James L. Buchal, OSB No. 921618 THE HONORABLE STACIE F. BECKERMAN MURPHY & BUCHAL LLP
3425 SE Yamhill Street, Suite 100 Portland, OR 97214
Tel: 503-227-1011
E-mail: [email protected]
Attorneys for Joseph Gibson and Russell Schultz
D. Angus Lee, WSB No. 36473 (Pending Admission Pro Hac Vice) Angus Lee Law Firm, PLLC
9105A NE HWY 99 Suite 200 Vancouver, WA 98665
Tel: 360.635.6464
E-mail: [email protected]
Attorney for Joseph Gibson and Russell Schultz
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JOSEPH GIBSON and RUSSELL SCHULTZ,
Plaintiffs, v.
MIKE SCHMIDT, in his official capacity as District Attorney of Multnomah County, Oregon, MULTNOMAH COUNTY DISTRICT ATTORNEY'S OFFICE, and BRAD KALBAUGH, in his official capacity as a Multnomah County Deputy District Attorney,
Defendants.
No. 3:20-CV-01580-SB
PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT THEREOF
TABLE OF CONTENTS
I. MOTION...7
II. NOTICE AND EXPEDITED HEARING REQUEST ...7
III. INTRODUCTION ...8
IV. FACTS ...8
A. Patriot Prayer’s Political Activity. ...8
B. The General Hateful Climate Against Conservatives in Portland. ...9
C. Plaintiffs’ Protest Against Antifa. ...12
D. The Continuing Negative Media. ...15
E. The One-Sided Grand Jury Presentation...16
F. The Arrest - Months After the Protest. ...17
G. Discovery in the Criminal Case. ...18
H. The Political Prosecution of Patriot Prayer Leaders. ...19
I. MCDA Refused to Provide Exhibit List or Real Bill of Particulars Per Court Order. ...21
J. MCDA Announces Non-prosecution Policy for Cases Where “Riot” Is Only Charge. ...23
K. MCDA Refuses to Apply Non-prosecution Policy to Mr. Gibson. ...24
L. Kalbaugh Admits Non-prosecution Policy Is Being Applied Retroactively for Others. ...25
M. MCDA Schmidt’s Antifa Connection and Predisposition Against Patriot Prayer. ...25
N. MCDA Admits that Plaintiffs and their Co-Defendants are Only People Still Being Prosecuted for a Stand Alone Riot Charge. ...25
V. ARGUMENT ...26
B. Bad Faith Prosecution Justifies Injunctive Relief. ...28
C. Defendants’ Bad Faith Prosecution. ...29
D. Selective Prosecution Shows Bad Faith. ...32
i. United States v. Steele ...34
ii. United States v. Falk. ...34
iii. United States v. Crowthers. ...36
E. The Selective Prosecution of Plaintiffs. ...37
i. Part One: Discriminatory Effect. ...37
ii. Part Two: Discriminatory Purpose...37
F. Evidentiary Insufficiency of Charges Under Oregon Law and the First Amendment. ...39
G. Burden Is On Government to Establish Nondiscriminatory Purpose. ...41
H. There Is No Hardship to Defendants if Restraining Order Granted. ...42
I. Continued Prosecution is Not in the Public Interest. ...42
J. Discretionary Bond Amount. ...43
TABLE OF AUTHORITIES Cases
Basicomputer Corp. v. Scott,
973 F.2d 507 (6th Cir. 1992) ...31 Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453 (1965) ...32, 36 Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116 (1965) ...27 Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981) ...28, 39 Heimbach v. Village of Lyons,
597 F.2d 344 (2d Cir. 1979)...28 Hill v. Colorado,
580 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2002) ...40 Honig v. Doe,
484 U.S. 305, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988) ...42 International Bhd. of Teamsters v. Local Union No. 810,
19 F.3d 786 (2d Cir. 1994)...31 Krahm v. Graham,
461 F.2d 703 (9th Cir. 1972) ...27 Lewellen v. Raff,
843 F.2d 1103 (8th Cir. 1988) ...27 Organization for a Better Austin v. Keefe,
402 U.S. 415, 91 S. Ct. 1575, 29 L. Ed. 2d. 1 (1971) ...40 People ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency,
766 F.2d 1319 (9th Cir. 1985). ...43 Perez v. Ledesma,
401 U.S. 82, 91 S. Ct. 674 (1971) ...27 Snyder v. Phelps,
State v. Chakerian,
325 Ore. 370 (1997) ...40 Summers v. Earth Island Inst.,
555 U.S. 488, 129 S. Ct. 1142, 173 L. Ed. 2d 1 (2009) ...28 Terminiello v. Chicago,
337 U.S. 1, 69 S. Ct. 894 (1949) ...40 United States v. Armstrong,
517 U.S. 456, 116 S. Ct. 1480 (1996) ...32, 33 United States v. Batchelder,
442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979) ...32 United States v. Berrios,
501 F.2d 1207 (2d Cir. 1974)...32 United States v. Crowthers,
456 F.2d 1074 (4th Cir. 1972) ...33, 36, 39, 42 United States v. Dellinger,
472 F.2d 340 (7th Cir. 1972) ...40 United States v. Falk,
479 F.2d 616 (7th Cir. 1973) ... passim United States v. P.H.E., Inc.,
965 F.2d 848 (1992) ...25 United States v. Steele,
461 F.2d 1148 (9th Cir. 1972) ...33, 34, 38 Wayte v. United States,
470 U.S. 598, 105 S. Ct. 1524c(1985) ...28 Wilson v. Thompson,
593 F.2d 1375 (5th Cir. 1979) ...28, 29, 41 Yick Wo v. Hopkins,
Constitutional Provisions
U.S. Const. amend. I ...8, 26, 28 U.S. Const. amend. V...8, 26 U.S. Const. amend. XIV ...8, 26, 30 Statutes 13 U.S.C. § 221 ...34 28 U.S.C. § 1331 ...27 28 U.S.C. § 1343 ...27 42 U.S.C. § 1983 ...8, 26, 27 42 U.S.C. § 1985 ...8, 26, 27 42 U.S.C. § 1988 ...27 ORS 135.095 ...17 ORS 135.100 ...17 ORS 166.015 ...39, 40 Rules Fed. R. Civ. P. 65 ...26, 27 Treatises
Michael G. Collins, The Right to Avoid Trial: Justifying Federal Court Intervention into Ongoing State Court Proceedings, 66 N.C. L. Rev. 49 (1987) ...28
I. MOTION
Plaintiffs Joseph Gibson and Russell Schultz move this court for a Temporary Restraining Order and preliminary injunction preventing the Defendants from continuing the selective and bad faith prosecution of Plaintiffs in Multnomah County Circuit Court Case Nos. 19CR53042 and 19CR53035, and order to show cause why the preliminary injunction should not issue.
II. NOTICE AND EXPEDITED HEARING REQUEST Plaintiffs provided notice on the morning of September 14, 2020, to the Multnomah County District Attorney's Office (MCDA) by email to Deputy District Attorney Brad Kalbaugh that Plaintiffs in this matter would soon be seeking a temporary restraining order. (Lee Decl. Ex. S filed herewith.)
Mr. Buchal inquired as to Defendants position on having the motion hearing expedited. (id.) The email also stated “We would also like to speak with you, or counsel, about the possibility of a stipulation to the motion for a Temporary Order. If you, or counsel, is not willing to stipulate, or have a conference to discuss stipulation, please let us know.” (Id.)
Later in the day, Jeff Howes, the First Assistant to the District Attorney of MCDA sent an email to Mr. Buchal writing “I acknowledge receipt of these documents. As to the form of service, please allow me a day or so to respond to your question. We are awaiting response from Oregon DOJ regarding representation and I am hesitant to weigh in on an issue outside of my expertise.” (Id. Ex. T)
III. INTRODUCTION
The prosecution of Plaintiffs is in bad faith, selective, and retaliatory, contrary to the First, Fifth, and Fourteenth Amendments to the Constitution of the United States, 42 U.S.C. §§ 1983, and 1985. Further, this bad faith prosecution by Defendants would not be in the public interest and would substantially and irreparably harm Plaintiffs. There is a substantial likelihood that Plaintiffs will prevail on the merits of this matter, and the injury faced by Plaintiffs is far greater than any possible injury that would be or could be sustained by Defendants from the requested injunctive relief.
