Everyday Erinyes #226

 Posted by at 9:00 am  Politics
Aug 012020
 

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”

I had read about this, and you probably have too. But just a sentence or two, noting how clearly unconstitutional it is. So I welcomed the opportunity to learn more details.

(Note on copyright:  ProPublica does not include copyrighted pictures under Creative Commons.  But Court Orders are matters of public record, so I have reporoduced those, circling the “new” iformation.)
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“Defendant Shall Not Attend Protests”: In Portland, Getting Out of Jail Requires Relinquishing Constitutional Rights

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

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.”

It could not be learned who drafted the orders barring the protesters from joining further demonstrations. The documents reviewed by ProPublica were signed by a federal magistrate in Portland. Magistrates have broad authority to set the terms of release for anyone accused of a crime. They typically receive recommendations from U.S. Pretrial Services, an arm of the U.S. Courts, which can gather input from prosecutors and others involved in the case. 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.

Constitutional lawyers said conditioning release from jail on a promise to stop joining protests were overly broad and almost certainly a violation of the First Amendment right to free assembly.

“The government has a very heavy burden when it comes to restrictions on protest rights and on assembly,” noted Jameel Jaffer of Columbia University’s Knight First Amendment Institute. “It’s much easier for the government to meet that burden where it has individualized information about a threat. So for example, they know that a particular person is planning to carry out some unlawful activity at a particular protest.”

 

Over the past week, the federal government has sharply increased the number of protesters it’s charging with federal crimes — often for petty offenses that are classified as federal misdemeanors only because they occur on federal property. Court documents reviewed by ProPublica show that over a third of the protesters are charged with “failing to obey a lawful order,” which 14 protesters were charged with between July 21 and July 24 alone.

The office of the U.S. attorney for Oregon, Billy J. Williams, did not respond to ProPublica’s questions about who was making charging decisions. In a recent interview with The Oregonian, Williams urged local citizens to demand that “violent extremists” who have attempted to break through the fence outside the federal courthouse leave. “Until that happens, we’re going to do what we need to do to protect federal property.”

Craig Gabriel, an assistant U.S. attorney who works for Williams, insisted the office understood and respected the right to protest racial injustice. “People are angry. Very large crowds are gathering, expressing deep and legitimate anger with police and the justice system,” Gabriel told The Oregonian. “We wholeheartedly support the community’s constitutionally protected rights to assemble together in large, even rowdy protests and engage in peaceful and civil disobedience.”

Gabriel did not mention the written restrictions against protest that have been made a condition of release for some of those arrested.

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.

Three of the 15 protesters charged on July 27, in orders signed by Magistrate Judge Jolie A. Russo, also had explicit protest restrictions added to their release terms. (One release order has not yet been posted to the federal courts database.) Russo’s office did not reply to ProPublica’s questions.

“I don’t see that as constitutionally defensible,” Jaffer said. And I find it difficult to believe that any judge would uphold it.”

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.”

Publicly, the Trump administration has claimed that it has no problem with the protests that erupted in Portland and other American cities in response to the May 25 death of George Floyd, a Black man, in police custody in Minneapolis. The administration said it launched Operation Diligent Valor in July with a massive deployment of federal officers merely to protect federal property from “violent extremists.”

Geoffrey Stone of the University of Chicago Law School said that imposing a protest ban as a release condition undermines the distinction between protected protest and criminal activity. “Even if they’re right that these people did, in fact, step beyond the bounds of the First Amendment and do something illegal, that doesn’t mean you can then restrict their First Amendment right.”

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.

Dreibelbis told ProPublica he roller-skated into the protest, expecting to attend only briefly. He said he knelt on the sidewalk and was arrested by officers. (The charging document filed against Dreibelbis offers no arrest details.)

Section 1315 is the same law the Trump administration is using to justify initiating the federal show of force in Portland, which the administration has said it intends to employ in other cities where protests have raged since Floyd’s death.

The law allows the secretary of homeland security to supplement the Federal Protective Service, the relatively small agency partly responsible for federal building security, with law enforcement agents from the department’s other agencies (such as Customs and Border Protection).

Both President Donald Trump and his predecessor, Barack Obama, have invoked that part of the law in the past. But the use of that same law to file criminal charges appears to be novel. The Obama administration sent a “surge force” of 400 FPS agents, and a dozen CBP agents, to Baltimore in 2015, when the police killing of Freddie Gray sparked broad unrest, but no charges were filed under Section 1315 itself in that response.

