Beneath the waves of protests, these lawyers are challenging police and policy
F rom the periphery of what is approaching 100 days of protests in Portland, a group of local attorneys keeps a watchful eye.
And they have good reason. Since the police killing of George Floyd in Minneapolis in May, which initially sparked the demonstrations that have gripped the city, more than 550 people have been arrested. In many cases, arrests and confrontations with police have called into question the legitimacy of police use of force and the basis of criminal charges levied against demonstrators.
These attorneys aren’t donning protective gear and hefty respirators to mitigate the physical impacts of police-deployed crowd-control munitions. Instead, they are wielding their own brand of defense, rooted in protections granted under the U.S. Constitution.
They are filing lawsuits designed to hold police accountable and to uphold the First Amendment rights of every American.
Their goal is to permanently change the ways police can legally respond to protesters, the press and even passersby during mass demonstrations in the city. And in many cases, they’re doing it pro bono, or free of charge.
We wanted to know more about these change makers who, while often working behind the scenes, are poised to make some of the most lasting and unshakable reforms to come out of the movement.
Street Roots interviewed four Portland attorneys representing plaintiffs in lawsuits stemming from police and federal law enforcement actions during the past three months of protests. We asked them about their motivation and about where lawyering fits into the complicated struggle Portland’s many demonstrators have undertaken against the powers that be in the Portland Police Bureau and beyond.
PROTESTS: Portland police are no better than the feds, activists say
Juan Chavez
In late May, Juan Chavez and his colleagues at the Oregon Justice Resource Center Civil Rights Project, where he is the project director, were in the courthouse arguing for better health precautions for incarcerated people in Oregon’s prisons following the death of an unnamed inmate at the Oregon State Penitentiary from COVID-19. It was the first death in Oregon’s prisons due to the virus.
It was, quite possibly, the toughest moment of Chavez’s career and one he’s not sure he’ll ever get over. So far, the court has yet to order increased protections for prisoners.
“That’s still raw for me,” he said. “We worked so hard, and it’s not necessarily about our work and the effort we put in. But, when you spend a month saying that something’s going to happen, when everyone on the inside says it’s going to happen and they don’t feel safe, and then it finally happens, it felt like a tremendous blow.”
That night, some protesters broke into the Justice Center downtown and set a small fire. It was Friday, May 29.
By Monday of the following week, Chavez recalls, he’d already caught more than a whiff of tear gas. Then came the midnight hours of masochistic Twitter scrolling; local journalists use the social media site to document protests, which often devolve into clouds of tear gas and rounds of rubber bullets shot at demonstrators — peaceful and some violent alike.
On June 5, just one week after the Justice Center break-in and fire, Chavez and his colleagues filed a lawsuit on behalf of Portland’s grassroots anti-police-brutality organization Don’t Shoot Portland, asking for a ban on police use of tear gas on protesters.
The goal was first to receive a temporary restraining order against the city of Portland banning the use of tear gas to disperse crowds when demonstrations present little to no risk of injury — which was granted — and to prove to the court that if the order were made permanent using an injunction, it would legally succeed and that the plaintiffs — in this case, protesters — would suffer irreparable harm without it.
Later that month, a temporary agreement between the city of Portland and Don’t Shoot Portland also established a ban on pepper spray, less-lethal munitions like rubber bullets, and the use of the department’s Long Range Acoustic Device, which emits an uncomfortable high-pitched tone.
In the weeks since, court filings documented dozens upon dozens of possible violations of the agreement. Chavez quantified the inpouring of reports from protesters as “countless.” Most recently, the plaintiffs filed an amended motion of contempt of court against the city for specifically violating the agreement in June.
The Oregonian reported earlier in the month that the city’s attorneys continue to contend that police haven’t violated the order and that the motion is looking for accountability for actions not covered by the lawsuit.
The city is anticipated to respond to the motion no later than Aug. 27.
Does the lawsuit scatter the clouds of tear gas hanging over Portland’s protesters? Not entirely, and Chavez recognizes that. But the fact that the city of Portland has, according to attorneys, seemingly violated the order many times reinforces the need for the litigation.