IV. FACTS A. Patriot Prayer’s Political Activity.
Joey Gibson is a conservative who promotes patriotism, prayer, and living a God-fearing lifestyle. (Gibson Decl. ¶ 1, filed herewith.) Mr. Gibson is an advocate for freedom and believes it is imperative for followers of Christ to take the church into the streets. (Id. ¶ 2.) Mr. Gibson believes Jesus Christ is the Son of God and all should repent and seek forgiveness. (Id. ¶ 3.) Mr. Gibson is openly pro-life. (Id. ¶ 4.) Mr. Gibson has a long history of conducting public demonstrations to promote free speech, patriotism, and conservative Christian values. (Id. ¶ 5.) Mr. Gibson has publicly condemned Portland area political leaders for their tolerance of Antifa. (Id. ¶ 6.)
Antifa has regularly attended his events as counter-protestors. (Id. ¶ 7.) (Lee Decl. Ex. R.) Mr. Gibson views Antifa as an anti-American terror group. (Gibson Decl. ¶ 8) Thus, in addition to his promotion of free speech, patriotism, and Christian values, he has often protested against the local government’s indulgence and support of Antifa. (Id. ¶ 9.)
Mr. Schultz often attends rallies with, and supports, Mr. Gibson. (Id. ¶ 10.) (Schultz Decl. ¶ 1, filed herewith.)
B. The General Hateful Climate Against Conservatives in Portland.
Long before the events giving rise to the criminal prosecutions at issue here, the political leadership of Portland, joined by local media, had begun a continuous attack upon plaintiff Gibson for his political views, and had begun to display an extraordinary failure to provide equal protection of the laws where Antifa members were involved. (Buchal Decl. ¶ 3, filed herewith.) In late 2016, political leadership in Portland took little action to control repeated rioting in the wake of President Trump's election. (Id. ¶ 5.) The degree of hostility toward conservative positions and the President are sufficiently
extreme within Multnomah County that three days of widespread demonstrations, in which Mr. Gibson had no involvement whatsoever, arose after the election of President Trump, with crowds rampaging through the streets and damaging property to the extent that the police declared a riot. (Id.)
Over time, as Mr. Gibson began to hold occasional events in Portland, a campaign of continuous and hostile media coverage from leading papers was waged against him. (Id. ¶ 7.) Nearly every article falsely labeled Mr. Gibson with such terms as “white supremacist,” “violent, far-right extremist,” “far-right organizer,” or even one of the “fascist agitators bring[ing] choreographed terror into our community”. (Id.) By May 2017, Mayor Wheeler also stated that the City “has NOT and will not issue any permits” for any “alt right events”. (Id. ¶ 8.)
In June 2017, Mr. Gibson obtained a permit from federal authorities for a Trump Free Speech Rally in Portland, which prompted Mayor Wheeler to state publicly that he asked the federal government to revoke the permit Mr. Gibson had obtained, stating that
there was no “place for bigotry or hatred in our community . . .”. (Id. ¶ 9.) In July 2018, the Mayor said the following to Oregonian reporter Gordon Friedman:
“It’s no secret that I’m no fan of the people from Vancouver who come down here and spout their venom. Their intentions have been – Joey Gibson made it very clear that his objective was to get the cops and Antifa into it with each other. The Police Bureau, having gone through this exercise a number of times, is smarter than that. They understand people are going to try to drag them in. Their objective is to focus relentlessly on giving people space to exercise their rights and protect the public.” (Id. ¶ 10.)
In September of 2017, a Patriot Prayer Free Speech Rally was held at the Portland Waterfront. (Lee Decl. Ex. R.) In preparation, the Portland Police Bureau compiled an Incident Action Plan which included a cover page with a photo of Mr. Gibson, center frame, indicating his status as the lead organizer of the protest. (Id.) Although four other organizations were referenced in the PPB’s Incident Action Plan and had had some communication with PPB, only Joey Gibson is mentioned by name. (Id.)
Hostility to the political messaging of Mr. Gibson is so powerful in Portland that it can ruin the careers of any who dare defend him. (Buchal Dec. ¶ 11.) When he held a rally at Washington State University in Vancouver, and an Oregonian columnist
Elizabeth Hovde who is an adjunct professor at the University, accurately reported on October 28, 2018 as follows:
“For two hours, I watched challenging, inquisitive, respectful
conversations happening on the campus plaza between people of different political persuasions. Instead of the violence predicted, Gibson brought something we need more of: talk that leads to increased understanding about opposing thoughts and the people behind them. It was the kind of conversation that helps people find common ground.”
(Id.)
Oregonian Stop Platforming Violent Racism,” which gathered thousands of signatures, calling for a boycott of Oregonian advertisers and the firing of Ms. Hovde. (Id. ¶ 12.) Several local groups demanded that she be fired, and The Oregonian issued a front page “apology to our community for their callousness and carelessness in publishing.” (Id. ¶ 13.) Mayor Wheeler attacked Mr. Gibson by accusing Ms. Hovde of finding “common ground” with “hate extremism and violence.” (Id. ¶ 16.) Multnomah County Chair Deborah Kafoury took the opportunity to attack Mr. Gibson by accusing Ms. Hovde of “[g]iving a voice to people who live only to stoke violence and hate.” (Id. ¶ 18.)
Numerous political leaders joined the attack, and the Editorial Board of The Oregonian repudiated Ms. Hovde’s piece. (Id. ¶ 14-15.)
When Mr. Gibson was contacted by a representative of the Portland Police named Jeffrey Niiya, who sought information about Mr. Gibson’s planned activities within Portland, Mr. Gibson exchanged hundreds of text messages with him, because providing information about his plans would help the Portland Police Bureau avoid violence and conflict by providing information for planning to maintain order. (Id. ¶ 21.)
When this fact was publicly reported, Portland Commissioner Jo Ann Hardesty issued a statement, “I am not shocked, and I am not surprised at today’s reporting of Lt. Jeff Niiya’s collaboration with Patriot Prayer leader Joey Gibson over text to provide aid and support for their hate marches”. (Id. ¶ 22-23.) Commissioner Chloe Eudaly issued her own statement accusing Portland Police of “collaboration” with “white supremacist and right-wing extremist groups and individuals”—referring to Mr. Gibson, and publicly asked Portland Police to “explicitly and unequivocally state that Patriot Prayer … [is] a significant threat to our public safety.” (Id. ¶ 24.)
Lt. Niiya was then removed from the Rapid Response Team that responds to Portland demonstrations. (Id. ¶ 25.)
By March 2019, it was publicly reported that Mayor Wheeler was bringing pressure on the Multnomah County District Attorney’s office to arrest right wing protestors. (Id. ¶ 27.)
By the time the events giving rise to the criminal charges that form the subject of this suit occurred, all elected leaders within the City of Portland who had spoken on the question, and all of the media coverage, was uniformly and falsely painting Mr. Gibson as a monster. (Id. ¶ 28.)
C. Plaintiffs’ Protest Against Antifa.
Then, on May 1, 2019, Mr. Gibson and Mr. Schultz determined to attend a
demonstration outside a Portland cider bar, “Cider Riot,” a demonstration intended to call attention to its status as a well-known hangout for Antifa members in Portland. (Id.)
