Portland protests form District Lawyer Mike Schmidt’s younger tenure: Now what?

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Eleven days on the job as Multnomah County district attorney, Mike Schmidt announced how he’d handle protest-related arrests, a policy that would serve as a flashpoint for a weary city wrestling with racial, political and policing upheaval.

Within weeks, former President Donald Trump attacked Schmidt by name at a Pittsburgh-area rally, referring to him as a member of “the radical left” and accusing him of handling “rioters” with kid gloves. The crowd booed the newly elected Portland prosecutor.

In the days that followed, he’d go on to have his home address made public — allegedly by a Portland police officer in an incident Schmidt says is still under investigation. He’s received death threats. His wife has been harassed.

Small groups of right-wing protesters have shown up at the couple’s home where they live with their two young children to blast Schmidt for, as he put it, “not prosecuting anyone.”

A wide range of public officials and community leaders joined the chorus of those questioning whether he had given lease to a militant faction of demonstrators accused of using protests to foment civil unrest.

Schmidt, 39, stepped into the searing spotlight of the law-and-order office as the city convulsed from nightly demonstrations punctuated by violence, and his role in responding to the turmoil has both defined and overshadowed his young administration.

Deschutes County District Attorney John Hummel, a fellow reform-minded prosecutor, summed up Schmidt’s tenure this way: “Baptism by fire.”

To date, Schmidt’s office has rejected almost three-quarters of 1,057 protest-related arrests referred by police.

Most involved low-level offenses. The most common: interfering with a peace officer, disorderly conduct and criminal trespassing.

Schmidt’s announcement in August to generally drop those kinds of cases complicated an already volatile dynamic on the ground, said U.S. Attorney Billy Williams, a critic of the city’s response to the violence in summer and into fall.

“Did what was announced by Mike, did that make our jobs harder?” Williams said. “Yeah. But we found a way to work through them and work with him.”

He said “hardcore anarchists, extremists on the left and extremists on the right” exploited Schmidt’s position and committed crimes.

“There is no question about that,” Williams said.

But Schmidt has earned praise from progressive leaders and criminal justice change agents who said scrutiny of protest-related arrests is long overdue.

They hailed Schmidt, part of a generation of reformers elected as district attorneys across the nation, as a welcome check on what they see as heavy-handed police tactics intended to silence free speech.

“I think Mike Schmidt has done better to meet the moment than any other prosecutor in the state,” including Williams and Oregon Attorney General Ellen Rosenblum, said Nkenge Harmon Johnson, president and CEO of the Urban League of Portland.

“He’s the top of the heap,” she said.

Schmidt attributes the controversy to his early missteps, saying his “messaging” about how he wanted to deal with protest cases should have emphasized that he won’t tolerate property damage or crimes against other people — often police officers.

“Stepping into office five months ahead of when I thought I would, I didn’t have the runway that I think I needed to pull off that complex of a messaging campaign, and especially, you know, I wasn’t ready to get wrapped up in the national politics,” Schmidt told The Oregonian/OregonLive.

Still, he said his decision to generally not pursue what he calls “public order crimes” is the right one and largely acknowledged the reality of how these cases tend to be resolved.

Portland protesters gathered at Kenton Park, Sept. 28, 2020, where Portland police showed up, left, before the group marched toward the Portland Police Association building. A protest at ICE headquarters in Portland, Oct. 6, 2020. U.S. Attorney Billy Williams, a critic of the city’s response to the violence in summer and into fall, said “hardcore anarchists, extremists on the left and extremists on the right” exploited Schmidt’s position on protest arrests and committed crimes. “There is no question about that,” he said. Beth Nakamura | Oregonian/OregonLive

In a protest context, the crime of interfering with an officer typically occurs when a person refuses to leave the area after police have declared an unlawful assembly and given multiple orders to disperse. Disorderly conduct arrests typically involve people blocking the street or fighting and criminal trespass usually involves people staying in a city park after it’s closed.

Schmidt’s office also may decline to prosecute harassment allegations if they don’t involve “deliberate” property damage, theft or force against another person or threats of force. Likewise, they’ll proceed with riot charges only if the case includes allegations of property damage or use of force, which could include actions like throwing rocks or bottles or pointing lasers.

Prosecuting those cases, Schmidt said, won’t do much to address persistent protest-related violence. It only soaks up limited resources for accusations that would likely end in dismissals, he said.

