los Angeles, 807 F.3d 1178 (9th Cir. 2015) –
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Ybarra
does not, however, imply that police can
never
possess
reasonable suspicion or probable cause unless it is
individualized.”
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Carr v. District of Columbia, 587 F.3d 401 (D.C. Cir. 2009)
“Police witnesses must only be able to form a reasonable belief
that the entire crowd is acting as a unit and therefore all
members of the crowd violated the law. A requirement that the
officers verify that each and every member of a crowd engaged
in a specific riotous act would be practically impossible in any
situation involving a large riot.”
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Bernini v. City of St. Paul, 665 F.3d 997 (8th Cir. 2012) “What is
reasonable in the context of a potential large-scale urban riot
may be different from what is reasonable in the relative calm of
a tavern with a dozen patrons.”
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But See
Vodak v. City of Chicago, 639 F.3d 738 (7th Cir. 2011)
“No precedent should be necessary . . . To establish that the
Fourth Amendment does not permit the police to say to a person
go ahead and march and then, five minutes later, having
revoked permission for the march without notice to anyone,
arrest the person for having marched without police permission.
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Less Discriminate Munitions: tear gas, flash bangs (RBDDs)
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More Discriminate: impact munitions, pepper spray, batons
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Don’t Shoot Portland v. Portland (3:20-cv-00917-HZ)
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Tear Gas & COVID-19
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Less Lethal Munitions (impact munitions, pepper spray,
RBDDs)
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Contempt
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Black Lives Matter v. Seattle (2:20-cv-00887-RAJ)
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Tear Gas & Less Lethal Munitions
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Contempt
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Abay v. Denver (1:20-cv-01616-RBJ)
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Tear Gas & Less Lethal Munitions
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Anti-Police-Terror Project v. Oakland (3:20-cv-03866-JCS)
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Tear Gas & Less Lethal Munitions
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No Contempt
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Right of Access
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Index Newspapers v. Portland (3:20-cv-001035-SI)
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Arguments for:
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Recognition of the press to a special right of access as
surrogates for the public.
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“When wrongdoing is underway, officials have great incentive
to blindfold the watchful eyes of the Fourth Estate.”
Leigh v.
Salazar
, 677 F.3d 892, 897 (9th Cir. 2012).
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Concerns:
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Defining and distinguishing special classes of persons.
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Engaging in other criminal activity – challenging line drawing.
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Wise v. Portland (3:20-cv-01193-IM)
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“Protest medics may continue to protest, and provide medical
aid during the protests. They simply have no unique status
under the First Amendment that allows them to disregard
lawful orders.”
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When Reporting Becomes a Defense for Rioting -
https://www.newyorker.com/news/us-journal/when-reporting-
becomes-a-defense-for-rioting
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Wolfe v. Portland (3:20-cv-1882-SI)
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Claims: Violation of ADA (42 U.S.C. 12131); Section 504
Rehabilitation Act; First Amendment; Fourth Amendment; Fifth
and Fourteenth Amendment Due Process; Fifth and Fourteenth
Amendment Equal Protection
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Preliminary Relief:
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Communication of orders: ASL interpreters and visual
messaging systems
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Cease the use of “bull-rushes” or similar practices that do not
allow sufficient time.
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Identify and inform protesters and others of accessible
avenues of egress.
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Cease the use of chemical munitions
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Cease using strobe lights
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Cease separating people with disabilities from their
assistants, interpreters, sighted guides and/or service
animals
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Federal Officers in Portland
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40 U.S.C. 1315: Designating “officers and agents for duty in
connection with the protection of property owned or occupied
by the Federal Government and persons on the property,
including duty in areas outside the property to the extent
necessary to protect the property and persons on the
property.”
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“enforce Federal laws and regulations for the protections
of person and property”
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“conduct investigations, on and off the property in
question, of offenses that may have been committed
against property owned or occupied by the Federal
Government or persons on the property”
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Federal Officer Presence in Portland
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July 3 through July 28
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Tear gas and other force
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ICE Facility – continuing presence
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Fence & Cameras
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Erected in the City’s right of way, blocking City streets
and in City bike lanes without permission
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Cameras placed on City poles without permission
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Deputation
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PPB Officers Deputized as US Marshalls– 28 CFR 0.112.
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Portland withdrawal; US Attorney refused to end the
deputation
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Anarchist Jurisdictions (2:20-cv-01560-BHS)
The discussion revolves around issues such as separating protesting and counter-protesting groups, kettling or mass arrest/detention practices, and the use of force in managing protests. Legal cases and perspectives on crowd control measures are explored within the context of civil rights and law enforcement challenges.