Mr. Gibson and Mr. Schultz damaged no property, threw nothing, and committed no assaults. (Gibson Decl. ¶ 12; Schultz Decl. ¶ 3). The protest was during daylight hours and lasted about 25 minutes from start to finish. (Gibson Decl. ¶ 13; Schultz Decl. ¶ 4.) When the protest was over, Mr. Gibson, Mr. Schultz and others, left the area of their own accord. (Gibson Decl. ¶ 14; Schultz Decl. ¶ 5.) Police observed but did not involve themselves with the protest whatsoever, nor did they declare a “riot” at any point. (See Gibson Decl. ¶ 15-16; Schultz Decl. ¶ 6-7.)
The videos show that upon Mr. Gibson's arrival outside the premises of Cider Riot, a bar patron immediately assaults him. (Buchal Decl. ¶ 32.) Mr. Gibson’s
his livestream, “hey, this is an Antifa bar right here, check it out”. (Id.) Another Antifa member begins attempting to start a fight, saying “de-mask us” and “de-mask us, you little f*****g fascist”. (Id. ¶ 33.) Gibson stands on the street corner or moves to the north along the west sidewalk, narrating his own livestream video, saying things like, “Here we go. Look at all the masks. Look at Antifa communist bar. Cider Riot. Downtown Portland. Look it up.” (Id.) They spit on him, permitting him to display the spit on the livestream. (Id.) A virulent woman who attacked Mr. Gibson as he arrived comes up and bumps against him. (Id. ¶ 34.) One can see on Mr. Gibson’s live feed that he responds “don’t touch me,” and nonviolently keeps her away at arms-length as she kicks at him. (Id. ¶ 35.)
Despite the spitting, striking his phone, and kicking, Mr. Gibson makes no attempt to retaliate or escalate against the woman, remaining calm. (Id. ¶ 36.) The next event of significance is that another Antifa woman throws her glass of beer or cider at a demonstrator, hitting him full in the face and splashing many. (Id. ¶ 37.) A large
quantity of mutual pepper spraying then ensued, but Mr. Gibson does not spray anyone or throw anything, but rather simply continued filming the events, continued his reporting, and stating: “Call the police!” (Id. ¶ 38-39.) Mr. Gibson is clear that he does not want the demonstrators to behave violently, saying: “Don’t throw anything! Let them be violent. Let them be violent. This is Cider Riot. They are violent. They are hateful.” (Id. ¶ 39.) Mr. Gibson continues his narration: “This is Cider Riot. And they are pepper-spraying us, they are assaulting us. This is an establishment with alcohol.” (Id. ¶ 40.) He is then targeted with pepper spray by an Antifa member who emerges from the
patio area, charges, and sprays him and then retreats. (Id.) Mr. Gibson merely responds: “This is how they are acting.” (Id.) He continues his broadcast, stating:
“This is Cider Riot. This is Cider Riot. Everybody, downtown Portland. Look it up. Look it up. This [is] Antifa Central. Antifa Central. Yep, communists. Antifa Central, right here. You want to know where they hang out? It’s right here. Find out the landlord. Find out the owner. Look it up. You want to know the truth. Look it up.”
(Id.)
Members of Antifa shout at Mr. Gibson, attempting to encourage him to fight and even threatening him with death, saying “I’ll f*****g kill you,” but Mr. Gibson never responds in kind. (Id. ¶ 40.) Instead, he speaks to the broadcast audience: “Do something about it. Do you guys care? Do you care about Portland? Do something. Take care of this establishment.” (Id.) Soon after, a masked Antifa attacker rushes out, attacks Andy Ngo, a journalist with a reputation for documenting Antifa misconduct, and runs off. (Id. ¶ 42.)
Mr. Gibson then has a dialogue with Heather Clark which is interrupted by an Antifa attacker who runs up and sprays Gibson directly with pepper spray. (Id. ¶ 44) Mr. Gibson, again attempts to avoid violence, shouting: “Hey! Hey! Easy! Easy! Calm down! Calm down!” (Id.)
Not long after this, Gibson turns with his camera and catches the beginning of a fist fight between Cider Riot’s bouncer, Joseph LeVasseaur, and another individual. (Id. ¶ 49.) As others present appeared ready to join in the fist fight (which would create a brawl), Mr. Gibson yelled “Stay back!” and “No one jump in! No one jump in!” (Id. ¶ 49-50). When the fist fight was over, Mr. LeVasseur approached Mr. Gibson and shook hands with Mr. Gibson. (Id. ¶ 51.)
Later, another physical altercation occurred between Ms. Clark and others. (Id. ¶ 54-60.) The video evidence confirms that there were individuals in both the Antifa group and the protest group who engaged in violent and tumultuous conduct, but the video is devoid of any evidence that Mr. Gibson or Mr. Schultz engaged in such conduct. (Id. ¶ 61.)
No participant on the Antifa side of the confrontation, including the door man who engaged in a fist fight, has been arrested or charged in connection with the activities, although some were obviously known to the police. (Id.)
D. The Continuing Negative Media.
Within a couple of days after May 1st, Oregon Public Broadcasting chimed in with headlines comparing a civil suit filed by Cider Riot to efforts to fight the Ku Klux Klan and one-sided reporting labeling Mr. Gibson as a “fascist bully”. (Id. ¶ 64.) Mayor Wheeler attacked Mr. Gibson and his lawyer directly in a July 2019 press conference:
“… I think it showed some odd judgement on the part of Mr. Buchal to step forward and support somebody who comes to our community from Washington state. He’s publicly stated in the past that he comes here with others who are often committed publicly to committing acts of violence. My understanding is that, at one point, Mr. Gibson, said that he came to Portland because he believed he could get people on the Left to agitate against our local police officers. And he also did it in the context of a political campaign, a failed political campaign for the United States Senate. And I have to ask myself, what kind of person does that? The men and women that I know in the Portland Police Bureau, they give their all for this community and to think there’s somebody who comes from a different state to our community to put the men and women of our police bureau in potential harm’s way for his own political gain and publicity? That’s beyond cynical. And so why Mr. Buchal could think that’s worthy of protection and why he would put the GOP seal on it is frankly beyond me.”
(Id. ¶ 67.) Mayor Wheeler also accused Mr. Gibson, in substance, of “co-opting” the right of free speech, and “hiding behind” the First Amendment.” (Id. ¶ 68.)
The extraordinary attempts by Mayor Wheeler to support Antifa and condemn Mr. Gibson is best captured in a back and forth with an Oregonian Reporter:
“FRIEDMAN: I think when people hear you talk about the folks who come from out of town and cause problems here, they feel that it disregards Portland’s homegrown antifa movement.
WHEELER: That has been one narrative. In fact, that is an
unsubstantiated narrative that’s been carried in the last several weeks but some in what I would call extreme media sources.
(Id. ¶ 71.)
Given the recent hundred days of rioting in Portland, it should now be obvious that the claim that it is “unsubstantiated” that “Portland's homegrown antifa movement” causes any problems in Portland is pure partisan politics. (Id.)
On August 14, 2019, Mayor Ted Wheeler held a widely-publicized rally at which he further continued ongoing efforts to isolate and demonize right-wing protestors, declaring “So hear me loud and clear. To those of you who plan on using Portland on August 17th as a platform to spread your hate, you are not welcome here.” (Id. ¶ 74.) The Mayor’s rally then brought forward speaker Debra Kolodny, who declared:
“Pandering to a national climate that accuses Portland of being soft on Antifa is unacceptable. There is no equivalence between racist, anti-Semitic, Islamophobic, homophobic violence and those who say no to it. Antifa must not be scapegoated. We are in truth a City that is anti-fascist. (Id. ¶ 75.)
E. The One-Sided Grand Jury Presentation.
The Deputy District Attorneys primarily responsible for handling the prosecution of Mr. Gibson and Mr. Schultz are Brad Kalbaugh and Sean Hughey. (Lee Decl. ¶ 11.)
