By Zach Walsh, Attorney
McKean Smith, LLC
After another violent political demonstration in Portland on October 13, 2018, law enforcement officials released information regarding several protesters possessing firearms on top of a downtown parking garage before the protest. According to law enforcement officials, the protesters were members of the controversial group, Patriot Prayer. The Patriot Prayer demonstration coincided with a counter-protest by their adversaries commonly referred to as Antifa.
In his Oregonian article, “Bear spray, bloody brawls at Patriot Prayer ‘law and order’ march in Portland,” Shane Dixon Kavanaugh described the violent and chaotic scene. Protesters “used bear spray, bare fists and batons to thrash each other outside of Kelly’s Olympian, a popular bar on Southwest Washington Street. The melee … ended when riot cops rushed and fired pepper balls at the street fighters.”
Commonly described and perceived as an accepting and hyper-passive, “put a bird on it,” community-oriented destination, Portland’s politically tumultuous and violent history is confusing and comes as a surprise to many.
After being greeted by a group of protesters in 1991, President George H. Bush famously labeled Portland – “Little Beirut.” Portland author, Chuck Palahniuk wrote in his book, Fugitives and Refugees: A Walk in Portland, Oregon, a presidential stop in Portland “meant anarchists would gather along SW Broadway, outside the president’s suite in the Hilton Hotel. They’d eat mashed potatoes, regular white ones, or potatoes dyed red or blue with food coloring. Then, when the motorcade arrived, they drank Syrup of Ipecac and puking big Red, White and Blue barf puddles all over the hotel.”
Demonstrations after President Trump’s successful bid for the presidency resulted in over a million dollars in damage. Since the last presidential election, local news regularly reports on clashes between right-wing nationalist political organizations, Antifa protesters, and law enforcement. Most recently, Portland Police President, Officer Daryl Turner, posted “Portland has become one of the most politically violent cities in America.” “Lawlessness, aggression, and violence have replaced peaceful protests.”
Considering Portland’s politically violent history and the October protest’s violent nature, why were the armed protesters atop the parking garage not arrested or their rifles and handguns not seized by law enforcement? We don’t know what happened on top of the parking garage that day, but we do know law enforcement’s perspective – the protesters did not do anything illegal. They possessed licenses to carry concealed handguns, and the guns were unloaded and in their cases.
Under Article 1, Section 27 of the Oregon Constitution, “the people shall have the right to bear arms for the defence [sic] of the themselves, and the State, but the Military shall be kept in strict subordination of the civil power.”
However, the Oregon Supreme Court ruled the right to bear arms is not absolute, and public bodies may regulate the “manner of possession of arms,” but not possession itself. State v. Christian, 354 Or 22 (2013)
So, what does “manner of possession of arms” mean?
Public bodies, like the city of Portland, can regulate where and how people carry firearms and ammunition, but not the possession of a firearm. For example, chapter 14A.60 of Portland City Code makes it illegal to carry a loaded firearm in a public space, including a vehicle on public streets. P.C.C. 14A.60.010-060. The maximum sentence carries a $500 fine and six months jail. P.C.C. 14A.20.060. Gun owners may carry unloaded firearms and holders of concealed weapons permit may carry loaded firearms anywhere in Portland except a courthouse or federal property. P.C.C. 14A.60.010.
The city code also makes it illegal to fire a gun within Portland’s city limits. P.C.C. 14A.60.020. However, exceptions in the code permit a person to fire a gun if defending property or another person, law enforcement, persons at shooting ranges, hunting safety instructors, and persons firing blanks for athletic contests or military or police ceremonies. Id.
Firearm restrictions, including background checks, magazine size limitations, and outright firearms bans, may only be enacted by the Oregon Legislature. Because the right to bear arms is not an absolute right, judicial holdings on this issue recognize the legislature has wide latitude to enact specific regulations restricting the possession and use of weapons to promote public safety. State v. Christian, 354 Or 22, 33 (2013).
After two years of violent, chaotic, and costly political demonstrations, frustrated city officials are exploring and attempting to enact controversial and questionable measures to prevent future violence and curb past protester behavior. City officials, including Mayor Ted Wheeler, seek the support of local government officials and the Portland City Council for an emergency ordinance allowing the government to restrict time, location, and manner of protests if political groups attempting to demonstrate are historically violent. Portland Police Chief Danielle Outlaw strongly supports this initiative.
If enacted, legal battles regarding whether the ordinance is an infringement on constitutional rights to freedom of assembly and speech are inevitable. The exercise and freedom to practice political speech in Portland is unclear at this time. However, the use and possession of firearms in Portland is clear.
UPDATE NOVEMBER 15, 2018: In a 2 to 3 vote, the Portland City Council narrowly rejected Mayor Ted Wheeler’s proposed ordinance, a proposal granting him new and broad authority to restrict Portland protests.