Month: July 2020

On, then, to the specific laws, beginning with ones that protect off-duty lawful activity (or, in the case of Montana, require good cause for firing more broadly).

[A.] Engaging in Any Off-Duty Lawful Activity—Colorado and North Dakota

Two state statutes generally bar employers from restricting employees’ off-duty lawful activity. “Lawful activity off the premises of the employer” is broad enough to include speech, and court decisions have expressly interpreted such a statute to cover speech.[1]

Colorado: [No employer may] terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction:

(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or

(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

North Dakota: [No employer may discriminate against an employee or applicant] because of … participation in a lawful activity that is off the employer’s premises and that takes place during nonworking hours

[a] [unless that participation is] in direct conflict with the essential business-related interests of the employer … [or]

[b] contrary to a bona fide occupational qualification that reasonably and rationally relates to employment activities and the responsibilities of a particular employee or group of employees, rather than to all employees of that employer.

Colorado also has another statute, which we’ll discuss in a future post, protecting employees’ “engaging or participating in politics.”

[B.] Engaging in Off-Duty “Recreational Activities”—New York

New York bars employer retaliation for off-duty “recreational activities,” including, among other things, “reading and the viewing of television, movies, and similar material.” A separate part of the statute, which we’ll discuss later, expressly protects partisan political activities.

The New York law’s protection for receiving speech suggests there is similar protection for conveying speech. Court decisions have indeed treated “recreational activities” as including arguing about politics at a social function[2] and participating in a vigil for a man killed because of his homosexuality.[3]

But one court has held that picketing is not sufficiently “recreational” to qualify.[4] Other New York courts have likewise held that certain non-speech activities—dating[5] and organizing and participating in “after-work celebrations with fellow employees”—that might normally be seen as recreational nonetheless are not covered by the statute. This suggests that “recreational activities” might likewise be read narrowly in some speech cases.

New York: (1) … (b) “Recreational activities” shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material ….

(2) … (c) [No employer may discriminate against an employee or prospective employee] because of … an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property …

(3)(a) [This section shall not be deemed to protect activity that] creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest ….

(4) [A]n employer shall not be in violation of this section where the employer takes action based on the belief … that: … (iii) the individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.

[C.] Engaging in Activity (On- or Off-Duty) That Doesn’t Create “Reasonable Job-Related Grounds for Dismissal”—Montana

Montana is the only state that generally bars employers from firing people absent good cause; this would include many dismissals based on an employee’s speech or political activity.

Montana: [An employer may not discharge an employee] if … the discharge was not for [reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reasons] and the employee had completed the employer’s probationary period of employment [or six months, if the employer did not establish a specific probationary period] ….

This provision is limited to actual and constructive discharge, and is not violated by minor demotions, failures to promote, or failures to hire. But, as we’ll discuss in a later post, certain Montana employers are barred from all discrimination based on certain kinds of political activities.

[1].Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997) (letter to the editor of a newspaper criticizing the employer); Gwin v. Chesrown Chevrolet, Inc., 931 P.2d 466 (Colo. App. 1996) (employee’s demand to an off-the-job lecturer for a refund of money paid to attend the lecture); Angel v. Rayl, No. 04-CV-3420, 2005 WL 6208024 (Colo. Dist. Ct. Dec. 1, 2005) (dictum) (“read[ing] certain books,” “see[ing] certain movies,” “attend[ing] certain plays,” “attend[ing] certain political or social-activism events,” and “express[ing] certain opinions in letters-to-the-editor of the local newspaper”).

[2].Cavanaugh v. Doherty, 243 A.D.2d 92, 100 (N.Y. App. Div. 1998) (treating an allegation that plaintiff was fired “as a result of a discussion during recreational activities outside of the workplace in which her political affiliations became an issue” as covered by the statute).

[3].El-Amine v. Avon Prods., Inc., 293 A.D.2d 283 (N.Y. App. Div. 2002) (affirming denial of summary judgment in a § 201-d(2) case apparently brought based on plaintiff’s “involvement in a vigil for Matthew Shepard, the gay college student who was brutally murdered in Laramie, Wyoming,” Jennifer Gonnerman, Avon Firing, Village Voice, Mar. 2, 1999).

[4].Kolb v. Camilleri, No. 02-CV-0117A(Sr), 2008 WL 3049855, at *13 (W.D.N.Y. Aug. 1, 2008) (“Plaintiff did not engage in picketing for his leisure, but as a form of protest. While the Court has found such protest worthy of constitutional protection, it should not engender simultaneous protection as a recreational activity akin to ‘sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.'”).

