In the wake of the killing of a protester on Saturday, Aug. 29, Portland Mayor Ted Wheeler has asked for ideas and help to quell the violence around the protests that have gone on in Portland for months — placing the city under a national spotlight and making it a magnet for extremists.
Mary McCord has some ideas. She's the former federal prosecutor who sued to stop the violence in Charlottesville, Virginia, after violence at the now-infamous white supremacist "Unite the Right" protest of 2017.
As the legal director for the Institute for Constitutional Advocacy and Protection at Georgetown University, she spends her days helping cities and activists to combat efforts by right-wing militias to intimidate and deter peaceful Black Lives Matter protests in the wake of the killing of George Floyd. She's also publicly opposed President Donald Trump's effort to label "antifa" — short for "anti-fascist" and typically referring to some protesters on the left who at times clash with police — a domestic terrorist group.
In late July, her organization issued a toolkit of legal tips and recommendations for cities and activists to prevent violence at protests and rallies, as well as legal support for cities to counter political extremism.
The question of how to prevent violence at protests took on new urgency following the fatal shooting in Portland on Saturday night — a turn of events that local leaders and observers have said was not a surprise given how the protests have evolved.
McCord has been keeping an eye on Portland. And in an interview before Aaron "Jay" Danielson's death on Saturday, she said she saw cause for concern in media coverage from the dueling protests on the weekend of Aug. 22, in which "the police seemed to just stand back and let the warring factions engage in open street battles."
So is there something else Portland should be doing to lower the potential for violence at protests?
Protest permit program could resume
McCord believes requiring permits for protests that block streets or occupy parks helps cities steer free-speech demonstrations to be more peaceful. As long as they are reasonable and neutral toward the content of the speech involved, the constitutionality of such permit programs regulating the "time, place and manner" of protests is well-recognized by groups like the American Civil Liberties Union.
But she said the situation has been challenging for cities like Portland, where officials share protesters' outrage over the George Floyd killing and the need to undertake reforms to combat institutional racism. And given the spontaneity of the demonstrations, many cities have understandably stopped requiring a permit for protests to protect peaceful demonstrations and deter violence.
In some cases, requiring no permits has worked fine, but in others the failure to require permits "has been abused by demonstrators and counter-demonstrators alike," McCord said. "When you don't enforce those types of regulations, that creates a permissive environment for the elements that want to actually use violence as opposed to engage in their constitutionally protected rights. And I think that's what we saw in Portland this week."
And that, she said, is a problem. Street brawling at protests just serves to fuel more violence and further undermine democracy, not just in Portland, but elsewhere, according to McCord, who said it "gives fodder to those who want to paint either side, the side with which they disagree, as being the violent instigators."
She's seen several instances in which far-right extremists have used video footage from protests to paint antifa as a bogeyman, claiming violent anarchists were about to descend on communities to destroy property. She suspects extremists on the left use footage for similar purposes.
"It's not protecting anyone's rights or anyone's public safety to just devolve to where you have warring factions battling it out, and either no law enforcement involvement or law enforcement in between them in riot gear," McCord said. "That scene is not protective of the peaceful assertion of rights to free speech and assembly."
In Portland, the requirement for a protest permit has not really been enforced in years. McCord said she understands the political will is not there in some places. The problem is that when a city's leadership suddenly wants to enforce those rules — say, against a right-wing militia with guns — it can't. That's because it's not allowed to play favorites — the rule needs to be applied in a neutral fashion.
In Charlottesville — where Nikuyah Walker in 2018 became the city's first Black female mayor after challenging the city's history of racism and the previous administration's decision to allow white supremacists a protest permit for the "Unite the Right" event — city officials have cited disruptions and strain on city services to reinstitute its permit program, handing out fines to those who violate it.
Asked to comment on McCord's thoughts on permits, Tim Becker, Wheeler's director of communications, said in an email, "we continue to review these options."
In theory, Portland's special events permit program still requires protests that block streets or parks to get a permit. But it hasn't issued any permits all year, in part due to the pandemic's prohibition on large gatherings.
According to Portland Bureau of Transportation spokesman Dylan Rivera, "The permitting process helps to protect public safety and convenience and minimizes disruption of public services. Failure to obtain a permit in advance could result in the special event being discontinued by Portland Police."
Cities need gun control leeway
McCord said another threat she's seen increasing is right-wing militias showing up with firearms at rallies. Some cities could pass ordinances or issue time, place and manner restrictions to prohibit that, she said, but other cities are constrained by state laws preempting local gun control rules — which McCord considers "unconscionable."
In Oregon, state law does not allow cities or counties to regulate possession of loaded firearms in public when the person has a license for concealed carry.
McCord said that is a problem.
"That exception makes it extraordinarily difficult for the city to protect public safety," she said, "not only because many of the members of militias and other groups like Patriot Prayer likely have such permits, but also because inquiring about concealed-carry permits in the midst of open provocations between ideologically opposed groups of armed individuals poses a heightened risk of danger."
Becker, Wheeler's spokesman, said gun violence "is not endemic to Portland. It's happening across the entire country. Many things make it difficult to deter gun violence. The city would like to do more to address firearm possession — particularly concealed firearms — but we are also limited by state statute."
City could engage on reform
McCord's advice on how Portland can stop the violence?
"It is such a unique community because of the history of protests there," she said, noting that she spoke with civil rights activists and city officials in 2018, when Wheeler consulted her about a proposed protest ordinance that failed to secure a council majority over concerns about the Portland police.
Since the Floyd killing, city leaders have cut the Portland police budget, eliminated the gun violence reduction team and other units whose work has sparked criticism. They've also put a beefed-up police review board on the November ballot. And, they've lent their support to a slate of legislative reforms called Reimagine Oregon.
So what else can they do?
McCord freely admits she's not familiar with all the details of how the protests have played out in Portland or what else has gone on here. She said that in general, she's heartened to see that the city seems to be making efforts to address policing and racial injustice.
But, she said, "there's got to be other opportunities besides these street brawls for dialogue."
She said local leaders in cities could be engaging the business community and others to gather input and publicly forge reforms, because merely changing government is not enough.
The entire country "has been built essentially on a bedrock that favored white male landowners. And so to change that is going to take more than changing the policing requirements in a city. It takes business leaders and government leaders and activists and community members to come together and talk about what are we really going to do to address structural racism in our community."
One of the obstacles for such community reform efforts, McCord said, is a pandemic that makes it hard to hold town halls and spark dialogue and community input. "It just makes the options so much more limited and difficult."
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