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.