[5].E.g., Hudson v. Goldman Sachs & Co., 283 A.D.2d 246 (N.Y. App. Div. 2001) (“romantic relationships are not protected ‘recreational activities'”); State v. Wal-Mart Stores, Inc., 207 A.D.2d 150 (N.Y. App. Div. 1995) (“dating is entirely distinct from … recreational activity”) (internal quotation marks omitted). But see id. at 153 (Yesawich, J., dissenting) (arguing that dating should be seen as covered).

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President Donald Trump’s recent comments about saving the suburbs from new development appear to be more than just talk. A new fair housing rule released by the Trump administration this week prioritizes local control of housing policy in place of federal interventions to address the legacy of segregation (which progressives prefer) or incentivizing the deregulation of housing construction, which his own administration proposed earlier this year.

On Thursday, the U.S. Department of Housing and Urban Development (HUD) released its new Preserving Community and Neighborhood Choice rule, which establishes the standards jurisdictions receiving HUD grants have to meet in order to satisfy the 1968 Fair Housing Act’s requirement that federal housing programs be administered in a way that “affirmatively furthers fair housing.”

The new rule, which goes into effect in 30 days, essentially guts the 2015 Obama-era affirmatively furthering fair housing (AFFH) rule that has long been derided by conservatives as an example of federal bureaucratic overreach, and which the Trump administration has been trying to unwind for the past two years.

“We are tearing down the Obama Administration’s Affirmatively Furthering Fair Housing rule which was an overreach of unelected Washington bureaucrats into local communities,” said HUD Secretary Ben Carson on Twitter. “The AFFH rule was a ruse for social engineering under the guise of desegregation, essentially turning [HUD] into a national zoning board.”

The AFFH rule was a ruse for social engineering under the guise of desegregation, essentially turning @HUDgov into a national zoning board.

— Ben Carson (@SecretaryCarson) July 23, 2020

The new rule’s release comes on the heels of numerous attacks by Trump on the old AFFH rule as a federal assault on the suburbs, and specifically single-family zoning; an assault the president warns that would only be escalated by a Joe Biden Administration.

Democrats’ reimposition of the old AFFH rule would “eliminate single-family zoning, bringing who knows into your suburbs, so your communities will be unsafe and your housing values will go down,” said Trump at an internet town hall event, reports The Washington Post.

“The Suburban Housewives of America must read this article. Biden will destroy your neighborhood and your American Dream. I will preserve it, and make it even better!” said Trump yesterday in a tweet that linked to a New York Post op-ed warning about the pernicious effects of the Obama AFFH rule.

The Suburban Housewives of America must read this article. Biden will destroy your neighborhood and your American Dream. I will preserve it, and make it even better! https://t.co/1NzbR57Oe6

— Donald J. Trump (@realDonaldTrump) July 23, 2020

The 2015 regulation required HUD grant recipients—which includes states, cities, counties, and public housing authorities—to complete lengthy, 92-question assessments that required them to collect data and report on everything from labor market outcomes to educational quality and access to public transportation. Jurisdictions that failed to complete their assessments to HUD’s satisfaction were required to do them again.

In place of those requirements, the new rule published by the Trump administration only requires that recipients of federal housing funds take some action “rationally related to promoting fair housing.” In addition, the rule establishes a rather broad definition of fair housing that includes not only the absence of discrimination, but also that housing is affordable, “decent, safe, and sanitary.”

So long as jurisdictions take any action that can be rationally tied to one of those goals, Trump’s HUD will consider them in compliance with the Fair Housing Act.

Both the very limited requirements of this new regulation and the rhetoric Trump has used to sell it have sparked a fierce reaction from progressive fair housing advocates, who argue that the federal government is essentially giving a green light for localities to discriminate.

“This is not a fair housing rule,” says Debby Goldberg of the National Fair Housing Alliance. “What [Trump] is doing here is strictly political. It’s about revving up his base and fanning the flames of racial division in this country in advance of the election.”

The original purpose of inserting language about “affirmatively furthering fair housing” in the Fair Housing Act was to ensure that “regardless of where people live, they have access to the kinds of things we all need to flourish,” Goldberg tells Reason, listing “healthy grocery stores, good transportation, well-performing schools, clean air, clean water, etc. things that are really connected to opportunity.”

The reporting requirements in the 2015 AFFH rule gave HUD and HUD grantees the information they needed to further this expansive vision of fair housing, she says, arguing that Trump’s replacement rule “takes the country backwards to a time when discrimination is not only rife, but legal.”