When Mr. Gibson’s legal counsel in the civil suit with Cider Riot learned the Defendants had convened a Grand Jury, he sent a lengthy declaration by Mr. Gibson
regarding the incident to defendant Kalbaugh and asked that Mr. Gibson’s declaration be provided to the Grand Jury for consideration. (Buchal Decl. ¶ 78.) Mr. Kalbaugh refused to provide the declaration to the Grand Jury. (Id.) Nor were Mr. Gibson or Mr. Schultz permitted to testify to the grand jury themselves, nor advised of their right to do so under ORS 135.095 and ORS 135.100. (Id.)
F. The Arrest - Months After the Protest.
Mr. Gibson is currently being prosecuted in State v. Gibson (19CR53042). (Lee Decl. ¶ 1.) Mr. Gibson is charged with a single count of riot, and is being prosecuted by Defendants. (Lee Decl. ¶ 5, Ex. A). In State v. Schultz (19CR53035), Mr. Schultz is also charged with a single count of riot and being prosecuted by Defendants. (Lee Decl. ¶ 7-8, Ex. B.) Two others that were protesting alongside Mr. Gibson are also charged as co-defendants: Mackenzie Lewis and Ian Kramer. (Lee Decl. ¶ 49.)
Approximately two months after the protest, Mr. Gibson was charged by MCDA with a single count of riot, booked into custody, and later released after posting bail. (Gibson Decl. ¶ 17.)
Following that, Mr. Schultz was charged with a single count of riot by MCDA and arrested by United States Marshals while he was at home in Washington State. (Schultz Decl. ¶ 8.) During his arrest, a law enforcement officer told Mr. Schultz that Mayor Wheeler had “pressured” the District Attorney to charge Mr. Schultz and Mr. Gibson for the incident outside of Cider Riot. (Id. ¶ 9.) Mr. Schultz was booked into the local jail where the extradition process started. (Id. ¶ 10.) Mr. Schultz spent five nights in jail and is currently required to check in weekly with pretrial probation services. (Id. ¶ 10) Both have greatly reduced their political activity in the Portland area out of fear
that additional baseless charges will be filed. (Gibson Decl. ¶ 19; Schultz Decl. ¶ 12.) Mr. Schultz has suffered at least one lost employment opportunity as a result of the riot charge against him. (Schultz Decl. ¶ 13.)
G. Discovery in the Criminal Case.
When Mr. Gibson’s legal counsel obtained defendant Kalbaugh’s affidavit in support of an arrest warrant for the arrest of Mr. Gibson, it became apparent that it contained statements dramatically contradicted by the mass of video evidence available concerning the events in question. (Buchal Decl. ¶ 80.) Most egregiously, Mr. Kalbaugh declared that Mr. Gibson was “physically pushing Heather Clark, the woman who was eventually knocked unconscious [by another defendant]”. (Id. ¶ 85.) This allegation is entirely false. (Id.) The video evidence cited above makes it abundantly clear that Mr. Gibson was moving backwards and away from Ms. Clark with his hand up and arm outstretched while she aggressively and angrily charged at him, throwing punches in Mr. Gibson’s direction. (Id. ¶ 86.) Not one police report or witness statement provided in discovery asserted that Mr. Gibson pushed Ms. Clark; and Mr. Kalbaugh or his source appears to have made the incident up out of the whole cloth. (Id.)
The Oregon Liquor Control Commission (OLCC) investigated the incident and issued a report in which it captioned a picture of the incident as “picture of victim Heather Clark attacking Joey Gibson.” (Id. ¶ 87, Ex. 7.)
It appears that even the lead detective on the case does not join defendant Kalbaugh in his claim, writing in his report:
“Ms. Clark was seen to clearly take exception to Coopers actions and moved forward towards Cooper. A crowd followed her but their actions appeared motivated by an effort to restrain Ms. Clark. Joey Gibson and
Chris Ponte [are] also seen to re[s]train Ms. Clark whose anger was clearly aimed at Demi Cooper.
(Decl. Lee ¶ 45.) Further, during a recorded witness interview of Robert West, provided in discovery, the lead detective stated to West “I think it’s fair to say that Gibson was trying to hold her back.” (Id. ¶ 46.)
H. The Political Prosecution of Patriot Prayer Leaders.
Mr. Gibson is being represented in the criminal case by legal counsel with experience in criminal prosecution and criminal defense. (Id. ¶ 1.) After Mr. Gibson’s counsel in the criminal case reviewed all discovery made available by the Multnomah County District Attorney’s Office, he did not see evidence of any act that could
reasonably be interpreted as tumultuous and violent by Mr. Gibson or Mr. Schultz. (Id. ¶ 12-14.)
The discovery also shows that local police were aware of the protest and observed the protest while it was occurring, but did not take any enforcement action nor declare a riot. (Id. ¶ 47.)
Mr. Gibson and Mr. Schultz were not charged with any assault. (Id. ¶ 21.) None of the persons affiliated with the alleged Antifa group were ever charged with any crime. (Id. ¶ 23.) Counsel for Mr. Gibson sent a letter to the lead detective and Deputy District Attorney Kalbaugh formally requesting charges on one identified member of the Antifa group that had assaulted Mr. Gibson. (Id. Ex. P.) No charges were ever filed. (Id. ¶ 23.)
Seeing no evidence that established that Mr. Gibson or Mr. Schultz engaged in riot, defense counsel for Mr. Gibson filed a motion for a bill of particulars. (Id. ¶ 24, Ex. C).
In the motion, defense counsel requested the Court “to order the State to either provide a bill of particulars or elect the specific act or acts it claims establish “tumultuous and violent conduct” (as opposed to speech) on the part of both Mr. Gibson and Mr. Schultz.” (Id. Ex. C, at 1.) Defense counsel argued that there is no evidence in the record establishing riot by Plaintiffs.
Pleadings filed from the State in this matter have repeatedly alleged Mr. Gibson and Mr. Schultz engaged in “taunting” Antifa (a subject of the protest). This only muddies the waters as Mr. Gibson and Mr. Russell, were engaged in a protest at the time of the taunts in question. A bill of particulars, or election by the State, will serve to provide sufficient notice of what is actually alleged so that Mr. Gibson can prepare a defense, and also serves to ensure that Mr. Gibson is only be[ing] prosecuted for conduct, and not protected speech.
(Id. Ex. C, at 3.)
And what on earth is Mr. Schultz alleged to have done? He is hardly mentioned in the police reports and the video shows zero physical interaction between him and any other individual. If the State is
prosecuting Mr. Schultz for “taunting” Antifa it should make this clear. Nothing in discovery or pleadings (aside from a baldly asserted legal conclusion) provides any evidence or indication of any conduct that could be described as violent or tumultuous by Mr. Schultz.
(Id. Ex. C, at 5.)
I. MCDA Refused to Provide Exhibit List or a Real Bill of Particulars Per Court Order.
The Multnomah County Circuit Court heard argument on the motion and ordered the MCDA to provide a bill of particulars to the defense. (Id. Ex. D.) The State was also to “prepare an exhibit list in which it would identify the specific video clips it intends to introduce into evidence thereby making it possible to identify specific co-defendant statements at issue well in advance of trial.” (Id. emphasis added.)
But no exhibit list has been provided, and the “bill of particulars” provided by the State is superficial and meaningless. (Id. ¶ 41, Ex. E.) The bill, which is not in
compliance with the Court’s order, reads as follows:
The State of Oregon's theory of guilt is that the actions committed by each of the above referenced defendants as documented in Portland Police Bureau report numbers 141483, 143459, 141889, and 19-680568, and as recorded on video by one or more sources as documented in discovery that the State of Oregon provided to each of the defendants in accordance with ORS 135.815 and the Oregon and United States
Constitutions, began no earlier and ceased no later than the times
referenced in the video recordings and police reports on or about May 1, 2019.
(Id.)