“Let’s say I announced right now: I’ll start prosecuting non-violent, non-destruction-of-property crimes,” he said. “Those are disorderly conduct and interfering with a peace officer. That’s really what we are talking about. That’s the vast majority of the cases.

“I don’t believe that tomorrow we wouldn’t see protests, that people would stop, that they would go home,” he said.

Schmidt and those who back him say no one who paid attention to his campaign last year should be surprised by his approach.

In a race that pitted him against federal prosecutor Ethan Knight, Schmidt talked about how he would take aim at racial disparities in the justice system, prioritize addiction and mental health treatment over prisons, ensure that officers who engage in brutality or misconduct are held accountable and review claims of wrongful convictions.

Raised in upstate New York, Schmidt graduated from Vassar College and taught high school in New Orleans for two years before coming to Portland to attend Lewis & Clark Law School.

He worked as a prosecutor in the Multnomah County District Attorney’s Office for five years, then moved to the Oregon Criminal Justice Commission, a state agency he went on to lead. The commission serves as a clearinghouse for criminal justice statistics and analysis.

He was elected district attorney with 77% of the vote and now oversees the largest district attorney’s office in the state with 76 lawyers and a budget of $38.9 million.

“He is exactly who we elected and why we elected him,” said Portland City Commissioner Jo Ann Hardesty, a longtime advocate for police reform and accountability. “He is actually doing the work he promised he would do when he was running for DA.”

Schmidt, who receives a salary of $197,941, stepped into his new role amid the pandemic and two months into protests spurred by the killing of George Floyd by Minneapolis police.

Law enforcement munition canisters pair with images of protests. Thousands of protesters gathered in downtown Portland (top right) July 25, 2020, for the 59th consecutive night of protests, where fencing around the Mark O. Hatfield U.S. Courthouse continued to be a flashpoint. Large rocks (bottom left) were thrown at the Multnomah Building, Aug. 18, 2020. Some in the crowd set fires in dumpsters and outside the building. Some demonstrators broke windows, and a fire was eventually set inside the building using lighter fluid and a large burning item thrown inside, according to police. Police said the fire was significant enough to set off fire alarms and a sprinkler system. At least two people were arrested. Beth Nakamura and Dave Killen | Oregonian/OregonLive

The demonstrations began with a widespread outrage at police brutality and systemic racism drawing thousands to downtown and across Portland. But water bottles, fires, rocks, fireworks, smashed windows and graffiti by some protesters drew a barrage of tear gas, pepper balls, smoke grenades and foam bullets from police, injuring dozens of people.

By mid-summer, Trump’s push to send federal officers to the city to guard the Mark O. Hatfield United States Courthouse and other federal buildings only deepened the crisis.

The move reinvigorated the demonstrations. At one particularly low point, a deputy U.S. marshal fired on an unarmed protester, critically wounding the 26-year-old man and leaving him with a brain injury.

Public officials and police struggled and stumbled in their response.

The city faces nearly two dozen state and federal lawsuits alleging police abused their power by harassing or assaulting protesters. All allege excessive force by police, inhumane use of tear gas, unlawful dispersal orders or other violations of civil rights.

The police chief stepped down. The mayor was roundly criticized for his response. Protest groups splintered. Business owners lamented the destruction. Some longtime activists criticized the small but persistent group of black bloc supporters for unrestrained vandalism they said was detracting from the Black Lives Matter movement.

Schmidt normally would have assumed office this month, but he took over Aug. 1 after his predecessor, Rod Underhill, left early.

Hummel, the central Oregon district attorney, said Underhill did Schmidt no favors.

“We had one of the most experienced district attorneys in the state who was in the midst of a crisis and he decided to bail and leave it to the new guy,” Hummel said.

“Anyone new in a job takes time to get your feet under you and get the lay of the land and build relationships,” he said. “Mike didn’t have that chance.”

In an email to The Oregonian/OregonLive, Underhill said Schmidt’s election was decisive and that his choice to retire “was the right decision at that time for our community, for the dedicated members of the Multnomah County District Attorney’s Office and for our justice system.”

Though Schmidt campaigned on big-picture criminal justice reforms like dismantling Oregon’s longstanding mandatory minimum sentencing law, it’s his call on protest prosecutions that have shaped his role so far.

His office keeps a running tally of protest cases on its website.

According to the latest figures, prosecutors have filed charges in just 15% of all cases submitted to the office since May.