But the administration’s new rule has drawn the ire of not just progressive proponents of the old AFFH regulation, but also conservative critics of the Obama-era rule who had been working to replace it with something that managed to be both deregulatory while still making a good faith effort to enforce the Fair Housing Act.

“The new rule has proved Donald Trump’s critics right by gutting AFFH,” says Michael Hendrix of the Manhattan Institute. “What the Trump administration is pitching as a deregulatory measure actually reinforces local regulatory burdens.”

Hendrix says there’s a factional dispute both within the White House and the wider conservative movement over whether to prioritize local control, which empowers homeowners and local governments to maintain policies like single-family zoning, minimum lot-sizes, and parking requirements, or deregulation, which would allow for denser housing development, more mixed-use zoning, and other policies likely to drive down housing prices by increasing the supply of housing stock.

The Trump administration’s efforts to reform the Obama-era AFFH rule was initiated and dominated by the latter camp, he says.

When Carson announced that the Trump administration would be rescinding and reissuing the AFFH rule, he justified it by saying that the new rule would use federal housing funding to incentivize local governments to repeal restrictions they have on housing construction.

“I want to encourage the development of mixed-income multifamily dwellings all over the place,” Carson told The Wall Street Journal in 2018. “I would incentivize people who really would like to get a nice juicy government grant” to reform their zoning codes.

In January 2020, HUD released the text of a proposed replacement rule that would require recipients of HUD funds to report on more narrow measures of housing affordability and quality, and then propose three concrete steps for improving those measures. Jurisdictions that showed improvement on these metrics over time could be rewarded with additional grant money.

Progressive defenders of the old AFFH considered the January HUD rule to be much too narrow, focusing on housing affordability at the expense of all the other components of fair housing. The NFHA, alongside other fair housing groups, launched an (ultimately unsuccessful) lawsuit against HUD in 2018 over its rollback of the Obama-era rules.

Hendrix counters these progressive critics by arguing that the January 2020 rule’s focus on housing affordability actually zeros in on the most important component of fair housing. By becoming more affordable, communities become more accessible to people regardless of their race, national origin, or ability; all classes protected by the Fair Housing Act.

Because local land use regulations are the primary drivers of high housing costs, local governments would ultimately have to loosen said land-use regulations if they wanted to make progress on the metrics the January 2020 HUD rule would be focusing on, he says.

That gave the January rule a deregulatory character. Its more narrow focus also made it more enforceable, says Salim Furth, a housing policy researcher at George Mason University’s Mercatus Center.

“If you take this extremely broad view of furthering [fair housing], then it’s not clear how HUD is supposed to test” whether grantees are actually making progress on their fair housing obligations, says Furth.

By asserting that everything is related to fair housing, Furth says the old AFFH rule meant that nearly all jurisdictions would fall short of their obligations under the Fair Housing Act in some way. The Trump administration’s new rule ironically leans on this same expansive view of fair housing to say that practically any action jurisdictions take satisfies their mandate to further fair housing.

Neither helps HUD identify bad actors, or reward good ones, says Furth, telling Reason that “you ultimately have to draw some lines if you are going to have a test that doesn’t make everyone guilty or everyone innocent.”

The January HUD rule’s more narrow focus on affordability did just that, he says. But the very fact that the January 2020 rule would actually make the Fair Housing Act enforceable in a reasonable way is ultimately what doomed it with certain parties on the right end of the spectrum.

Since it was first proposed, the January 2020 AFFH-replacement rule attracted heated criticism from some conservatives who viewed it as an attack on local government’s control of land use policy and suburban single-family zoning policies in particular.

“All the administration’s proposed HUD rule does is change the AFFH requirement from a left-wing social engineering experiment to a right-wing attack on local control,” wrote Jordan Bloom in The Daily Caller in February.

Then at the beginning of July, National Review published an article by Stanley Kurtz of the Ethics and Public Policy Center which warned ominously that Joe Biden and Democrats wanted to use the AFFH to “abolish the suburbs.”

“Once Biden starts to enforce AFFH the way Obama’s administration originally meant it to work, it will be as if America’s suburbs had been swallowed up by the cities they surround,” Kurtz wrote. Suburban communities, he continues, “will even be forced to start building high-density low-income housing. The latter, of course, will require the elimination of single-family zoning. With that, the basic character of the suburbs will disappear.”

