Proud Boys activist Alan Swinney was arrested by the Portland Police this morning in connection with his alleged activities at various Blue Lives Matter, Patriot Prayer, and Proud Boys events in Portland, Oregon in recent months. We previously issued a snitch advisory warning for downtown Portland, Oregon on August 22, 2020 in response to obvious attempts by Antifa to get Swinney into trouble with the police. We do not agree with Swinney's view, but we strongly support his right to express those views. We also documented how snitches from both sides responded to the FBI's snitching form (https://copblaster.com/blast/25927/snitches-from-both-sides-respond-to-fbi-snitching-form) and a lot of those snitches were snitching on Swinney. Are these charges justified or is this selective enforcement?
What are the Charges?
The charges against 50 year old Alan James Swinney of Texas read as follows:
ATT ASSAULT IV (B Misdemeanor)
Bail: $1,500
Status: Unsentenced
UNLAW TEAR GAS ETC 2 (A Misdemeanor)
Bail: $2,500
Status: Unsentenced
ASSAULT II (B Felony)
Bail: $5,000
Status: Unsentenced
UNLAW USE WEAPON (C Felony)
Bail: $5,000
Status: Unsentenced
ASSAULT II (B Felony)
Bail: $250,000
Status: Unsentenced
ASSAULT II (B Felony)
Bail: $250,000
Status: Unsentenced
UNLAW USE WEAPON (C Felony)
Bail: $5,000
Status: Unsentenced
UNLAW USE WEAPON (C Felony)
Bail: $5,000
Status: Unsentenced
MENACING (A Misdemeanor)
Bail: $2,500
Status: Unsentenced
POINT FA AT ANOTHER (B Misdemeanor)
Bail: $2,500
Status: Unsentenced
UNLAW TEAR GAS ETC 2 (A Misdemeanor)
Bail: $2,500
Status: Unsentenced
ASSAULT IV (A Misdemeanor)
Bail: $2,500
Status: Unsentenced
We have already seen video footage of the incidents for which Swinney's charges are based. Most of them are from the August 22nd Proud Boys rally outside the same building where Swinney was booked into custody this morning. In that footage we recall seeing behavior on Swinney's part that did violate some of the statutes that he is charged with violating. The event was streamed live online and so many people pointed out what he did already that we do not feel that anything we say helps the government's case at all. We observed him using mace on Antifa, pointing a firearm at Antifa, and shooting Antifa members with a paintball gun. We believe that some of his actions were in a self defense capacity, but not all of them.
We believe that he pulled the gun for the purpose of deterring Antifa from advancing on his position, so we consider that to be self defense somewhat, but we do not believe that he needed to point the gun at anyone. People open carry guns all the time and do so at protests to deter people from using force on them. In such cases merely making the other side know that you are armed is all that is necessary to achieve the necessary deterrent effect. Pointing guns at people that are not coming at you with enough speed and ferocity to justify shooting them is rarely justified. We watched the event live online and noticed that Antifa had been advancing on his position and that the Antifa group far outnumbered the group of Proud Boys. That scenario typically requires the use of deadly weapons in a deterrence capacity for the smaller group to stand their ground. We believe that is what took place, but that aiming the gun was not necessary.
We do not consider showing up with a paintball gun for the purpose of paint balling Antifa self defense or that Swinney's use of mace was limited to just defending himself from advancing Antifas. A lot of the footage from the August 22nd event showed behavior that was consistent with the "Patriot Caravan" event which was basically one big drive by paintball shooting with mace. To sustain a charge of assault under Oregon law the state must prove that Swinney injured someone. That injury can be as minor as a bruise from a paintball gun or the effects of mace on the eyes. We believe that Swinney most likely committed the offenses of Harassment, Assault in the Fourth Degree, Unlawful Use of a Weapon, and Unlawful Use of Mace.
We do not see any evidence of him committing Assault II (https://www.oregonlaws.org/ors/163.175) because Assault II requires one of two things not present in this case: 1) Serious physical injury; 2) Use of a deadly or dangerous weapon. Mace and paintballs cause physical injury but not serious physical injury. Mace and paintball guns are not deadly or dangerous weapons. We believe that the police are overcharging Swinney on the Assault II counts. We also do not believe that a lower charge of Assault III would be justified either because Assault III requires that someone recklessly cause serious injury.
The Assault II counts are part of a charging strategy commonly used to stack the deck against defendants for the purpose of gaining leverage in plea negotiations. It is a fairly simple strategy where police and prosecutors charge someone with anything they think they can get an indictment on whether or not they think the accused is actually guilty. The only criteria that they use to justify using this tactic to themselves is the knowledge that the defendant is guilty of at least one charge on the list. Then they usually offer to dismiss the more serious fake charges if the defendant admits to lesser charges that he did in fact commit. Then the prosecution will go to sentencing and act as if the defendant is still guilty of the more serious charges, but was allowed to plead guilty to lesser charges due to the government being reasonable. The end result is a perception among the general public that the defendant was guilty of everything, but got off light.
