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.”
ProPublica identified several instances in which the protest ban was added to the conditions of release document when it was drafted, before it was given to the judge. It remained unclear whether the limits on protesting were initiated by Justice Department officials or the magistrates hearing the cases.
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.”
I’m not laughing. The shocking part here is not that some unknown party in the government asked for this — although they ought to know better — but that a federal judge, even if it was ‘just’ a Magistrate, signed off on this.
Whichever they are, the fundamental idea is so broken that it almost seems pointless to look at its entrails, but after explaining why this is nuts in general, I’ll explain why it’s nuts in particular.
The idea is nuts in general, because it’s an almost inevitable rule that shows of force against generally peaceful protestors end in tears and tragedy. Similarly, even a degree of restraint against an ugly mob throwing the occasional rock can pay off handsomly in saved lives and long-run peace. That doesn’t, however, mean police should, if they have the numbers, permit looting and arson, as those too have bad long-run consequences. The problem with a lot of police presences around the country is that they’ve been too violent, not that they’ve been too ‘weak’. We have the videos to prove it. And those are officers who, in theory at least, are trained to deal with citizens who are innocent until proven guilty.
Contrast that (desired) mind-set with the role of officers in the Prisons. Prisons are places where the inmates have radically reduced rights. I recall working on a pro se prisoner case as a law clerk more than 30 years ago. The prisoner had alleged that during a prison riot he lay on the ground unmoving, but that an officer nonetheless came along and shot him in the back. It turned out that circuit law precluded almost any claim a prisoner might make in a riot: for example if he had been standing, or hiding, or moving, his claim might be barred. But claiming a constitutional violation for being shot in the back while lying face down unmoving in the open was not then precluded by 7th circuit precedent. (I’d be unsurprised to hear that the 7th Circuit has filled that narrow gap by now.) So we let the case proceed past the government’s motion to dismiss and set it for discovery. That is the mindset that Bureau of Prison riot control officers bring to a confrontation. Is that what we want to unleash on our citizens? There’s no reason at all to think people habituated to treating anyone breathing as a target will be the least bit discriminating.
The idea of bringing people who for better or worse are trained at a particular kind of potentially indiscriminate violence onto our streets and unleashing them on our citizens would be madness in any but the most authoritarian regime. Yet, this is only early June, who knows how deep rock bottom may lie.
In that context, speculating about why Miami and Washington, DC, are specially blessed seems almost besides the point. But since I live just south of Miami, indeed in a county that outsiders often call Miami (it’s Miami-Dade), I have some interest in that question.
Let me start by saying I’ve paid a lot more attention to the news about developments here than in DC. My sense, though, is that in Miami, and maybe to a very slightly lesser degree in DC, the police have behaved really well. (And here in Coral Gables, both police and protestors had a very civil event.) There was some protester or opportunist violence in Miami: five police cars were attacked, some destroyed, and a handful of business in the fancy Bayside Mall got looted. But overall, given the scale of the protests, the primary disruptions were to transit and to traffic on I-95, which was blocked for hours. The police by and large seem to have handled all this with aplomb.
It being the nation’s capital, and there being some fear running around in the White House, one can perhaps understand why someone there wants reinforcements. But, why Miami of all places? It’s not been perfect here, but it’s been a lot better than many other places.
So here’s some wild speculation:
Theory 1: The real goal is to create more violence. Team Trump is betting it’s 1970 all over again, and they want their Kent State to rally the base. Thus, picking towns where there hasn’t been ‘enough’ violence makes sense.
Theory 2: DC gets the nod because it’s DC. Miami because it’s close to Mar-a-Lago.
Theory 2A: The cities are close to where the relevant units are based (NB: I have no idea where they are actually based….)
Theory 3: DC is DC; Florida is an essential swing state and it’s suddenly slipping away. The elderly vote has started to turn against Trump; playing the law-and-order card against ‘radicals’ (and those people), might win them back.
I’m open to other, better, explanations. Bring them on, please. Because right now it looks like cynicism overlaying evil.