Community Activist Teressa Raiford Receives Her Day in Court

Kyle Curtis

A summary of the legal issues faced by the Don't Shoot Portland leader, stemming from an August 2015 arrest for disorderly conduct.

This morning, Teressa Raiford--community activist, Don't Shoot Portland leader, and one-time candidate for Portland City Council--appeared in the courtroom of Judge Michael Greenlick. Raiford was arrested for disorderly conduct charge during a rally to mark the one-year anniversary of the death of Michael Brown on August 9, 2015.

At issue during the pre-trial motions for Judge Greenlick to consider dismissing the charges is whether by standing in a right turn traffic lane addressing a crowd of protestors, was Raiford intentionally obstructing traffic--and therefore providing probable cause to be arrested for disorderly conduct--or was she engaging in Constitutionally-protected political speech?

The initial Motion to Demurrer, provided by Raiford's former attorney Bronson James, argued that the language in the state's disorderly conduct statute to “attempt to cause public inconvenience, annoyance and intention to obstruct traffic” is “vague on its face” in regards to the specifics of Raiford's case and that the charges should be dropped.

James also argues in his motion that the vagueness of disorderly conduct statutory language regarding “any” level of risk—no matter how minor, as opposed to either a “grave” or an “unreasonable” risk—allows for a subjective interpretation to be determined by law enforcement. As argued by Raiford’s attorney Matt McHenry, without an acceptable level of risk defined in the disorderly conduct statute, any possibility of risk would be sufficient to violate this law.

The motion to demurrer also considers the vagueness of the statutory language regarding “public inconvenience, annoyance, or alarm.” As these terms are similarly undefined, they are also left open to subjective interpretation. In effect, argues McHenry, the lack of modifiers in the disorderly conduct statute means that anybody can possibly run afoul of this law for doing anything, regardless of the level of risk or impact.

Judge Michael Greenlick agreed that the ORS definition of disorderly conduct is “confusing language.” With the statute’s inclusion of both terms “intent to cause” and “or recklessly creating a risk,” Greenlick requested clarification: Is it the action that defines “disorderly conduct” or the result? According to the reply provided by the Prosecuting Attorney, it is the result that determines disorderly conduct.

If that is the case, Judge Greenlick asked, how much risk is necessary to be determined as reckless? The answer provided by the Prosecuting Attorney is that “substantial and justifiable risk” provides the test to determine whether an action meets the definition of reckless and can be justified for a disorderly conduct charge.

Judge Greenlick sought further clarification regarding statutory language, particularly in regards to "intentionally causing" a risk opposed to "recklessly creating" a risk. Greenlick points out that the statute fails to define whether this risk is small, substantial, or merely applies to any risk at all.

Ultimately, the argument determined that, as written, the state’s definition of disorderly conduct can be applied to either the result of or the conduct of behavior. In this particular situation--according to the state's argument--the result that fits the disorderly conduct definition was the obstruction of traffic, created by Raiford's actions.

Arguments Raised by ACLU's Amicus Brief

The ACLU filed an amicus brief in support of Raiford, providing three separate arguments to encourage Judge Greenlick to consider dismissing the charges.

According to the ACLU, the common-law intent for disorderly conduct statutory language is to address severe “breaches of peace.” Opposed to a disturbance that mildly inconveniences a few individuals, the purpose of these laws are to address threats to the security of an entire community. Oregon’s legislative history and court decisions regarding disorderly conduct statutes make sure that these laws do not infringe on free speech rights—and that they are written with a more expansive purpose in mind then to address a few inconvenienced drivers.

The ACLU's second argument is in regards to the charge of “obstructing traffic.” The ACLU argues that the only acceptable definition of obstruction is to “render a public way completely impassable.” According to McHenry, “unpassable” does not mean that drivers are mildly inconvenienced or slightly need to alter their route. McHenry cites a 2001 case, City of Eugene v. Lee, which determined that obstruction occurs when traffic is completely stopped and cannot proceed. McHenry argues that the arresting officers will be unable to provide probable cause that Raiford's actions caused traffic to be unpassable, and as a result the charge of obstructing traffic should be dropped.

Finally, the ACLU argues that both the result and the conduct needs to be intentional, opposed to reckless, for probable cause of disorderly conduct to apply. Although conduct can be engaged in recklessly, results cannot. For Raiford to be found guilty of the disorderly conduct charge, she would need to be determined to have both intended to obstruct traffic and also intended to cause a risk of bodily harm with her actions.

In response to the ACLU’s brief, the Prosecuting Attorney responded that as the legislature is very careful in their choice of language, they would have included “breach of peace” in the disorderly conduct statute—but didn’t. The counter argument was also provided that as long as there’s some chance of causing public risk or alarm, then the disorderly conduct statute is violated. Thew state also challenged whether the Lee decision should apply in this situation, as that addressed pedestrian traffic on a sidewalk. (The reason why Lee was included is that it provided a legally accepted definition of "obstruction.") FInally, the Prosecuting Attorney argued that whether Raifford’s actions were reckless or intentional, just as long as it can be proven that Raifford “knowingly” obstructed traffic, it would satisfy the State’s charge.

