Multnomah County District Attorney Mike Schmidt, leaning on a group of community representatives he called his transition team, announced Tuesday that his office will drop most of the charges filed against protesters.
His prosecutors won’t pursue demonstrators accused of interfering with police, disorderly conduct, criminal trespass, escape or harassment if the allegations don’t involve “deliberate’’ property damage, theft or force against another person or threats of force, Schmidt said.
The office also won’t prosecute people on a riot accusation alone. It will proceed with a riot case only if it includes an accompanying allegation of specific property damage or use of force, he said.
“What we’re doing is recognizing that the right to speak and have your voice heard is extremely important,” Schmidt said. “If you’re out there committing violence, you’re damaging property, those cases are going to be prosecuted. If you’re a person who is out there demonstrating and you get caught up in the melee, those are the kinds of cases that we’re talking about.”
His statements came during his first news conference at the Multnomah County Courthouse since he took over Aug. 1 as the county’s top prosecutor, running on a platform of progressive reform to reshape the criminal justice system.
Schmidt, surrounded by four of the people on his transition team, said the changes reflect his recognition that people taking to the streets are deeply frustrated by over policing and disparate treatment of people of color and that his office doesn’t want to further perpetuate the deep-seated problems.
He said many of the people arrested over 75 days of consecutive daily demonstrations have little to no criminal histories and prosecuting them would cause unnecessary harm.
“This policy acknowledges that centuries of disparate treatment of Black and brown people have left people with deep wounds,’’ he said. “This policy recognizes in order to advance public safety, we must not only prevent crime but we must also promote economic and housing stability, educational opportunities, strong family and community relationships, mental and physical health and build trust with everybody in our community.”
New DA for Multnomah County (which includes Portland), @DAMikeSchmidt, announced at a presser today his office will not prosecute felony riot, escape, harassment, interfering w/an officer, criminal trespass & more. Charges of assault of officer will be subject to "high scrutiny."
— Andy Ngô (@MrAndyNgo) August 12, 2020
About 550 cases have been referred to the District Attorney’s Office for prosecution since May 29, days after people began to rally against police violence and systemic racism in the wake of the May 25 death of George Floyd, a Black man who died after a white Minneapolis police officer knelt on his neck for more than eight minutes.
Of those cases, about 140 have been for felony crimes, including assault, arson, riot and theft. Of the felonies, prosecutors are pursuing charges in about 45 of the cases, with the rest either dropped or under review as prosecutors seek more information from police , said Nathan Vasquez, a senior deputy district attorney.
“I want to make it very clear though, this is not a free pass,’’ Schmidt said. “While I will do what I can to provide protesters with a forum to make their voices heard, I will not tolerate deliberate acts of violence against police or anyone else.”
Schmidt said he recognizes police are in a tough situation and hopes to develop over time a “collaborative” relationship with police, though he acknowledged that the policy changes in his office don’t prevent the Police Bureau from managing or responding to mass demonstrations in the way the bureau sees fit.
Yet Schmidt said he hopes the changes will spur the Police Bureau to focus on building cases against “people actually destroying property, lighting fire or hurting people.”
Portland Police Chief Chuck Lovell said Schmidt’s policy changes don’t alter state law, and the Police Bureau remains committed to public safety. He reiterated that the police would prefer not to make any arrests, but some people are using the nightly gatherings “as an opportunity to commit crimes” and his officers’ arrests are based on probable cause.
“The arrests we make often come after hours of damage to private property, disruption of public transit and traffic on public streets, thefts from small businesses, arson, burglary, attacks on members of the community, and attacks against police officers,” Lovell said in his statement.
The majority of those arrested have been white, according to the District Attorney’s Office.
Schmidt signaled that future reforms in the office will be developed in a similar fashion as these policy changes were adopted.
He said he met with community leaders twice, to seek their general input and then to hear their ideas on his proposal. He said he also sought input from his prosecutors in the Strategic Prosecution and Services Unit before sharing the draft proposal with the Lovell, Multnomah County Sheriff Mike Reese and Portland Mayor Ted Wheeler on Friday.
Schmidt’s move came a day after he dropped charges against Portland activist Demetria Hester “in the interest of justice.”
Hester, a regular presence at protests who has been at the forefront of Portland demonstrations as a leader of the Moms United for Black Lives group, was one of 16 people arrested outside the Portland Police Association building Sunday night after authorities declared a riot. She had spent a night in jail on allegations of second-degree disorderly conduct and interfering with a police officer.