That article was later retweeted by Trump, who has since been seemingly convinced that casting himself as a defender of suburbs and suburban-style low-density zoning is a winning campaign issue. It nestles neatly in his broader strategy of painting Democrats as wanting to visit urban dysfunction on orderly and tidy conservative communities.

The text of the Trump administration’s new rule makes it explicit that it is rejecting both the old Obama-era AFFH rule, as well as the deregulatory rule HUD put forward in January.

“That proposed rule took steps to reduce federal control of local housing decisions and lessen the burden of data requirements imposed on local governments,” it reads. “However, when the President reviewed the proposed rule, he expressed concern that the HUD approach did not go far enough on either prong. For example, grantee jurisdictions were still presented with a HUD list of ‘inherent barriers’ to overcome, 12 of which directly interfered with local land development decisions.”

The new rule is a victory for local control-supporting conservatives. It could well prove a pyrrhic one.

The administration is asserting that because the new rule involves federal grants, and because it has already been the subject of so much attention, it can skip the normal notice-and-comment requirements normally mandated by the Administrative Procedure Acts.

“They are doing it by a process I can only call executive fiat. It is just a complete end-run around the rulemaking process. There’s no notice-and-comment. it’s just put out as a final rule,” says Goldberg.

That could make the new Preserving Community and Neighborhood Choice rule vulnerable to legal challenges on procedural grounds alone, she says. Failure to properly follow the APA is partially what doomed Trump’s attempt to rescind Obama’s DACA order.

Hendrix says that both the president’s comments defending the rule, and the text of the rule itself make it vulnerable to legal challenges on substantive grounds as well.

“When Trump himself said, and this rule says, this is not about fair housing, this is about defending the suburbs, I think a court could rightfully determine you are missing the point of the Fair Housing Act,” Hendrix says.

Fair housing groups are already asserting that the rule will not pass legal muster. Goldberg says that while its too early to say whether the NFHA will take legal action, all options are on the table.

Furth cautions that we shouldn’t overinterpret the impact of the Obama-era AFFH rule.

“People on the right and on the left are both willing to say the Obama AFFH was this big power thing, and it either powerful and scary or powerful and just,” he says. “They both have an interest in making it appear more powerful than what it is.”

But by reversing course on its own proposed rule, the Trump administration has passed on an opportunity to impose a fair housing rule that would do a better job of fulfilling the purpose of the fair housing act, while also incentivizing freer markets in land use across the country.

It’s a symbolic defeat for those who had hoped that Trump’s deregulatory promises and the explicitly YIMBY-inflected rhetoric coming from administration officials would prevail over his toxic culture war politics.

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Last week a federal court in California handed a partial victory to the parties suing the state over its wrongheaded and unconstitutional ban on the sale of foie gras. Eater called the ruling “a major win” for the plaintiffs, who include a Canadian group that represents foie gras producers there and New York State’s Hudson Valley Foie Gras.

Foie gras is a French delicacy made from a duck or goose liver that has been fattened using a process known as gavage. While some animal-rights activists claim gavage is cruel, many consumers, restaurateurs, and foie gras producers say the feeding process is not at all cruel.

The battle over foie gras in California has been a long and arduous one. The day after California’s ban took effect in 2012, the plaintiffs sued, as I first detailed here. The case has been winding its way through the courts ever since. (I’ve taken an active role in fighting the ban, writing and submitting a U.S. Supreme Court amicus brief on behalf of the Reason Foundation—which publishes Reason—and the Cato Institute in 2018.)

In his order last week, Judge Stephen V. Wilson of the U.S. District Court for the Central District of California granted the plaintiffs’ motion for summary judgment on the plaintiffs’ narrow question of whether the state ban applies to shipments and deliveries of foie gras inside California that are made as a result of an out-of-state purchase of foie gras. In its ruling, the court also rejected a pair of competing claims by the plaintiffs and defendant—rejecting the state’s motion to dismiss the case and the plaintiffs’ request to rule the California law violates the dormant Commerce Clause.

This month’s “confusing” ruling holds that, under California law, sales are legal when an out-of-state seller sells foie gras that is not physically in California at the time of sale and the transaction and payment are processed outside the state (e.g., online). The ruling means a person in California may, for example, buy foie gras from an online seller based outside California and have that foie gras delivered to them legally in California by a third-party delivery service such as FedEx.

The court stated the obvious: that the state has no authority to regulate sales that take place outside its borders. The court also ruled California’s foie gras ban was not intended to ban foie gras. “There is no evidence that California intended to completely ban the receipt or possession of foie gras in California, and there is ample evidence that this was not California’s intent,” the court determined.

