Chilling First Amendment Activity

Benjamin Kerensa
Feb 23, 2017 · 4 min read

Back on November 30th, 2016 I participated in a protest in a remote, low-traffic area of NW Portland. The protest was held near Phillips 66, an oil company that has invested in the DAPL pipeline in North Dakota.

When myself and other activists arrived that day, we immediately noticed a significant multi-agency law enforcement presence that included unmarked and marked vehicles from Portland Police, Federal Railroad Police, and private security contractors. I would find out later at the trial of another activist that some Portland Police officers had been contracted by Phillips 66 to collect intelligence on and monitor activists, which seems like a major conflict of interest.

As we arrived, we learned two activists had been stopped and cited with running the same stop sign back to back and both activists deny doing so and distinctly recall stopping for the stop sign.

Later that day, myself and others were cited for pedestrian failure to obey traffic signal but those of us cited did not actually commit the traffic offense we were cited for.

Today, I took my case to trial, which is uncommon in traffic cases but I knew I had done nothing wrong and knew the totality of the circumstances that day amounted to police intimidating activists with only one plausible goal: to chill the first amendment right of activists.

My legal team meets with officers and city attorney

Before the trial started, my lawyer met with the officers and city attorney and apparently the officer said that if I were to sign an agreement to agree to not protest anymore, they would drop the charges. Not only was this absolutely out of the question, but it seemed highly inappropriate for an officer to try and convince someone they have cited to waive their right to protest indefinitely.

During the trial, we first heard from the officer who laid out his case and claim that this was an open and shut traffic violation and that he observed me violate the statute. My counsel then took the opportunity to cross examine the officer and then begin cross examining me. During my testimony, I made it clear the officer’s supervisor had intimidated and threatened me for filming the officers, which is legally protected by law. I pointed out that the officers followed us in their vehicles when we had to move to a different area. I testified that I had lawfully entered the crosswalk on a white walk signal but also noticed the lights seemed to be going fast and not in a normal loop. I testified that at the end of the day, I exchanged emails with a city traffic engineer and that they eventually sent someone out and found the traffic signals were defective.

The officer gave his closing remarks which included that he had over a decade of experience and would notice a defective light. Officer Steven McHugill indicated he was not there to hassle activists or write tickets and that I had been warned (which I had not). The officer indicated that he believed he had made a case under what’s required by the statute.

Sergeant Smith tries to intimidate me for filming police

My counsel then gave closing remarks telling the judge this was not a normal traffic case but instead was a case of officers retaliating against me for exercising my first amendment right and that Sergeant Smith engaged in unlawful threats in an attempt to intimidate me. The judge made her ruling in the case telling the officer that he had not convinced her and she dismissed the case.

I learned a lot from this case. Most importantly, that officers do lie and do use various tactics including false charges to hassle activists. I found out that traffic violations which exist in between both criminal and civil law are a tool that’s ripe for abuse because the state does not have to provide counsel and the burden of proof is lower than a criminal or civil case, which gives the officer an upper hand, even if they are wrong. But, most importantly, I lost more faith in our justice system and saw an officer waste an extraordinarily lot of money to try and retaliate against myself and others. The taxpayers had to pay one officer who was off to come to court and he received two hours of overtime which exceeded the fine amount. Additionally, three other officers were pulled from their jobs to try and assist the citing officer and to be available for cross examination. All in all, the city and county probably spent a thousand dollars or more to try this case and they lost.

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