For nearly three years, state Sen. Brian Boquist has technically been under orders to alert legislative officials when he would be arriving in the Capitol.
The unusual order was put in place in July 2019 after Boquist, an independent from Dallas, made remarks considered threatening after Oregon State Police were directed to arrest senators who walked out to stop legislative action.
The order remains in place but ignored – except in federal court.
The 9th Circuit Court of Appeals ruled recently that Boquist may have a case against Senate President Peter Courtney and two other senators for imposing what was referred to as the “12-hour notice.” The appellate court sent the case back to federal court, reviving a legal fight between Boquist and Courtney.
Boquist, who represented himself in the appeal, said in an email he’s still after what he wanted when he sued in 2019 – assurances that remarks made in the Senate don’t lead to punishment.
“I will ask if Peter Courtney wants to sit down to mediate with the goal of setting in place a method to ensure this never happens again. That was my original goal,” Boquist said in an email to the Capital Chronicle.
Courtney declined to comment through a spokesman.
The dispute stems from efforts by Senate Republicans in 2019 to derail legislative work by leaving the Capitol and taking with them the quorum necessary for the Senate to act. At one point, Gov. Kate Brown ordered state police to arrest the senators and return them to the Capitol, fining them $500 for each day they were gone.
Boquist, then a Republican, warned Courtney on the Senate floor that if police were dispatched, “hell’s coming to visit you personally.” He apologized to Courtney moments later, but then was quoted in news reports as warning that the state police should “send bachelors and come heavily armed” because “I’m not going to be a political prisoner in the state of Oregon.”
The governor’s order was issued June 20, 2019, and a political deal returned the Republicans to the Senate nine days later.
But Boquist’s comments resulted in a Senate special committee, co-chaired by Sen. Floyd Prozanski, D-Eugene, and Sen. James Manning, D-Eugene, requiring that he file a written notice 12 hours before he intended to be in the Capitol. That was intended, according to the notice, to provide state police time to increase staffing in the building.
Under protest, Boquist complied with the notice but then sued in U.S. District Court, claiming his constitutional rights were violated.
U.S. District Judge Michael McShane dismissed the case in January 2020, finding that Boquist’s “words on the Senate floor were those of a bully on the playground. As such, they are unprotected fighting words.”
McShane also wrote that Boquist “seems to overlook the fact that he sounds more like a character out of a Clint Eastwood movie.”
The appellate court said it wasn’t apparent that Boquist intended actual violence but rather engaged in “heightened rhetoric to demonstrate political opposition.”
The ruling said it was “plausible” that the 12-hour notice was in retaliation for Boquist’s “protected speech.”
The notice, the ruling said, would prevent Boquist from exercising his authority earned by election and “likewise interferes with Boquist’s ability to meet with constituents, elected officials and others at the state Capitol on short notice.”
The appellate court said Courtney and other defendants could still win dismissal again if there was “evidence that other state senators expressed concerns about their safety in response to Boquist’s statements.”
“Evidence regarding the nature of Boquist’s statements may emerge that will have bearing on whether Boquist’s statements were a serious expression of an intent to commit unlawful violence against Courtney or the state police, or merely political hyperbole,” the ruling said.
Boquist said in his email to the Capital Chronicle that he doesn’t think any senator felt personally threatened by his remarks in 2019.
“The importance of the appeals ruling is debate speech in the Legislature is protected speech,” Boquist said in his email to the Capitol Chronicle. “It can only be regulated on the floor by senators who may be offended.”
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