Maxine Bernstein
The Oregonian, Portland, Ore.
PORTLAND — A federal judge on Wednesday declined to grant special rights to volunteer street medics beyond that of general demonstrators who must disperse when police declare an unlawful assembly or riot.
“Although Plaintiffs’ goal of providing aid to protesters is undoubtedly admirable, this Court has found no legal authority for affording protest medics, as defined by Plaintiffs, unique recognition under the First Amendment beyond that afforded any individual who attends a protest,” U.S. District Judge Karin J. Immergut ruled Wednesday.
“Protest medics may continue to protest, and provide medical aid during the protests. They simply have no unique status under the First Amendment that allows them to disregard lawful orders.”
The judge’s ruling comes as the city enters its 98th consecutive night of protests, which began shortly after 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. Her written decision denying a temporary restraining order followed a hearing held on Tuesday.
Four street medics who sued the city argued that city police have used excessive force and unfairly arrested them and other clearly identified medics, who wear red crosses on their clothes or helmets. They are often the first responders ready to offer immediate medical care, as one did Saturday night when a 39-year-old man was shot in the chest and collapsed and died on Southwest Third Avenue, their lawyers said.
The court must end “the direct targeting of medics,’' by police and officers’ shooting of pepper balls, launching of tear gas canisters, pepper spraying and bull-rushing of non-threatening medics in an apparent attempt to chill the overall protests, Attorney Nathan Morales told the court.
He and attorney Rian Peck argued that the medics hold a First Amendment right to render emergency aid to demonstrators. They argued that medics who stick around to care for someone when police issue a dispersal order are engaged in passive resistance, are not a threat to the police and should not be punished.
“Everyone who attends a protest is engaged in protective speech. Our clients protest by rendering medical aid. That is their own form of free speech and their interests are so much stronger here because they are facilitating the protest,” Peck said. “Rendering aid is expressive conduct.”
Senior Deputy City Attorney William Manlove countered that the medics are violating lawful police orders to disperse.
“No one is saying that they can’t show up with their red medical crosses or that they can’t render medical first aid,’' he said. “What the city is saying, when there’s a riot or dispersal orders, they need to comply. They can provide that care elsewhere. They don’t need to be right there in the middle.”
Immergut asked if the medics have tried to reach a resolution with the city to allow a medical facility or tent to remain untouched outside of areas of dispersal.
“In sort of a war zone, I don’t think doctors run around the front line. They stay positioned somewhere else,” Immergut said. The judge added that she’s not an expert and surmises that largely from what she’s watched on TV.
Peck, on behalf of the medics, told the judge that OHSU student medics had set up a tent of medical supplies at Chapman Square in downtown Portland, but one of the medics and a plaintiff in the case, Michael Martinez, was arrested and supplies were confiscated one night when he didn’t leave fast enough.
The medical tent that was standing in Chapman Square was taken down, the city attorney said. Manlove said there was no permit obtained for it. “Why it was dismantled or where it was taken, I don’t know,” he said.
Manlove said once someone is arrested, the city is obligated to get the person medical care if needed.
There are fire medics embedded with police crowd control teams and emergency ambulance medics who are available to respond to significant injuries, “but they are going to wait for the scene to be safe or made safe before they put hands on a patient,” Manlove said.
The judge said the evidence didn’t support the allegations that police were acting in retaliation against the medics. Immergut also pointed out plaintiffs waited nearly one month before seeking such emergency relief.
“The line between protester and protest medic is not sufficiently clear such that granting them the relief they request would not sow confusion or create additional risks. The protest medics wear no particular uniform, offer no particular type of aid, and possess no particular level of medical training. When they attend the protests, many deliberately stand in the spaces between law enforcement and the protesters, or even enmesh themselves with other protesters,” the judge wrote.
Immergut said she does not want to “discredit or diminish the efforts of the protest medics, or question their right to participate in the protests. Certainly, the safety of all protesters is clearly in the public interest.”
But the safety of all protesters is not the sole responsibility of the volunteer medics, the judge noted.
“Upon consideration of the record before this Court, at this time, Plaintiffs have failed to demonstrate that the public interest and the balance of equities support their position,” Immergut wrote. “Like ordinary protesters, however, the protest medics must abide by lawful police orders.”
During a hearing this week, the judge questioned if she had the authority to order the city to reach an agreement with the medics who filed suit to allow for a neutral zone for medical supplies to be set up at protests, stationed at a safe distance away from any area where police would be dispersing a crowd.
Both sides said they hadn’t discussed such a resolution but told the court they’d be open to pursuing such an agreement. The judge made no mention of it in her 23-page ruling.
The decision follows a ruling last week by the 9th U.S. Circuit Court of Appeals, which put an emergency hold on a federal district judge’s preliminary injunction that exempted journalists and legal observers from federal law enforcement officers’ dispersal orders, arrests or threatened arrests. The hold will be in place as the Department of Homeland Security’s challenge is heard by the appellate court.
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©2020 The Oregonian (Portland, Ore.)