Portland police rolled out an old tactic against protesters Friday night — and potentially waded into a legal morass — as they surrounded a group of at least 100 protesters on a block downtown in response to what the police bureau said were multiple instances of vandalism.
The controversial tactic, known as kettling, has been at the center of multiple lawsuits and is broadly criticized by civil rights advocates as dangerous and so indiscriminate as to violate civil rights.
In a press release Saturday morning, PPB included photos of two broken windows.
Numerous protesters reported police taking individuals aside and photographing them with their names and date of birth.
Despite a court order prohibiting officers from dispersing members of the media and legal observers, multiple journalists were prevented from staying with the group and documenting the officers.
Video posted online shows one photojournalist, Maranie Rae, who has freelanced for the Washington Post and the New York Times among others, being forcibly removed from the kettle by police despite identifying herself as a member of the media.
“I’m a member of the press,” Rae is heard explaining as three PPB officers tell her they’ve asked the press to leave. Officers then proceed to escort her out despite her explaining that she is doing her job and does not want to leave the area.
“You have to leave,” an officer is heard saying.
Other members of the media were escorted a block from the kettle where they could no longer see the police. The mass detainment took place after a protest Thursday night that saw some demonstrators lighting fires and breaking windows at the federal courthouse in downtown Portland. Federal law enforcement responded to that protest by blanketing the downtown blocks near the courthouse with tear gas and other crowd-control weapons.
Despite the video and media reports, PPB said no journalists were forced to leave.
“PPB did not “remove” the press,” Sgt. Kevin Allen said. “Legal observers, press, and medically fragile individuals were all offered a chance to leave if they wished as they were not being detained. Those that stayed were escorted out one by one.”
A number of police departments have used kettling over the years, despite the tactic frequently resulting in lawsuits. In Washington D.C., police detained roughly 400 people during anti-globalization protests in 2002. During that incident, passersby were hogtied for hours. The district wound up paying $11 million in settlements and the council of the District of Columbia issued a scathing report saying the tactic “should never be used on nonviolent demonstrators.”
And in Philadelphia, former Portland Police Chief Danielle Outlaw came under harsh criticism in 2020 for her department’s use of the tactic.
Controversy over kettling won’t be new for Portland city leaders. In 2017, the Portland Police Bureau detained at least 389 people during protests between the far-right group Patriot Prayer and counterprotesters. That event led to two federal civil rights lawsuits alleging the officers made no attempt to distinguish between protesters, bystanders, and press.
Ultimately, the courts found that PPB had not violated the protesters’ civil rights.
“Officers are entitled to have reasonable suspicion as to a moderately cohesive group,” U.S. District Judge Michael Mosman said at the time.
But the case law on kettling is sparse and civil rights attorneys contend that PPB and departments that use the tactic are on thin legal ground.
“Kettles are not per se legal,” said Juan Chavez, a civil rights attorney with the Oregon Justice Resource Center who represented one of the plaintiffs in the 2017 case. “It’s pretty narrow. You have to show everybody was acting as a unit and you had to have reasonable suspicions that the unit had committed a crime.”
While the 2017 mass detention may not have violated civil rights, according to the courts, the city’s Independent Police Review found multiple problems with the tactic in a 2018 report on the incident.
“The Independent Police Review found insufficient documentation by the Police Bureau of the legal justification had by the officers for the mass detention,” the report reads.
That report also said, “the Bureau agrees that mass detentions should only be carried out under extraordinary circumstances.”
Allen told OPB that the decision to detain upwards of 100 people Friday night was made by the incident commander. “Based on the size of the crowd and the resources PPB had in place, the incident commander felt it was the safest and least intrusive way to protect public safety and stop the criminal destruction,” Allen said, referring to broken windows and vandalism.
Factors such as the tenor of the crowd played a part in the decision, Allen said, but he conceded it was also partly because protesters have observed how PPB responds and are changing their own tactics accordingly.
“Our message to those intent on committing these crimes that we will not always respond in the same way,” Allen said.
After the 2017 incident, Mayor Ted Wheeler said there needed to be a conversation with law enforcement and legislators about appropriate tactics at protests and when they should be used.
During Friday night’s protest, Portland police said they arrested 13 people on charges ranging from attempted assault on a public safety officer, unlawful possession of a firearm, disorderly conduct, resisting arrest and interfering with a peace officer.
There is currently legislation being considered by state lawmakers that would prevent interfering with a peace officer charges for passive resistance.
