PORTLAND, Ore. (CN) — In a move that would define government recognition of who a journalist is, a federal judge floated the idea of requiring reporters at Portland protests to be vetted by the American Civil Liberties Union and identified by the organization’s blue vests in order to avoid assault or arrest by federal agents.
U.S. District Judge Michael Simon said in a hearing Friday that the move might be a solution to claims from the Department of Homeland Security and the U.S. marshals that his restraining order is unworkable because — according to the agencies — some protesters are falsely identifying themselves as press.
Last week, Simon ordered federal agents squaring off nightly with protesters around the Mark O. Hatfield Federal Courthouse to let people identified as journalists (wearing a press pass or clothing with the word “press”) and legal observers (who wear blue ACLU vests or green National Lawyers Guild hats) do their jobs without subjecting them to the use of force, dispersal orders or arrest.
But the federal agencies claim the order is unworkable, in part because they say protesters are falsely adopting the insignia of the press. The federal agencies also note in court documents that agents’ ability to clearly see and identify journalists is inhibited by their own copious deployment of tear gas.
At Friday’s hearing, Judge Simon pointed to a video submitted by the government that allegedly shows a protester wearing a helmet emblazoned with the word “PRESS” burst through the barrier set up by federal agents and calling out to other protesters to join him.
“I think he said ‘they can’t arrest us all,’” Simon said. “I think he even said, ‘that’s why we have the Second Amendment.’ Folks, I sure hope this case is about the First Amendment and not the Second Amendment.”
He added: “Simply having ‘press’ on your helmet might not be the best way to preserve First Amendment rights.”
Matthew Borden, attorney for the journalists and legal observers, told Simon the temporary restraining order protects his clients from targeted assault, arrest and dispersal, merely for doing their jobs – it doesn’t change the fact that anyone is subject to arrest if federal agents have probable cause to believe they have broken the law.
“The basis for the TRO is if you are there to do your job you can do that,” Borden said. “This guy – I don’t think he gained any get out of jail free card by having press on his helmet. They can see what the guy’s doing and if it’s wrong, they can arrest him. At the end of the day, they still can’t identify anyone who used the word ‘press’ to escape culpability for doing something wrong.”
Simon said treating journalists more like legal observers would make the restraining order more workable for the federal agencies.
“We could redefine ‘journalist’ to someone who is authorized by the ACLU,” Simon said. “The ACLU could maintain a list of who they are giving vests to and give them appropriate guidance and instructions. That way we might be able to solve the problem of somebody just putting ‘press’ on their helmet or their shirt.
Simon said this was a measure he was merely considering.
“This may or may not be a good idea,” Simon said. “Maybe we try it just for two weeks, then at the hearing preliminary injunction, you all can tell me whether there are problems with it and whether they are solvable or unsolvable.”
Borden said that probably wouldn’t fly under the First Amendment.
“The ACLU shouldn’t be — I don’t think anybody should be trying to say who’s a journalist and certainly not my client,” Borden said. “I don’t think they have the resources to do that or the confidence.”
And it’s unclear what sort of protection the ACLU’s blue vests actually provide.
Despite Simon’s restraining, order, legal observers with the ACLU and the National Lawyers Guild say federal agents have continued to intentionally target them for violence.
On the very night that 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.
“One legal observer was shot in the chest at point-blank range,” Borden said Friday. “She had a green hat on. She’s just a law student. They’re trained marksman.”
“I don’t like that,” Judge Simon said.
He added: “It’s my understanding that the rules of engagement say agents must aim at waist or below,” So I’d like to eventually find out why someone is shooting at someone’s chest, let alone head, with these less-lethal munitions.”
If such allegations pan out, Simon said he could potentially refer the case to the U.S. Department of Justice or appoint a special prosecutor to determine whether criminal contempt proceedings are in order.
“That is available to us,” Simon said. “But right now, we are just focused on civil contempt and trying to fix this problem.”
Courthouse News has also filed a declaration in the case.
Borden said such violent tactics risk keeping journalists and legal observers from doing the work of informing the public about the government’s violence against protesters.
Simon said that’s what his restraining order was intended to protect.
“I wanted press to be able to remain and document how law enforcement officers are treating other people who do not disperse,” Simon said.
Borden added that he had another concern: “My biggest fear is that somebody’s going to get killed,” he said.
Simon authorized attorneys for the journalists and legal observers to take six one-hour depositions of any of a dozen officials heading the agencies with federal officers in Portland. That list could include Department of Homeland Security Acting Secretary Chad Wolf, his second-in-command Ken Cuccinelli, Federal Protective Service Director Eric Patterson, U.S. Marshals Service Director Donald Washington or Chief of the U.S. Border Patrol Rodney Scott.
Simon also said he may extend the temporary restraining order for a second two-week period, which would expire Aug. 20. A hearing on that decision will be held Aug. 6.
One ongoing problem has been the difficulty in identifying individual officers accused of violent acts. In some cases, it’s hard to even determine which agency officers are with, because they wear similar uniforms and very small patches with agency insignia. Federal agencies have said their officers are worried about “doxing,” where protesters might identify them and post their personal information online.
Simon suggested having every officer who steps out of the federal courthouse wear a unique code that is tracked by their supervisor — ideally, something white against a dark background.
“I take this very seriously, and I do not mean to diminish the seriousness, but I’m kind of thinking a little bit like professional football or professional basketball jerseys,” Simon said.
That would help the parties determine who exactly is violating the restraining order, Simon said.
“Like, for example, do we see officer 30 violating the order? Or are officers 30, 40 and 50 causing most of the problems? Then we’ll bring them in, hear their testimony, and then decide whether it’s appropriate to prohibit them from stepping outside the courthouse or even from being in the District of Oregon,” Simon said. “And then on the other hand, if we are hearing that there are many officers violating the order, then that will point us in a different direction.”
Jordan Von Bokern, an attorney for the federal defendants with the Federal Programs Branch of the U.S. Department of Justice, said Friday that any contemplation of sanctions or an extension or modification of the restraining order are unnecessary in light of the plan announced by Oregon Governor Kate Brown and Wolf agreeing to the phased withdrawal of federal troops in Portland.
But Simon said that wasn’t a done deal.
“I saw the statement from Secretary Wolf, saying they’re going to keep federal officers here, and if they are needed, they will be deployed at a moment’s notice,” Simon said.
And, he added, if federal agents really do retreat, then it will be that much easier for them to comply with the restraining order.
“If no one has to leave the building, no one has to put on jerseys with unique codes,” Simon said.