PORTLAND, Ore. (CN) — Federal police are now under a court order not to arrest or assault journalists and legal observers for doing their jobs, after a federal judge issued a temporary restraining order Thursday that the government said it would appeal.
“An open government has been a hallmark of our democracy since our nation’s founding,” U.S. District Judge Michael Simon wrote Thursday, citing precedent from the Ninth Circuit case Leigh v. Salazar. “When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the fourth estate. The free press is the guardian of the public’s interests and the independent judiciary is the guardian of the free press.”
To that hallmark, he added: “This lawsuit tests whether these principles are merely hollow words.”
Journalists and legal observers sued the city in June, claiming Portland police were specifically arresting and using violence against journalists of all stripes and legal observers with the National Lawyers Guild and the American Civil Liberties Union.
The city agreed in a preliminary injunction not to enforce orders to disperse against journalists and legal observers, not to use violence or the threat of violence and arrest against them and promised not to seize their photographic equipment or press passes, as had happened to several plaintiffs in the case.
Then President Donald Trump sent federal agents with the U.S. Marshals Service and the Department of Homeland Security to Portland, ostensibly to protect federal property officials claimed was endangered by weeks of daily protests in the movement against systemic racism and police brutality. But federal agents seemed to pick up where Portland police left off, with relentless violence directed specifically at journalists, legal observers and volunteer street medics.
Since then, nearly two dozen journalists and legal observers, including Courthouse News, have filed declarations in the case, memorializing the violence used against them by police.
On Wednesday, the 56th consecutive night of Portland’s civil unrest, federal police tear-gassed Portland Mayor Ted Wheeler as he stood with hundreds of activists in front of the Mark O. Hatfield Federal Courthouse.
Judge Simon on Friday granted the journalists’ motion to add the federal agencies as defendants in the case, and today he granted their motion for a temporary restraining order similar to the one the city was under before the preliminary injunction.
Attorney Matthew Borden told Judge Simon at Thursday’s hearing that federal police had mounted “incredible and despicable attacks” against journalists and legal observers. “A 70-year-old man marked ‘press’ from head to toe. Multiple attacks on a 17-year-old girl who stood far from the front. They shot Jungho Kim right in the press pass [with less lethal munitions] and Lewis Rolland a dozen times in the back when he was standing under a streetlight so police could see the big block letters saying he was press.
“These are not accidents,” Borden continued. “These are not inadvertent shots. These are trained marksmen and these are the actions of a tyrant. They do not have a place in Portland, Oregon and they do not have a place under the First Amendment. If you do not have the press reporting on events first-hand, then you only have the version put forth by the government. And that’s what you have under a totalitarian state.”
Borden brushed off arguments from Assistant U.S. Attorney Andrew Warden, claiming that the chaotic atmosphere of Portland’s protests is too “volatile and dangerous” for federal police to differentiate between journalists and protesters accused of breaking the law. He said local police have managed to abide by the same restrictions journalists are now asking of the feds for 21 days.
“It’s very workable,” Borden said. “Everybody understands who is press.”
Borden cited a Ninth Circuit case Courthouse News successfully brought against a California court system that refused to provide immediate access to court records.
“That case says, ‘if you don’t let press observe, then the news is gone,” Borden said. “And that gets to the heart of the argument: if you don’t have press observing, then you only have the government’s version of events. The First Amendment is about speaking truth to power. But it only works if people get to see what’s going on.”
And Judge Simon said that’s why the restraining order is necessary.
“Absent an injunction, the federal defendants will continue to target journalists and legal observers and require them to disperse or face force and violence by federal officers, even when the journalists and legal observers are not engaged in any harmful or illegal conduct,” Simon wrote in the order.
Warden, the government’s attorney, said at the hearing that the terms of the temporary restraining order were “an extraordinary request” that was “impracticable and unworkable,” even though he admitted that there was zero evidence that any journalist or legal observer had broken any laws at the protests.
Warden asked for a preliminary injunction that his office could appeal.
“In a chaotic circumstance where public safety is threatened, law enforcement officials shouldn’t have to segregate individuals,” Warden said. “The government respects the First Amendment right to protest, and the media’s right to cover that protest. But when public safety and federal property is threatened by the violence of opportunists, federal law enforcement has the right to disperse them and the media is not exempt from that request.”
The Justice Department Inspector General announced Thursday that it will investigate the use of force and chemical agents like tear gas and pepper bullets by federal police in Portland. The federal police there wear vague forms of identification with small insignias that are difficult to see at night, when the protests happen. The Inspector General said it will look into whether that practice is legal.
Judge Simon said in his order allowing federal law enforcement to be added as defendants in the case that the case raised legal questions that should be answered by both the city and the federal government.
“Will press scrutiny play a significant positive role in ensuring that police and federal conduct remains consistent with the constitution?” Simon asked in his order. “Does using force against members of the media and legal observers chill their expressive conduct? Do Plaintiffs have alternative observation opportunities to remaining at the scene where police and federal agents are using violent force against the people?”