Maxine Bernstein
The Oregonian, Portland, Ore.
PORTLAND, Ore. — A federal judge Friday said he’s considering requiring federal law enforcement who leave the downtown courthouse and journalists covering protests to wear more identifiable clothing to ensure there’s compliance with his temporary order barring officers from threatening, dispersing or assaulting journalists and legal observers.
U.S. District Judge Michael H. Simon offered two ideas:
First, he suggested requiring any federal officers who leave the courthouse to confront protesters to wear large visible numbers, similar to those worn on professional football players’ jerseys, so they can be identified if they violate his restrictions.
Second, he recommended the American Civil Liberties Union of Oregon issue ACLU-authorized vests to professional journalists special to wear so they aren’t mistaken for others in the crowd who have become savy and placed the word “Press’’ on their helmets to avoid officers’ dispersal orders and create problems.
Simon scheduled a hearing for next Thursday at 10 a.m. to determine whether he should extend for another 14 days the two-week temporary restraining order he granted last Thursday restricting federal law enforcement, and if so, whether he should adopt his suggested changes or not.
Attorneys for the American Civil Liberties Union of Oregon want federal officers held in contempt and sanctioned, saying they violated the judge’s restrictions that barred federal officers from threatening or assaulting journalists or legal observers documenting protests.
They presented statements from multiple journalist and observers who were struck in the last week with impact munitions or doused with tear gas and pepper spray and ordered to disperse, though they were clearly identified as press or wearing vests that identified them as observers from the ACLU or National Lawyers Guild.
A U.S. Department of Justice lawyer for the federal officers countered that federal officers had noticed some in the crowd who wore the word “Press” on their helmets or shirts engage in unlawful actions, from breaching the fence outside the federal courthouse to holding a shield and refusing to move away from federal officers who were advancing toward them.
The judge said he found three instances of journalist or legal observers’ encounters with federal officers to be concerning, giving him “cause to believe there may be some intentional violations of the temporary restraining order.”
Photojournalist Brian Conley reported that about 4 a.m. on July 24, federal officers fired tear gas and impact munitions at the few journalists or medics that remained near Southwest Third Avenue and Salmon Street. He said he was hit in the chest with an impact munition, and then a tear gas canister exploded above his head, despite his helmet and jacket that read “Press” on it.
OPB reporter Rebecca Ellis said in a statement she was forced to leave Southwest Main Street about 1:30 am. on July 4 by federal agents that yelled “Move...Walk Faster!” despite her identification as press. And legal observers Bruce Knivila and Kat Mahoney, wearing green National Lawyers Guild hats or helmets, said they were doused in the face with pepper spray by federal officers on July 25, despite no resistance and their clear markings as legal observers.
“It does appear a smaller subset of protesters may be engaged in unlawful behavior, assault on federal officers or trying to breach property of the federal courthouse, and some subset of the federal agents may be engaged in unlawful behavior, violating the TRO,” the judge said.
But Simon said he couldn’t tell if there’s a handful or more of federal officers who may have disregarded his order.
That’s why he suggested modifying his order next week to require each side wear more identifiable clothing to help fix the problem.
He asked both sides to return to court at 10 a.m. next Thursday to help him determine whether he should extend the two-week restraining order for another 14 days, and if so, with the changes he proposed.
Attorney Matthew Borden, for the journalists and observers, said he welcomed the idea of requiring officers to wear large numbers on their jerseys so they could be identified if they used force against journalists or observers.
Yet Borden cautioned against having the ACLU determine who should be designated a professional journalist or provided an ACLU-authorized vest.
“I don’t think anybody should say who’s a journalist, and certainly not my client,” Borden said. “They don’t have resources or the competence in this area.”
If the ACLU denied someone authorization as a journalist, that person could petition to the court, Simon offered.
Attorney Jordan L. Von Bokern, representing the U.S. Department of Justice and Department of Homeland Security, urged the judge to recognize that federal officers are going to have less contact with protesters as a result of an agreement the government reached with the state of Oregon, providing for state and local police to handle security and public safety outside the courthouse grounds.
“A lot of this conversation about extending the temporary restraining order or imposing sanctions is really premature,” Von Bokern said.
The judge said he was well aware of the development in the news this week.
If the agreement with the state is successful, Simon noted, then there will be less of a burden on the federal officers.
“If no one has to leave the building,” the judge said, “no one has to put on jerseys that have unique identifying codes.”
©2020 The Oregonian (Portland, Ore.)