Marcus Henley, vice president of Hudson Valley Foie Gras, one of the plaintiffs in the case, tells me he’s thrilled with this week’s ruling.

“We are gratified that the Court recognized that California’s misguided ban was never intended to apply to foie gras products from out-of-state producers that are shipped to happy consumers in California,” Henley says by email.

Others are, too.

“For 50 years, Reason has proudly supported Free Minds and Free Markets,” says California-based attorney Manny Klausner, a former editor of Reason and Reason Foundation co-founder and board member who joined me in submitting the aforementioned amicus brief. “Judge Wilson’s ruling is a limited, yet meaningful, judgment in support of the economic liberty of California consumers and out-of-state sellers—and is truly a delicious development for anyone who takes liberty seriously.”

Exactly how limited is Judge Wilson’s ruling? And how might it impact restaurants in California?

“Of course, once the foie gras reaches California, it cannot be resold within the state, even if the transaction processes ‘out of state’ via an explicit agreement or otherwise,” Judge Wilson writes in his ruling. Elsewhere, he notes a legal sale of foie gras to a person in California “does not encompass situations wherein the Seller is present in California during the sale, or the foie gras is already present in California when the sale is made.”

While that language makes the law’s stance on in-state restaurant sales sound pretty airtight, the ruling may have made some existing wiggle room a little more spacious.

For example, some restaurants in California that oppose the law have challenged it over the years by giving away foie gras to diners as part of a meal. Even one foie gras opponent suggested this week’s ruling could revive that practice. Though a previous court ruling said such gifts constitute an illegal “sale” of foie gras in California, this month’s ruling, which also turns on what constitutes a “sale” of foie gras, could provide an opening for California restaurants. I wouldn’t be surprised if some are already consulting with their attorneys. Another possibility, which appears even more promising, involves a situation “where customers bring in their own foie gras and pay a chef to prepare it.” Other ideas come to mind, too.

Regardless of whether these or other exceptions will allow California restaurants to serve foie gras legally—coupled with the fact the COVID-19 pandemic has forced top restaurants in the state to close temporarily or even permanently—fine dining is in trouble in California and across the country. Many cities and states, including California, have relaxed pointless prohibitions that harm consumers and businesses.

Could California lawmakers use that solid line of reasoning to decide their state should no longer be the only one in America that bans foie gras sales? Of course. Should they? By all means. Will they? Probably not.

For the plaintiffs, that means their decade-long fight against California’s foie gras ban continues.

“We look forward to continuing our efforts to correct California’s mistake,” Hudson Valley Foie Gras’s Henley tells me.

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From yesterday’s unanimous Alaska Supreme Court decision in In re Tiffany O., written by Chief Justice Joel Bolger:

A daughter was appointed as guardian for her mother, a woman in her 60s who suffers from epilepsy [and is intellectually disabled]. The daughter relied on faith-based medicine to care for her mother, electing to, in one instance, pray over her mother after she became nonresponsive instead of calling emergency services. The superior court ultimately removed the daughter as guardian, finding that her behavior and “intractable belief system” caused her to deprive her mother of appropriate services and care.

We conclude that the superior court did not abuse its discretion when it removed the daughter as her mother’s guardian. We also conclude that removing the daughter as guardian did not violate the Alaska Constitution’s free exercise clause because the State possessed a compelling interest in preventing harm to the mother….

The Alaska Supreme Court has, since 1979, interpreted the Alaska Constitution as presumptively requiring religious exemptions from generally applicable laws; but the court held that this presumption is rebutted here:

Alaska’s free exercise clause was first interpreted in Frank v. State (Alaska 1979). In Frank we determined that, to invoke a religious exemption from a facially neutral state law, three requirements must be met: (1) a religion must be involved, (2) the conduct in question must be religiously based, and (3) the claimant must be sincere in his or her religious belief. “Once these three requirements are met, ‘[r]eligiously impelled actions can be forbidden only “where they pose some substantial threat to public safety, peace or order,” or where there are competing governmental interests “of the highest order … [that] [are] not otherwise served.”‘”

Rachel meets the first Frank requirement because her beliefs regarding medical care are strongly informed by her religion. She meets the second requirement because her treatment decisions are based on her religious training and beliefs. And in the absence of any evidence to the contrary, we assume that Rachel’s religious beliefs are sincere.