In Portland, the federal government has relied on the FPS and U.S. Marshals to write affidavits used to charge protesters in federal court. But it has detailed other agencies on the protest front lines: DHS agencies cited in court complaints include CBP, through its BORTAC tactical unit; Immigration and Customs Enforcement’s investigations unit; DHS’ Office of Intelligence and Analysis, in addition to FPS. Complaints also cite the U.S. Marshals and the Bureau of Alcohol, Tobacco, Firearms and Explosives, which are Justice Department entities.

In the first weeks of the operation, the most common charge against protesters was assault of a federal officer — which, in some cases, counted as a crime on federal property because protesters on the streets were shining lasers at officers inside the courthouse. (DHS has claimed that some officers may permanently lose their vision, but as of July 24, the most serious injury detailed in federal charging documents was an agent who reported seeing spots in his eyes for 15 minutes after the laser attack.)

Over July 23 and 24, however, 10 of the 13 cases opened were charges only of “failing to obey a lawful order.” (One other defendant was charged with assaulting a U.S. Marshal while detained inside the courthouse — where she had been taken after an arrest for “failing to obey a lawful order.”)

Since then, almost all cases have accused protesters of assaulting a federal officer (generally a misdemeanor charge).

In many of the assault cases, files are thin and no details of the allegations have been posted, even for protesters charged as early as July 6. No case files identify an alleged victim — either by name or by the “unique identifier” on their uniforms. (DHS officials have claimed it’s unfair to describe the federal agents in Portland as “unidentified” because they clearly show identification.)

 

Some assault accusations charge protesters with throwing unidentified objects at officers in body armor, who were unharmed.

Even those defendants who aren’t explicitly barred from attending protests are unable to return to the epicenter of Portland’s unrest as a condition of their release. They are placed under a curfew (either from 8 p.m. to 6 a.m. or 10 p.m. to 6 a.m.) and told not to go within five blocks of the courthouse grounds except for court hearings.

Experts said that while restrictions of that sort are common, they’re still questionably constitutional. “Though ‘stay away’ orders from a place where a potential crime has been committed are generally standard,” the ACLU’s Trivedi said, “‘stay away’ orders from public places that are part of the public square are more questionable.” But he and others conceded that the government could make an argument that it was necessary to prevent further wrongdoing.

They saw no legitimate rationale for a blanket ban on protests.

“I suppose the government could argue, ‘You disobeyed a law enforcement officer at a protest, and we don’t trust you to not do it again,’” Trivedi said. But the release documents already instruct defendants that they are not allowed to break any laws while awaiting trial.

“If they want to say ‘don’t break a law again,’ they’ve already said that,” Trivedi told ProPublica. “Beyond that, the only part that’s left would be not letting you exercise your First Amendment right.”

Driebelbis, for his part, must now watch the protests proceed without him. “I work across the water from the protests, and I can see it every” night, he told ProPublica. “I’m protesting from this side.”

He hastened to clarify that he didn’t mean he was attending a protest in violation of the court order. “Not protesting! There’s no protesting going on in the party of one. But I am there in spirit.”

 

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Alecto, Megaera, and Tisiphone, as Masha Gessen (and others) have said, we cannot trust to institutions to save us – not even the Constitution. That’s why public servants of all kinds swear to defend it, rather than the other way around. (No expiration date on that oath, BTW.)

The Furies and I will be back.

UPDATE: “Grace” has been released from detention.

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  14 Responses to “Everyday Erinyes #226”

  1. This is DEFINITELY a blatant violation of the Constitution! This practice needs to be nipped in the bud – lest it spread like the Coronavirus. OK, to whom do I address a petition? I’d make one in a heartbeat if I knew the proper target.

    • That’s a great question. I would have to say that the simplest answer is the “United States Court for the District of Oregon,” whose name is on these orders. They are a first-level Federal Court. The Chief Judge is the Hon. Marco A Hernandez. The address of the Portland Division is 1000 S.W. Third Ave., Portland, OR 97204, and Hernandez’s chambers are there (Room 1507).

      Appeals from this court are heard by the Ninth Circuit Court of Appeals. Its Chief Judge is Sidney Thomas. I don’t think I’d start there – I think at this point the buck is with the District of Oregon. I mention it only to suggest it’s not impossible this could end up at the Supreme Court.

      The article refers to the U. S. Attorney for Oregon, Billy A. Williams. A U.S. Attorney would ultimately work for the DOJ. His office and the court would work together on determining conditions of release. His office might also be a petition target.

      The ACLU might be able to provide better advice, of course. I don’t know whether the ACLU representatives interviewed for the article are in Oregon, but the ACLU in Oregon has its own website.

