Judge temporarily bars federal officers from using force, threats, dispersal orders against journalists, legal observers

Protests on July 22

Federal officers respond to protests outside the federal courthouse in Portland just before midnight on July 22, 2020.

A federal judge on Thursday issued a 14-day order temporarily barring federal officers from using force, threats and dispersal orders against journalists or legal observers documenting the daily demonstrations in downtown Portland.

During a hearing earlier in the day, U.S. District Judge Michael H. Simon quoted case law from the 9th U.S. Circuit Court of Appeals, saying, “When wrongdoing is underway, officials have great incentive to blindfold the eyes of the Fourth Estate. The free press is the guardian of the public interest, and the judiciary is the guardian of the press.”

Attorney Matthew Borden, representing the American Civil Liberties Union of Oregon, urged the judge to “stop the federal agents’ occupation of Portland” and submitted at least a dozen statements from journalists, photojournalists and legal observers who have suffered shots to the back, neck and legs from impact munitions fired by federal officers outside the Mark O. Hatfield U.S. Courthouse in the last month.

“These are not accidents. These are not inadvertent shots,” Borden said. “These are acts of intimidation by a tyrant and they have no place in the city of Portland and they have no place in this country.‘'

Simon’s temporary restraining order for federal officers is similar to one he granted earlier this month governing Portland police, except for one major difference that allows for individual federal officers or supervisors to be held liable if they intentionally disregard his ruling.

As with Portland police, federal officers will not be liable for unintentional violations of the court order. For example, if a journalist or legal observer is “incidentally exposed to crowd-control devices” after remaining in an area after officers give a lawful order to leave, then federal officers won’t be liable for a violation.

But the judge wrote that any “willful violation'' of his order or any direction by a federal supervisor or commander to disregard or violate the order will be considered a violation of “a clearly established constitutional right” and therefore won’t shield the officer through the legal doctrine of qualified immunity.

Qualified immunity is a 50-year-old principle from the U.S. Supreme Court meant to protect government employees from frivolous litigation but often shields police from accountability in civil suits when officers are accused of using excessive force.

The judge ordered that his 22-page ruling be widely distributed within 24 hours to U.S. Attorney General William Barr, the acting Homeland Security secretary, all federal officers deployed in Portland, including any federal personnel in Portland who are or may become part of “Operation Diligent Valor” or “Operation Legend” -- two Trump administration initiatives.

Attorney Andrew Warden of the U. S Department of Justice argued at the hearing that it would be too difficult for federal officers to distinguish peaceful demonstrators from violent ones. He represents the U.S. Department of Homeland Security and U.S. Marshals Service.

Warden said the federal officers must make split-second decisions and are wearing masks, helmets and other face-coverings. They can’t stop to determine who’s a member of the press or a legal observer when commercial fireworks are being thrown at them and lasers shined in their eyes and everyone before them has their cellphone out filming their actions, he said.

Federal officers, he said, are facing extraordinary circumstances from “violent opportunists” who are threatening public safety. The press is guaranteed “no special rights of access above and beyond the public,” he said.

The judge disagreed.

“The plaintiffs were identifiable as press, not engaging in unlawful activity or protesting, were not standing near protesters, and yet were subject to violence by federal agents,” Simon wrote. “Contrary to the Federal Defendants’ arguments, this evidence does not support that the force used on Plaintiffs were ‘unintended consequences’ of crowd control.”

The judge zeroed in on the argument that journalists don’t have a right to stay, observe or document when the government “closes” public streets.

“This circular logic does not help the Federal Defendants. First, the Federal Defendants are not the entities that ‘close’ state public streets and parks; that is a local police function,” the judge noted. “Second, the point of journalists observing and documenting government action is to record whether the ‘closing’ of public streets (e.g. , declaring a riot) is lawfully originated and 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.”

As Warden acknowledged in court that the federal officers had no evidence of any journalists or legal observers committing crimes during the demonstrations, the judge ruled, “The stated need to protect federal property and the safety of federal officers is not directly affected by allowing journalists and legal observers to stay, observe, and record events.”