With these three requirements met, the second part of the test under Frank requires that a facially neutral statute that interferes with religious-based conduct be justified by a compelling state interest. In other words, the question becomes whether the government’s interest in protecting Tiffany outweighs Rachel’s interest in following her religious beliefs.

The guardianship statutes reflect the government’s strong interest in protecting the health and safety of a vulnerable ward. A guardian has the duty to “assure the care, comfort, and maintenance of the ward” and to “assure that the ward receives the services necessary to meet the essential requirements for the ward’s physical health and safety.” A guardian may be dismissed if “there is an imminent danger that the physical health or safety of the ward will be seriously impaired.” These statutory interests are similar to the government’s interests in protecting the life, health, and safety of other vulnerable groups, interests that we have previously found to be compelling.

“[A]fter a court determines that the claimed exemption implicates a compelling government interest,” the appropriate question “is ‘whether that interest … will suffer if an exemption is granted to accommodate the religious practice.'” Here there is evidence that, should this exemption be granted, Tiffany’s health and safety would be at risk. If Rachel cares for her mother following the tenets of her religious beliefs, then she will abandon the duties described by the guardianship statutes, including the duty “to meet the essential requirements for [Tiffany’s] physical health [and] safety.” By depriving her mother of personal care services and emergency services in favor of prayer, Rachel not only fails to satisfy the essential requirements under the statute, but also puts Tiffany’s health and safety at risk.

Granting this exemption would be directly counter to the State’s interest in protecting its most vulnerable citizens from harm. Rachel stated that if her mother were to have a heart attack or stroke, she would first pray for her rather than call emergency services. The threat to Tiffany’s health, should she be returned to Rachel’s care, is not speculative. While serving as guardian, Rachel did not ensure that Tiffany received her epilepsy medication as prescribed, putting Tiffany at significant risk.

Should Rachel be reinstated as guardian, Tiffany’s health and safety will be seriously compromised. If Tiffany required immediate medical attention, the results could be fatal. For this reason, while religious liberty is a fundamental right under the Alaska Constitution, the State’s actions in this case are justified by a compelling interest.

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It’s just after 5 a.m., and the scene at the Mark O. Hatfield United States Courthouse is as quiet as it will be today. A few young people linger on corners, a news crew watches two men kick through burnt trash behind the temporary fence in front of the courthouse, and a homeless man gathers empty cans into a plastic bag larger than he is.

Across the street in Lansdowne Park, people make ready for the day, cleaning barbecue grills and filling tubs with bottled water. Others crawl in and out of tents or sleep sprawled on benches, and when one young woman in pink footsie pajamas announces she’s a unicorn looking for her tail, a guy nearby blazing a joint says, “Your tail looks good to me.”

It’s daybreak at the Portland protests, and a few of its denizens tell me what brings them here.

Stephan

Stephan: I’ve been coming two months, every night. I’m just a black man who feels like equality is a big problem in our society and I feel like we need to address that situation expeditiously and hit that right on the butt.

Violence throughout—from police through ourselves through public media—violence itself has to stop. I don’t care who it comes from, what race, what creed, what demographic, we just have to stop being violent as a race. And there’s only one race and that’s the human race.

Nancy Rommelmann: How does what’s happening here every night help achieve the goal of less violence?

Stephan: There’s a lot of things that are not helping. The violence-upon-the-violence is not helping achieve the goal of stopping violence. People speaking out, chanting, marching, being peaceful; that’s helping us achieve our goal, by showing that we can stand out and speak out and be together as a race, the human race that I spoke of. The fact that people are lighting fireworks, destroying things, I don’t see that as helping or making a better-quality thing. I want people to understand that there are people out here that are willing to fight for them and to fight for your rights, I don’t care if you’re saying that Blue Lives Matter or that Black Lives Matter; I don’t care what side you’re on. I’m here to fight for you and to say that your vote matters that you have a right to feel however you want to feel and no one should judge you and you should not have to sacrifice your life for that.

Rommelmann: Has your thinking changed in the past two months?

Stephan: I’ve definitely evolved in how I’ve seen people respond to things, seen who actually is for the movement that we have for peace, and who’s in the movement of, “fuck the police.” I’ve definitely seen there are people here on a different agenda. They should not be here screaming “Black Lives Matter”; they should scream their own agenda, if they want to be here. Like I said, I’m here for everybody, but you should be honest in whatever your opinions are.

Augustina

Augustina: I’ve been out here since May 30, almost every night. The Portland police injured my shoulder and my elbow and so I had to take a couple of nights off to get some medical attention. I don’t have my sling on right now but I am normally in a sling. They kettled a group on June 30 outside of the Portland police union. They came in from five different sides after making the crowd march into an alley and just started tackling everybody from every which way. They tackled me while I was live-streaming, it’s on my Instagram; you can see the police that tackled me, it’s actually pretty scary.

