A federal judge on Friday dismissed the lawsuit filed by Patriot Prayer leader Joey Gibson and a supporter that challenged Multnomah County District Attorney Mike Schmidt’s pursuit of riot charges against them.
U.S. District Judge Karin J. Immergut ruled Gibson and Russell Schultz can argue their claims of “vindictive and selection prosecution” in state court.
“It is inappropriate for this Court to weigh in on the strength of the evidence and Plaintiffs will have the opportunity to litigate whether the evidence is sufficient to support the charge of riot in their state court proceedings,” the judge wrote in her 25-page ruling.
Gibson and Schultz were among six men accused of inciting a riot on May Day 2019 between right-wing Patriot Prayer and left-wing antifa outside the now-closed Cider Riot pub in Northeast Portland. Two of the six pleaded guilty and were sentenced in January. Gibson and Schultz and two others have pleaded not guilty.
Lawyers for Gibson and Schultz argued that Schmidt’s decision not to dismiss riot charges against them while dismissing riot cases against others in the last year was “politically motivated.”
Schmidt announced in August that he wouldn’t prosecute people involved in “current protests” in Portland on a riot charge without an accompanying allegation of property damage or use of force. He wasn’t district attorney when the Cider Riot case occurred.
Although Gibson and Schultz “make compelling arguments” that their conduct didn’t rise to “tumultuous and violent” conduct as defined by the state’s riot charge, they haven’t shown that the charges are “meritless” to warrant federal court intervention, Immergut found.
Further, there’s no concrete evidence of any reason to mistrust the state court proceedings or that Schmidt is prosecuting people based on their viewpoints, the judge wrote.
Yet Immergut did cite gaps in the argument provided by Schmidt’s lawyer, Assistant Attorney General Jill Schneider, in defending Schmidt’s protest prosecution policy.
Immergut wrote that Schmidt’s lawyer “complete ignores” Gibson’s and Schultz’s argument “that the fact that no Antifa members were charged in the Cider Riot incident on May 1, 2109 shows animus toward Plaintiffs’ viewpoint.”
The judge also said she heard Schmidt’s lawyer for the first time raise “resource considerations” as a justification for Schmidt’s August protest prosecution policy “without offering any evidence to support her position.”
“To the extent that the policy was indeed an effort to address the resource constraints brought about by hundreds of arrests during the summer protests, the policy is poorly written and should have clearly stated that,” Immergut wrote.
“Despite defense counsel’s deficient arguments, this Court finds that the record does not establish that the prosecutions against Plaintiffs were brought in bad faith such that this Court should intervene in the state court prosecution,” Immergut wrote.
The refusal to apply Schmidt’s protest prosecution policy retroactively to Gibson and Schultz also is not sufficient to support that the prosecution is being done in bad faith, the judge found.
Immergut noted she had no evidence that Schmidt’s policy was applied retroactively to any other cases issued before social justice protests spurred by the May 25 death of George Floyd, a Black man killed by Minneapolis police.
While Gibson’s and Schmidt’s lawyers argued their clients didn’t engage in criminal conduct on May Day 2019 but that others did and weren’t arrested, the judge pointed to video evidence that Gibson encouraged others to fight.
“While the videos show Gibson discouraging the use of weapons at various points and generally avoiding physical altercations, it also shows him appearing to encourage one-on-one fist fights between members of Patriot Prayer and Antifa,” the judge wrote.
“When Gibson notices a fist fight breaking out between two men, he immediately runs over and instructs the crowd to put weapons away and ‘let them fight’ because it is ‘mutual combat,”’ the judge’s opinion said. “Gibson helps form a circle around the fight as he continues to narrate it, saying repeatedly, ‘[t]his is the way it’s supposed to be, two men fighting.'”
Gibson’s and Schultz’s state trial is set for March 8.