{"id":40566,"date":"2020-08-01T09:00:25","date_gmt":"2020-08-01T16:00:25","guid":{"rendered":"https:\/\/www.politicsplus.org\/blog\/?p=40566"},"modified":"2020-07-31T16:14:20","modified_gmt":"2020-07-31T23:14:20","slug":"everyday-erinyes-226","status":"publish","type":"post","link":"https:\/\/www.politicsplus.org\/blog\/2020\/08\/01\/everyday-erinyes-226\/","title":{"rendered":"Everyday Erinyes #226"},"content":{"rendered":"

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<\/span><\/strong>, Megaera<\/strong><\/span>, and Tisiphone<\/span><\/strong>. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”<\/p>\r\n

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.<\/p>\r\n

(Note on copyright:\u00a0 ProPublica does not include copyrighted pictures under Creative Commons.\u00a0 But Court Orders are matters of public record, so I have reporoduced those, circling the “new” iformation.)
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\u201cDefendant Shall Not Attend Protests\u201d: In Portland, Getting Out of Jail Requires Relinquishing Constitutional Rights<\/h1>\r\n

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter<\/a> to receive stories like this one in your inbox<\/em>.<\/p>\r\n

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Federal authorities are using a new tactic in their battle against protesters in Portland, Oregon: arrest them on offenses as minor as \u201cfailing to obey\u201d an order to get off a sidewalk on federal property \u2014 and then tell them they can\u2019t protest anymore as a condition for release from jail.<\/p>\r\n

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.<\/p>\r\n

\u201cDefendant may not attend any other protests, rallies, assemblies or public gathering in the state of Oregon,\u201d states one \u201cOrder Setting Conditions of Release\u201d for an accused protester, alongside other conditions such as appearing for court dates. The orders are signed by federal magistrate judges.<\/p>\r\n

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, \u201cDo not participate in any protests, demonstrations, rallies, assemblies while this case is pending.\u201d<\/p>\r\n

Protesters who have agreed to stay away from further demonstrations say they felt forced to accept those terms to get out of jail.<\/p>\r\n

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\u201cThose terms were given to me after being in a holding cell after 14 hours,\u201d Bailey Dreibelbis, who was charged July 24 with \u201cfailing to obey a lawful order,\u201d told ProPublica. \u201cIt was pretty cut-and-dried, just, \u2018These are your conditions for [getting out] of here.\u2019<\/p>\r\n

\u201cIf I didn\u2019t take it, I would still be in holding. It wasn\u2019t really an option, in my eyes.\u201d<\/p>\r\n

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.<\/p>\r\n

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.<\/p>\r\n

\u201cThe government has a very heavy burden when it comes to restrictions on protest rights and on assembly,\u201d noted Jameel Jaffer of Columbia University\u2019s Knight First Amendment Institute. \u201cIt\u2019s 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.\u201d<\/p>\r\n

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Over the past week, the federal government has sharply increased the number of protesters it\u2019s charging with federal crimes \u2014 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 \u201cfailing to obey a lawful order,\u201d which 14 protesters were charged with between July 21 and July 24 alone.<\/p>\r\n

The office of the U.S. attorney for Oregon, Billy J. Williams, did not respond to ProPublica\u2019s questions about who was making charging decisions. In a recent interview with The Oregonian<\/a>, Williams urged local citizens to demand that \u201cviolent extremists\u201d who have attempted to break through the fence outside the federal courthouse leave. \u201cUntil that happens, we\u2019re going to do what we need to do to protect federal property.\u201d<\/p>\r\n

Craig Gabriel, an assistant U.S. attorney who works for Williams, insisted the office understood and respected the right to protest racial injustice. \u201cPeople are angry. Very large crowds are gathering, expressing deep and legitimate anger with police and the justice system,\u201d Gabriel told The Oregonian. \u201cWe wholeheartedly support the community\u2019s constitutionally protected rights to assemble together in large, even rowdy protests and engage in peaceful and civil disobedience.\u201d<\/p>\r\n

Gabriel did not mention the written restrictions against protest that have been made a condition of release for some of those arrested.<\/p>\r\n

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\u2019s office did not respond to ProPublica\u2019s questions.<\/p>\r\n

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.<\/p>\r\n

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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\u2019s office did not reply to ProPublica\u2019s questions.<\/p>\r\n