J. MCDA Announces Non-prosecution Policy for Cases Where “Riot” Is Only Charge.
The District Attorney for Multnomah County is Mike Schmidt. (Id. ¶ 10.) On August 11, 2020, the Multnomah County District Attorney announced a new policy regarding protest related criminal cases. (Id. Ex. F.) The policy states clearly that charges will presumptively be dismissed if the case consists of only a single charge of riot arising out of a protest. (Id.) The policy itself includes a section that explains the rationale behind the policy:
“[T]he prosecution of cases relating solely to protest activities, most of which have a weak nexus to further criminality and which are unlikely to be deterred by prosecution, draws away from crucially needed resources. As stewards of public resources, we must devote our efforts to prosecuting crimes that allow us to protect our most vulnerable victims to have the greatest impact on promoting a safer community for everyone in Multnomah County.”
(Id.) Section one of the policy, titled “Presumption of dismissal/declination” then goes on to make very clear that in a case where only riot has been charged, the case should be dismissed. (Id.) Along with the announcement, the MCDA issued a press release which reads, in part:
Today, District Attorney Mike Schmidt announced a policy that will promote a safer community and that reduces the negative and lasting impacts a person can experience once involved in the criminal justice system following an arrest resulting from a peaceful protest or mass demonstration.
“In order to advance public safety, we must not only prevent crime, but we must also promote economic and housing stability,
educational opportunities, strong family and community relationships, and the mental and physical health of all those in our community. If we
leverage the full force of the criminal justice system on individuals who are peacefully protesting and demanding to be heard, we will cause irreparable harm to them individually and to our society. The prosecution of people exercising their rights to free speech and assembly in a non-violent manner takes away from the limited resources that we have to prosecute serious crimes and to assist crime victims,” said District Attorney Mike Schmidt.
“Since late May, we have seen nightly demonstrations where people take to the streets to express their collective grief, anger and frustration over the senseless murder of George Floyd, and the countless other abuses People of Color have endured throughout history.
“As prosecutors, we acknowledge the depth of emotion that motivates these demonstrations and support those who are civically
engaged through peaceful protesting. We will undermine public safety, not promote it, if we do not take action to bring about immediate change,” DA Schmidt said.
(Id. Ex. Q.)
In application, the new Non-prosecution policy was also tied to promoting specific political activity. (Id. Ex. M, at 1.) On August 23, 2020, The New York Times reported that the MCDA had refused to prosecute hundreds of offenses tied to Portland demonstrations against systemic racism and police brutality. (Id. Ex. M, at 1) “Ten days after taking office, Mr. Schmidt effectively dismissed charges against more than half of about 600 people arrested since the protests began at the end of May.” (Id.) The Times reported that the purpose, Mr. Schmidt said, is to balance “people’s righteous anger and grief and fury over a system that has not really been responsive enough for decades and
centuries” with the need to prevent property damage and violence. (Id.) “At a time when legitimacy in our criminal justice system is probably at an all-time low, we can’t be seen to be using that very system to silence the speech that is being critical of it,” he said. (Id.)
Trial in Mr. Gibson’s and Mr. Schultz’s cases is set to begin in Portland on October 26, 2020. (Id. ¶ 37.)
K. MCDA Refuses to Apply Non-prosecution Policy to Mr. Gibson.
Counsel for Mr. Gibson sent a letter to Deputy District Attorney Brad Kalbaugh asking that charges against Mr. Gibson be dismissed per the policy, since Mr. Gibson’s case fits squarely within the parameters of cases to be presumptively dismissed. (Id. Ex. G).
Dear Mr. Kalbaugh,
Upon review of the newly announced Multnomah County District Attorney's Office (MCDA) policy to dismiss protest related cases where the most serious charge is riot, we respectfully request that the case against Mr. Gibson be dismissed, since during his protest activities, he did not engage in any conduct amounting to assault or damage any property, and the most serious offense with which he is charged is riot.
According to the MCDA policy, there is a “Presumption of dismissal” in cases “where the most serious offenses are city ordinance violations and crimes that do not involve deliberate property damage, theft, or the use or threat of force against another person.” The policy on presumptive dismissal specifically includes cases where the most serious charge is riot, which is Mr. Gibson’s only charge.
In March, you correctly stated on the record at the motion hearing, that Mr. Gibson had not personally engaged in conduct that would even amount to an assault during the protest from which his riot charge arose. Accordingly, the presumption of dismissal applies.
Deputy District Attorney Kalbaugh responded by email, writing “I am meeting with Mr. Schmidt tomorrow. I expect to have an answer for you (and everyone else) after that meeting.” (Id. Ex. H.)
Despite the written policy, after Deputy District Attorney Kalbaugh had his meeting with District Attorney Schmidt, he emailed all defense counsel that the MCDA would not dismiss the riot charge currently pending against Mr. Gibson and Mr. Schultz. (Id. Ex. I.)
L. Kalbaugh Admits Non-prosecution Policy Is Being Applied Retroactively for Others.
After receiving notice that D.A. Schmidt had decided to exclude Mr. Gibson and Mr. Schultz from the policy, Counsel for Mr. Gibson emailed Mr. Kalbaugh and asked if the dismissal policy would be applied to other cases that had been charged in the months prior to the enactment of the formal policy. (Id. Ex. J, at 2.) When asked, Mr. Kalbaugh confirmed by email that, in fact, the policy was being applied retroactively to cases charged prior to the enactment of the formal policy, and cases initially charged during the prior MCDA administration, responding: “That’s my understanding.” (Id.)
Counsel for Mr. Gibson then inquired of Mr. Kalbaugh as to what justification there was for selection of Mr. Gibson for further prosecution. (Id. Ex. J, at 1.)
Are [you] at liberty to disclose to me the rationale for why this policy would apply to those involved in the current protests and not those
involved in other protests? One would think that the policy would apply to any case arising out of political activity, and not just political activity involving the elected DA’s favored political viewpoint, since it is being applied to cases that arouse prior to him taking office.
(Id. Ex. J, at 1). Mr. Kalbaugh refused to respond to the question in the final email. (Id. ¶ 32.)
In an article published later that day in the Oregonian, it was reported that District Attorney Schmidt had announced that the MCDA “won’t prosecute people on a riot accusation alone. Prosecutors will proceed with a riot case only if it includes an
accompanying allegation of specific property damage or use of force, he said.” (Id. Ex. K, at 4, emphasis added.)
Yet despite all the dismissals, The Times reported “Mr. Schmidt said that he believed the Gibson case merits prosecution.” (Id. Ex. M, at 3.)
M. MCDA Schmidt’s Antifa Connection and Predisposition Against Patriot Prayer.
The Post Millennial reported on August 15, 2020, that District Attorney Schmidt “who refuses to prosecute Portland rioters, admits he is “old buddies” with an Antifa militant [who is] campaigning to defund the police, abolish prisons, and demand reparations.” (Id. Ex. L, at 1.) The Post Millennial reported that District Attorney Schmidt had also claimed that the criminal justice system was built on “white supremacist culture.” (Id. Ex. L, at 5.) The basis of the article is a Tweet by District Attorney Schmidt himself.1
N. MCDA Admits that Plaintiffs and their Co-Defendants are the Only People Still Being Prosecuted for a Stand-Alone Riot Charge.
In response to a public record request sent to MCDA, Deputy District Attorney Jeffrey Lowe admitted that the only individuals being prosecuted by the MCDA for “a stand alone charge of Riot” are the Plaintiffs and their two co-defendants in the
underlying state criminal case. (Id. Ex. U, ¶ 51.)
1Available at https://twitter.com/DAMikeSchmidt/status/1292195376498388992. The
profile of the friend, @AWKWORDrap, identifies him as an "Antifa militant" (https://twitter.com/awkwordrap?lang=en).
