PORTLAND, Ore. (CN) —The Department of Justice appears to be targeting both local officials for their response to ongoing protests against police brutality, as well as the journalists who cover the protests, recent reports and court arguments show.
Reports revealed on Thursday that the DOJ considered federal charges for city of Portland officials over their response to the protests and their refusal to let local police collaborate with federal agents. Also on Thursday, government attorneys told the Ninth Circuit it should lift an order barring federal agents from targeting journalists for assault and arrest.
Portland Mayor Ted Wheeler responded Thursday to a report from the Associated Press that the Justice Department looked into charging Portland officials and explored the idea that local officials’ actions and public statements may have stirred up continued protests.
“This is ridiculous on its face,” Wheeler said in a statement. “It is more grandstanding by a President seeking to intimidate anyone who calls out his divisive agenda.”
The Justice Department did not respond to requests for comment.
But its attorneys on Thursday called “unworkable” U.S. District Judge Michael Simon’s ruling barring federal agents from assaulting or arresting journalists covering Portland’s protests. The Ninth Circuit already issued an emergency stay of the order.
Attorney Matthew Borden, arguing on behalf of a proposed class of journalists and legal observers, came out swinging.
“Allowing the government to control the news is the hallmark of a dictatorship,” Borden told a three-judge panel. “And that is exactly what the district court’s order prevents.”
But Sopan Joshi, assistant to the U.S. Solicitor General and former law clerk to U.S. Supreme Court Justice Antonin Scalia, told a three-judge panel of the Ninth Circuit that Judge Simon’s injunction is “the sort of unprecedented, broad judicial management of how law enforcement is supposed to respond to violent and unpredictable situations on the ground.”
Joshi said federal agents are the ones facing danger — because Simon’s order prevents them from clearing the streets of journalists during a historic civil rights movement.
“Every time a federal officer leaves a federal building and encounters someone on the streets of Portland, this injunction is currently hanging over their head,” Joshi said. “Every action comes with an untenable choice — which is they have to risk their safety or risk contempt.”
Judge Morgan Christen, an Obama appointee, pointed out that the ruling states federal agents will not be held in contempt if journalists are “incidentally harmed” by crowd control measures.
“So how is it possible the defendants are faced with the choice you have just identified?” Christen asked Joshi.
“It’s unworkable because federal defendants have to decide who is or isn’t a journalist when the whole point of a dispersal order is to clear everyone,” Joshi said. “So police have to make a split-second decision and they are placing themselves at risk.”
He added that Wheeler’s Sept. 10 ban on the use of tear gas doesn’t apply to federal agents.
“The fact that the city of Portland is willing to tolerate different conditions on their law enforcement doesn’t bind the federal government and doesn’t change the fact that this injunction is hanging over the heads of federal officers with every interaction they have,” Joshi said.
Borden, the journalists’ attorney, said Joshi’s claims “simply assume away 61 pages of the court’s factual findings.”
Those pages are based on dozens of sworn declarations where journalists, including Courthouse News, say federal agents have sprayed them point-blank with pepper spray and shot them with pepper balls, rubber bullets and paint guns — in some cases, directly on their press badges or their cameras.
Those shots, fired by trained marksmen, are no accident, according to Borden. And such tactics are congruent with the government’s legal arguments.
“Its underlying legal theory in this case is that it can suppress all accounts of these protests except for its own,” Borden said. “And no court has ever endorsed such a ruling because it would be a flagrant violation of the First Amendment.”
The panel, rounded out by Judge Johnnie Rawlinson, a Clinton appointee, and Judge Diarmuid O’Scannlain, who was appointed by President Ronald Reagan, took the arguments under advisement. They may issue a ruling as soon as several days from now.
Meanwhile, President Donald Trump has repeatedly ridiculed Wheeler on his handling of ongoing protests, and Wheeler has consistently taken Trump’s invitation into public fights. In one such instance, Wheeler struck out at Trump in an Aug. 30 press conference that was streamed live on CNN.
“Do you seriously wonder, Mr. President, why this is the first time in decades that America has seen this level of violence?” Wheeler asked. “It’s you who have created the hate and the division. And now you want me to stop the violence that you helped create. What America needs is for you to be stopped so that Americans can come together.”
Trump immediately tweeted at Wheeler — a development a reporter asked Wheeler about moments later.
“Ted Wheeler, the wacky Radical Left Do Nothing Democrat Mayor of Portland, who has watched great death and destruction of his City during his tenure, thinks this lawless situation should go on forever,” Trump wrote. “Wrong! He would like to blame me and the Federal Government for going in, but he hasn’t seen anything yet.”
“It’s classic Trump,” Wheeler then said of Trump’s tweet. “Mr. President, how can you think that a comment like that is in any way helpful? Let’s work together. Wouldn’t that be a message? Donald Trump and Ted Wheeler working together.”
It’s a convenient political battle for both Trump and Wheeler, who are each facing their own re-election battles, but the rhetoric doesn’t match the reality.
Wheeler has had a remarkably hands-off approach to leading his own police, allowing officers to escalate force for months. Videos show Portland police tackling and repeatedly punching protesters. Other videos show officers pulling off the masks of protesters who are already on the ground, restrained by police, in order to pepper spray them directly in the face.
Local police and federal agents used the chemical weapon for over three months in such copious amounts that protesters reported changes to their menstrual cycles and the Oregon Department of Environmental Quality launched an investigation of the chemical’s effects on the Willamette River. Police blanketed neighborhoods in tear gas on hot summer nights when many residents were sleeping with their windows open fans blowing the chemical into their homes.
But Wheeler, who is police commissioner as well as mayor, has resisted issuing direct orders to the police force he is in charge of, instead saying he wants to “better understand” accountability measures that are supposed to keep police in check.
Early on in the protests, Wheeler told Portland police to use the weapon only in situations where it could save lives. Still, local police and federal agents used tear gas almost on a nightly basis.
Wheeler himself was gassed along with a crowd of thousands outside Portland’s Mark O. Hatfield Courthouse on July 22. As he stood coughing in clouds of gas, Wheeler told Courthouse News he “would think long and hard” about whether to issue a complete ban on tear gas.
“The answer is yes, I would absolutely consider it,” Wheeler said.
Fifty days later, Wheeler banned the use of the weapon. The Portland Police Bureau Wheeler heads immediately pushed back in a lengthy condemnation of the ban, saying officers “need” tools like tear gas, or “CS gas.”
“Banning the lawful use of CS will make it very difficult to address this kind of violence without resorting to much higher levels of physical force, with a correspondingly elevated risk of serious injury to members of the public and officers,” the Portland Police Bureau said in a statement.