The Question of Probable Cause?

Two state witnesses, Sergeant Jacob Clark—who was the officer in charge during the August 2015 incident—and Susan Billard, one of the two arresting officers, were called to bolster the state's argument against Raiford.

According to Sgt. Clark's testimony, Portland Police Officers are trained to handle two competing issues when handling protests: allowing protestors to exercise First Amendment rights while also protecting public safety. “Typically,” Sgt. Clark said, “this means keeping protestors out of traffic. I really don’t want to see anyone get hurt.”

Sgt. Clark was present at the protest held on the one-year anniversary of Michael Brown’s death for a few hours before leaving at noon. Shortly after he left, he received word that “over 100 protestors” had spilled into the intersection at SE 82nd Avenue and Division St., and returned to the protest.

By the time Sgt. Clark had returned, a “vast majority” of the protestors were standing on the sidewalk. Only a few protestors remained in the street, and Sgt. Clark warned them a few times that if they stayed in the street they would be arrested for disorderly conduct.

Sgt. Clark observed Raiford remaining in the right-turn traffic lane on Division, pacing back and forth while addressing the crowd of protestors. He did not witness any interrupted traffic patterns or cars that were obstructed by her presence before he sent officers to arrest her. “Traffic was still going through the intersection,” Sgt. Clark testified. “But Mrs. Raiford was obstructing traffic, so she was arrested for disorderly conduct.”

Officer Susan Billard was traveling northbound on 82nd Avenue when she reached the intersection with Division and found that traffic had come “to a complete stop.” A protest organizer approached her car to explain what was occurring, and she responded that things would be “much better” if the protestors were out of the intersection and on the sidewalk.

According to Officer Billard's testimony, she witnessed traffic headed eastbound on Division Street also coming to a “complete stop” due to Raiford’s presence in the right turn lane. Billard did witness cars being delayed “five to ten minutes” and having to alter their route around Raiford. According to Billard, passing motorists were honking at the police and yelling at them to “do something” which ultimately led to the arrest of Raiford, who—as she was standing in the street—met the probable cause for “disorderly conduct.”

After the Prosecuting Attorney’s witnesses, the defense responded by showing Judge Greenlick excerpts from a 22-minute video shot at the Black Lives Matter protest held on August 9, 2015. Angled away from the courtroom, public attendees were not able to see the video but did hear the audio which included protest organizers leading the crowd into chants of “Hands Up! Don’t Shoot!” “Whose streets! Our streets!” and “We can’t breathe!”

After witnessing the video, Judge Greenlick asked whether the Prosecuting Attorney would agree that standing in a traffic lane without any oncoming traffic fails to violate the “obstructing traffic” component of the disorderly conduct statute. For Raiford to be guilty of obstructing, she would actually have to be obstructing something, correct?

The response provided to Judge Greenlick's question is that the jury should determine whether Raiford was obstructing traffic. But in regards to question of whether there was probable cause, since Raiford was blocking the lane, she was obstructing traffic and therefore engaged in disorderly conduct.

McHenry followed by beginning with the premise that without any traffic being obstructed, there is no probable cause for Raiford to have been arrested for obstructing traffic. McHenry points out Sgt. Clark did not provide any testimony that traffic was being obstructed. Moreover, McHenry argues that Sgt. Clark’s interpretation of disorderly conduct is incorrect—simply by standing in a traffic lane does not mean one is “obstructing traffic.” McHenry also raised questions about Officer Billard’s testimony—her statement that cars were delayed by five to ten minutes was contradicted by video footage showing dozens of cars driving past Raiford. As McHenry points out, in the video “the only time cars were stopped was when they were at a red light.”

For probable cause to justify her arrest, the state would need to establish that Raiford intended to obstruct traffic. McHenry argues that the video demonstrates that nothing was being obstructed, and therefore Raiford cannot be guilty of disorderly conduct. There was no testimony provided by the police officers of Raiford's intention to obstruct traffic, but instead the video clearly shows her engaging in protected political speech. McHenry points out that there was a lack of public complaint regarding “annoyance, nuisance or alarm” raised by Raiford standing in the traffic lane, so that component of the statute was also not violated. And ultimately, McHenry argued, it is “very, very clear” from the video that no traffic was obstructed, and therefore probable cause was lacking for Raiford's arrest.

However, Judge Greenlick--despite finding Officer Billard's testimony "not credible"--determined there was enough available evidence in support of probable cause. Tomorrow will determine whether this case either takes the next step towards a jury trial--or whether the Prosecuting Attorney will consider a settlement to avoid trial.

Update, April 20 I was unable to stay for the whole day's proceedings on Monday, April 18. I had received reports that although Judge Greenlick did not find Officer Billard's credible, he still determined that probable cause existed for the disorderly charge to be filed against Raiford. This was incorrect. Judge Greenlick actually found that there was no probable cause for Raiford's arrest, but still determined that the charges could be filed if the State were to amend its original charge.

By Kyle Curtis April 18, 2016