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Presentation Transcript
PROTESTS AND CIVIL LITIGATION Naomi Sheffield, Senior Deputy City Attorney, Portland, OR
SEPARATING COUNTER-PROTESTING GROUPS Policing Issue: Separate groups with competing beliefs protesting and counter-protesting. Conduct of these groups regularly leading to violence toward each other. Proposed Solution: Content Neutral Time, Place and Manner Restrictions Legal Analysis: Georgetown Institute On Constitutional Advocacy and Protection Policy Considerations: Unable to pass in Portland
KETTLING OR MASS ARREST/DETENTION Haber, et al. v. Portland, et al. (Ibarra v. City of Portland, et al.) Detained 435 People Not Arrested Acting as a collective unit Kettling: confinement by police of a group of demonstrators or protestors in a small area, as a method of crowd control.
KETTLING OR MASS ARREST/DETENTION Lyall v. City of Los Angeles, 807 F.3d 1178 (9th Cir. 2015) Ybarra does not, however, imply that police can never possess reasonable suspicion or probable cause unless it is individualized. Carr v. District of Columbia, 587 F.3d 401 (D.C. Cir. 2009) Police witnesses must only be able to form a reasonable belief that the entire crowd is acting as a unit and therefore all members of the crowd violated the law. A requirement that the officers verify that each and every member of a crowd engaged in a specific riotous act would be practically impossible in any situation involving a large riot. Bernini v. City of St. Paul, 665 F.3d 997 (8th Cir. 2012) What is reasonable in the context of a potential large-scale urban riot may be different from what is reasonable in the relative calm of a tavern with a dozen patrons.
KETTLING OR MASS ARREST/DETENTION But See Vodak v. City of Chicago, 639 F.3d 738 (7th Cir. 2011) No precedent should be necessary . . . To establish that the Fourth Amendment does not permit the police to say to a person go ahead and march and then, five minutes later, having revoked permission for the march without notice to anyone, arrest the person for having marched without police permission.
USE OF FORCE Less Discriminate Munitions: tear gas, flash bangs (RBDDs) More Discriminate: impact munitions, pepper spray, batons Don t Shoot Portland v. Portland (3:20-cv-00917-HZ) Tear Gas & COVID-19 Less Lethal Munitions (impact munitions, pepper spray, RBDDs) Contempt Black Lives Matter v. Seattle (2:20-cv-00887-RAJ) Tear Gas & Less Lethal Munitions Contempt Abay v. Denver (1:20-cv-01616-RBJ) Tear Gas & Less Lethal Munitions Anti-Police-Terror Project v. Oakland (3:20-cv-03866-JCS) Tear Gas & Less Lethal Munitions No Contempt
JOURNALISTS/LEGAL OBSERVERS/MEDICS Right of Access Index Newspapers v. Portland (3:20-cv-001035-SI) Arguments for: Recognition of the press to a special right of access as surrogates for the public. When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate. Leigh v. Salazar, 677 F.3d 892, 897 (9th Cir. 2012). Concerns: Defining and distinguishing special classes of persons. Engaging in other criminal activity challenging line drawing.
JOURNALISTS/LEGAL OBSERVERS/MEDICS Wise v. Portland (3:20-cv-01193-IM) Protest medics may continue to protest, and provide medical aid during the protests. They simply have no unique status under the First Amendment that allows them to disregard lawful orders. When Reporting Becomes a Defense for Rioting - https://www.newyorker.com/news/us-journal/when-reporting- becomes-a-defense-for-rioting
AMERICANS WITH DISABILITIES ACT Wolfe v. Portland (3:20-cv-1882-SI) Claims: Violation of ADA (42 U.S.C. 12131); Section 504 Rehabilitation Act; First Amendment; Fourth Amendment; Fifth and Fourteenth Amendment Due Process; Fifth and Fourteenth Amendment Equal Protection Preliminary Relief: Communication of orders: ASL interpreters and visual messaging systems Cease the use of bull-rushes or similar practices that do not allow sufficient time. Identify and inform protesters and others of accessible avenues of egress. Cease the use of chemical munitions Cease using strobe lights Cease separating people with disabilities from their assistants, interpreters, sighted guides and/or service animals
FEDERAL INTERFERENCE Federal Officers in Portland 40 U.S.C. 1315: Designating officers and agents for duty in connection with the protection of property owned or occupied by the Federal Government and persons on the property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property. enforce Federal laws and regulations for the protections of person and property conduct investigations, on and off the property in question, of offenses that may have been committed against property owned or occupied by the Federal Government or persons on the property
FEDERAL INTERFERENCE Federal Officer Presence in Portland July 3 through July 28 Tear gas and other force ICE Facility continuing presence Fence & Cameras Erected in the City s right of way, blocking City streets and in City bike lanes without permission Cameras placed on City poles without permission Deputation PPB Officers Deputized as US Marshalls 28 CFR 0.112. Portland withdrawal; US Attorney refused to end the deputation Anarchist Jurisdictions (2:20-cv-01560-BHS)
