Schmidt versus the Patriot Prayer

This analysis was requested by a reader on Twitter, and it has been a case that I’ve wanted to get a better handle on, but with everything on my plate, I haven’t had the time and energy to get fully into the weeks. As such, this is a first blush, and there may be corrections in subsequent stories.

In May 2019, Joseph “Joey” Gibson and others were involved with a Patriot Prayer protest in Portland, and later in the day, ended up with an altercation with Antifa members at the Cider Riot bar. Some time later, a grand jury handed down an indictment charging Gibson and others with Riot. Some others got additional charges, and some have already pled guilty, but this focus is on Gibson. In response to heavy handed police actions and charges against protesters in the wake of George Floyd’s death, DA Underhill (who would have started the case against Gibson) retired early so that DA Schmidt, who had been voted in earlier in the year, could start early under a new platform of purported criminal justice reform.

One of his early actions was setting forward a non-prosecution standard for riot arrests stemming from protests where there was not ‘deliberate property damage, theft or threat of force against another person’ (press release available here), which saw the dismissal of hundreds of cases that mostly stemmed from crimes against the system like Interfering with a Peace Officer and Disorderly Conduct. Mr. Gibson critisized the move, because it was not retroactively applied to his ongoing case. In his consolidated case, six people were charged with Riot, and three of them were charged with additional charges that, if they had happened in current day protests, would have contained charges that would still be prosecuted under the current policy. Two of the six, Cooper and Ponte, have already pled out and are on probation. The third, Kramer, still has an ongoing case.

Of the three remaining, Gibson, Schultz and Lewis (who is not a party to the federal case) all only have the charge of Riot

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I’ve already gone over in the past where I feel that this is an oversimplification of the policy. Riot charges in the wake of the George Floyd killing have been alleged by the police, who are ideologically opposite the protesters who are arguing against police brutality. At best, it makes the police potentially biased in regard to their decisions to refer charges to the DAs office.

In the case of Gibson and the others, all the individuals were charged by a secret indictment, where evidence is gathered, and the DA shows it to a grand jury (from a jury pool, as opposed to the police) who decides if the charges are serious and legitimate enough to go forth with prosecution.

The scope of the protests are also very different. While ideally police would treat all people equally regardless of political ideology or viewpoint, that’s not always what happens. In the case of arrests stemming from George Floyd protests, again, these are anti-police protests. In the Gibson case, Patriot Prayer came from mostly out of town to Portland to protest liberal ideologies, and intended or not, set up for a confrontation with anti-facist aligned members of the Portland community. What resulted more resembled a street brawl than a protest.

And then the timeline is important. The new policy, while it didn’t specifically reference a date that it would apply to cases, it was clearly written that it was intended to apply to cases that had their start from the protests beginning May 2020. Mr. Gibson’s case was from the year prior.

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In the wake of all of this, Mr. Gibson filed a suit in federal court, claiming that the county DA’s office was discriminating against him by not dropping charges in light of the new policy, and both his state and federal cases have been slowly moving forward.

As I start reading through the latest filing in federal court by Mr. Gibson’s legal team, it appears that in this case, they’re trying to get all paperwork that went into the August 11th memo that officially laid out the non-prosecution process. His party claims that the state had withheld all evidence from before August 1st (the date Mike Schmidt took over as the new DA). They’re also trying to get more detailed information about cases that the DA declined to prosecute, likely in an attempt to prove why their case is ‘just like these other cases’.

The DAs office has pushed back, claiming that there is a lot of information that needs to be redacted for personal safety and other matters, such as witnesses who were not charged, people with pending criminal matters and video evidence.

It’s been well known already that there is a significant online presence dedicated to identifying protesters who have been arrested and branding them as violent looters and rioters even before they’ve had a day in court. In light of that, it may be laudable for the DA’s office to take extra precautions to make sure no new information that hurts innocent bystanders is leaked into the media landscape. How much of that information actually exists, however, is a matter of speculation

The last court order about discovery had given the county until the 20th, last Friday, to provide all the information, which the DA has said is just not enough time, which is what has brought us to where we are now.

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At the end of the day, it seems that there are three things that the Gibson party is trying to go for with this discovery request:

• All of the information available relating to how the new policy was drafted, and any public input given in it’s creation (something that should be available from a government transparency viewpoint)
• Any considerations of how this new policy would relate to the Gibson case (since his party contacted the DA to drop charges in light of the new policy)
• Information relating to similar riot charges that have been dropped against protesters since the new policy was put in place (this seems to be where a lot of redaction work would need to be, and also where I feel the case would be the weakest, for reasons I mentioned previously)

Given the protective nature and desire to either redact or put under court seal a lot of this evidence, I don’t know how much verifiable information we’ll be seeing for some time, but the next currently scheduled court hearing isn’t until the week between Christmas and New Years.

Documents for more information

First document is the order granting the expedited discovery, second one is the Gibson party detailing the failings the county has had in providing the needed information