V. ARGUMENT
Mr. Gibson and Mr. Schultz, who attended the May 1st protest at Cider Riot with Mr. Gibson, are being selectively prosecuted in bad faith under Oregon’s “Riot” law by Multnomah County District Attorneys in retaliation for, and in order to deter, their speech. While that speech is focused on so-called anti-fascists ("Antifa") and their support from local and state officials, promotes patriotism and living a Christian lifestyle, these viewpoints are highly unpopular in Portland. In a remarkable abandonment of all allegiance to the Constitution they are sworn to uphold, local officials have blamed Plaintiffs and others for violence initiated and pursued by Antifa in a concerted (and freely admitted) effort to “de-platform” Plaintiffs, and have engaged in an astounding smear campaign to characterize Plaintiffs’ speech as racist, white supremacist, and criminal.
This selective prosecution is in bad faith and violates the First, Fifth, and Fourteenth Amendments to the Constitution of the United States, as well as 42 U.S.C. §§ 1983, and 1985. The prosecution was initiated in bad faith and continues selectively in bad faith as Defendants have refused to apply MCDA’s own policy of dismissing protest related cases where, as is the case with Mr. Gibson and Mr. Schultz, riot is the only charge. District Attorney Schmidt, in both word and deed, has impermissibly applied his Non-prosecution policy to only those cases where the underlying protest corresponds to his favored speech. A temporary restraining order (TRO) prohibiting the bad faith prosecution will prevent further irreparable injury to Mr. Gibson and Mr. Schultz until the court holds a hearing to determine whether to issue a preliminary injunction. Fed. R. Civ. P. 65(b).
A. This Court Has Subject Matter and Personal Jurisdiction.
This Court has personal jurisdiction as Defendants are located in Portland Oregon where the acts complained of took place. This Court has subject matter jurisdiction under Fed. R. Civ. P. 65, 42 U.S.C. §§ 1983, 1985, and 1988, 28 U.S.C. §§ 1331, and 1343.
When a state prosecution is pursued in bad faith and is pursued “to retaliate for or discourage the exercise of constitutional rights,” the injury threatened is both great and immediate. Lewellen v. Raff, 843 F.2d 1103, 1109 (8th Cir. 1988). In these instances, federal courts have repeatedly affirmed federal jurisdiction. Id.; see also Krahm v. Graham, 461 F.2d 703, 709 (9th Cir. 1972). Accordingly, where an injunction against state court proceedings is the only means of avoiding grave and irreparable injury, it “is expressly permitted by § 2283.” Id. at 709.
For example, in Krahm v. Graham, Krahm was granted an injunction “under 28 U.S.C. §§ 1331 and 1343, and 42 U.S.C. § 1983” against state prosecution. Id. at 705. Krahm had argued that the prosecution was in bad faith and violated First Amendment rights. The Court of Appeals upheld the injunction even though the state statute was constitutional because, “[i]n the vital area of First Amendment rights it is just as easy to discourage exercise of them by abusing a valid statute as by using an invalid one.” Id. at 707. Likewise, courts have found that where a suit seeks to enjoin a bad faith prosecution under a valid statute (which is a constitutional deprivation itself), the state does not have a legitimate interest in pursuing the prosecution and the individual’s federal right to immunity from bad faith prosecutions is not vindicated by defending against the state prosecution. Perez v. Ledesma, 401 U.S. 82, 118, 91 S. Ct. 674, 693 (1971) (Brennan, J., concurring) (quoting Dombrowski v. Pfister, 380 U.S. 479, 485, 85 S. Ct. 1116, 1120
(1965)); Wilson v. Thompson, 593 F.2d 1375, 1382-83 (5th Cir. 1979); see also Michael G. Collins, The Right to Avoid Trial: Justifying Federal Court Intervention into Ongoing State Court Proceedings, 66 N.C. L. Rev. 49, 62-64 (1987); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir. 1979) (allegation state prosecution intended to chill First Amendment rights sufficient to remove Younger bar).
Here, prosecution for riot was undertaken and continues in order to retaliate against and deter Plaintiffs from continuing their protests and is also in violation of MCDA policy. Accordingly, since a federal injunction against state court proceedings is the only means of avoiding grave and irreparable injury, it is expressly permitted. B. Bad Faith Prosecution Justifies Injunctive Relief.
The First Amendment bars a criminal prosecution where the proceeding is motivated by the improper purpose of interfering with the defendant’s protected speech. United States v. P.H.E., Inc., 965 F.2d 848, 849 (1992); Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531 (1985). Thus, a showing that a prosecution is pursued selectively, or in retaliation for, or to discourage the exercise of, constitutional rights “will justify an injunction regardless of whether valid convictions conceivably could be obtained.” Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir. 1981) (emphasis added). Injunctive relief should be provided where the moving party has established (1) the party is under threat of suffering “injury in fact,” (2) the threat is actual and imminent, and (3) it is likely that a favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Inst., 555 U.S. 488, 129 S. Ct. 1142, 1149, 173 L. Ed. 2d 1 (2009).
The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.
Ct. 2673, 49 L. Ed. 2d 547 (1976). Irreparable harm is likewise established where a showing of bad faith prosecution has been made. Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979).
A showing of bad faith exists, and warrants the preliminary injunction of state criminal proceedings, where (1) conduct retaliated against or sought to be deterred is constitutionally protected; and (2) prosecution is motivated at least in part by the purpose to retaliate or deter that conduct. See Wilson, at 1387.
C. Defendants’ Bad Faith Prosecution.
Plaintiffs have suffered irreparable injury as the prosecution has deterred them from exercising their First Amendment rights. Plaintiffs have demonstrated in Portland for years, but have greatly curtailed any public speaking in Portland as a result of the prosecution. Additional irreparable harm has been suffered by Mr. Schultz who spent five days in jail, is required to call into probation once a week, and lost an employment opportunity due to the prosecution.
Bad faith is evident as Plaintiffs’ conduct, which includes public protest and rallies critical of government tolerance of Antifa, is constitutionally protected; and the prosecution is motivated by the desire to retaliate for and deter that conduct.
The desire to retaliate for, and deter Mr. Gibson from, holding rallies in Portland permeates and unifies Portland’s social and political culture. For years, prominent politicians and media sources have demonized and called for an end to Mr. Gibson’s activities because the conduct “antagonizes” members of Antifa. Political leaders have declared their support for a business taking legal action against Mr. Gibson, and even publicly attacked counsel for Mr. Gibson in that civil case. Mayor Wheeler has been
outspoken in his personal criticism of Mr. Gibson and Patriot Prayer. Other political leaders in Portland have issued formal resolutions condemning Patriot Prayer.
Tragically, there is no limit to the desire to retaliate for Plaintiffs’ speech. When a right wing protester was recently murdered in cold blood on the Portland streets, Governor Kate Brown blamed the victim.
Because of the great public animosity towards Mr. Gibson, any public or political figure in Portland who treats right wing protesters fairly will be forced from office or their place of work. This fact has been demonstrated by the retaliation against Police Lt. Jeffrey Niiya and the retaliation against Ms. Elizabeth Hovde. District Attorney Schmidt would unquestionably suffer extreme damage to his reputation if he were to apply his own Non-prosecution policy equally to Plaintiffs.
By contrast, Antifa occupies a beloved space in Portland culture and is
affectionately known as “home grown”. Mr. Schmidt admits to being a long-time friend of an Antifa member. It is no coincidence that Antifa members make up the majority of individuals who have either not been charged out of the same incident or who have had their more recent riot charges dismissed by Defendants.
In this political and coercive context, the intent to utilize the prosecution of Plaintiffs to retaliate for and deter their speech is undeniable. Mayor Wheeler has expressly and repeatedly stated his desire to deter Mr. Gibson’s political activity. He stated publicly, in reference to Mr. Gibson, “[Y]ou are not welcome here.” More than merely expressing his desire, Mayor Wheeler has previously taken affirmative (and patently unconstitutional) actions to accomplish his stated goal. He asked the federal government to revoke the permit Plaintiffs had obtained to hold a Trump Free Speech
Rally in Portland. He also stated that the City of Portland would not (ever) issue a permit for Patriot Prayer.
