Trials that become more about who is on trial than what they did usually produce unjust results. That might happen again this week when the main phase of the trial of Patriot Prayer founder Joey Gibson begins. Gibson faces a single count of riot, but after looking at the evidence in the light most favorable to the government, Cop Blaster concludes that Gibson may only be guilty of harassment.
Oregon law defines "riot" as "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." See ORS 166.015 (https://oregon.public.law/statutes/ors_166.015). That language describes three essential elements; First, that the incident involve five or more people; Second, that the defendant personally engage in tumultuous and violent conduct; Third, the conduct intentionally or recklessly creates a grave risk of causing public alarm. The first element can be easily satisfied in this case, but there appears to be no evidence to support the second element because shoving someone is not an act of violence. Without establishing the first two elements the court need not consider the third element. The evidence thus far viewed in the light most favorable to the government supports at most a misdemeanor charge of harassment.
Oregon law defines "harassment" as "Subjecting such other person to offensive physical contact; or Publicly insulting such other person by abusive words or gestures in a manner intended and likely to provoke a violent response;" See ORS 166.065 (https://oregon.public.law/statutes/ors_166.065). Gibson may have done both in this case. The government alleges and the video below shows that Gibson shoved at least one woman which should satisfy the offensive physical contact element.
If the conduct seen in the video below is the basis for the shove accusation it couldn't possibly constitute the type of "tumultuous and violent conduct" covered by the riot statute. This opinion is based on the minor nature of Gibson's shoves. While it is possible for a shove to constitute an assault or an attempted assault thus constituting violent conduct, that does not appear to be the case here. A shove must be at least an attempt to cause bodily injury in order to fall within the scope of an assault statute. When someone subjects another to an unwanted shove without trying to hurt them they are guilty of harassment. That is unless Gibson can show he was defending himself somehow which may have been the case with some of his shoves, but not all of them.
Even if he could defend every shove, that wouldn't get Gibson out of the woods. He is still accused of publicly insulting people in a manner intended and likely to provoke a violent response. Leading a group of people to a place you know you are not welcome, basically daring everyone to fight you, and hurling obscene insults sounds like harassment to Cop Blaster. Going to the place and hurling insults shouldn't be a legal problem because when done as part of political speech it is protected by the First Amendment. People have a First Amendment right to picket or otherwise hold a public demonstration in front of a business for reasons including disapproval of their customers. Joey Gibson has just as much of a right to stand outside Cider Pub and say what he thinks of Antifa as Ruth Sent Us has to stand outside Morton's Steakhouse and say what they think of Brett Kavanaugh. There is no constitutional right to congregate and drink hard cider or eat an overpriced steak dinner. The difference here seems to be that Gibson repeatedly dared people to come out and fight him in the street. Even if Ruth Sent Us dared Kavanaugh to come fight them in the street (which they are not believed to have done) they would not have had a reasonable belief in the provocation being successful. By pairing his constitutionally protected insults with an open invitation to fight, it appears that Gibson crossed the line from simply being offensive to attempting to provoke a violent response. Attempting to provoke a violent response is not a violent crime, so it cannot be treated as such for the purpose of satisfying the riot statute.
The fact that other members of Patriot Prayer have pled guilty to riot has no bearing on this opinion because they actually were rioting. However, not everyone with the Patriot Prayer group were rioting. It seems like there were a few bad apples on both sides. Treating Gibson like a rioter seems more like putting him on trial for leading Patriot Prayer than what he actually did that day. It also diminishes the importance of having a riot statute in the first place. If the government fails to distinguish between violent and non-violent conduct people might stop protesting out of fear that they might get blamed for someone else's violence. The opposite could also occur if people decide to become full blown rioters because they know they will be prosecuted just the same, so they might as well have fun while they can. Deputy District Attorney Brad Kalbaugh appears to be overreaching in this case.
Hopefully Judge Benjamin Souede will give jurors the option to find Gibson guilty of a lesser charge for his lesser conduct in this case. Convincing reasonable jurors to think lesser when they think of Joey Gibson should not be a problem.
UPDATE: Joey Gibson was just acquitted by Judge Souede because his opinion of the evidence is shockingly similar to the opinion expressed in this article. Souede said that a reasonable juror could conclude that Gibson engaged in harassment or disorderly conduct, but not riot. Like this opinion said, lesser conduct. However, giving the jury the option to convict on a lesser charge was not an option because of the statutory scheme. In order to convict on a lesser offense the offense must be charged in addition to or be included in the statute. For instance, the Alan Swinney jury could have chosen to convict Swinney of Assault IV instead of Assault II because all the elements of an Assault IV as present in an Assault II, but that is not the case when comparing the riot, harassment, and disorderly conduct statutes.
UPDATE: The video below has been changed to story by KOIN about Joey Gibson's acquittal. Judge Souede said he was "bewildered" by the government's pursuit of this case given the evidence. It is hard to find a more scathing rebuke from a judge than that.