Portland police officers have made 830 arrests for interfering with a peace officer during protests since the end of May, in what state lawmakers say is often a misapplication of the law.

Now, they’re hoping to change that law.

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On Wednesday, the House Subcommittee on Equitable Policing heard from experts on a bill that would clarify the interfering with a peace officer (IPO) law and prevent law enforcement from charging someone who is engaging in passive resistance.

“The statute is being misused, resulting in arrests for non-criminal behavior,” said House Speaker Tina Kotek, who sponsored the bill. “These arrests stifle First Amendment rights and damage public trust in policing.”

She said the law disproportionately affects communities of color and people experiencing homelessness. Data support that assertion.

In cases that didn’t involve an IPO charge, only 14% of defendants were homeless. That number jumps to almost 20% in cases where a person is charged with interference, explained Ken Sanchagrin, executive director of the Oregon Criminal Justice Commission. Sanchagrin said the data don’t cover the entire state, and only include Oregonians who were confirmed to not have a permanent residence.

“There is a gap here, and we believe it is a pretty significant gap,” he said.

Sanchagrin also presented data highlighting a dramatic racial disparity in how the law is applied. Black Oregonians were arrested for interfering with a peace officer at a rate three-and-a-half times their share of the population. Every other demographic had an arrest rate that was smaller than their share of the population.

“The most significant racial disparities are for Black Oregonians,” Sanchagrin said. He called the disparity “pretty substantial” and said it’s “one that would motivate us to do a much deeper dive.”

Portland protesters stood at a police line following property damage on Wednesday, Nov. 4, 2020. The demonstration ensued as votes were counted nationwide, and the results of the presidential election remained undeclared.

Portland protesters stood at a police line following property damage on Wednesday, Nov. 4, 2020. The demonstration ensued as votes were counted nationwide, and the results of the presidential election remained undeclared.

Sergio Olmos / Sergio Olmos

Although IPO arrests skyrocketed in Multnomah County last year, statewide they decreased, reversing a decades-long upward trend. Between 2010 and 2019, arrests for officer interferences rose more than 140% in the state, while convictions for the charge increased 50%.

Paradoxically, arrests increased at an even faster rate after a 2017 state supreme court ruling narrowed the law’s applicability, Sanchagrin said.

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Oregon lawmakers are considering a change that would also limit so-called “charge stacking,” charging someone with IPO and resisting arrest, for example. Common during last summer’s racial justice protests, the new law would bar adding an IPO charge to cases that constitute resisting arrest.

In her testimony, Kotek cited examples of the law’s misuse beyond the 2020 protests. She pointed to a 2019 case in Corvallis where a college student was stopped for riding her bike outside the bike lane. The student was charged with interfering with a peace officer and resisting arrest after she refused to show the officer her ID. Kotek said the officer did not have the authority to order the student to show ID or make an IPO arrest.

“Simply frustrating an officer by failing to adhere to, or comply with their direction, is not criminal behavior,” the House speaker said.

The Portland Police Bureau’s heavy reliance on interfering with a peace officer and other low-level charges during last year’s mass demonstrations brought the bureau into a very public and bitter dispute with Multnomah County District Attorney Mike Schmidt.

Schmidt, who was elected by 76% of the voters in May 2020, took office months ahead of schedule after outgoing District Attorney Rod Underhill left office early, citing nationwide protests demanding changes to policing and criminal justice. One of Schmidt’s first acts as the county’s top prosecutor was to drop most of the more than 500 pending protest-related charges.

The decision caused an uproar among law enforcement. Outside agencies refused to provide mutual assistance, saying they didn’t want to put officers in harm’s way if Schmidt was going to drop charges. One Portland police officer allegedly told Schmidt, “I don’t trust anything you do or say because you’re antifa.” There is also evidence a Portland police officer got Schmidt’s personal information from a city computer and leaked it online, forcing Schmidt and his family to leave their home for a time.

Of the 830 arrests Portland police made since May, 580 have been rejected “in the interest of justice” and 51 are still pending review. Only 62 charges have been issued. The remaining arrests were rejected because they required further investigation from police, lacked evidence, or faced some other legal hurdle that precluded prosecution.

In an exchange highlighting the cultural divide between law enforcement and civil rights that has been playing out for months on Oregon streets, retired police officer Rep. Rick Lewis, R-Silverton, raised questions about what recourse officers would have if lawmakers change the IPO law.

“When you have a situation where you have an unlawful assembly and you have individuals that have been ordered to disperse and they refuse to do it...what other charges besides IPO could be levied?” he asked.

ACLU of Oregon interim legal director Kelly Simon said officers shouldn’t need any recourse in that situation.

“Unlawful assembly in and of itself is not a crime in Oregon,” she said. “To simply say that, ‘I’m directing you to stop and now you’re not and it’s a crime’ actually is infringing on the rights of freedom of expression and freedom of assembly. If that is the only thing somebody is doing wrong, that would be an unconstitutional application of this law.”

Committee chair Rep. Janelle Bynum, D-Portland, said it is important for the bill to balance the need to protect constitutionally protected free speech and passive resistance with the need for law enforcement to be able to clear an area where criminal activity has happened.

Committee vice-chair Rep. Ronald Noble, R-McMinnville, echoed that concern. Noble, himself a retired police chief, said he is “intrigued by the bill,” but said there is a danger it could create a situation where police are unable to take action when a small group of agitators is mixed in with an otherwise law-abiding group of protesters.

“We just have to be careful that in trying to get to where we want to protect people’s rights to assemble, we aren’t creating an unintended consequence of actually putting their lives at risk...because we as law enforcement are unable to provide that safety,” he said.

After the hearing, Noble signed on as a bill sponsor.

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