September 3, 2020

The Honorable Mike Schmidt
Multnomah County District Attorney
1021 SW Fourth Avenue, Room
600 Portland, OR 97204

Dear District Attorney Mike Schmidt,

As lawyers and leaders in the Oregon legal community, we applaud and support the policy announced on August 11, 2020, that your office will presumptively decline to prosecute cases arising from the ongoing protests in support of the Black Lives Matter movement, where the most serious offense alleged is a city ordinance violation or where the crime(s) do not involve deliberate property damage, theft or the use or threat of force against another person.

We agree that the people’s rights to free expression, to petition the government, and to free assembly enshrined in the Constitution are cherished but fragile rights that Oregonians hold dearly. The exercise of these rights through acts of protest and civil disobedience has been essential to many, if not most, modern movements advocating for progressive social and political change. Therefore, although we agree unequivocally that acts of violence against people and serious harm to property should not go unchecked, we are most pressingly and deeply concerned with how systematic racism has resulted in pervasive violence against people of color and how law enforcement officers acting under the color of law continue to intentionally and systematically suppress the Black Lives Matter movement, and in so doing, silence and suppress critical voices that have been long neglected in this city and country at large.

Recent events have underscored the community’s need for your August 11 policy. In the last month, the number of arrests being made at protests in support of Black Lives Matter has increased more than three-fold. Based on public records released by Portland Police Bureau, the vast majority of these arrests are for low-level offenses of the type encompassed by your office’s August 11 policy. Concerningly, documented instances of police brutality in Portland have also increased. Video evidence and witness accounts of recent arrests show them often occurring in a brutal manner, where police throw protestors to the ground, rip their masks and other personal protective equipment off, and subject them to violent assault, ranging from repeatedly hitting them with fists and batons, to spraying them directly in the face with chemical irritants. These actions suggest that law enforcement officers may be using violence incident to arrest to unconstitutionally silence and punish those who continue to call for meaningful, structural reforms to the policing of our community. Recognizing that the protests in support of Black Lives Matter will likely continue in the weeks ahead, we urge you to stand firm in the principles articulated in your August 11 policy and use your prosecutorial discretion as a vital check against the misuse of the criminal justice system to quash political dissent.

While declining to prosecute citizens for exercising their First Amendment rights is a good first step, we also ask you to do more to preserve the health of our democracy’s north star: that no person is above the law. Having law enforcement officers suppress Black Lives Matter protestors, but stand idly by as right-wing, violent extremists aim guns at innocent bystanders (and particularly people of color and queer people), shoot paintballs, threaten bodily injury and death, and boast that they will be protected by law enforcement officers as they do so, gives us grave concern about the equal protection of the law and the fitness and capability of law enforcement officers to uniformly, fairly, and constitutionally administer that law. Such selective non-intervention by the police effectively amounts to aiding and abetting, emboldens the darkest instincts of those who do harm, and undermines the people’s confidence in their government.

Having police who consistently engage in acts of brutality without any repercussion undermines the people’s faith in the legal system even further. The law does not provide law enforcement officers with a blanket immunity from criminal prosecution. We should not give them one. We, therefore, also respectfully request that you use your authority and discretion to appropriately investigate and charge law enforcement officers who have engaged in criminal misconduct.

As attorneys, we are sworn to act as guardians for the rule of law. Recognizing our special role in this respect, we commend your leadership on these issues and lend our support to efforts to protect our democracy by ensuring the law is justly applied.

Sincerely,
The OGALLA Board