Mayor Wheeler is reported to have, by either political pressure or by direct request, advocated for the riot charges against Plaintiffs. Coupled with the lengthy delay between the incident and the arrests of Mr. Gibson and Mr. Schultz, these facts evoke the plain inference that Defendants are using this prosecution to accomplish that goal: to deter Mr. Gibson and Mr. Schultz from exercising their constitutional rights.
Finally, that the prosecution is motivated by the purpose of deterring the content of Plaintiffs’ speech, is evident by the selective non-application of Defendants own Non-prosecution policy. By press release, Mr. Schmidt made clear he intended to
impermissibly apply his Non-prosecution policy to only protest activities that promoted ideas he agreed with. In action, he has in fact impermissibly applied his Non-prosecution policy only to those protest activities which supported his political views. Though the MCDA dismissed hundreds of cases likely involving worse conduct than any conduct alleged against Plaintiffs, the charges against Plaintiffs, alone, remain pending.
Plaintiffs have and will continue to suffer irreparable injury to their rights from this bad faith prosecution for protected speech and expression if injunctive relief is denied. See, e.g., International Bhd. of Teamsters v. Local Union No. 810, 19 F.3d 786, 794 (2d Cir. 1994); Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992). Imposition of a TRO will prevent further injury to Plaintiffs’ rights under the First, Fifth, and Fourteenth Amendments.
D. Selective Prosecution Shows Bad Faith.
The Fourteenth Amendment prohibits any state from taking action which would deny to any person within its jurisdiction the equal protection of the laws. United States v. Falk, 479 F.2d 616, 618 (7th Cir. 1973). The United States Supreme Court announced in Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), that the application of laws “with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances” constitutes a denial of equal protection and is “within the prohibition of the Constitution.”
When a statute or regulation is extremely broad and permits near unfettered discretion in the decision to prosecute, it “sanctions a device for the suppression of the communication of ideas and permits the official to act as a censor.” Cox v. Louisiana, 379 U.S. 536, 557, 85 S. Ct. 453, 465 (1965).
It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups . . . by selective enforcement of an extremely broad prohibitory statute.
Id. at 557-58.
Thus, the actions of prosecutors are duly subject to constitutional contraints. United States v. Batchelder, 442 U.S. 114, 125, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). “Selective prosecution” is prohibited and occurs where “the government looks beyond the law itself to arbitrary considerations, such as race, religion, or control over the
defendant's exercise of his constitutional rights, as the basis for determining its
applicability.” United States v. Berrios, 501 F.2d 1207, 1209 (2d Cir. 1974) (emphasis added); United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 1486 (1996). Accordingly, the decision whether to prosecute may not be based on a desire to punish or
deter people who express certain ideas, while excusing those who do not express those ideas. United States v. Steele, 461 F.2d 1148, 1152 (9th Cir. 1972). Selective prosecution discriminates based on First Amendment activities and is constitutionally impermissible. Id.
To establish selective prosecution, Plaintiffs must demonstrate only that (1) the prosecutorial policy or action had a discriminatory effect and (2) was motivated by a discriminatory purpose. Armstrong, 517 U.S. at 457. Part one, discriminatory effect, is established where the accused demonstrates that other violations of a regulation occurred; yet violators who did not openly espouse disfavored ideas were not prosecuted. Steele, 461 F.2d at 1152.
Part two, discriminatory purpose or intent is established where the enforcement procedure focuses on a “vocal offender” and any of the following circumstances are present: (1) violators who did not openly criticize the government are not prosecuted; (2) the government maintained a stated policy of not prosecuting violations; (3) higher level officials than would normally be involved in the prosecution of the offense participated in the prosecution; (4) a lengthy delay between the violation and the indictment exists; or (5) the decision to prosecute the particular individual instead of other violators was not correlated to a higher degree of the violation. See United States v. Steele, 461 F.2d 1148, 1152 (9th Cir. 1972); United States v. Falk, 479 F.2d 616, 618, 621-623 (7th Cir. 1973); United States v. Crowthers, 456 F.2d 1074, 1079 (4th Cir. 1972). All of these factors are present here.
i. United States v. Steele
In Steele, the controlling 9th Circuit case, the court found that evidence of
discriminatory intent based upon First Amendment speech was “compelling” where only four individuals in Hawaii were chosen for prosecution for refusing to answer census questions in violation of 13 U.S.C. § 221. Each of the individuals, including Steele, had each participated in a census resistance movement urging others to not comply with the census. Steele, a “vocal offender,” had led protests and distributed leaflets as part of the resistance. Steele, 461 F.2d at 1151.
In finding discriminatory intent, the court relied on facts showing that the
investigator had taken a special interest in four vocal offenders, describing them as “hard core resisters,” and testifying that his organization was “concerned” about their
movement, while also testifying he was unaware of any other offenders. Id. Accordingly, the court found that the government’s lack of awareness of the other violators was strong evidence that “questionable emphasis” had been placed the “resisters.” Id. It reversed Steele’s conviction, stating: “An enforcement procedure that focuses upon the vocal offender is inherently suspect, since it is vulnerable to the charge that those chosen for prosecution are being punished for their expression of ideas, a constitutionally protected right.” Id. (emphasis added).
ii. United States v. Falk.
In Falk, Falk was charged with failure to possess a draft card. Falk, 479 F.2d, at 617. Falk was a “vocal offender” who had been actively involved in protesting American actions in Vietnam. Id. at 621. Additionally, the Assistant U.S. Attorney had taken a “special interest” in Falk: he knew of Falk’s protest activities and believed that “a good
deal of their trouble in enforcing the draft laws came from people such as Falk …” Id. Falk presented evidence that others had disposed themselves of their draft cards but had not been prosecuted.
Also, the indictment against Falk had been approved by higher level prosecutors then normal for a lower level offense. Id. at 622. The court found that this higher level approval was evidence that Falk had in fact been singled out, stating, “It is difficult to believe that the usual course of proceedings in a draft case requires such careful
consideration by such a distinguished succession of officials prior to a formal decision to prosecute.” Id. Discriminatory intent was also evidenced by the delay in bringing
charges after the alleged transgression. Id. at 623.
In holding that Falk had presented a prima facie case of improper discrimination in enforcing the law, the court found compelling the fact that the government maintained an admitted policy not to prosecute violators of the card possession regulations. Id. at 621. Indeed, the policy stated, “registrants who turned in cards (as contrasted to those who burned cards) were not prosecuted under Section 12(a) of the Military Selective Service Law of 1967 . . . .” Id. (emphasis added). Likewise, the Selective Service Director’s statement also showed that government policy was “to prosecute only a portion of those who committed minor infractions of rules; [and] whether a violator is one of those prosecuted depends upon whether he accepts or refuses induction.” Id. The court found that Falk was prosecuted for the prior, minor infractions (namely, violation of the card carrying requirements) “only because he had exercised his First Amendment privilege to claim a statutory right as a conscientious objector” and refuse induction. Id. at 622-623.
iii. United States v. Crowthers.
Where the regulation being enforced is extremely broad and allows for wide discretion in its enforcement, discriminatory intent is demonstrated where selection for prosecution does not correlate to a higher degree of the actual conduct constituting the violation, but instead correlates to the government’s disapproval of the message expressed by the violator in addition to, or outside of, the offending behavior. Crowthers, 456 F.2d at 1079-1080; see also Cox v. Louisiana, 379 U.S. at 557-58 (finding Louisiana law “ Obstructing Public Passages” permitted uncontrolled discretion enabling public officials to determine which expression of views was permitted).
In Crowthers, the court found that the regulation under which Crowthers had been prosecuted had been selectively applied. Defendants participated in “Masses for Peace” protesting the Vietnam War at the Pentagon, and were charged and convicted of
disorderly conduct. Although Mass attendees were in violation of the regulation being enforced, evidence showed the pentagon concourse had been used 16 other times for political and religious ceremonies and that the Mass for Peace participants had not exceeded the noise level or obstruction of those activities. Id. at 1078-1079.