“It proves our point that we needed a restraining order to keep the city from violating people’s constitutional rights as broadly as they were,” Chavez said. “They continue to do it, they continue to violate people’s rights, but we need clarity on that issue.”
Chavez wasn’t always going to be a lawyer. While growing up in the suburbs outside Los Angeles, he was hoping to be the next great, American novelist. It’s not necessarily an ambition he’s letting go of, either.
But after graduating with an English degree in the midst of the recession made it difficult to enter the job market as a hopeful educator, Chavez turned to law school and made the leap from sunny Southern California to the Willamette Valley, lured both by the possibility of a law degree at Willamette University and Portland’s underground music scene.
It took a moment, he recalled, to gain confidence in the field of law. He thought he might want to enter public service in the government. Then he interned at the Marion County public defender’s office, and then at the International Human Rights Clinic at Willamette University, where he worked on asylum cases and a civil rights case for Guantanamo Bay detainees.
“The combination of those experiences made me feel like, ‘I have no other path forward. I can’t un-see this. I don’t know if I can do a car crash after this,’” he said. “It felt suddenly like a calling, and so it was nice to have a feeling of clarity but also freaking scary.”
Chavez said there’s no real magic to becoming a civil rights lawyer. You call yourself one, and then you learn how to do it. By a lot of lawyer metrics, he said, it’s not always what feels like a successful venture. Most of his clients at the Oregon Justice Resource Center are incarcerated and have little money to their name. Like most lawyers that take on civil rights litigations, the cases are most often pro bono.
For a time, Chavez took on divorce suits to keep afloat, before ultimately landing the job at the Oregon Justice Resource Center.
He notes there are gaps in Oregon’s ability to hold the government accountable, and in the meantime, a small group of individual lawyers is keeping it in check.
“There’s not really a big firm that does those kinds of affirmative civil rights lawsuits for damages,” he said. “You’ve got a handful of individuals who will do it. The big firms are mostly defense firms, or transactional law firms. No one is going to hire you to do this, specifically, so you need individuals to step up, and also people that will mentor you and get you your cases.”
Regardless of what happens in court, Chavez maintains that the real revolution is happening in the streets. What he and his colleagues are setting out to do is make a record of what happens.
“I’m impressed as hell by everybody out there. We’ve really stepped up. We’ve always had this in us. It’s always been in Portlanders,” Chavez said. “And it just makes me really proud. It’s not often — I don’t know if I ever give myself enough time to feel a sense of pride in something.”
LAWSUIT: Passerby attacked by police during protest is suing Portland
Viktoria Safarian
Viktoria Safarian, an associate criminal defense lawyer at Levi Merrithew Horst, has spent the summer interviewing protesters. She files their experiences as public declarations, which document potential violations of the city’s agreement for the tear gas lawsuit brought by Chavez and his colleagues.
In that sense, she said, being a lawyer is almost like being a therapist — giving those who’ve been impacted physically and mentally by crowd control tactics space to process what’s happening.
“One thing that’s challenging for us in this tear gas lawsuit is communicating to a judge, who doesn’t go to the protests, just about the level of violence, like how disproportionate and just overwhelming the amount of force that’s used every single night basically,” she said.
Safarian, who was born in Armenia, grew up in Russia and Germany before moving to the Midwest at age 11 with her mother, who is a doctor.
Between frequent moves from country to country, she feels she lost whatever extroverted qualities she might have had as a young child.
Instead, Safarian was a nose-in-a-book type of kid who anticipated following her mother’s path, kicking off college at Transylvania University in Lexington, Ky., as a pre-med student.
“I didn’t hate it, but it was just like, not my thing,” she said.
Safarian ended up graduating with a philosophy degree instead and spent two years teaching English in South Korea as a Fulbright Scholar. Each day, she braved public speaking before a room of 30 children.
“I guess it took away a lot of the fear that everyone, you know, naturally has about public speaking,” she said. “I think that being a teacher actually made me a better trial lawyer. I’m good at teaching people concepts and breaking things down, and I’m good at talking to people in a way that’s not too confusing.”