    • Perhaps address it to the ACLU. 10

  2. Makes me extra thankful I saw this morning that they have left Portland.
    https://www.theguardian.com/us-news/2020/jul/31/portland-protests-latest-peaceful-night-federal-troops-withdrawal
    Hope the judges in all the cases filed against the feds already use language forbidding a repeat in at least Portland ever.
    By the time many of the arrests documented by ProPublica happened, the feds were already violating court orders via conduct prohibited by the court.
    Also, the fence in question for many arrests was itself illegally erected on non-federal property and by the latter arrests was noncompliant with a cease and desist order from those who had authority for that property.
    One of more federal action of this adminbistration in a week filled with blatantly ignoring the law actions (DACA order with SCOTUS backing, court monitor on child immigrants releases, et al).
    Thanks Joanne–I’ll also note that BORTAC is the one involved in violating rights to practice religion by providing water in the desert for those entering our country–and of other illegal behavior towards those trying to preserve life dating back to at least 2017 who currently have their humanitarian encampment surrounded by the agency after having been invaded by them on recent occasions.

    • Considering where they went … aybe they should have stayed:

      We sadly need to update you that around sunset yesterday (shortly after we sent yesterday’s email to you), July 31st, U.S. Border Patrol raided No More Deaths’ humanitarian aid station, detaining over thirty people who were receiving medical care, food, water, and shelter from the 100+ degree heat. In a massive show of force, Border Patrol, along with the Border Patrol Tactical Unit (BORTAC) – also recently deployed in Portland, Oregon – descended on the camp with an armored vehicle, three ATVS, two helicopters, and dozens of marked and unmarked vehicles. 

       When raiding our humanitarian aid camp last night, Border Patrol did have a warrant, but refused to show it upon entry. The warrant specified the seizure of all cell phones and paperwork, in a clear attempt to suppress documentation of their actions, and they were not wearing masks. For two hours, in darkness, they detained and chased people receiving care while a Border Patrol cameraman filmed the scene. The day before, agents had entered the property without a warrant and detained one person receiving care. Border Patrol then set up 24-hour surveillance around the perimeter, deterring anyone else from entering the camp to seek help. 

      There’s more.  I don’t think it’s up on the No More Deaths/No Mas Muertes webstie yet – with every record seized, they probably hve to start from scratch.  At least in Portland, the ACLU was on it, the Mayor was on it, the Governor was on it, and there was some visibility.  Grrrrrrr.

      Correction: The letter is up as a letter. There’s no separate article that I could find.

  3. All the while, for folks peacefully protesting, ‘they’ also have your name, address, etc.
    People’s rights and privileges picked apart piece by piece. Scary. 
    Unreal ! 
    Furies…you know what to do! 
    Thanks, Joanne for post. 

  4. One step closer to going “Over the line, boys,” as the unrelated song goes.  Over the line into fascism.  
    Grace is out, but under rather strict orders, and her lawyers have 35 days in which to file papers keep her out, as I understand.

  5. I have to agree that they have gotten way out of control and have gone over board with what they can and cannot do. Seems like ever since tRump has stepped into the W. H. that our constitutional rights/laws have been forgotten. 
    The way these so-called federal agents are sent to protect, they seem to be doing the complete opposite. 
    Once they start arresting these protesters for no flipping reason, should be illegal. Then on top of that we see the leaders asking them to leave, writing the stinking POS in the W.H. to remove them and he ignores their request. Making matters even worse.
    I hope something will be done to end this type of unruly interference by the feds, especially when it’s not requested.
    I’m happy Grace got released from detention. Hopefully things will get better for her.
    Great post. Thanks Joanne

  6. I can understand that they try to use orders signed by federal judges on the basis of “failing to obey a lawful order” while on federal property to intimidate Oregon protestors even though that is clearly unconstitutional. However, I can’t understand that any judge would sign an order prohibiting peaceful demonstration on Oregonian soil or anywhere else non-federal. Wouldn’t that be beyond the jurisdiction of those federal judges?

    It all seems to be part of the same test case for the coup Trump is planning together with Barrf when he loses the election. That might sound like one of Trump’s own conspiracy theories but sending federal agents to so many cities, and now taking away constitutional rights from protesters who have been arrested on ridiculous charges, certainly seem to point that way. Enough to have people who matter play “war games” to prepare for it.

  7. “As the interned American citizens of Japanese descent learned, the Bill of Rights provided them with little protection when it was needed.” ~ Glenn Harlan Reynolds
    When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to• Make the laws, • Enforce the laws,• Prosecute the laws,• Hire the prosecutors,• License the “defense” attorneys,• Pay the “judges”,• Build the jails,• Contract jails out to private entities,• Employ and pay the wardens,• Employ and pay the guards,• Employ and pay the parole officers,One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

  8. What I great find, JD!  This travesty is going on right under my nose, and even I didn’t know about it.  This is a blatant violation of the 1st Amendment.  13

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