Prosecutor won’t act on low-level Portland protest arrests

Charges dropped unless they involve property damage, theft, use of force or threat

PORTLAND, Ore. (AP) — The newly elected district attorney in Portland on Tuesday announced a new policy that means that cases will be dismissed against dozens — and possibly several hundred — people arrested on lesser charges at the ongoing protests.

Multnomah County District Attorney Mike Schmidt said the new policy recognizes the frustration over centuries of racial inequity being expressed by protesters and also recognizes the court's need to conserve resources during the coronavirus pandemic.

Schmidt said there have been about 550 protest-related arrests since May 29 and only 133 of those are felonies. Most misdemeanor arrests will be dismissed.

“The protesters are angry ... and deeply frustrated with what they perceive to be structural inequities in our basic social fabric. And this frustration can escalate to levels that violate the law,” Schmidt said. “This policy acknowledges that centuries of disparate treatment of our black and brown communities have left deep wounds and that the healing process will not be easy or quick.”

Portland Police Chief Chuck Lovell, who was told of the policy change on Friday, said it doesn’t change Oregon law and still holds accountable people who commit violent acts or intentionally damage property.

“Committing a crime is different from demonstrating,” Lovell said in a statement. “The arrests we make often come after hours of damage to private property, disruption of public transit and traffic on public streets, thefts from small businesses, arson, burglary, attacks on members of the community, and attacks against police officers.”

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News release from DA Mike Schmidt:

PORTLAND, Ore. (KTVZ) -- Multnomah County District Attorney Mike Schmidt on Tuesday announced a policy that will promote a safer community and 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.

In summary, under the new policy:

• The Multnomah County District Attorney’s Office will presumptively decline to prosecute a case where the most serious offense is a city ordinance violation or where the crime(s) do not involve deliberate property damage, theft or the use or threat of force against another person.
  • Crimes in this category include:
    • Interfering with a peace officer or parole and probation officer (ORS 162.247)
    • Disorderly conduct in the second degree (ORS 166.025)
    • Criminal trespass in the first and second degree (ORS 164.245 & ORS 164.255)
    • Escape in the third degree (ORS 162.145)
    • Harassment  (ORS 166.065)
    • Riot (166.015) - Unless accompanied by a charge outside of this list.

Furthermore, the new policy will require that before issuing, any referred charge of “Resisting arrest” (ORS 162.315) or “Assaulting a public safety officer” (ORS 163.208) must be subjected to the highest level of scrutiny by the deputy district attorney reviewing the arrest. Consideration will be given to the chaos of a protesting environment, especially after tear gas or other less-lethal munitions have been deployed against community members en masse.

Finally, when a person is charged with a misdemeanor or felony crime that causes only financial harm during a protest, there will be a presumption that the individual will either be offered conditional dismissal after restitution is paid to the victim or when other amends to the community are made, such as restorative justice with the impacted victim.   

• Crimes in this category include:
  • Criminal mischief in the second and third degree (ORS 164.345 & ORS 164.354)
    • When the value is under $1,000
  • Theft in the first, second and third degree (ORS 164.043, ORS 164.045 & ORS 164.055)
    • When the value is under $1,000 or when the theft is committed during a riot
  • Burglary in the second degree if combined with any criminal mischief or theft allegation.

All other offenses, including those that allege acts of intentional physical violence against community members and/or law enforcement – such as assaults and arson cases – will be handled according to general office policies.

The Multnomah County District Attorney’s Office is neither condoning nor endorsing the conduct that led to the arrest or citation of a person. A prosecution decline decision does not change Oregon law.

In all cases where prosecution is declined or later dismissed by the court, the Multnomah County District Attorney’s Office will make available information on the procedure to set aside the arrest record and will support these motions in every way permissible under Oregon law.

In Multnomah County, a criminal case can only be initiated after law enforcement refers police reports to the district attorney’s office for prosecutorial review and consideration. The district attorney’s office will continue to review cases of alleged police violence and misconduct if those reports and associated evidence are submitted to the agency’s internal affairs or the City of Portland’s Independent Police Review Board.

A copy of the new policy implemented on today’s date can be obtained by clicking here.