I went to PSU [Portland State University]; I have a degree in liberal arts with an emphasis in social science and a dual degree in theatre. I also do the very Portland thing of reading tarot to predict political events and reading the energy.

Rommelmann: What did that tell you?

Augustina: I haven’t done a reading since the marshals came. Do you want me to do one and send it to you?

Rommelmann: Sure.

Albedri

Albedri: I just got here today. I was actually sent here on business; I saw the riot and I just got out of my car. But at the same time, the reason I took the job was because I saw the wall of mothers on TV and I just had to come. It’s just so beautiful. For them to stand in front and even though it’s all about race to not to make it about race – there’s about 14 black people here—the way they sacrificed their own well-being and the well-being of their future children, it was just something too beautiful for me to sit and watch it on TV.

I came from Sudan when I was two years old. We just had our own revolution recently. We had a dictator [Omar al-Bashir] from 1989; I was born in 1990. He was president for 31 years, and finally, we kicked him out last year and we got off the U.S. terrorist list.

Rommelmann: Do you see similarities with what’s happening in Portland?

Albedri: I hope so. What I love about America, and specifically Portland, is every voice is heard here. In Sudan we also have racism, where it’s tribalism; where it’s this, that and the third. The movement, even in my country, even the movement here in the United States, was led by a lot of the beautiful sisters; they got up there and they had a lot of knowledge. Their voice was heard. To me, that’s a beautiful thing, that’s true freedom.

It’s not absolute freedom, but we’re working towards that. I mean, we were treated like terrorists today, with the tear gas; I got hit in the face with rubber bullets. But we all did, and that’s what’s so beautiful about the United States, right?

Black people were the minority today. 94 percent of the people standing out here today were just people who, something about their soul spoke to them; it said, if we’re not all free, none of us are free.

Mike

Mike: I’ve been out here probably 40 nights out of the whole deal. My job was lost from Coronavirus. I was in the service industry, at a nice restaurant here in town, I’ll just say it was in The Nines [Hotel] so that will narrow it down to two restaurants.

What made me come down here is, I’m 39 years old and I’m from Southern California and I grew up during the Rodney King beating and the LA riots in 1992. I was a huge fan of basketball and I remember the Lakers game being interrupted to show me, at nine years old, a black man being beat by four cops 52 times. I have a 14-year-old son and I don’t want him to grow up with the same thing I grew up with, even though it’s already happening. But I’m out here because I feel like I can make that end, maybe, before he has to.

Rommelmann: In what direction do you see the protests evolving and to what end?

Mike: I’ve talked to [Portland mayor] Ted Wheeler, and today I reached out to [Portland mayoral candidate] Sarah [Iannarone] about what her plans were. I reached out to [mayoral candidate] Teressa [Raiford]; she’s a black woman and she’s very important in the community. I don’t know anything about Sarah.

Rommelmann: She’s pro-Antifa.

Mike: Well, that’s kind of a crazy thing to be, if you’re going into politics. Like, I’m anti-fascist. I would never group myself with a thing called Antifa—whatever that is. Not that I’m not interested in it, but I don’t affiliate myself with any group. I can be anti-fascist on my own.

Let me put it this way. I’m not an anarchist; I don’t come down here and set fires; I’m not throwing anything. But I’m against a fascist police state, which is what I’ve witnessed the last week or so.

Rommelmann: You feel the feds being here is equivalent to a fascist police state?

Mike: Absolutely, 100 percent. This has nothing to do with the city of Portland. They were never asked to be here. I was here the night when the snatch vans came out. There was no angry antifa mob or whatever the government is telling everybody on the news. There were 30 people out there, two minivans going around picking people up. That’s fascism. I’ve never seen anything like it.

Megan

Megan: I started watching my friend’s livestream [of the protests]. I got in my car, came down here, parked two blocks away, and [the feds] let off CS gas. This was back on June 7. I started driving around and making sure people were in pairs and giving them rides to the MAX [light rail]. Then I got arrested for chasing the police around as they chased the protesters around. That was June 8; that was my first arrest. And then I started coming out and meeting more people; building a family essentially. I know my [two-year-old] daughter is taken care of so I can take care of other people.

Rommelmann: Where is your daughter?

Megan: She is in Northeast Portland, with my parents.