Another 74% were rejected, with prosecutors citing “interest of justice” as the most common reason. The rest are pending review.

According to Schmidt’s office, 79 defendants have been arrested more than once on protest-related allegations and most were accused of low-level crimes like interfering with a police officer.

The agency’s analysis found that 39% of the charges issued against repeat offenders involve property crimes.

The majority of charges referred for prosecution are misdemeanors.

Mac Smiff was among those accused of interfering with a police officer over the summer.

Smiff, a Black Lives Matter organizer and activist in Portland, said he was walking on a sidewalk during a protest one night in June when he was swept up by Portland police.

The case was dismissed in August.

“If you’re out there and they decide it’s you, it’s you,” he said.

“Mike’s criteria for prosecuting people, I think, was extremely helpful,” Smiff said. “I think it’s also very righteous. The thing is people are being arrested for nothing and being prosecuted with potentially no evidence.

“In most cases, they are going to get thrown out anyway,” said Smiff, who is a plaintiff in a federal lawsuit against the city.

Not surprisingly, police see it differently.

Brian Hunzeker, president of the Portland Police Association, offered a typical protest scenario: Officers go to make an arrest for alleged assault or vandalism and crowd members try to stop them by physically pulling on the suspect.

Those protesters could face arrest for interfering, he said, but one of the factors police now consider is how those charges will be handled by the district attorney, and they may end up walking away.

The result: Instead of settling down a combustible situation, police hand those involved a win, Hunzeker said.

“You can feel the crowd, like, become victors of a situation,” he said. “That’s not what we are trying to accomplish, to allow them to feel victorious. We are trying to figure out ways to calm the situation down.”

Attempted assault on a police officer, a misdemeanor, is included in the allegations Schmidt’s office has prioritized for prosecution. It is among the most common cases.

He said Schmidt’s policy emboldens the most extreme demonstrators.

Protesters try to help a man whose leg caught fire after a Molotov cocktail was thrown toward police on the 100th night of protests in Portland, Sept. 5, 2020. Police declared a riot after protesters threw at least three incendiary devices, or Molotov cocktails, toward officers. The clashes played out for hours in this residential neighborhood near Ventura Park, where police arrested 59 people. Beth Nakamura | Oregonian/OregonLive

“The officers are trying to make the best decision they can make and they are trying to formulate these arrests without already being second-guessed by a policy that the DA has put in place,” he said.

Schmidt said charges like interfering with a peace officer pose “a real threat” to free speech.

“You’re not damaging anything, you’re not lighting things on fire, then you’re not the person we’re going to prosecute,” he said. “There is no public safety value to prosecuting that person because a year-and-a-half from now when it actually goes to trial, even if we convicted you, what good did we do? You now have a criminal record for what? It’s not like you’re going to go on to graduate to rob banks.”

It’s different “if you are willing to cross the line into property damage,” Schmidt said.

“Then you are showing that this is not just a civic engagement of speech,” he said, “and so that’s where we are focusing our resources.”

About 30% of cases referred to the District Attorney Office are more serious protest-related crimes like assault and other offenses against people, as well as property crimes, weapons offenses and arson.

Schmidt views all of those offenses as priorities for prosecution.

Prosecutors are pursuing 119 of those 291 cases, about 40%, and have asked for follow-up from police in another 50.

The vandalism on Southeast Hawthorne Boulevard on Thanksgiving Day is one of the cases that’s gone back to police for additional investigation, Schmidt said.

Demonstrators broke windows and sprayed graffiti on nearly a dozen businesses, causing several thousand dollars in damage. Police made three arrests.

Bill Levesque, president of the Hawthorne Boulevard Business Association, said 58 businesses were damaged. He said Portland police were responsive and now business owners want to see the district attorney follow through with prosecutions.

“People were caught, so what good does it do if we are able to do that and then, you know, there is no accountability for it?” he said.

Schmidt said the Hawthorne vandalism arrests are “exactly the type of cases that we are focusing our energy and resources on.”

Top, demonstrators protesting colonialism, gentrification and capitalism smashed the windows of banks and other businesses, including One Main Financial, during a protest on Nov. 20, 2020.
Below, demonstrators smashed the windows of a New Seasons on Southeast Hawthorne Boulevard, as well as other businesses on Thanksgiving Day. Bill Levesque, president of the Hawthorne Boulevard Business Association, said 58 businesses on the street were damaged. He said Portland police were responsive and now business owners want to see the district attorney follow through with prosecutions. “People were caught, so what good does it do if we are able to do that and then, you know, there is no accountability for it?” he said. Beth Nakamura | Oregonian/OregonLive (top photo) and Portland police (bottom photo)

Building a case, he said, will take time and more police work.