Attorneys from the city of Portland supported the ACLU’s request for a temporary restraining order.

On July 2, Simon exempted journalists with professional or authorized press passes and observers from the ACLU, National Lawyers Guild and other legal groups from having to follow Portland police orders requiring protesters to disperse during declared unlawful assemblies or riots. The judge also directed police not to arrest, threaten to arrest or use force against a person “who they know or reasonably should know” is a journalist or legal observer. Officers aren’t to seize their cameras, audio or videotaping equipment or press passes unless they have probable cause to believe a crime has been committed, the order says.

Simon later extended the temporary restraining order against Portland police to a preliminary injunction that the city accepted in a joint stipulation with the plaintiffs. The injunction expires Oct. 30.

Denis Vannier, senior deputy city attorney, said the city backed the ACLU’s move to restrict federal officers largely because of what he called “the disconnect between the federal defense’s legal position and really the facts on the ground.”

He noted that large numbers of journalists have been struck by less-lethal munitions fired by federal officers and reminded the court that Mayor Ted Wheeler was tear-gassed among protesters outside the fence in front of the federal courthouse Wednesday night.

Vannier argued the use of force by federal officers is disproportionate to the threat they face and is “happening despite the city’s repeated request” for them to stay inside the courthouse and ultimately leave Portland altogether.

Vannier said the use of the federal officers in Portland appears to have been a calculated decision by President Donald Trump to target largely liberal, progressive cities in a political stunt to help his election in November.

The deputy city attorney said while the restrictions placed on Portland police, in effect for 21 days, have been challenging at times, they’ve been workable.

The judge asked the lawyer for the federal government: “Why would it be workable for the city and the Police Bureau and not workable for the federal agents who have been deployed here?”

Warden described the circumstances outside the federal courthouse as a " fairly extraordinarily chaotic situation” at night and that “segregating everyone” in the crowd would be a “difficult endeavor.”

Simon also asked Warden what type of crowd-control training the federal officers have.

Warden said he wasn’t aware of all the federal units’ specialized training but said the U.S. Customs and Border Patrol’s tactical unit, or BORTAC, has training in dealing with large gatherings. The unit is typically assigned to the southern border ports of entry.

Simon said he believes it’s critically important for the press to continue to observe and document what’s happening on the street outside the courthouse. He noted the recent baton-battering of 53-year-old Christopher David, a Navy veteran trying to speak with federal agents and not threatening anyone.

David was assaulted by a federal officer despite the fact “there was no probable cause he was committing a crime,” the judge said.

Simon also spoke of 26-year-old Donavan LaBella, who in mid-July was shot in the head by a deputy U.S. marshal while he had his hands above his head holding a music speaker across from the courthouse.

He also referenced two accounts of federal officers in unmarked vans picking people up off the street.

Simon noted that while LaBella and David aren’t journalists or legal observers, accounts of what happened to them were reported by journalists.

The judge pointed to the sworn statement from photojournalist Nathan Howard, who said he was in Chapman Square near Southwest Third Avenue late Sunday into early Monday when a group of federal officers emerged from the courthouse and pushed protesters back to Fourth Avenue.

Howard said he remained in the square because he wanted to document another group of federal officers coming from the Edith Green-Wendell Wyatt Federal Building two blocks south. There were few people around him except other journalists, he said.

As a line of federal officers advanced, Howard said he screamed, “I’m press, I’m press!” and held up his press pass in one hand and camera in the other. Agents in the group told him to stay put and moved on.

Later, as two groups of federal agents merged and began walking between the square, Howard said he screamed that he was “press!” again. One officer told him to “stay where you are, don’t come close,” but three seconds later, another federal officer fired at least two pepper balls directly at him.

“And they had absolutely no probable cause to believe that person committed a crime,‘' Simon said. “That’s what I think the plaintiffs are trying to stop here.”

-- Maxine Bernstein

Email at mbernstein@oregonian.com; 503-221-8212

Follow on Twitter @maxoregonian

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