Judge Extends Order Barring Assaults of Portland Journalists by Officers

Federal police with the Department of Homeland Security patrol the sidewalk outside the Mark O. Hatfield federal courthouse on Friday, after shooting numerous rounds of tear gas at protesters. (Courthouse News photo/Karina Brown)

PORTLAND, Ore. (CN) — Federal agents in Portland are barred for two more weeks from assaulting and arresting journalists for doing their jobs — an order a federal judge said was necessary based on the Department of Homeland Security’s announcement that its agents would stay in the city until the government sees improvement in what it called the “dynamic and volatile” situation there.

Ruling from the bench Thursday, U.S. District Judge Michael Simon extended the temporary restraining order he issued July 23, enjoining federal agents with the U.S. Marshals Service, Customs and Border Protection, the Department of Homeland Security and Federal Protective Services from arresting, threatening to arrest or using physical force against anyone they know or reasonably should know is a journalist or legal observer.

Government attorneys argued the restraining order is no longer necessary, now that Oregon State Police have taken over the visible duties of protecting the Mark O. Hatfield Federal Courthouse, where some of the city’s ongoing protests against police brutality and systemic racism have been centered.

But according to the Department of Homeland Security, it’s a “myth” that “DHS forces are standing down and withdrawing.”

“There has been no reduction in federal presence; federal law enforcement officers remain in Portland at augmented levels. Reports and implications to the contrary are irresponsible and dishonest,” the department said that in an Aug. 4 press release.

Judge Simon said the agency’s statements indicating it is still in the city were persuasive.

“Given that we still have federal officers here and what has been said by them and by the administration, that’s sufficient for good cause to extend this TRO for one more 14-day period,” Simon said. “Whether or not that changes in the next few weeks, we’ll see what happens.”

On Aug. 18, Simon will hear arguments on whether he should issue a preliminary injunction that would effectively extend the conditions in the restraining order through the resolution of the case. That would give the government its first chance to appeal Simon’s orders in the case — something Jordan Von Bokern, attorney for the U.S. Department of Justice, has said the government will do.

If Simon issues a preliminary injunction, he said it may contain a provision to more clearly identify federal agents, perhaps with painted-on numbers that the agencies would track, he suggested. That’s because no one, not the journalists and legal observers who say they’ve been targeted for violence, nor the federal agencies the officers work for, has been able to produce the identities of agents accused of violating the restraining order.

On the very night Simon issued it, federal agents shot legal observer Kat Mahoney in the head with a pink paint ball as she stood across the street from the federal courthouse, observing the protest, according to Mahoney’s declaration. Later that same night, Mahoney says, a federal officer calmly doused her and three other legal observers “as though he were watering a line of flowers.”

And federal officers shot another legal observer with a rubber bullet after the restraining order was in place, according to court documents. In that situation, the officer stood four feet from a legal observer wearing a green National Lawyers Guild hat and fired directly at her chest, missing her heart by just a few inches.

Courthouse News has also filed a declaration in the case.

Von Bokern told Judge Simon the government still cannot say who the agents are that could potentially be held in contempt of Simon’s order.

“Your honor, we have not been successful in identifying those agents, to the extent that the allegations refer to real events, which is still disputed,” Von Bokern said.

He added that it would be a bad idea to “redesign uniforms” in an effort to better identify federal agents.

“Imposing such requirements in the short term would be dangerous because it would block access to their equipment,” Von Bokern told Simon. “But also large identification would not be consistent with their purpose and operation, given the ability of large, unruly groups to identify officers for retaliation, or to count officers who are present and thereby determine how much they outnumber the officers by.”

Von Bokern, an attorney with the Department of Justice’s Federal Programs Branch, repeatedly told Simon he was unfamiliar with the command structure of the federal agencies he represents.

“I’m not sure of the command structure of our federal officials in Portland right now,” Von Bokern told Simon. “I’m sorry, I don’t know that off the top of my head.”

Simon asked if Von Bokern knew when federal agents assigned here would leave the District of Oregon.

“Your honor, I don’t know what the plans are to adjust their numbers, or the conditions on which they would be sent out of the district,” Von Bokern said.

Also on Wednesday, Chad Wolf, acting secretary for the Department of Homeland Security, told Senator Kamala Harris that he was not aware of a single instance where a federal agent had been disciplined for their treatment of protesters, journalists of legal observers.

Wolf added that he was unaware of the incident where a federal agent was accused of shooting a legal observer in the chest with a rubber bullet.

Multiple investigations into alleged assaults perpetrated by federal officers are ongoing.

Von Bokern said journalists should also be more clearly identified, beyond the current requirement that they wear a press badge or a piece of clothing with the word “press” visible.

He said the restraining order encourages protesters to falsely don a press badge in an effort to avoid arrest.

“Law enforcement is faced with the unconscionable choice of risking contempt, or allowing the lawlessness to go unabated,” Von Bokern said.

But Judge Simon batted that argument away, pointing out that anyone suspected of committing a crime — journalist or not — can still be arrested without officers risking violation of his order.

In a previous hearing, Simon suggested the problem might be solved by the American Civil Liberties Union of Oregon. He said the ACLU could issue the blue vests it gives its legal observers to journalists, and could maintain a list of those it had “authorized” to wear the vests.

On Wednesday, Simon said he had discarded that idea, in large part due to an amicus brief from the Reporters Committee for Freedom of the Press, the Society of Professional Journalists Oregon Territory Chapter and over a dozen media organizations.

Instead, he said maybe the preliminary injunction, if issued, could contain a provision suggesting that journalists “stand to the side” of protesters when possible.

Meanwhile, Portland police have resumed tear gassing protesters in the absence of federal agents on the ground, in spite of a court order in another case restraining them from doing so except when lives are at stake.

Local police are subject to the same restraining order federal agents are under, barring them from assaulting or arresting journalists and legal observers. It was their alleged actions doing so that sparked the present lawsuit. And while attorneys for the city declined to take a position on the extension of the order restraining federal agents, city attorney Naomi Sheffield had this to say at Wednesday’s hearing:

“The city does want to note that the city of Portland at no point in time ceased its traditional policing function, as defendants suggest,” Sheffield said. “Police have continued its law enforcement function over the two months, even when federal agents came to Portland, despite local requests that they not be here.”

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