The court found that discriminatory intent to suppress a viewpoint was evident because “[i]n choosing whom to prosecute, it is plain that the selection [was] made not by measuring the amount of obstruction or noise but because of governmental disagreement with ideas expressed by the accused.” Id.
E. The Selective Prosecution of Plaintiffs.
Defendants are engaging in the selective prosecution based on First Amendment speech because the prosecutorial action (1) has had discriminatory effect and (2) is motivated by discriminatory purpose.
i. Part One: Discriminatory Effect.
The prosecution has unquestionably had a discriminatory effect because those who did not espouse disfavored ideas, but engaged in similar or worse conduct, were either not prosecuted at all or had their charges dismissed. To begin with, during the underlying incident, video shows multiple members of Antifa spitting on, throwing things at, or pepper spraying Plaintiffs. Not one of them was prosecuted.
Further, Oregon’s Riot law coupled with the MCDA’s Non-prosecution policy has permitted unfettered discretion and has sanctioned a device for the suppression of the political expression while permitting the State to act as a censor and encourage speech it favors. Countless violations of Oregon’s Riot law have occurred in the past year. In fact, “riot” has been declared in Portland nearly every night for 100 nights. Yet, those charged with Riot who did not openly espouse the disfavored ideas of Mr. Gibson or Mr. Schultz , but instead espoused the ideas favored by Mr. Schmidt, either were not prosecuted or have had their charges dismissed. The record indisputably establishes discriminatory effect.
ii. Part Two: Discriminatory Purpose.
Discriminatory intent is established because the enforcement action focused on Plaintiffs as “vocal offenders”. Mr. Gibson, specifically, is perhaps the most infamous public speaker in Portland history. He preaches traditional Christian values; espouses
that Jesus Christ is the Son of God; urges repentance and the need for forgiveness for ungodly lifestyles; condemns the local government’s tolerance of Antifa; and a staunch advocate for free speech. For these views he is despised throughout Portland.
Like the subjects of political prosecution in Steele and Falk, law enforcement has taken a “special interest” in Mr. Gibson and Mr. Schultz. For example, when hundreds intended to counter-protest at Patriot Prayer Free Speech Rally in 2017, Mr. Gibson is the only individual identified by name in the Police Bureau’s Incident Action Plan. As in Steele and Falk, government officials are concerned that Plaintiffs ’political activities will cause others to protest governmental inaction regarding Antifa in Portland. For example, at Mayor Wheeler’s own rally, it was stated: “Pandering to a national climate that accuses Portland of being soft on Antifa is unacceptable.” Instead, Mayor Wheeler prefers to blame Plaintiffs for Portland’s violence and affirm that Plaintiffs are not “welcome” in Portland.
Additionally, the following circumstances are present. First, others who have been charged with riot but who have not openly criticized the local government’s support of Antifa have had their charges dismissed. Second, as in Falk, the government
published a written policy of not prosecuting protest-based riot cases and proceeded to dismiss numerous protest-based riot cases, while maintaining that Plaintiffs’ cases merit prosecution.
Third, as in Falk, the email exchange between counsel for Mr. Gibson and Deputy District Attorney Kalbaugh showed that, despite the charges against Mr. Gibson being relatively simple and innocuous, the final decision to not apply the Non-prosecution policy came directly from the highest official, elected District Attorney Mike Schmidt.
Fourth, the lengthy delay between the alleged violation at Cider Riot and the indictment of Plaintiffs, when police officers had been present and could have made arrests at the time of the incident, smacks of ulterior motives.
Fifth, just as in Crowthers, the decision to prosecute Mr. Gibson and Mr. Schultz instead of other violators does not correlate to a higher degree of the violation. Though police observed Plaintiffs during the protest they did not declare a “riot.” Police did nothing and made no arrests. By contrast, Portland Police have publicly declared “riot” for 100 straight nights and made hundreds of arrests while observing other protest activities. The current status quo of riotous behavior in Portland, as evidenced in
numerous videos and media sources, far exceeds anything that Plaintiffs can remotely be accused of based on clear video evidence.
The record indisputably establishes the prosecution is motivated by
discriminatory purpose. Plaintiffs have established that Defendants engaged in and continue the selective and bad faith prosecution of Plaintiffs.
F. Evidentiary Insufficiency of Charges Under Oregon Law and the First Amendment.
Though an injunction is justified in this case regardless of whether valid
convictions could be obtained, the analysis of bad faith and selective prosecution is aided by considering the evidentiary insufficiency to support the Riot charges against Plaintiffs. See Fitzgerald v. Peek, 636 F.2d at 945. The evidence is insufficient as there is no
evidence of tumultuous and violent conduct by Plaintiffs personally.
ORS 166.015 provides that a person commits riot “if while participating with five or more other persons the person engages in tumultuous and violent conduct.” (emphasis
added). Violent and tumultuous conduct is required on the part of the individual being charged; being a member of a group where others engaged in tumultuous activity, for example, is insufficient. The Oregon Supreme Court wrote plainly in State v. Chakerian that “[i]t is clear under the statute that a person does not commit the crime of riot if he or she merely is part of a group and five other members of that group engage in tumultuous and violent conduct.” 325 Ore. 370, 375 n 8 (1997) (emphasis original). Indeed, the right to assemble in groups and engage in advocacy in a traditional public forum such as a public sidewalk is conduct in the furtherance of constitutionally protected free speech. See Hill v. Colorado, 580 U.S. 703, 714-15, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2002).
Thus, under ORS 166.015, “. . . the state must prove that the person charged actually ‘engage[d] in violent and tumultuous conduct.’” Chakerian, 325 Ore. at 375 n. 8 (1997). When the group activity out of which the alleged offense develops is within the shadow of the First Amendment, “. . . meticulous inquiry into the sufficiency of proof is justified and required because of the real possibility in considering group activity, characteristic of political or social movements, of an unfair imputation of the intent or acts of some participants to all others” United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972). Nor does political speech that is provocative or intended to exercise a
coercive impact equate to violent or tumultuous conduct. In other words, the government may not charge members of a protest with Riot simply because the expression engaged in was provocative or created hostility in others. See Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 896 (1949). “The claim that the expressions were intended to exercise a coercive impact . . . does not remove them from the reach of the First Amendment.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S. Ct. 1575, 29 L. Ed.
2d. 1 (1971). “Such speech cannot be restricted simply because it is upsetting or arouses contempt.” Snyder v. Phelps, 562 U.S. 443, 458, 131 S. Ct. 1207 (2011).
Here, video evidence of the protest shows the involvement of Plaintiffs. Mr. Schultz is merely present as a member of the protesting group and no evidence of violent and tumultuous conduct on his part exists. Mr. Gibson is seen standing in front of a hostile Antifa crowd documenting its conduct. Mr. Gibson is not accused of any property damage; and the State agreed that his conduct did not amount to an assault. Moreover, though the State was ordered to present any evidence of riotous conduct by Plaintiffs in a Bill of Particulars, it failed to do so.
The fact that Mr. Gibson’s livestreaming of his protest met with hostility from Antifa does not remove his conduct from First Amendment Protection. Defendants may regard his speech as provocative, but the conduct and speech is still protected. Therefore, because the State lacks evidence of tumultuous and violent conduct, the charges of Riot are unsubstantiated.
G. Burden Is On Government to Establish Nondiscriminatory Purpose.
Whereas Plaintiffs have established that Defendants engaged in selective and bad faith prosecution, an injunction should issue, unless the government can show “by a preponderance of the evidence that it would have reached the same decision as to whether to prosecute even had the impermissible purpose had not been considered.” Wilson, 593 F.2d at 1387. Where a prima facie case of intentional discrimination in a criminal case raises a reasonable doubt about the prosecutor’s purpose, the government is compelled to accept the burden of proving nondiscriminatory enforcement. Falk, 479 F.2d. at 620-21, 624. Because the government is in ready possession of the facts that the accused in a
