PORTLAND, Ore. (CN) — Portland’s social justice protests from 2020 and 2021 made their way back to the Ninth Circuit on Wednesday where a judge panel heard arguments on whether the city and its county are violating the constitutional rights of disabled protesters.
“First Amendment protected speech is for everybody. Public safety is for everybody, and everybody includes people with disabilities,” plaintiff attorney Corrigan Lewis of the Disability Rights Center said at the hearing.
The case dates back to November 2020, when four disabled Portland residents sued the city of Portland, Multnomah County, Portland Mayor Ted Wheeler, former acting secretary of the U.S. Department of Homeland Security Chad Wolf and several other law enforcement officials.
In their initial complaint the plaintiffs said state and federal law enforcement failed to establish policies that provide disabled protesters the same opportunity as non-disabled protesters to safely move away from protests where officers use crowd dispersal tactics like tear gas and flash bang grenades.
The plaintiffs say they've been deterred from attending protests in Portland after sustaining physical and mental injuries from their previous participation.
In one instance, plaintiff Philip Wolfe, who is deaf, claimed that officers subjected him to projectiles and tear gas before one drew a gun on him. In another, plaintiff Katie Durden, who is legally blind, claims officers shoved them to the ground alongside their visual guide, plaintiff Jackson Tudela, causing the pair to separate and Durden to run face-first into a metal pole.
The defendants wasted no time in requesting a dismissal, which U.S. District Judge Michael H. Simon granted in October 2021 while also denying the plaintiffs’ preliminary injunction as moot. The same fate befell the plaintiffs’ amended complaint in June 2022, where Simon reiterated that claims for equitable relief are moot and claims for compensatory damages fail because the plaintiffs did not sufficiently allege deliberate indifference under the Americans with Disabilities Act and the Rehabilitation Act.
Simon’s declaration of mootness rests on the observation that the same protests that saw law enforcement violently dispersing crowds as they protested police violence had dwindled throughout 2021. Of those that warranted police response, Simon noted, only some instances may have elicited injury-producing police conduct, and none happened in the summer of 2021.
The judge also found that the plaintiffs’ amended claims under the “deterrent effect doctrine” were insufficient because they never encountered a physical barrier that prevented them from protesting, and that the chance of them experiencing the same situation is not imminent but speculative, given that protests are sporadic and minimally declared unlawful.
On appeal, the plaintiffs’ attorney argued that the district court erred in dismissing the case for lack of subject matter jurisdiction because Oregon law does confer the same rights as the Americans with Disabilities Act.
Lewis noted that Oregon House Bill 4008, which spells out when officers can use tear gas, does not define the terms “disability” or “reasonable accommodation,” the latter of which has a specific legal context and definition under federal law.
She also argued that Oregon law allows officers to have discretion while providing reasonable accommodations where federal law does not, and that the district court’s requirement of a physical barrier “undermines 35 years of jurisprudence under the ADA.”
Circuit Judge Mark K. Bennett cast doubt over Lewis’ initial arguments, questioning the last occasion where the plaintiffs were denied accommodation.
“So, it doesn't matter if the last one was 40 years ago, the claim still wouldn't be moot, in your view,” the Trump appointee said after learning the last protest Wolfe tried to attend was two years ago.
Circuit Judge Lawrence VanDyke reasoned with Lewis’ argument more, yet the Biden appointee eventually concluded that the plaintiffs’ definition of a barrier is subjective because feeling uncomfortable is not the same as having a physical barrier.
On rebuttal, Lewis would later inform Circuit Judge Holly A. Thomas, a Biden appointee, that Wolfe had notified Portland’s mayor that he required an accommodation.
“Philip Wolf also informed PPB officers that Philip required an accommodation, and Philip was told that people with disabilities do not belong at protests,” Lewis said.
Attorneys for Multnomah County and Portland were brief in response, each with different angles.
For Portland’s senior deputy city attorney Denis Vannier, Judge Simon did not err because there is no evidence that the type of protests the plaintiffs cite are ongoing and imminent.
“Not only was there not evidence of protests, but there was no evidence that even if those kinds of protests would reoccur, the type of injury alleged by plaintiffs would reoccur because of intervening changes in state law,” Vannier said.
Attorney Chris Gilmore took a different approach on the county's behalf, arguing there is no evidence of joint liability because police services are provided by cities within a county.
“And so, with regard to protests in the city of Portland, the responsibility, the authority and the obligation rests with the city of Portland,” Gilmore said.
The single factual allegation of the case, he noted, is that in September 2020, a county sheriff assisted Portland officers via executive order from former Governor Kate Brown in forcefully arresting Tudela.
“What is entirely absent from the complaint is allegations of repeated harm, allegations of imminent harm, all of the factual issues that would otherwise be a predicate for requesting the equitable relief, both declaratory injunctive in this case,” Gilmore added.
Lewis responded by arguing that the plaintiffs have alleged that the Portland Police Bureau has a discriminatory policy and that the bureau and county worked together in implementing such policy.
“Therefore, the county is liable in the same way under the ADA,” Lewis said.
The judges adjourned the hearing without indicating how they will rule.
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