On Tuesday, Schmidt was joined for his announcement by Ricardo Lujan-Valerio of the Latino Network, Kayse Jama of Unite Oregon, retired Portland Assistant Police Chief Kevin Modica, and Lakayana Drury, co-chair of the Portland Committee on Community-Engaged Policing. They’re each part of the district attorney’s transition team. They all called Schmidt’s policy change a positive step, but said they won’t be satisfied until transformational reforms are made to the criminal justice system.
Drury, a former high school teacher who founded the nonprofit Word is Bond that works to foster positive relationships between young men of color and police, said city officials must consistently ask” “How do we uphold Black Live Matters in this city?”
“So the question is, ‘Will we choose to use our resources — our very valuable and limited resources — to prosecute our neighbors who are exercising their First Amendment rights to support Black people or will we instead use those limited resources to uplift and battle against white supremacy at all levels in our City?” Drury said.
Drury thanked Schmidt for taking “this important stand” and recognizing a “need for a new direction.”
Jama said he’s not interested in the policy change as much as “the outcome of this policy” change, arguing that the entire criminal justice system needs to be reimagined.
Mayor Ted Wheeler said he understands Schmidt’s decision and his “need to prioritize resources.” He said both Portland police and Oregon State Police will continue to operate “under strict operational guidance” from his and Gov. Kate Brown’s office, protecting the rights of peaceful protesters while holding people accountable for any criminal activity that occurs.”
Officer Daryl Turner, president of the Portland Police Association , last week accused Schmidt of failing at his job, just seven days into it and before the policy changes had been made public.
Turner urged Schmidt to “hold the rioters accountable” after a fire was set the night before in a trash can outside East Precinct and wooden boards were placed to block the entrance.
“To District Attorney Schmidt … What about your ethical and moral duties to uphold the law and keep all our citizens safe? The people committing arson and assault are not peaceful protestors; they are criminals,” Turner said in a statement. “Step up and do your job; hold the rioters accountable. If there is no consequence for crimes from the District Attorney’s office, there is no reason for criminals to stop the chaos.”
Retired Clatsop County District Attorney Josh Marquis Tuesday called Schmidt’s press conference “amateur political theater.”
“For the first time I can remember in 40 years in Oregon, you have a prosecutor…who is free making prosecution decisions essentially based on the political views of the demonstrators and his own,” Marquis said.
He pointed to a 27-year-old man who was arrested early on May 30 on allegations of interfering with an officer, resisting arrest and second-degree burglary stemming from actions during a demonstration, who had his charges dropped on Aug. 3, only to be rearrested at another protest about 1:33 a.m. on Aug. 4, accused of assaulting an officer. The district attorney’s office also dismissed that charge later that day, court records show.
Three arson prosecutions are being pursued thus far by the District Attorney’s Office stemming from the protests, Vasquez said. “We’d like to prosecute as many as those arson cases as we can,” he said. “The issue is being able to identify the people involved.”
A problem police and prosecutors are facing is the lack of cooperation from witnesses at the protests, Vasquez said.
The office is also monitoring an ongoing investigation by police into allegations that a man set off a pipe bomb at Laurelhurst Park that was directed at protesters about 2:30 a.m. on Saturday.
Prosecutors also will carefully scrutinize allegations of resisting arrest or assaulting a public safety officer to determine their context, Schmidt said. For instance, he said, prosecutors will consider if the accusations sprung from “the chaos of a protesting environment,” where some people have been “gassed repeatedly, struck with impact munitions” or are acting out because they believe police have mishandled fellow protesters.
Those likely will be dismissed, he said.
And protesters accused of crimes that caused only financial harm will be offered conditional dismissal after paying restitution or making other amends, he said.
City Commissioner Jo Ann Hardesty applauded Schmidt’s actions, saying the changes represent a “move away from status quo – a failing system never intended to provide justice for all – and towards a more just one. I am excited to work with the DA to reimagine what community safety looks like for everyone.”
The district attorney’s changes won’t impact federal charges pending against demonstrators, facing allegations ranging from assault on a federal officer to arson stemming from a fire set inside the Justice Center late on May 29.
Schmidt is a former Multnomah County deputy district attorney and most recently served as executive director of the state’s Criminal Justice Commission, the state’s clearinghouse for criminal justice data. He beat Ethan Knight, an assistant U.S. attorney, for the job during the May election. Schmidt garnered more than 76 percent of the vote.
When predecessor Rod Underhill announced he was resigning at the end of July, five months earlier than planned, Gov. Kate Brown appointed Schmidt to take charge of the office.
He’s identified his two top priorities as addressing racial disparity in Oregon’s criminal justice system and police accountability. On Tuesday, he also said he intends to address inequities created by cash bail.
— Maxine Bernstein
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