Why would someone like Swinney want to plead guilty to avoid trial on more serious charges that he did not commit? To avoid ending up like Jeremy Christian (https://copblaster.com/hashtag/jeremy-christian/). Multnomah County juries are extremely liberal and as such they are notorious for allowing irrelevancies to control their decision making. In the Jeremy Christian case, an autistic man stabbed three men on a Max train after a known Antifa activist threw him on the ground twice. Due to his developmental disability Christian's ability to respond rationally to the situation was significantly diminished and that should have been enough to lower the seriousness of the murder charges to those of First Degree Manslaughter. Christian was also found guilty of Assault II as a hate crime for defending himself from Demetria Hester the night before the stabbings. In that incident Christian started an argument with Hester, unknown words were exchanged, Christian turned to walk away from Hester after getting off the train, she attacked him with mace, he tried to keep walking away, and only after she followed him with the mace did he throw a half empty plastic Gatorade bottle full of Sangria at her eye. Antifa and the government made the Christian case all about race. The question for the jury became, "is he racist?" Not just "is he guilty?" Christian was a little racist, but not full blown white supremacist racist. That was all it took for the jury to want to convict him of everything they had the power to convict him of, which is what they did. We believe that the government and Antifa will try to do the same thing to Swinney. The outcome of the Christian case would make Swinney a fool not to accept a plea deal to lesser charges if one is offered and it might even be enough to embolden the government to only offer a plea deal to the more serious charges. Juries in Multnomah County have proven that they are not capable of rendering decisions based solely on the letter of the law. If District Attorney Mike Schmidt thinks his case can survive dismissal motions from Swinney's lawyers, we believe there is a good chance that he will use Swinney to put the Proud Boys on trial and not offer him any plea agreement at all.
What is Selective Enforcement and Prosecution?
Selective enforcement occurs when police enforce the law against a similarly situated person based on an impermissible motive. When that person is prosecuted in court it becomes selective prosecution. Politics is considered an impermissible motive for prosecuting someone under the law. We expect Swinney to argue that he is similarly situated to the Antifa activists that he was fighting with on August 22, 2020. We would agree with him on that issue. If two sides get into a fight and the government bases their decision to charge just one side based in part on that side supporting Donald Trump then they are denying that person the equal protection of the laws. Unfortunately for Swinney, the Ninth Circuit has recognized that it does not take much to move a person out of the similarly situated category. For instance, two people caught doing the same thing are arguably similarly situated, but if one of those people has a criminal record they are no longer considered similarly situated. The way the government handles a case can make people that were similarly situated when a case commenced no longer similarly situated by the time a selective prosecution claim is raised. If a previously similarly situated person becomes a cooperating witness then the Ninth Circuit no longer considers the person similarly situated. The government would most likely argue that Swinney is not similarly situated to the Antifa activists now even if they were similarly situated to him on August 22nd because a named victim is not similarly situated to a named defendant, that argument would be consistent with current precedent in the Ninth Circuit.
Patriot Prayer leader Joey Gibson recently sued Mike Schmidt in federal court for selectively prosecuting him (https://copblaster.com/blast/1222/joey-gibsons-arrest-raises-a-question-what-is-selective-prosecution). Coincidentally we had already criticized Schmidt's predecessor Rod Underhill for selectively prosecuting Gibson in that case. Gibson's lawsuit saws that Schmidt is now discriminating against him by failing to dismiss a riot charge after announcing that his office will not prosecute people charged with riot and other crimes on a short list unless they are also charged with something more serious (https://copblaster.com/blast/25907/mike-schmidts-amnesty-policy-shows-protests-are-working). Schmidt's best defense to Gibson's lawsuit would be to argue that a person protesting racial injustice is not similarly situated to a person that opposes them. He might be able to win that if he shows that Gibson showed up for the purpose of provoking a response from the Antifa crowd.
Most of the case law working against Swinney and Gibson focuses on preventing people from committing crimes, saying that they are being prosecuted in part due to their speech, and being able to get away with the crimes by claiming selective prosecution. Even though the Supreme Court only requires that a case be based in part on protected speech to constitute selective prosecution, lower courts are eager to find excuses to rule that cases were based entirely on other things even if the government was obviously agitated by the speech. Proving selective prosecution typically requires a smoking gun statement from the government where they spell out their prohibited motive in plain English.
Did Swinney Prove His Point?
