Short Take: Portland’s Prosecution Problem

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.

19 thoughts on “Short Take: Portland’s Prosecution Problem

  1. Jay

    What would you do? Kill them all?

    Tell them they’re wrong? That racism is all made up and they should go home?

    Shut up Greenfield. You are so full of irrational anger. The world is pretty messed up. Stop spending all your time obsessing over something you’re too blind and deaf to understand.

      1. Corey

        The fact that people respond to a lawyer asking rational and intellectually honest questions about how law is being implemented by accusing said lawyer of irrational anger and obsession gets pretty close to the issue of how messed up the world is ina way I suspect Jay did not intend.

        But what do I know, I’m not a lawyer, just a guest here.

  2. shg

    I’ve been told by an anon Portland PD that I’m missing the “context” here, that the Portland Police Department facilitates alt-right groups, is particularly antagonistic to its black citizens and that’s why the “fury” is righteous and understandable.

    Apparently, the perception of Portland as being the most progressive city in America, with Dem mayor and governor, and renowed for its Portland “weird” perspective, is all wrong, and it’s a hotbed of the alt-right.

    To be fair, I thought you should know.

    1. DaveL

      I don’t suppose this anonymous source offered to make the connection between the righteousness of the anger, and how it could justify wrongful acts against others only tenuously (if at all) connected to its causes?

  3. B. McLeod

    They are protesting George Floyd’s death in Portlandia because the light is better there. Probably due to all the fires.

  4. Curtis

    Trump played this wonderfully from a political point of view. He sent troops in to restore order and was lambasted and told to leave. The troops leave and the rioting gets worse. If he can get the same thing going in Chicago, his odds of winning the midwest skyrocket. The people who actually vote do not like chaos.

    1. SHG Post author

      I heard from a friend in Chi recently that everyone was all pro-BLM until the riots and looting. They lost them. Whether that means they’ll vote Trump is another matter, but they’re managing to alienate a lot of erstwhile supporters.

  5. KP

    I assume Schmidt has found it easy to be ‘woke’ so long as they’re not rioting in his street. Otherwise its rubber bullets and then live rounds.

    Like all bureaucrats, he takes after the Chicago Mayor. All for the poor and the down-trodden, so long as they keep far away.

    1. SHG Post author

      I make no assumptions about his integrity. Until shown otherwise, I will presume him to be entirely sincere.

  6. Stephen L. King

    Does the DA not have a duty under state and federal law to prosecute serious crime? If he is releasing and not prosecuting Antifa people charged of serious crimes, is that not grounds for action against him?

    1. Rengit

      For better or worse, in a federal system the remedy for official malfeasance at the state and local levels is *not* for the feds to step in, remove the malfeasor from office, and order new elections. This never happened when George Wallace, Lester Maddox, Harry Byrd et al. were openly defying court orders to integrate schools, allow black people to vote, and otherwise denying their civil and constitutional rights. The DA could be sued or prosecuted to the extent he violates the Constitution or federal law, but any potential mechanism for his removal from office, like a recall, would be done according to state and Oregon and Multnomah County law.

      The people of the Portland area are the ones who voted for him, so maybe they should actually look into who they’re voting for rather than just pulling the lever for the big name big money Democrat. This guy sounds like he is not going to leave office without a fight, what with all that righteous anger.

  7. David Meyer-Lindenberg

    Short Take: Portland’s Prosecution Problem

    Protests present particular problems to police.

    I’m pleased to see you’ve been listening to the Ring cycle. It’s about time you became a fan.

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