PORTLAND, Ore. (CN) — Attorneys for the leader of far-right group Patriot Prayer argued Friday that the district attorney’s policy of dismissing most charges against the hundreds of protesters arrested during this summer’s racial justice protests is discriminatory, because it doesn’t apply to their charges in a 2019 incident that left a woman with a fractured spine.
Joey Gibson, the Vancouver, Washington leader of Patriot Prayer, has been bringing his followers to Portland since 2016 for “free speech” protests where he and his crew would often square off against antifascists. In May 2019, one such protest had ended and leftist protesters had retreated to a southeast Portland cider bar.
Videos show Gibson’s followers massing up near the bar, discussing their weapons and exhorting others over the phone to join in what will be “a huge fight,” according to court documents. The group waited for Gibson to arrive before heading to the now-defunct Cider Riot, where Multnomah County prosecutors say they shoved and taunted antifascist protesters “in an effort to provoke a fight.”
Gibson repeatedly shouts “Do something!” to the people at Cider Riot. Later he and his followers circle around two men in a fistfight — one antifascist and one from Patriot Prayer. After that, Gibson allegedly shoved a woman shortly before another member of Patriot Prayer swung a baton at a 31-year-old woman, knocking her unconscious.
Portland police issued an arrest warrant for Gibson days before a planned Proud Boys rally that drew far-right extremists from across the country, including Proud Boys leaders Enrique Tarrio and Joe Biggs. Gibson turned himself in and was released in time to attend the Aug. 17 rally.
He told Courthouse News that day that a pending felony charge for rioting wasn’t going to keep him away.
“I had to be here to show them I’m not going to stand down just because they gave me a false charge,” Gibson said at the rally.
Gibson fought unsuccessfully to have his case transferred, arguing that he couldn’t get a fair trial in Portland. Then in August, a new district attorney stepped in and announced a new policy in response to the more than 550 people who had been arrested so far in the nightly racial justice protests that followed the police killing of George Floyd in Minneapolis.
Eleven days into his term as elected district attorney of Multnomah County, Mike Schmidt announced that his office would decline to prosecute cases related to the protests that do not involve violence, theft, or deliberate property damage, including charges of rioting not accompanied by those other crimes.
Schmidt said the policy was an attempt to “create a forum” for Portlanders to express their “collective grief, anger and frustration” about Floyd’s death, and about “the countless other abuses people of color have endured in our country throughout history.
“As prosecutors, we acknowledge the depth of emotion that motivates these demonstrations and support those who are civically engaged through peaceful protesting,” Schmidt said at a press conference announcing the policy. “We recognize that we will undermine public safety, not promote it, if we leverage the force of our criminal justice system against peaceful protesters who are demanding to be heard.”
Gibson’s attorney, former Multnomah County GOP Chairman James Buchal, then argued that Gibson’s single charge of felony riot should be dismissed under Schmidt’s new policy. But Schmidt’s office said the policy applied only to charges stemming from the summer’s racial justice protests and wasn’t intended to be retroactive.
So Gibson and Russell Schultz, a far-right protester who is also facing charges from the May 2019 incident outside Cider Riot, sued Schmidt and the Multnomah County District Attorney’s Office in federal court, claiming Schmidt was running a sham prosecution intended to silence conservative protesters.
“While defendants willingly allow a group known as Antifa to engage in mass criminal conduct to the detriment of the city of Portland, and intimidate the public and public officials, defendants continue to prosecute plaintiffs for violation of the riot statute,” the lawsuit filed in September states, “when defendants have enacted a formal policy of presumptive dismissal of riot charges arising out of protest activity but have selectively refused to apply that formal written policy to Plaintiff’s criminal charges.”
Gibson and Schultz asked the court to issue a temporary restraining order to halt his trial in Multnomah County. Currently slated for March, the trial will likely be delayed due to the Covid-19 pandemic. The court is holding very few trials, and is prioritizing those involving people in police custody.
At a hearing on Friday, Jill Schneider, an attorney with the Oregon Department of Justice, told U.S. District Judge Karin Immergut that Gibson and Schultz’s lawsuit should be tossed out because they are essentially asking the court to decide a case that is currently headed to trial in Multnomah County.
“They’re trying to substitute you for the determination of a grand jury,” Schneider told Immergut. “If the plaintiffs want to argue that there is not enough evidence for them to be convicted, they are freely allowed to submit the same evidence to a Multnomah County jury as they present to you.”
And the argument that Schmidt’s policy was intended to target protesters he presumably disagreed with ignored the reality at the time Schmidt took office, Schneider said.
“To draw the conclusion that because they didn’t charge the people arrested in the summer of 2020 on riot charges means they didn’t like the rightwing ignores what was going on,” Schneider said. “It ignores the number of arrests that were made, the number of charges pending and the need to make a decision about what to do.”
She added: “The riot statute is not a statute that is brand new; it was not set up to target or implicate the plaintiffs in this case. It has been around for 30 years and it has been established as constitutional.”
Derek Angus Lee, attorney for Gibson and Schultz, told Immergut his clients are caught in a case of politically motivated prosecution.
“They prosecuted Mr. Gibson for standing on a public street,” Lee said. “Mr. Gibson gave a warning to the state of Oregon as to what antifa was all about and nobody listened. Instead, they prosecuted him for it without evidence.”
Lee said Schmidt hasn't denied that the case was brought "as retaliation for a political viewpoint."
“Isn't that your burden to show?” Immergut asked.
“It is,” Lee conceded.
Gibson attorney James Buchal told Immergut that Gibson is “the target of a 1984 week of hate type thing,” apparently referencing George Orwell’s classic dystopian novel.
Buchal said the grand jury procedure prosecutors used in Gibson's case was unfair and “suspicious.”
“That’s not true,” Immergut replied.
“Well, I’m not a criminal lawyer,” Buchal said.
“I can tell you what you described is not suspicious,” Immergut said. “That does not carry any weight with me.”
Immergut said she would issue a ruling in the coming weeks.
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