ACLU pens letter to Hales, PPB after protesters’ arrest

Prosecutors went with "No Complaint" -- official language that allows charges to be re-instated

(L-R) Kathryn Stevens, Gregory McKelvey and Micah Rhodes of Portland's Resistance prior to their arraignment on disorderly conduct charges, November 22, 2016 (KOIN)
(L-R) Kathryn Stevens, Gregory McKelvey and Micah Rhodes of Portland's Resistance prior to their arraignment on disorderly conduct charges, November 22, 2016 (KOIN)

PORTLAND, Ore. (KOIN) — Three leaders from Portland’s Resistance appeared in court Tuesday after being arrested for disorderly conduct during a protest march Monday night and learned their charges have been, in essence, placed on hold.

Gregory McKelvey, 23, Micah Rhodes, 23, and 24-year-old Kathryn Stevens were all arrested for 2nd-degree disorderly conduct, Portland police said Monday night. Rhodes and Stevens were also charged with interfering with a peace officer.

Portland's Resistance leader Gregory McKelvey was taken into police custody for ignoring police orders during a protest march, November 21, 2016 (KOIN)
Portland’s Resistance leader Gregory McKelvey was taken into police custody for ignoring police orders during a protest march, November 21, 2016 (KOIN)

After being booked into jail, they were all released on their own recognizance.

At their 1:45 p.m. court appearance, prosecutors went with a “No Complaint” — official language that allows the charges to be re-filed at a future date and time within the statute of limitations.

All 3 were arrested during a student-led anti-Trump protest through Portland streets.

McKelvey was captured on KOIN 6 News video encouraging the high school students to disregard police orders, especially while on the Burnside Bridge.

A counter-protest to a scheduled “March of Hope” prompted that event to be canceled. The March of Hope was to include Mayor Charlie Hales and other civic leaders.

In a statement, McKelvey said he “was arrested for something completely false along with other Resistance organizers.” He also vowed to “be in the streets this afternoon after court.”

Asked by KOIN 6 News if he planned to pursue civil liability against the police, McKelvey said, “Yes.”

On Tuesday, the ACLU of Oregon wrote a letter to Hales and PPB Chief Mike Marshman saying that the leaders of Portland’s Resistance were singled out. That full letter can be seen below.

Dear Mayor Hales and Chief Marshman,

Last night, we learned that Portland Police Bureau (“PPB”) arrested Gregory McKelvey, Kathryn Stevens, and Micah Rhodes, members of PDX Resistance and well-known organizers. Targeting individuals for arrest for constitutionally protected speech is prohibited by law.

PDX Resistance organizers were singled out for arrest despite engaging in activities similar to peaceful protesters in their vicinity. From our view, the only distinguishing characteristic is their role as leaders in other recent protests that were publicly opposed by your offices.

An arrest made in retaliation for a person’s exercise of protected speech violates the First Amendment. While we continue to evaluate the facts, we caution PPB that it is a violation of the rights of the protesters arrested if police actions are motivated by a desire to chill speech and law enforcement actions would “chill or silence a person of ordinary firmness from future First Amendment activities.”  Unlike most other courts, the Ninth Circuit has held that a First Amendment retaliation claim can lie even if the arrest is supported by probable cause.  If a First Amendment retaliation claim can be established, then officers would likely not be entitled to qualified immunity.

Despite clear law to the contrary, PPB appears to be engaged in a pattern and practice of retaliatory arrest of local organizers. We have received other reports of well-known organizers and activists being targeted by PPB for arrest during peaceful protests and are investigating those allegations.

Not only is retaliatory arrest unconstitutional, it is wasteful, consuming limited law enforcement resources in pursuit of charges prohibited by law. For example, activist Teressa Raiford was acquitted after an arrest last year for similar activities. The ACLU of Oregon filed an amicus brief in her case and successfully showed the court that the state has a high burden when wielding the criminal law against protesters engaged in protected First Amendment activity.

While we understand the difficulties faced by local law enforcement, silencing the voices of community leaders through a practice of harassing arrests is clearly unconstitutional and destroys trust between the community and its public servants.

As those selected to serve the community, we urge you to ensure that public speech, including protest, is protected and not punished.

Sincerely,

 

Mat dos Santos
Legal Director