Both federal agents and local police escalated tactics during back-to-back protests last week.
PORTLAND, Ore. (CN) — In scenes reminiscent of last summer, federal agents swarmed the streets of Portland, Oregon, last week, shooting rounds of tear gas and pepper balls that threaten to upend efforts to settle a lawsuit, and local police used mass detention tactics to prevent crime — a move civil rights attorneys say is illegal.
Photojournalist Justin Yau was covering on a protest at the Mark O. Hatfield Thursday night. Standing near a stone column in the courthouse portico, he snapped photos of protesters who pried plywood boards off the front windows of the courthouse. They smashed windows and the glass front door and began tossing plastic water bottles inside.
Like a scene in an old western, federal agents aimed their weapons out the broken front door and unleashed a stream of automatic fire. “Less lethal” munitions hit protesters. And they hit Yau with half a dozen rounds of pepper ball — in spite of a Ninth Circuit ruling barring federal agents from targeting the press for assault and arrest.
In August, U.S. District Judge Michael Simon barred 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.
Yau was dressed head to toe in neutral tones, had a press pass hanging from his neck and was emblazoned in multiple places with big block letter spelling out the word “PRESS.” One such patch was affixed to his chest — inches away from where the highly trained marksmen protecting the courthouse on Thursday hit him with pepper balls. They also hit him on his hand and on the phone he was using to document their actions.
Pepper balls are small round projectiles that explode on contact, releasing burning powder that stings for hours and can get stirred up days or weeks later if not properly removed from every surface.
Yau’s chest and hands were covered. But he cleaned up as best he could and continued reporting.
“I ran around the corner of pillar and took cover,” Yau said. “I couldn’t take off my mask because everything was covered in it. Had to keep my windows open on the drive home. And my puppy wasn’t happy. I had to leave my clothes outside.”
Another journalist, Suzette Smith, was at the courthouse Thursday night reporting for Willamette Week. Smith, a freelancer who doesn’t have health insurance, went home with painful injuries inflicted by federal agents who didn’t distinguish her from protesters, as they are legally required to do.
Federal agents hit Smith with rubber bullets, which are harder and fly faster than the pepper balls used against Yau. Both are filled with pepper powder. Smith says agents hit her at least eight times — three on the legs and five or more in the torso.
“My backpack and safety vest caught a lot of the force, which I’m grateful for,” Smith said. “So I only developed light bruising on my side.”
On her legs, she suffered dark bruises and heavy swelling.
Yet on Monday, attorneys in Biden’s Department of Justice signaled willingness to settle a lawsuit filed by journalists who say police and federal agents targeted them for assault and arrest. Government attorneys under President Donald Trump fought the case, arguing that journalists’ request to be allowed to document police treatment of protesters after crowds are ordered to disperse amounted to a request for “special” First Amendment rights.
The Ninth Circuit rejected the government’s demand for an emergency stay of a lower court’s order allowing press and legal observers to remain after dispersal orders. The case was poised for another hearing early this month on the government’s appeal of its failed motion to dismiss the case. But the parties asked the court to delay while the Biden administration’s newly appointed leaders at the Department of Homeland Security and the U.S. Marshals Service found their footing.
Having done so, the government signaled a change of course. They filed a joint motion on Monday with attorneys for the journalists asking the Ninth Circuit to allow them to mediate the dispute. That could lead to a settlement — assuming talks aren’t upended by continued federal violence.
Thursday wasn’t an isolated event of ramped up policing in Portland.
On Friday, the night after a level of federal violence reminiscent of last summer, Portland police used a tactic that has been challenged in court: mass detainment and identification of protesters. During a protest on Friday in one of Portland swankiest neighborhoods, police closed off an entire city block. They formed a perimeter to detain about 100 protesters and told press and legal observers to leave. Some refused.
Then, police seized protesters one-by-one, marched them to the edge of the detainment line. They wrote each protester’s full name on a piece of duct tape and affixed it to their chest. Then they asked them to remove their medical masks in order to take their photo. Press who didn’t leave early were subject to this same treatment.
People caught up in a 2017 police kettle filed two lawsuits against the city. Both were dismissed or recommended to be tossed out, but the courts have laid out the requirements for mass detainments such as the ones Portland police have engaged in: a group must be acting as a coordinated unit, they must be engaging in activities that create reasonable suspicion of criminal activity.
On Monday, Chris Davis, deputy chief for the Portland Police Bureau, told reporters that Friday’s demonstration had met that test. But he added an additional element: prevention of future crimes.
Davis said members of the group had broken several windows at a nearby intersection when police decided to enact the kettle.
“We decided at that point not to wait until there was more widespread destruction to take the appropriate action,” Davis said.
City Attorney Robert Taylor echoed that statement.
“On Friday, when this tactic was employed, it was peacefully used to stop the criminal conduct and it also prevented further criminal conduct that evening.”
But preventing future crimes is not a valid reason for mass detention, according to civil rights attorney Juan Chavez.
“The city probably just looked at these decisions and saw a green light,” Chavez said.
Over the years, Chavez has watched Portland police use each of the individual elements of Friday’s mass detainment. Never before has he seen them all combined during single incident.
“Masking tape with names and alleged crimes on it — I saw that with a client 2019,” Chavez said. “We’ve seen the kettle before and we’ve seen them taking pictures before. What I don’t think we’ve quite seen is all of that coming together into one police action. It’s disturbing because it’s an escalating step in the war on protests and in the war on free speech.”
He added that police have plenty of other tools at their disposal.
“We’re not saying you can’t stop window breaking,” Chavez said. “We’re saying you can’t stop 100 people who looked at someone breaking a window. The constitution requires more than that.”