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‘Patently Unconstitutional’: Portland Judges Are Barring Arrestees From Attending Public Protests As A Condition of Release


PORTLAND, OREGON - JULY 27: Federal police face off with protesters in front of the Mark O. Hatfield federal courthouse in downtown Portland as the city experiences another night of unrest on July 27, 2020 in Portland, Oregon. For over 57 straight nights, protesters in downtown Portland have faced off in often violent clashes with the Portland Police Bureau and, more recently, federal officers. The demonstrations began to honor the life of George Floyd and other black Americans killed by law enforcement and have intensified as the Trump administration called in the federal officers.

In a move that legal experts say is “patently unconstitutional,” federal authorities in Portland are arresting people for minor offenses and then barring them from attending any future protests as a condition of their release, ProPublica reported Tuesday. According to the report, at least 12 people arrested in connection with the demonstrations were expressly prohibited from being present at any future public demonstrations as they await their days in court.

In one instance, the conditions of release issued by the U.S. District Court in Oregon for a defendant whose offense was “fail[ing] to comply with the lawful direction of federal police officers” stated that “Defendant may not attend any other protests, rallies, assemblies or public gatherings in the state of Oregon.”

The order further stated that any violation of the conditions of release may result in “the immediate issuance of a warrant for your arrest, a revocation of release, an order of detention, forfeiture of bond, and a prosecution for contempt of court and could result in a term of imprisonment, a fine, or both.”

According to the report, in several instances where the aforementioned conditions of release were not available at the time of a detainee’s release, Magistrate Judge John V. Acosta added the provision by hand.

Magistrate Judge Jolie A. Russo similarly added a handwritten protest ban provision to at least three of the 15 release orders she signed Monday.

Constitutional law experts were quick to call out the orders as direct violations of the First Amendment.

Senior staff attorney at the American Civil liberties Union (ACLU) Somil Trivedi told ProPublica that release conditions generally concern whether a defendant poses a risk of flight or threat to public safety.

“This is neither,” he said, calling the protest ban “sort of hilariously unconstitutional.”

Attorney Cristian Farias of the Knight First Amendment Institute at Columbia University compared the unconstitutionality of the provision to the one in the case of Donald Trump’s former attorney and fixer Michael Cohen.

“This was blatantly unconstitutional when they tried it on Michael Cohen, who was convicted of multiple felonies,” Farias wrote. “It’s even more so when the people being restrained from exercising First Amendment rights are merely facing accusations that may not stand up in court.”

University of Texas law professor Steve Vladeck called the condition “stunningly overbroad.”

[image via Spencer Platt/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.