Man filming Patriot Prayer rally acquitted of disobeying federal officer’s order

PORTLAND — A federal magistrate judge Friday acquitted a man who was accused of failing to comply with a federal officer’s order to leave the corner where a Patriot Prayer rally was occurring in Terry Schrunk Plaza in late June 2018.

U.S. Magistrate Stacie F. Beckerman’s ruling came at the end of John Hacker’s approximately three-hour trial on the misdemeanor charge.

“Video showed that Mr. Hacker was not unruly, yelling, threatening, blocking entrances, or disruptive; instead, he was simply standing with a camera and phone observing and talking with other people,’’ said Hacker’s lawyer, Kenneth A. Kreuscher.

Hacker’s lawyer successfully argued that the permit to protest in Terry Schrunk Plaza obtained by Joey Gibson, a leader of the right-wing Patriot Prayer group, provided that the June 30, 2018, rally could not block the entrances to the park and could not exclude members of the general public from the park.

Because the permit did not allow Gibson, Patriot Prayer, or the Proud Boys to exclude members of the public from their “free speech’’ rally, the federal law enforcement order could not be lawful on the basis that they were simply doing the bidding of the permit holders, Kreuscher argued.

According to the government, the Federal Protective Service erected metal fencing around the entrance to the plaza to make it easier to separate Patriot Prayer members from counter-protesters, and stationed officers at the entrance on Southwest Third Avenue and Jefferson Street to try to avoid clashes with counter-protesters and maintain public order.

During the rally, according to federal prosecutors, about 10 masked people in black clothing, identified by officers as counter-protesters from antifa, approached the event’s entrance, and a federal inspector was called to remove them because “they were blocking the entrance and creating disturbances, ‘‘ and had been identified by Patriot Prayer organizers as individuals who had caused problems in the past, according to court documents.

Hacker was among the group, the government argued, and initially refused to leave, identifying himself as part of the media, but eventually left. About an hour later, the government said he returned, demanded to be let into the plaza and began arguing with Patriot Prayer participants, the prosecutors said. This time, after repeated requests to leave, a Federal Protective Service officer placed Hacker under arrest.

Hacker’s lawyer presented video from the encounter, which he said disputed the government’s account, and called Hacker as the sole defense witness.

Kreuscher said federal law enforcement arrested Hacker as he was asking Proud Boy member Donovan Flippo in a conversational tone why he was not allowed to enter the “free-speech” rally. Kreuscher argued that Hacker was not given another chance to leave before he was taken into custody.

The defense also argued that Hacker’s desire to attend a rally in a public park as a “ citizen social-media journalist’’ was protected by the First Amendment, and there was no reason to exclude him from the rally.

Certified law clerk Joshua M. Sherman, along with U.S. Attorney William Narus, argued in court papers that a Federal Protective Service inspector feared that a conflict between Hacker and nearby Patriot Prayer members “would escalate or erupt into violence’’ and removed him to help maintain public order.

Beckerman found that the government had not proven beyond a reasonable doubt all of the elements of its case that Hacker had failed to obey a lawful order to leave the park. She declined to rule on whether or not the federal law enforcement officers violated the First Amendment.

“It’s what I expected because I thought my arrest was ridiculous the whole time,’’ Hacker told The Oregonian/OregonLive on Sunday. “I believed their orders were unlawful. I believe in defiance of police abuse.’’ Hacker said he’s an anti-fascist but doesn’t identify as part of antifa.

The trial came as Portland’s mayor is seeking an outside investigation to review if Portland police have acted with bias in their actions leading up to and during demonstrations involving alt-right and anti-fascist protesters.