Rommelmann: What are you doing here at the camp?

Megan: Anything that needs to be done.

Rommelmann: You said people were calling you “Mama.”

Megan: Yeah. I don’t get to be with my daughter so I don’t feel like a mom, so coming out here and everybody calling me Mama, it gives me a purpose, so that’s why I’m out here. There are so many teenagers that are living in group homes and shelters that they feel their parents don’t care about them, so they’re fine being on the front lines being shot with pepper bullets, having flash grenades thrown at them and being shot with a fucking rubber bullet. I can’t have it happen day after day after day, and them feeling that that’s what they’re supposed to do, there are so many that have said, ‘Nobody loves me, it’s okay if I die.’ It shatters me.

Rommelmann: They’re finding family.

Megan: Yeah. We were saying ‘gang gang’, because that’s a thing, but we’ve been saying ‘fam-family’. That’s what we tell the police, that’s what we tell the feds.

Rommelmann: Are you camping out here?

Megan: I live in my car right now. When I can afford a place and it’s safe for [my daughter and me] to live together, I’ll get a place, yes.

Charlie

Charlie: I’m a Portland resident, I’m just here doing some volunteering. I’ve been here a few nights, but this is actually my first time here in the morning. Riot Ribs put out a call earlier this week, they need more people in the morning, so the people here at night can actually get some rest. I’m like, I can do that! I’m not the most confrontational person, so I’m more prepared to help out in this sort of way where I can just clean things up.

I got here at 5 a.m. We’re first picking up a lot of trash, then making sure it’s organized in the back, making sure everything’s set up for the day. I’m only here until 9 a.m., then I have to go to my 9-to-5 job. I’m an education administration assistant.

Rommelmann: Is your employer cool with you being here?

Charlie: I think so. A lot of my coworkers are involved. I have a coworker who’s an ACLU legal observer who’s been out more often than I have. I believe in the cause. As a white person, trying to help out as much as possible, cede as much of my privilege, which is me giving my time and giving money, all those resources that I have an excess of. I just believe in Black Lives Matter and police abolition.

Rommelmann: Do you believe in complete police abolition?

Charlie: Yes.

Rommelmann: How instead are citizens to be protected?

Charlie: There’s a lot of different answers for that, from people far smarter than I am at that. There’s social work. I think that’s one of the answers. Moving some of those responses where you think you’d need the police; you can actually use mental health workers or nurses in ways that are not a use of force.

Paul

Paul: I own Graffiti Removal Services. We’re a little busy. Haven’t had a day off since this all started.

Rommelmann: You look pretty fresh. You were not out here last night?

Paul: I was not out here last night, but I’m out here early this morning, to clean up the aftermath.

Rommelmann: There’s a lot to clean up. I said good morning just now to some of the municipal garbagemen and they were like, lady, we have no time for you.

Paul: Yeah, they have no time. We’ll have multiple trucks out here, scouring within an eight-block radius, cleaning up, helping business owners, property owners, some city property. The Bangkok Palace [restaurant] over here? They’re open, but they still get graffiti every night, it’s an added expense on top of all the COVID stuff going on. It’s kind of a double whammy. A little perfect storm going on.

Rommelmann: Some workers told me, they’re not cleaning the graffiti off the courthouse every day, that it doesn’t make any sense with the protesters coming back every night.

Paul: At the federal building they’re not doing it, but we do City Hall, we do the Justice Center, we do the cop [station], because if we don’t get it off, it accumulates more and more. At this point, the feds will probably have to replace all that stone; they can’t even clean it now, and with spray can and ink pen marker and Sharpie marker, the stone is a sponge, so the more it sits, the more is soaks in, the worse it gets. You just want to keep up on it as fast as you can.

Rommelmann: Do you see an end to this?

Paul: With the political climate and with summer and it being warm out, there’s probably not an end until after the first of the year, unfortunately. When it starts to get cold and rainy, it may slow down a little bit. It’s kind of, again, this is a perfect storm, everybody’s kind of out here, and with social media calling for people to come down, not only in Portland but Seattle, Chicago. We would have thought this would have ended three weeks ago, but it just keeps going and going and going.

Rommelmann: It’s good business for you, but…

Paul: It is; we’re busy, but we have a division of the business that protects public artworks; we’re actually putting our anti-graffiti coating on a Black Lives Matter murals, the murals up on the Apple Store; they’re preserving them and giving them to a gallery, so we can be doing stuff within the community besides cleaning up all the anarchy stuff. We can be doing other things to help the community besides this.

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