[THIS POST SHOULD NOT BE CONSTRUED AS OFFERING LEGAL ADVICE. IN THE CURRENT POLITICAL CLIMATE, ANY CITIZEN'S ARREST MAY BE CHALLENGED AND COULD RESULT IN SUBSTANTIAL LEGAL LIABILITY FOR REASONS EXPLAINED BELOW.]
Our own Leo Stratton has posted video of the Lake Oswego screamer. In light of apparent decisions by local police forces to “stand down” when anti-Trump agitators like the screamer interfere with public displays of support for Trump, questions have arisen as to the scope of authority for those assembled to act in lieu of the police. This memorandum reviews the pertinent law.
Oregon law provides that “[a] private person may arrest another person for any crime committed in the presence of the private person if the private person has probable cause to believe the arrested person committed the crime. A private person making such an arrest shall, without unnecessary delay, take the arrested person before a magistrate or deliver the arrested person to a peace officer.” ORS 133.225(1). Given that police are typically present, it is easiest to deliver an arrested person to an observing officer, but it is also conceivable that delivery to a sympathetic judge (if one could be identified) would also be useful. See ORS 133.030 (“magistrates” means judges).
A critical question is how such arrests might be made. Oregon law provides that “[i]n order to make the arrest a private person may use physical force as is justifiable under ORS 161.255.” ORS 133.225(2). That statute in turn provides that “a private person acting on the person’s own account is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to make an arrest . . .”. ORS 161.255(1). The person making the citizen’s arrest “is justified in using deadly physical force only when the person reasonably believes it necessary for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of deadly physical force”. ORS 161.255(2).
The lowest level crime typically committed by anti-Trump agitators is disorderly conduct in the second degree, a crime committed when the agitator, “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,” does one of the following things:
“(a) Engages in fighting or in violent, tumultuous or threatening behavior;
“(b) Makes unreasonable noise;
“(c) Disturbs any lawful assembly of persons without lawful authority;
“(d) Obstructs vehicular or pedestrian traffic on a public way;
“(e) Initiates or circulates a report, knowing it to be false, concerning an alleged or impending fire, explosion, crime, catastrophe or other emergency; or
“(f) Creates a hazardous or physically offensive condition by any act which the person is not licensed or privileged to do."
ORS 166.025(1). Second degree disorderly conduct is a Class B misdemeanor. (Another possible crime is “riot”: “A person commits the crime of riot if while participating with five or more other persons the person engages in tumultuous and violent conduct and thereby intentionally or recklessly creates a grave risk of causing public alarm.” ORS 166.015.)
In attempting to identify “probable cause” for a crime, citizens must be aware that the plain language of the disorderly conduct statute is limited by Oregon judicial decisions protecting free speech. Conduct by anti-Trump agitators that can fairly be characterized as speech is likely to be held outside the scope of the statute, creating risk for those making a citizen’s arrest where speech is involved. This is because an unlawful citizen’s arrest will be regarded as an assault and battery against the person arrested, or even kidnapping making it very important to identify non-protected criminal conduct before acting.
Subsection (b), the “unreasonable noise” component of the disorderly conduct statute, has been repeatedly upheld, notwithstanding free speech arguments. The critical question will be whether whatever noise is emitted is not really communicative content, but an attempt to disturb others. State v. Atwood, 195 Or. App. 490, 501, 98 P.3d 751, 757 (2004); see also State v. Marker, 21 Or. App. 671, 679, 536 P.2d 1273, 1277 (1975) (“When speech is involved it can be classified prohibited noise only if there is a clear and present danger of violence or if the communication is not constitutionally protected speech but merely a guise to disturb persons”); State v. Rich, 218 Or. App. 642, 651, 180 P.3d 744, 749 (2008) (“The parties agreed that, if the basis of the charge against defendant was the communicative content of his speech, he had to be acquitted, and if the basis was the speech's noncommunicative elements, he had to be convicted.”).
Anti-Trump protestors shrieking loudly to interfere with the communication of others are obviously in violation of the statute. While this conduct also violates subsection (c) by “[d]isturb[ing] any lawful assembly of persons without lawful authority,” subsection (c) is more likely to be regarded as protected speech, and a less reliable basis for a citizen’s arrest.
Subsection (d), criminalizing conduct that “[o]bstructs vehicular or pedestrian traffic on a public way” is also aimed at conduct with a non-speech component. Anti-Trump protestors who block a sidewalk, linking arms to obstruct pedestrian traffic, are obviously in violation of the statute.
For all these reasons, there is clear legal authority allowing citizens to make citizen’s arrests of those who are unlawfully interfering with marches for Trump. This is not an approach without legal risk, but with care to avoid any unreasonable force (and even the appearance thereof), and to avoid action against those arguably engaged in constitutionally protected speech, citizens should be on solid legal ground in taking action. Whether local policeman standing down as these crimes go on around them will support citizen arrests remains to be seen.