Federal authorities are using a new tactic in their battle against protesters in Portland, Oregon: arrest them on offenses as minor as “failing to obey” an order to get off a sidewalk on federal property — and then tell them they can’t protest anymore as a condition for release from jail.
Legal experts describe the move as a blatant violation of the constitutional right to free assembly, but at least 12 protesters arrested in recent weeks have been specifically barred from attending protests or demonstrations as they await trials on federal misdemeanor charges.
“Defendant may not attend any other protests, rallies, assemblies or public gathering in the state of Oregon,” states one “Order Setting Conditions of Release” for an accused protester, alongside other conditions such as appearing for court dates. The orders are signed by federal magistrate judges.
For other defendants, the restricted area is limited to Portland, where clashes between protesters and federal troops have grown increasingly violent in recent weeks. In at least two cases, there are no geographic restrictions; one release document instructs, “Do not participate in any protests, demonstrations, rallies, assemblies while this case is pending.”
Protesters who have agreed to stay away from further demonstrations say they felt forced to accept those terms to get out of jail.
“Those terms were given to me after being in a holding cell after 14 hours,” Bailey Dreibelbis, who was charged July 24 with “failing to obey a lawful order,” told ProPublica. “It was pretty cut-and-dried, just, ‘These are your conditions for [getting out] of here.’
“If I didn’t take it, I would still be in holding. It wasn’t really an option, in my eyes.” [...]
Several protesters who were let go on July 23 had bans against demonstrating added by hand on their release documents by Magistrate Judge John V. Acosta, who signed off on them, a review by ProPublica found. Acosta’s office did not respond to ProPublica’s questions.
For those released on July 24, the restriction was added to the original typed document, also signed by Acosta. One protester arrested and released earlier in the month had his conditions of release modified at his arraignment on July 24. The modified order, signed by Acosta, added a protest ban not previously included. [...]
The ACLU’s Somil Trivedi said, “Release conditions should be related to public safety or flight” — in other words, the risk that the defendant will abscond. “This is neither.” He described the handwritten addition of a protest ban to a release document as “sort of hilariously unconstitutional.” [...]
In many cases, the charges leveled at Portland protesters are closely tied to their presence at the protest — and not to any violent acts.
Eighteen of the 50 protesters charged in Portland are accused only of minor offenses under Title 40, Section 1315, of the U.S. Code. That law criminalizes certain behavior (like “failure to obey a lawful order,” as well as “disorderly conduct”) when it happens on federal property or against people who are located on that property. In other words, it describes behavior that wouldn’t otherwise be a matter for a federal court.
Dreibelbis, like other protesters to whom ProPublica has spoken, said he was arrested for being on the sidewalk outside the federal courthouse. Because the federal government owns the land under the sidewalk, another protester (who spoke on the condition of anonymity to avoid influencing his upcoming trial) told ProPublica it’s “common knowledge” among protesters that the sidewalk is a no-go zone, and setting foot on it risks federal prosecution.