Prosecutors and defense lawyers are increasingly at odds about a question that will persist in Portland as long as Donald Trump is president: how to resolve the arrests of local protesters.

On Sept. 25, prosecutors made a splash in the most prominent case to emerge from downtown protests and vandalism on May Day. Damion Zachary Feller, 23, was sentenced to five years in prison for throwing lit flares into a police car and a Target store lobby during the May 1 melee.

But most protesters get arrested for far more benign behavior—and yet the Multnomah County District Attorney's Office has ratcheted up the consequences for them.

The crackdown stems in part from the May 1 protests, which got out of hand.
Police in military gear declared the May Day march a riot. Officers abruptly demanded that the crowd go home. Masked demonstrators instead ran wild, getting airtime on CNN and Fox News by setting bonfires on the light-rail tracks, smashing store windows and trashing a police vehicle.

Smashed Target window at May Day protest (William Gagan)
Smashed Target window at May Day protest (William Gagan)

In the aftermath, Mayor Ted Wheeler, channeling the frustration of downtown business owners and many commuters, asked local prosecutors to get tough with protesters.

"There are people who are habitually engaged in vandalism or violence in our community," Wheeler told KATU-TV on May 3. "They shouldn't just walk scot free. They will be prosecuted."

But before prosecutors could do that, Multnomah County's chief criminal judge changed the rules of engagement.

In June, Judge Edward Jones acquitted three defendants who had been arrested at protests and charged with the same traffic violation: failing to obey a police officer. Jones ruled in those cases that a person who was passively resisting could not be charged with the infraction the DA's office had levied.

His reasoning came from an Oregon Supreme Court case, State v. McNally, which established in April that no one may be charged with a misdemeanor for "interfering with a peace officer" while passively resisting an officer's orders.

Jones tells WW he acquitted the three protesters because he felt prosecutors were using a lighter charge "so they would not have to give people
jury trials and to avoid defending the passive
resistance clause."

Jones' ruling reduced the options available to the Multnomah County DA. So prosecutors ended their previous practice of charging protesters with a traffic violation, which let them off with a warning and eight hours of community service.

Instead, the DA's office began charging most people arrested during a protest with second-degree disorderly conduct—a class B misdemeanor that carries a maximum penalty of six months in jail and a $2,500 fine.

The effect has been exactly what Wheeler wanted: a legal crackdown. Protesters who don't think they did anything wrong are accepting a plea deal to reduce the misdemeanor charge to a violation, fearing that losing a criminal case could land them in jail and threaten their jobs.

Police and protesters at May Day protest (William Gagan)
Police and protesters at May Day protest (William Gagan)

The harsher approach has divided observers of Portland street activism. In a city that claims to be united against the Trump presidency, critics say the mayor and prosecutors are taking a law-and-order stance against activism.

"The prosecutors know they will lose at the traffic violation trial, so the prosecution uses the threat of criminal charges to coerce a plea deal," the Portland chapter of the National Lawyers Guild says in a statement. "After valiant efforts to challenge power constructs in the streets, protesters are effectively prohibited from doing so in the courts."

Deputy District Attorney Haley Rayburn, who has handled most of the protester cases in Multnomah County Circuit Court, says bringing tougher charges isn't something the DA's office wants to do—but she says Jones' ruling gives them no choice.

"The court made a ruling that forced us to bring criminal charges," Rayburn says.

"The court wanted us to proceed with these as crimes so that people would have the opportunity to have a jury trial."

Except, of course, protesters are reluctant to take the risk of losing such a trial.
One of the first protesters to plead guilty under the pressure of a misdemeanor charge this summer was David Carlson.

Carlson, 31, was arrested for standing in the street and leading chants through his bullhorn at a Feb. 20 protest after an officer ordered him to move. In late June, the Multnomah County prosecutor warned if he didn't plead guilty to a violation, the DA would charge him with a criminal misdemeanor instead. That alternative was too risky for Carlson.

Carlson says the DA's approach in effect criminalizes free speech. "No one actually gets their day in court because the system is set up against you," he says. "You just have to deal with it and take the consequence. You're considered guilty until proven innocent."