Protests present particular problems to police. They see masses of people, not individuals, for the most part, and when they do a round up, it’s not for individualized conduct but for being part of the crowd. It might be a mob. It might be a protest. Maybe the person arrested “deserves” it, whatever that means, or the person arrested might just be a warm body within arm’s reach of a cop.
Portland’s new progressive prosecutor, Mike Schmidt, has chosen to deal with arrests “categorically.”
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.
The distinction he employed in exercising prosecutorial discretion seems reasonable.
Mr. Schmidt said his office would presumptively decline to prosecute demonstrators for minor offenses such as interfering with the police, disorderly conduct and trespassing — cases that did not involve deliberate violence, property damage or theft. And charges for assault on officers and resisting arrest will now require closer scrutiny, with prosecutors taking into account in filing charges whether the police fired tear gas into crowds.
The dismissed offenses, “interfering with the police, disorderly conduct and trespassing,” are minor in the grand scheme of things, even if under other circumstances they might be worthy of greater scrutiny and prosecution. These aren’t other circumstances. These offenses are largely part of the nature of protests. Absent specifics reasons why any specific individual deserves prosecution, there really isn’t any justification for prosecuting some but not all, or the ones that had the misfortune of being in arm’s reach of a cop at the wrong moment.
But Schmidt’s rhetoric in support of his decision is troubling.
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.
Is it Schmidt’s place to decide what motivations to commit crimes are “righteous”? Does this not provide a pseudo-justification for pretty much anything the rioters and looters do, despite the fact that it’s based on ideological feelings of “anger and grief and fury” about a system that exists because government, that thing we do together, decided so?
Perhaps it is Schmidt’s place. He ran as a progressive prosecutor and he’s using his authority to make it happen. If he has the mandate to reject the entirety of governance done by everyone who came before him when he deems it insufficiently “responsive,” then what he’s doing is what he was elected to do.
But this isn’t balance, and his “righteous fury” rhetoric is that of a religious zealot, a Savonarola imploring the people of Florence to burn paintings, smash statues and loot the home of the Medici. The protesters of Portlandia may be filled with passion, even if their anger and outrage exist mostly in their fantasy grasp of “systemic racism” combined with the good times of being outside screaming at police who didn’t harm a hair on George Floyd’s head, but their feelings about the universe have no place in balancing their engagement in criminal conduct.
There is sound reason for Schmidt to dismiss cases not involving harm or damage, given that they arise from a mass protest. But balancing righteous fury isn’t one of them, and he was not elected to be Portland’s High Priest of Righteousness.