Judge: Federal Agents Lack Authority to Clear Portland Streets

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 sent by President Donald Trump to protect federal buildings in Portland are now under an injunction barring them from assaulting journalists and legal observers. The government says it will appeal.

Journalists and legal observers initially sued local police, claiming they were targeting them for arrest and assault simply for doing their jobs. But Portland police agreed on July 16 to rules allowing journalists and legal observers to remain in an area declared closed in order to observe and cover any arrests, and accompanying violence, that followed.

Shortly after President Donald Trump sent federal agents to Portland under Operation Diligent Valor, U.S. District Judge Michael Simon let the journalists and legal observers add federal agents with the U.S. Department of Homeland Security, the U.S. Marshals Service, Customs and Border Control and Federal Protective Services as defendants in the case.

Judge Simon entered and extended a temporary restraining order barring federal agents from assaulting and arresting journalists and legal observers.

Federal agents are still in Portland. They are just out of sight. The Department of Homeland Security called the idea that “DHS forces are standing down and withdrawing” a “myth.”

“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 underscored that point in his ruling Thursday.

“The out-of-town agents and officers of the federal defendants who have been deployed to Portland, however, and whose actions were the basis of the court’s TRO, remain in Portland,” Simon wrote. “Further, they have no scheduled date of departure.”

Simon made his restraining order more permanent, issuing a preliminary injunction with the added requirement that federal agents wear unique identifying numbers.

Thirty-six journalists and legal observers have filed declarations in the case, documenting instances where they say federal agents targeted them for assaults, even though they were clearly marked as professionals and couldn’t have been mistaken for protesters. Fourteen of those incidents happened after Judge Simon’s restraining order was in place, according to declarations.

On the very night Simon issued his restraining order, 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.

And federal agents tear gassed a crowd of thousands on July 22 that included Portland Mayor Ted Wheeler.

Simon found the declarations persuasive as evidence that federal agents intentionally beat, pepper-sprayed and shot journalists and legal observers and forced them to disperse, in spite of his restraining order.

“In sum, plaintiffs provide substantial circumstantial evidence of retaliatory intent to show, at the minimum, serious questions going to the merits,” Simon wrote. “Plaintiffs submit numerous declarations and other video evidence describing and showing situations in which the declarants were identifiable as press, were not engaging in unlawful activity or even protesting, were not standing near protesters, and yet were subjected to violence by federal agents under circumstances that appear to indicate intentional targeting.”

But the government has refused to identify the agents involved in such incidents and has said in court documents that none have been disciplined.

Government attorney Jordan Von Bokern told Simon in an Aug. 6 hearing that the federal agencies 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.

Simon on Thursday ordered the federal agencies to add identifying numbers to agents’ uniforms, saying such markings would deter “the very conduct against which plaintiffs have filed suit.”

“The current identifying markings are not of sufficient visibility,” Simon wrote. “The court does not find it credible that there is no possible location on the helmet or uniforms on which more visible markings can be placed.”

Federal agents who are working undercover, however, are exempt from that requirement, Simon noted. He directed the parties to decide on a method of identification within 14 days and said he would resolve any disputes should they not come to an agreement in that time.

Simon initially said at a hearing Tuesday that the question of whether journalists have different rights under the First Amendment than those of protesters, who legally must leave an area after a riot has been declared, was likely to end up before the U.S. Supreme Court. Simon said at the hearing that it was a question he had been mulling for “weeks.”

But in Thursday’s ruling, Simon appeared to have changed his mind, finding that the question was not before him. He found that federal agents in Portland lack authority to declare a riot and clear the city’s streets, and that they aren’t even asserting that right in their claims.

“First, the federal defendants are not the entities that ‘close’ state and local public streets and parks; that is a local police function,” Simon wrote. “Second, the point of a journalist observing and documenting government action is to record whether the ‘closing’ of public streets (e.g., declaring a riot) is lawfully originated and lawfully carried out. Without journalists and legal observers, there is only the government’s side of the story to explain why a ‘riot’ was declared and the public streets were ‘closed’ and whether law enforcement acted properly in effectuating that order.”

Simon noted local police have already stipulated to an injunction saying they will not arrest journalists or legal observers for failing to obey orders to disperse.

“Someday, a court may need to decide whether the First Amendment protects journalists and authorized legal observers, as distinct from the public generally, from having to comply with an otherwise lawful order to disperse from city streets when journalists and legal observers seek to observe, document, and report the conduct of law enforcement personnel,” Simon wrote in a footnote. “But today is not that day.”

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