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A Judge Said Federal Officers Can’t Arrest Or Use Force Against Journalists In Portland

The new 14-day temporary restraining order, which the Trump administration opposed, represents the first court order placing limits on the federal law enforcement action in Portland.

Last updated on July 23, 2020, at 9:01 p.m. ET

Posted on July 23, 2020, at 8:23 p.m. ET

Nathan Howard / Getty Images

A federal officer points a pepper ball gun at a protester while dispersing a crowd in front of the Mark O. Hatfield US Courthouse in Portland, July 22.

WASHINGTON — A federal judge in Portland, Oregon, entered a temporary restraining order on Thursday that blocks federal law enforcement officers from arresting or using physical force against journalists and legal observers as they respond to anti–police brutality protests there.

The Trump administration is facing multiple lawsuits challenging the federal response to the demonstrations in Portland, where protesters have reported that officers without identifying markers have been snatching people off the street. This is the first order that places a court-enforced restriction on the actions of law enforcement officers from the Department of Homeland Security and the Department of Justice, which have been accused of making unlawful arrests and engaging in unconstitutional violence against demonstrators, journalists, and legal observers.

The legal team representing the journalists and legal observers, which includes the American Civil Liberties Union, had submitted declarations to the court from individuals who said they were clearly marked as members of the press and complying with orders to move away from the federal courthouse in Portland when they were shot with “less-than-lethal” munitions, such as rubber and plastic bullets, by federal officers. At a hearing earlier on Thursday, Matthew Borden, a lawyer for the journalists and legal observers, argued that the uses of force against journalists were “acts of intimidation by a tyrant.”

US District Judge Michael Simon’s order prohibits federal agents from arresting or using force against journalists or legal observers unless there is probable cause they’ve committed a crime. The order also states that journalists and legal observers will not be required to leave an area if federal agents issue an order to disperse, and that federal officers can’t seize a journalist’s press pass or equipment unless they’re being lawfully arrested.

The temporary restraining order will be in effect for 14 days as the case moves forward.

Simon wrote that the Justice Department was wrong when it argued that journalists didn't have a right to stay when federal law enforcement closed otherwise public streets and ordered people to disperse. He wrote that the role of journalists was to observe and report whether law enforcement was, in fact, lawfully closing streets (the judge also noted that closing streets was a function for local police, not federal agents).

"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," the judge wrote.

At Thursday’s hearing, Simon made clear he was inclined to grant the 14-day temporary restraining order, questioning a Justice Department lawyer about why it would be “impossible” for federal agents to comply since he’d previously imposed a nearly identical order on local police in Portland in the same case.

The city of Portland not only hadn’t come back to court to complain the injunction was unworkable, Simon said, but it had joined the legal team for the journalists and legal observers in urging the judge to adopt a similar order for federal officers.

“I do think it’s critically important that journalists and legal observers have an opportunity to see these things,” Simon said at the end of the hearing, referring to videos of federal agents using force against protesters.

Justice Department lawyer Andrew Warden argued that such an order would be unworkable, given the “extraordinarily chaotic” and “volatile and dangerous” situation on the ground. He expressed concern that federal agents could be held legally responsible if a journalist or legal observer were accidentally exposed to tear gas or munitions, but Simon noted the ACLU had carved out an exception for that type of scenario in its request.

In his order several hours later, Simon highlighted the administration's argument that federal officers were needed in Portland now because protests had been going on in the city for more than 50 nights. The fact that local police could comply with an order not to arrest or use force against journalists under those circumstances was "compelling evidence" that it was a workable set of terms, the judge wrote.

"When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland," Simon wrote. "There is no evidence that the previous 21 nights were any less chaotic."

Simon rejected the government's argument that the journalists and legal observers lacked standing to bring the case because they had only pointed to past incidents involving encounters with law enforcement officers, as opposed to showing there was an ongoing threat. The judge wrote that, "The actions by the federal agents described by Plaintiffs are part of a pattern of officially sanctioned conduct."

"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," the judge wrote. "The threatened future harm is not speculative or hypothetical."

Simon’s order comes as another federal judge in Portland weighs whether to impose a broader injunction that would restrict federal officers from making any arrest without probable cause and identifying themselves and their agency before detaining someone; one video has surfaced of federal agents snatching an individual off the street and putting them in an unmarked car. That case was brought by the Oregon attorney general’s office.

Denis Vannier, a lawyer for the city, argued on Thursday that President Donald Trump’s latest plan to deploy more federal agents to other cities, which, like Portland, lean politically liberal, undermined the administration’s argument that federal officers were in Portland for legitimate law enforcement reasons.

“Perhaps the elephant in the room is the fact that the president has stated publicly that, how can I put this, that the reasons for these deployments are political,” Vannier said.

Earlier Thursday, the inspectors general for the departments of Justice and Homeland Security announced that they are launching an investigation into the use of force by federal officers in Portland.

A Justice Department spokesperson did not immediately return a request for comment. A temporary restraining order typically is not the type of court order that can be appealed, but Warden said at the hearing that if Simon ruled against the government, they would explore options to appeal.

The ACLU released a statement saying Simon's order was a "victory for the rule of law."

"Federal agents from Trump’s Departments of Homeland Security and Justice are terrorizing the community, threatening lives, and relentlessly attacking journalists and legal observers documenting protests. These are the actions of a tyrant, and they have no place anywhere in America," said Jann Carson, interim executive director of the ACLU of Oregon.

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