Attorneys for Patriot Prayer leader Joey Gibson contend Multnomah County’s new District Attorney Mike Schmidt is engaging in unfair, selective prosecution by refusing to dismiss a sole riot allegation against Gibson, in light of his new office policy against pursuing that lone charge against people involved in recent Portland protests.
Hours after Schmidt held a news conference at the Multnomah County Courthouse Tuesday morning, Gibson’s lawyer emailed a deputy district attorney, inquiring if his office’s new policy meant Gibson’s 2019 riot charge would also be dismissed.
“We got the policy that day and said, ‘whoa, if he can do this for them, he’s got to do this for everybody,’ ” said Attorney James Buchal, one of the lawyers representing Gibson and the head of Multnomah County’s Republican Party.
Gibson is one of six men accused of inciting a riot on May Day 2019 between right-wing Patriot Prayer and left-leaning antifa outside a Northeast Portland pub. Two of the six pleaded guilty and were sentenced in January. Gibson has pleaded not guilty and the single riot allegation is pending against him. His next court date is set for late October.
On Tuesday at 6:12 p.m., attorney D. Angus Lee wrote to the deputy district attorney handling Gibson’s case, requesting that the riot charge against Gibson be dropped, arguing that he didn’t engage in any other alleged assault or property damage.
“We therefore call upon your office to provide equal application of the MCDA policy and dismiss the charge against Mr. Gibson just as you would for any other individual charged only with riot,” Lee wrote.
Deputy District Attorney Brad Kalbaugh, after consulting with Schmdit, responded in an email to Gibson’s lawyers Friday afternoon, informing them that the charge would not be dismissed.
“My office’s new policy pertaining to riot trials is not retroactive,” Kalbaugh wrote.
Gibson’s lawyers pushed back, noting that nothing in the written policy that Schmidt’s office released said anything about “retroactivity,” yet it does say the policy will apply to “all referred cases arising from the current protests.”
“So, just so I understand,” Lee wrote back by email, “it does apply to cases from the protests that began around the end of May of 2020 through current, but does not apply back further to Mr. Gibson’s case?”
“That’s my understanding,” Kalbaugh responded later Friday afternoon, according to a thread of emails obtained by The Oregonian/OregonLive.
Schmidt, through office spokesman Brent Weisberg, declined comment on Gibson’s case Friday, noting it’s a matter pending before the court.
Buchal said Schmidt’s policy is blatantly unfair.
“It’s selective prosecution in violation of the equal protection clause,” he said. “It seems a pretty obvious constitutional violation.”
On May 1, Cider Riot was hosting a gathering of antifa members celebrating demonstrations they held elsewhere in the city that day. Hostilities exploded after about 20 right-wing protesters, including Gibson, arrived outside the watering hole near Northeast Eighth Avenue and Couch Street and confronted antifa members sitting on the patio. Several videos show people using pepper spray, throwing drinks and fighting.
Gibson disputes the single charge of felony riot, his lawyers said. In court papers filed last year, a Portland police detective said Gibson could be seen in a video “taunting” and threatening members of antifa, and later “physically pushing” a woman before she was hit with a baton and knocked unconscious by someone else.
Gibson’s lawyers contend the allegations that Gibson pushed the woman are “completely false,” and said he was trying to defuse a fight between the woman and another man.
Buchal accused Schmidt of “excusing” allegations of trespass at police precincts, the blocking of traffic and attacks on police from recent protests in Portland if people “share the political viewpoint he favors.”
Schmidt said he still plans to prosecute any assaults on officers, fires set in buildings and property damage stemming from recent protests, which are stretching into their 79th consecutive night.
On Tuesday, Schmidt had announced that his prosecutors won’t pursue demonstrators accused of interfering with police, disorderly conduct, criminal trespass, escape or harassment if the allegations don’t involve “deliberate” property damage, theft or force against another person or threats of force.
The office also won’t prosecute people on a riot accusation alone. Prosecutors will proceed with a riot case only if it includes an accompanying allegation of specific property damage or use of force, he said.
In his prepared statement Tuesday, Schmidt wrote that his new policy addresses allegations “arising from the current protests in our community.”
The changes, he said, reflect his recognition that people taking to the streets are deeply frustrated by over policing and disparate treatment of people of color in the wake of the May 25 death of George Floyd, a Black man who died after a Minneapolis police officer knelt on his neck for more than eight minutes.
Schmidt said that his office doesn’t want to further perpetuate the deep-seated problems. Schmidt said many of the people arrested over the last two and a half months of daily demonstrations have little to no criminal histories and prosecuting them would cause unnecessary harm.
— Maxine Bernstein
Email at [email protected]; 503-221-8212
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