“People see damage the night before and the next morning they expect a conviction,” he said. “That’s not how our criminal system works. We have to gather evidence. We have to talk to witnesses.”

Asked during a press conference this week whether Schmidt’s approach has been effective, Mayor Ted Wheeler said it’s too soon to say.

“I have made my preference crystal clear,” said Wheeler, who has advocated for prosecuting people engaged in property destruction. “He’s also made clear to me that in order to make a prosecution, he needs good evidence so I’m not prepared to dump this all in his lap and say he needs to do a better job of prosecution.

“I know everybody, myself perhaps more than anybody else in this community, would love to see quick prosecutions, but it doesn’t work that way,” Wheeler said.

Greg Goodman, a major downtown developer, landowner and property manager who has over the years cultivated close relationships with city leaders, said the new district attorney has fallen short.

In particular, he wants Schmidt to walk back his approach to property crimes, which calls for issuing misdemeanor and felony criminal mischief allegations but then generally dismissing the charges provided the defendant pays restitution or makes “other amends” to the community.

“He came out with it in writing and I think he should rescind it in writing,” Goodman said. “I think that would build credibility. I think it would help his relationship with the police.”

Goodman said vandalism associated with protests has “gotten out of control.”

The most recent demonstration to turn violent took place on Inauguration Day, when a crowd of about 200 people, including self-described anarchists, marched in the city’s Central Eastside area and smashed windows at the Democratic Party of Oregon headquarters.

Some of the demonstrators carried a sign that read “We don’t want Biden, we want revenge!” in response to “police murders” and “imperialist wars.”

That night, another 100 or so people marched to a U.S. Immigration and Customs Enforcement building, decrying federal immigration policies, as well as Wheeler and Biden. People in the group spray-painted the federal building. Federal officers used tear gas and munitions several times.

In all, police made 14 arrests. Court records show Schmidt’s office is pursuing charges against at least four so far. The rest are still under police investigation. A spokesman for Schmidt said he expects they will be referred to the office for review.

“You don’t experiment with stuff when things are a disaster,” Goodman said. “You experiment with stuff when things are good.

“People don’t feel safe. The best business to be in here is the alarm business.”

The backlash to Schmidt’s approach has at times gotten personal.

His neighbors helped him erect a fence after demonstrators showed up at his house.

And there were threats, too, as there have been against other elected leaders, including Wheeler and Hardesty. Both have been harassed. Wheeler has been confronted in public.

Images and links provided to The Oregonian/OregonLive by Schmidt show that last November a Portland police officer appears to have taken a screenshot from a city-issued mobile data terminal showing Schmidt’s address. The information then ended up on a website operated by a Florida police captain. The website says it “unapologetically supports those who hold the Thin Blue Line.”

The screenshot shows the dispatch and police log related to an encounter at Schmidt’s house, where a small group of protesters had gathered. One caller reported that one of the people outside yelled “All lives matter” into a megaphone. Another said rocks were being thrown at Schmidt’s house.

The Portland Police Bureau did not respond to a question Friday asking for comment on the matter.

Schmidt said the experiences involving his family have been unnerving.

“We spent some time not staying at our house,” Schmidt said in an interview in his driveway, wearing a face mask with the symbol of his favorite football team, the New Orleans Saints. “The sheriff was very kind to deploy some resources to sleep in front of our house. It’s challenging.”

He said he’s worked lately on sharpening his message, meeting with community groups and civic leaders and stressing that he won’t tolerate property crime.

In advance of Inauguration Day, for example, he issued a statement warning against the destruction of property, telling the public it’s a “crime that we continue to prosecute.”

When he has encountered pushback, he said he takes time to explain his thinking.

“I feel like I am throwing starfish into the ocean trying to say, ‘Let me talk to you,’” he said. “And then we emerge and they say, ‘Hey, that makes sense for a whole host of reasons: resource reasons, free speech reasons,’ like, they get it,” he said. “Let’s focus on people actually doing harm.”

— Noelle Crombie; [email protected]; 503-276-7184; @noellecrombie