Decide blocks federal officers from focusing on journalists in Portland anti-racism protests

Federal law enforcement officers, deployed under the Trump administration’s new executive order to protect federal monuments and buildings, face off with protesters against racial inequality in Portland, Oregon, U.S. July 18, 2020.

Nathan Howard | Reuters

Federal officers must not target journalists or legal observers at the anti-racism protests taking place in Portland, Oregon, a judge ruled, extending a prohibition that had already been in effect for local police and delivering a win to local activists. 

Federal Judge Michael Simon of the U.S. District Court for the District of Oregon issued a temporary restraining order against the Department of Homeland Security and the U.S. Marshals Service late on Thursday in a case brought by the American Civil Liberties Union on behalf of individuals who were observing and reporting on the demonstrations, which have occurred nightly for nearly two months. 

Simon said in the order that the tactics that have been used by federal officers, including evidence that they had specifically targeted journalists and legal observers who were clearly identified and not violating the law, raised serious questions about potential violations of the First Amendment.

The role of the federal law enforcement officers at the protests in Portland has come under scrutiny by civil rights advocates and elected officials. On Thursday, the Justice Department’s inspector general said it would examine the conduct of federal officers in the city. 

Those who brought the suit claimed in legal papers that federal officers shot at them with tear gas canisters, rubber bullets and pepper balls and hit them with batons, sometimes with no warning, after they had identified themselves as members of the press. 

The order, which will remain in effect for 14 days, bars federal officers from “arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know” is a journalist or legal observer unless there is probable cause that the person committed a crime.

Journalists and legal observers “shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse,” Simon wrote, though he noted that they “remain bound by all other laws.”

“This order is a victory for the rule of law,” Jann Carson, interim executive director of the ACLU of Oregon, said in a statement. “Federal agents from Trump’s Departments of Homeland Security and Justice are terrorizing the community, threatening lives, and relentlessly attacking journalists and legal observers documenting protests. These are the actions of a tyrant, and they have no place anywhere in America.”

Matthew Borden, a partner at BraunHagey & Borden who served as pro bono counsel for the ACLU, said the order was a “critical protection for journalists and legal observers exercising their fundamental right to record and observe police activities at these important protests, and it’s a victory for the nation’s right to receive a full account of these events.”

Representatives for the Department of Homeland Security and U.S. Marshals Service did not immediately respond to requests for comment. 

Local concerns and a Trump taunt

Local officials have raised complaints about the conduct of federal officials. Those denunciations escalated after Portland Mayor Ted Wheeler, who joined the protests on Wednesday evening, was hit with tear gas outside a federal courthouse.

“What I saw last night was powerful in many ways,” Wheeler wrote in a post on Twitter on Thursday. “I listened, heard, and stood with protesters. And I saw what it means when the federal government unleashes paramilitary forces against its own people.”

Oregon Attorney General Ellen Rosenblum is pursuing a separate suit seeking to stop federal officials from allegedly snatching protesters off of sidewalks and throwing them in unmarked vans without identifying themselves as law enforcement.

President Donald Trump taunted Wheeler in a post on Twitter on Thursday morning, calling him the “Radical Left Mayor of Portland” who Trump said was “booed & shouted out of existence by the agitators & anarchists. Love watching pathetic Never Trumpers squirm!”

Trump has blasted the actions of protesters in Oregon and around the country who have demonstrated against police brutality following the May killing of George Floyd, a Black man who died in police custody in Minneapolis. The federal government has said in court papers that it has deployed more than 100 officers to Portland, and Trump has threatened to send agents to other cities led by liberal mayors where he has claimed protest have gotten out of control. 

In court papers arguing against the temporary restraining order, attorneys for the Justice Department argued that the protests have led to criminal activity and that officers had been targeted with improvised explosives, “commercial grade mortars,” lasers, and “balloons filled with paint and other substances such as feces.”

They argued that ordering the order wouldn’t be possible to implement in practice and would “improperly bind the hands of law enforcement, including by preventing them from taking appropriate action when individuals are engaging in criminal conduct.”

But Simon rejected that reasoning in his order, noting that the city of Portland itself had supported the ACLU in the matter.

“Although the Federal Defendants assert their right to disperse ‘violent opportunists,’ there is no evidence that any journalist or legal observer — let alone any of the named Plaintiffs — has damaged federal property or acted violently towards federal officers,” Simon wrote. 

He added that the government had already “conceded that they have no such evidence” during oral argument.

“Indeed, the evidence before the Court shows that journalists and legal observers attend the protests as ‘guardians of the public interest,’ not as vandals,” Simon wrote. 

Presumptive Democratic nominee Joe Biden, who will face Trump during November’s presidential election, has criticized the presence of federal officers in Portland.

“Of course the U.S. government has the right and duty to protect federal property,” Biden said in a statement. “The Obama-Biden administration protected federal property across the country without resorting to these egregious tactics — and without trying to stoke the fires of division in this country.”

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