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Federal court allows Justice Department to prosecute Portland protester with controversial civil rig

A federal court will allow the U.S. Department of Justice to move forward with the case against a Portland protester charged with a controversial felony seldom used prior the nationwide racial justice protests that began last summer.

The charge at heart of the ruling is called “civil disorder,” an offense which the Justice Department has used extensively to crack down on crimes they say were committed during demonstrations and other unrest. While the vast majority of protesters who turned out in Portland for more than 100 consecutive nights were peaceful, a small minority did commit acts of violence and vandalism.

In Portland, federal prosecutors used the civil disorder charge at least 18 times as part of an effort to crack down on violence during last summer’s series of demonstrations. The charge has played a much larger role in efforts to hold accountable Jan. 6 rioters who stormed the U.S. Capitol. Prosecutors have used it in more than 150 cases tied to the attempted insurrection so far.

The 1968 law makes it a crime to interfere with police or firefighters doing their official duties during a protest or civil disorder that “affects commerce” or “the conduct or performance of any federally protected function.” A conviction on the charge carries up to five years in prison.

Senior U.S. District Court Judge Robert Jones’ ruling is the first to address the crime of civil disorder at it relates to Portland’s protests, and also falls in line with a ruling earlier this year from a federal judge in Alabama upholding the constitutionality of the previously little-used charge.

Jones’ ruling stems from an Aug. 26, 2020, protest outside the U.S. Immigration and Customs Enforcement facility in the Portland’s South Waterfront neighborhood.

In court documents, federal prosecutors said Kevin Phomma used bear spray on Portland police officers. Prosecutors also noted that, on the night of Phomma’s arrest, protesters filled the streets, “making passage by cars or delivery vehicles impossible” and triggering their use of civil disorder charges.

On Sept. 24, 2020, Phomma was charged with a single count of civil disorder.

“Here, Defendant allegedly attempted to spray police officers with bear spray while the officers were attempting to disperse protesters,” wrote Jones, a 94-year-old who was appointed to his seat by President George H.W. Bush. “This alleged conduct would fit within the type of conduct prohibited by [civil disorder]. The statute sufficiently gives this defendant notice of the conduct it prohibits.”

Defense attorneys contend the charges should be dismissed because the law violates the U.S. Constitution’s Commerce Clause, which grants Congress the power to regulate commerce between states, as well as the First and Fifth Amendments.

“This overbroad and vague statute can apply to so many circumstances, including innocent conduct, that it will chill the exercise of constitutional rights,” Oregon’s Federal Public Defender Lisa Hay told OPB in May.

The civil disorder statute was passed by Congress to crack down on the civil rights movement, Hay said. She said using it against racial justice protesters now is wrong.

“The statute was written during a time when senators were concerned with the civil rights movement, and they wanted to stop the civil rights movement by arresting its leaders,” Hay said earlier this year. “That was the specific goal of the statute.”

Federal prosecutors say the law is constitutional, because it was passed by Congress. They downplayed suggestions that there was racist intent in the creation of the civil disorder charge. Jones agreed.

“I find that the statute itself is content-neutral on its face,” Jones wrote. “Over the past fifty years, the statute has been applied to civil disorders across the political spectrum, including the recent riots on January 6, 2021 in Washington, D.C. ... Whatever the original intentions of the legislators who passed [civil disorder] in 1968, the statute on its face does not regulate speech based on content.”

The ruling amounts to a blow for both racial justice protesters as well as supporters of former President Donald Trump charged in the U.S. Capitol attack. Had Jones found the statute unconstitutional, both could have used it to their advantage with similar arguments in their respective cases.

Earlier this year, a racial justice protester in Mobile, Alabama, was convicted of the charge after a federal judge there also found the law constitutional and allowed the case to proceed. Federal prosecutors charged Tia Pugh with civil disorder after they said she broke the window of an occupied police cruiser that was being used to block the entrance to Interstate 10 during a racial justice protest following George Floyd’s murder by a police officer in Minneapolis.

Defense attorneys in Alabama challenged the law using the same arguments developed by lawyers in Oregon’s Federal Public Defender’s office.

Prior to last summer, the civil disorder charge had been used in roughly a dozen cases nationwide over the preceding three decades, including actions over the Dakota Access Pipeline and the Baltimore police killing of Freddie Gray.

Police use chemical irritants and crowd control munitions to disperse protesters during a demonstration in Portland, Ore., Saturday, Sept. 5, 2020. Now prosecutors are using a law passed during the civil rights era is being used against a Portlander who joined in last year's protests.
Noah Berger /
Police use chemical irritants and crowd control munitions to disperse protesters during a demonstration in Portland, Ore., Saturday, Sept. 5, 2020. Now prosecutors are using a law passed during the civil rights era is being used against a Portlander who joined in last year's protests.

Copyright 2021 Oregon Public Broadcasting