\u201cI don\u2019t see that as constitutionally defensible,\u201d Jaffer said. And I find it difficult to believe that any judge would uphold it.\u201d<\/p>\r\n

The ACLU\u2019s Somil Trivedi said, \u201cRelease conditions should be related to public safety or flight\u201d \u2014 in other words, the risk that the defendant will abscond. \u201cThis is neither.\u201d He described the handwritten addition of a protest ban to a release document as \u201csort of hilariously unconstitutional.\u201d<\/p>\r\n

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<\/a> in July with a massive deployment of federal officers merely to protect federal property from \u201cviolent extremists.\u201d<\/p>\r\n

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. \u201cEven if they\u2019re right that these people did, in fact, step beyond the bounds of the First Amendment and do something illegal, that doesn\u2019t mean you can then restrict their First Amendment right.\u201d<\/p>\r\n

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In many cases, the charges leveled at Portland protesters are closely tied to their presence at the protest \u2014 and not to any violent acts.<\/p>\r\n

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 \u201cfailure to obey a lawful order,\u201d as well as \u201cdisorderly conduct\u201d) when it happens on federal property or against people who are located on that property. In other words, it describes behavior that wouldn\u2019t otherwise be a matter for a federal court.<\/p>\r\n

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\u2019s \u201ccommon knowledge\u201d among protesters that the sidewalk is a no-go zone, and setting foot on it risks federal prosecution.<\/p>\r\n

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.)<\/p>\r\n

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\u2019s death.<\/p>\r\n

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\u2019s other agencies (such as Customs and Border Protection).<\/p>\r\n

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 \u201csurge force\u201d 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.<\/p>\r\n

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\u2019s investigations unit; DHS\u2019 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.<\/p>\r\n

In the first weeks of the operation, the most common charge against protesters was assault of a federal officer \u2014 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.)<\/p>\r\n

Over July 23 and 24, however, 10 of the 13 cases opened were charges only of \u201cfailing to obey a lawful order.\u201d (One other defendant was charged with assaulting a U.S. Marshal while detained inside the courthouse \u2014 where she had been taken after an arrest for \u201cfailing to obey a lawful order.\u201d)<\/p>\r\n

Since then, almost all cases have accused protesters of assaulting a federal officer (generally a misdemeanor charge).<\/p>\r\n

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 \u2014 either by name or by the \u201cunique identifier\u201d on their uniforms. (DHS officials have claimed it\u2019s unfair to describe the federal agents in Portland as \u201cunidentified\u201d because they clearly show identification.)<\/p>\r\n

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Some assault accusations charge protesters with throwing unidentified objects at officers in body armor, who were unharmed.<\/p>\r\n

Even those defendants who aren\u2019t explicitly barred from attending protests are unable to return to the epicenter of Portland\u2019s 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.<\/p>\r\n

Experts said that while restrictions of that sort are common, they\u2019re still questionably constitutional. \u201cThough \u2018stay away\u2019 orders from a place where a potential crime has been committed are generally standard,\u201d the ACLU\u2019s Trivedi said, \u201c\u2018stay away\u2019 orders from public places that are part of the public square are more questionable.\u201d But he and others conceded that the government could make an argument that it was necessary to prevent further wrongdoing.<\/p>\r\n

They saw no legitimate rationale for a blanket ban on protests.<\/p>\r\n

\u201cI suppose the government could argue, \u2018You disobeyed a law enforcement officer at a protest, and we don\u2019t trust you to not do it again,\u2019\u201d Trivedi said. But the release documents already instruct defendants that they are not allowed to break any laws while awaiting trial.<\/p>\r\n

\u201cIf they want to say \u2018don\u2019t break a law again,\u2019 they\u2019ve already said that,\u201d Trivedi told ProPublica. \u201cBeyond that, the only part that\u2019s left would be not letting you exercise your First Amendment right.\u201d<\/p>\r\n

Driebelbis, for his part, must now watch the protests proceed without him. \u201cI work across the water from the protests, and I can see it every\u201d night, he told ProPublica. \u201cI\u2019m protesting from this side.\u201d<\/p>\r\n

He hastened to clarify that he didn\u2019t mean he was attending a protest in violation of the court order. \u201cNot protesting! There\u2019s no protesting going on in the party of one. But I am there in spirit.\u201d<\/p>\r\n

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