If Swinney's point was to prove that some members of the Antifa movement are hypocritical snitches that support defunding the police only to work with them when it suits them then Swinney has made his point. All anyone has to do to prove that is go to Portland, Oregon and stand on a street corner with a pro-Trump sign. Such people will almost always be threatened, attacked, and if they defend themselves they will be told on. Then the government will present the Antifa narrative as fact in court. That narrative will be something to the effect of a white supremacist provoking people for the purpose of arguing self defense later.
Conclusion
Alan Swinney is screwed not because he broke the law, but because he broke some laws in a jurisdiction that cares more about social justice than justice under the law. The Multnomah County Courts have proven incapable of enforcing the letter of the law in cases where one side is considered to be a far-right agitator and will almost always return guilty verdicts on all counts that juries are allowed to decide. He did break the law, but he is being overcharged for political reasons.
UPDATE: We have updated the source link for this article to a press release from the Multnomah County District Attorney's Office. In that release they accuse Swinney of shooting people with a paintball gun, spraying them with mace, and pointing a revolver during two separate incidents last month. None of the behavior mentioned in the release if proven would support an Assault II charge because a bruise is not a serious injury and a paintball gun is not a dangerous weapon. Assault II is a Measure 11 crime with a mandatory minimum sentence of 5 years and 10 months. Nobody deserves to spend half a decade in prison for paintballing people.
UPDATE: While browsing Twitter for information about this case we happened to bump into one of the named victims. She said that her victim's advocate informed her that 5 of the charges relate to her but that she does not recall which 5. Swinney hasn't even been arraigned yet, so that type of response is not terribly shocking. This person is also the plaintiff in a lawsuit filed against Swinney seeking $250,000 for shooting her in the chest with a paintball gun. She posted a picture from her lawsuit on Twitter showing a boob with a nasty bruise (https://twitter.com/UnderdogLawBlog/status/1311442948169502720/photo/1). If that is the basis for an Assault II charge then he is clearly not guilty of that. A nasty bruise is not the type of serious injury that would fall within the scope of the Assault II statute. We explained to her that we think that the picture shows an Assault IV. We also mentioned the potential consequences for society should this case be used to lower the bar when it comes to what qualifies as a dangerous weapon or a serious injury for the purpose of the Assault II statute. Lowering that bar could send a lot of people to prison for a long time. Imagine if bruising someone was punishable by at least 5 years in prison.
UPDATE: According to the local news the lawsuit mentioned in the the last update was in fact filed for a paintball. KOIN TV reported the following:
"According to court documents, Meg McLain says she was peacefully observing a rally outside the Justice Center on the afternoon of August 22. Shortly before 1 p.m., a man at the rally, identified as Alan Swinney, allegedly opened fire and intentionally shot her in the chest with a paintball. In the lawsuit she filed on Monday, McLain says this caused her pain, discomfort, distress and interfered with daily life activities. Court documents included a photo of a paint-stained jacket McLain was wearing at the time along with a photo of a large, red welt on one of McLain's breasts, which she says was a result of the paintball." - KOIN TV (https://www.koin.com/news/protests/right-wing-protester-alan-swinney-arrested-on-12-charges-proud-boys/)
McLain's lawyer Michael Fuller described his client's bruise in his complaint, "defendant opened fire on plaintiff and intentionally shot her in the chest with a paintball, causing her pain, discomfort, distress and interference with daily life activities." Fuller appears to be describing McClain's bruise in such a way that best mirrors the definition of "serious physical injury" found in the Oregon Revised Statutes (https://www.oregonlaws.org/ors/161.015) which reads, "serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." We could see a prosecutor arguing that Swinney's paintball caused severe bruising to McLain's right breast, impaired the function of that organ, and the disfigurement was protracted. That argument fails to elevate her symptoms beyond that of a physical injury, which is defined as "impairment of physical condition or substantial pain."
Oregon law defines a dangerous weapon as "any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury." A paintball gun firing paintballs does not fit that definition. Fuller and most likely the prosecutor are clearly reaching. Any hope of sustaining this type of charge would hinge on finding an example of a serious physical injury caused by a paintball and they saying that even though people are not seriously injured by paintballs 99.9% of the time that it is technically possible. That leads us to wonder what happens when people are shot in the eye with a paintball.
We also are not sure at this point if McClain is the alleged victim of any of the Assault II charges. When we talked to her she said that her victim's advocate told her that 5 counts named her as the victim, but she did not recall which ones. Some people that were at the August 22nd event have told us that he sprayed insecticide at people. That might explain them depending on what type of insecticide it was and if it is harmful to humans. Some suggested he may have shot other people with glass breaker balls or ball bearings, which could form the basis for an Assault II depending on the circumstances.