When Safarian got back to the U.S., she went to Harvard Law School hoping to explore international human rights law, but all that changed after George Zimmerman was acquitted in the killing of Black teenager Trayvon Martin in 2013, followed by a wave of Black Lives Matter protests kicking off in 2014. Safarian learned in class about solitary confinement and mass incarceration in prisons.
She thought: Why move to another country when she could pursue human rights laws right here in the U.S.?
“Actually, I didn’t find out about how racist and problematic our system was until I studied about it in law school,” she said. “I think that’s the experience of a lot of people’s privilege, especially white people. And even you know, I, as an immigrant, I still had a lot of privilege. But coming to this country late, I guess, I had no idea all the baggage.”
Her answer was to pursue criminal defense.
Upon graduating in 2017, she landed a job at the Metropolitan Public Defender’s office and moved to Portland.
The psychological toll of serving so many traumatized clients, Safarian remembered, was a lot to bear.
“It was just unsustainable for me. I was really suffering, not sleeping,” she said.
And so eventually, she started reaching out across Portland’s small market to the attorneys doing the work she admired most, and within months, she got a job at Portland-based Levi Merrithew Horst.
But, her work still holds some intense emotional weight and lately has continually been up against the legal concept of qualified immunity, which often bars victims of police wrongdoing from suing officers.
Safarian is involved in the civil rights case accusing Portland police Officer Andrew Hearst of using excessive force in the deadly shooting of 17-year-old Quanice Hayes, of Portland, in 2017.
Hayes, a Black youth, was a suspect in an armed robbery at the time, but he was unarmed when he was killed.
“It’s important for that work to be done,” she said. “Even though the law is so limited and so imperfect at the same time. Same thing with the tear-gas lawsuit that we’re doing now.
She said she tells people one of the values in a case such as the one against the city regarding Hearst is that it allows the community to tell their side of the story.
“We’re not just letting the government tell the story,” she said, “because the government’s story about Quanice was that it was his fault.”
PROFILES: Pain, arrests and trauma: 4 injured protesters share their stories
Michael Fuller
At the start of the demonstrations downtown, Michael Fuller’s client was merely occupying her downtown apartment when a flood of tear gas seeped into her home, causing burning and pain to her respiratory system. By late July, she settled a lawsuit with the city for $1,000 in damages.
Plaintiff Monique Jefferson is one of 23 clients impacted by the police response to protests in Portland that Fuller’s firm, Underdog Lawyer, has represented pro bono since the demonstrations in Portland began.
Fuller is also a partner at the Portland office of the law firm OlsenDaines, which specializes in personal injury, bankruptcy and social security disability law.
Fuller grew up in Hillsboro, and an unlikely path to law trails behind him.
His mother worked at a bowling alley, and their family lived on public assistance from time to time. He describes himself as having been a “horrible” student by traditional standards: held back one grade, expelled another and suspended repeatedly throughout high school.
“I was never a good student, and I didn’t hate school though. It was better than having to spend time with my nose in the corner of the bowling alley,” he remembered. “I grew up in a trailer park, and I always thought things were unfair, and we didn’t have any money; we didn’t have any power. And so, I just wanted to be a lawyer. Step by step, it kind of all just came together.”
Fuller headed straight to Portland State University for a year before studying at Oregon State University, and eventually interning for former U.S. Sen. Gordon Smith (R-Oregon) in Washington, D.C.
But when the internship was over, it was back to the grind. Fuller took a job pumping gas in West Salem before receiving a full ride to Willamette University to study law.
“I knew I wanted to help poor people, and I knew I wanted to sue large corporations and banks,” he said.
While he’s been working nonstop for the past decade in Portland, Fuller said it hasn’t been until the past few years that he’s felt entirely confident to do his job.
“Until that point, you had to fake it till you make it,” he said. “When I was starting out, I was only concerned with winning and losing. I don’t like losing — I hate losing — but that’s not what makes a good lawyer. You’re going to win some, and you’re going to lose some.”
Right now, he’s representing clients — whom he describes as renters, homeowners, peaceful protesters and journalists — who were injured while protesting or because tear gas entered their homes.
“My team works day and night,” he said. “There’s really a team of, I would say, several dozen of us lawyers in town who aren’t going to stand by and watch this happen. I’m probably one of the minor players.”
He thinks litigation is important right now, but secondary to what protesters are vying for.
“I just view myself as a public support network for the protesters,” he said. “I wish more lawyers would do more pro bono work. The community has been coming out on these cases. We’ve seen some really important firms from solos all the way up to the big firms coming out to support the resistance.”
Athul Acharya
Like the other three attorneys profiled, Athul Acharya didn’t initially envision himself in the courtroom — at least not right away. But today, the public interest lawyer who works for the California-based firm BraunHagey & Borden is working diligently with his colleagues on a case alongside the American Civil Liberties Union of Oregon to prevent local and federal police from assaulting journalists and legal observers during protests after police order crowds to disperse during nightly demonstrations.
Acharya was born in Ireland to parents afflicted with what he describes as a case of wanderlust. He lived in England and India before moving with his family to the U.S. and landing in Tennessee for high school, eventually earning a master’s degree in computer science from Purdue University.
Interest in computers was born out of that far-from-stationary lifestyle. Most of Acharya’s friends growing up were online.
After graduating from Purdue in the middle of the 2008 recession, he narrowly scored a job at Intel in Hillsboro before a major hiring freeze. But something was missing.
“It didn’t satisfy some need in me for a public spiritedness to my work. You know, like, what I found myself caring about was not like the battery driver that I was working on,” he said.
Acharya jumped back to law school with the intention of studying up on technology policy issues like net neutrality and patent trolling, wherein companies use patent infringement to repeatedly hold back their competition and profit in court. He eventually pursued patent law at a firm in California, taking on patent trolls and operating an active pro bono practice.
While Acharya’s résumé is lengthy, this summer has marked the most challenging time of his law career. He helped win a temporary relief —and eventually a preliminary injunction — for journalists and legal observers against the Portland Police Bureau exempting them from crowd dispersal orders.
Acharya said that since the temporary relief went into place against the Portland Police Bureau, local police attitudes toward journalists have improved somewhat. But he described the compliance to the temporary restraining order against federal officers as lacking.
On Aug. 18, The Oregonian reported that Deputy City Attorney Naomi Sheffield expressed hope that the injunction could be modified, as police found a “significant influx” in the amount of people self-identifying as press and allegedly committing crimes.
And, when the temporary restraining order was about to be issued against federal police, at one point, Acharya and other lawyers on the case had 24 hours to issue a response to a legal brief. It took what Acharya calls a lot of sweat equity and lost sleep, but it was well worth it.
“And it was an emergency,” Acharya told Street Roots in July. “Our clients and people similarly situated were getting beaten and shot every night, every night. Every morning, I wake up and just see like a fresh litany of horrors. … When you seek relief on an emergency basis, you know, the court is going to make you sweat a little bit, because it’s an emergency, and you should be willing to do the work.”
As a private enforcer of constitutional principles, Acharya said, “you can use your skills and the availability of the courts to regulate law enforcement when the people who are supposed to regulate them don’t. And we’ve seen that to some extent,” he said. “I won’t say that it’s been perfect.”
In a major turning point in the case on Aug. 20, a federal judge issued a 61-page preliminary injunction against the federal officers. Like the local injunction, it exempts journalists and legal observers from orders to disperse after actions are declared a riot. Less than 24 hours later, the federal government filed an appeal of the decision.
Acharya summed up the importance of this complicated moment in history briefly:
“We still live in a country with a First Amendment. And that First Amendment gives people the right to protest,” he said. “And it gives journalists and legal observers the right to observe and record and report on what’s going on. And we’ve seen that people’s exercise of their First Amendment rights, especially the right to protest, has been met with more police brutality. And our answer to that is, the world is watching. And we’re going to make sure that the people who are helping the world watch are able to do so and keep showing the world what’s going on.”
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