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.

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 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 vioience 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.

Trump, Not So Statuesque

Things are looking down for the Donald.

For a long time, Republicans have brandished the same old narrative to try to scare their way into the White House.

Their candidates were presented as the patriarchs, protecting the house from invaders with dark skin.

With Nixon, it was the Southern Strategy, raising alarms about the dismantling of Jim Crow laws.

With Reagan, it was launching his 1980 campaign on fairgrounds near where the Klan murdered three civil rights activists.

With Bush senior, it was Willie Horton coming to stab you and rape your girlfriend.

With W. and Cheney, it was Qaeda terrorists coming back to kill us.

With Donald Trump, it was Mexican rapists and the Obama birther lie.

For re-election, Trump is sifting through the embers of the Civil War, promising to protect America from “troublemakers” and “agitators” and “anarchists” rioting, looting and pulling down statues that they find racially offensive. “They said, ‘We want to get Jesus,’” Trump ominously told Sean Hannity Thursday night.

But Trump is badly out of step with the national psyche. The actual narrative gripping America is, at long last, about white men in uniforms targeting black and brown people.

In the last election, Trump milked white aggrievement to catapult himself into the White House. But even Republicans today recognize that we have to grapple with systemic racism and force some changes in police conduct — except for our president, who hailed stop-and-frisk in the Hannity interview.

The other scary narrative is about our “protean” enemy, as Tony Fauci calls Covid-19, which Trump pretends has disappeared, with lethal consequences. With no plan, he is reduced to more race-baiting, calling the virus “the China plague” and the “Kung Flu.” Nasty nicknames don’t work on diseases.

The pathogen is roaring back in the South and the West in places that buoyed Trump in 2016. Texas, Florida and Arizona are turning into Covid Calamity Land after many residents emulated their president and scorned masks and social distancing as a Commie hoax.

Is Trump’s perverse Southern Strategy to send the older men and women who are a large part of his base to the I.C.U.?

The president showed off his sociopathic flair by demanding the repeal of Obamacare — just because he can’t stand that it was done by Barack Obama. Millions losing their jobs and insurance during a plague and he wants to eliminate their alternative? Willful maliciousness.

And this at the same time he has been ensuring more infections by lowballing the virus, resisting more testing because the numbers would not be flattering to him, sidelining Dr. Fauci and setting a terrible example.

The Dow fell 700 points on the news that Texas and Florida are ordering a Covid-driven last call, closing their bars again, and the virus is revivifying in 30 states.

In 2016, the mood was against the status quo, represented by Hillary Clinton. But now the mood is against chaos, cruelty, deception and incompetence, represented by Trump. In light of our tempestuous, vertiginous times, Joe Biden’s status quo seems comforting.

It is a stunning twist in history that the former vice president was pushed aside in 2016 by the first black president and put back in the game this year by pragmatic black voters.

Bill Clinton was needy; he played a game with voters called “How much do you love me?” Do you love me enough to forgive me for this embarrassing personal transgression, or that one?

But Trump has taken that solipsism to the stratosphere, asking rallygoers in Tulsa to choose him over their health, possibly their lives, recklessly turning a medical necessity into a tribal signifier. I wasn’t surprised that so many seats there were empty, but that so many were filled.

In a rare moment of self-awareness, Trump whinged to Hannity about Biden: “The man can’t speak and he’s going to be your president ’cause some people don’t love me, maybe.”

It’s not only the virus that Trump is willfully blind about. A Times story that broke Friday evening was extremely disturbing about Trump’s love of Vladimir Putin. American intelligence briefed the president about a Russian military intelligence unit secretly offering bounties to Taliban-linked insurgents for killing coalition troops in Afghanistan, including Americans. Yet Trump has still been lobbying for Putin to rejoin the G7.

Trump had a chance, with twin existential crises, to be better after his abominable performance in his first three years. But then, we’ve known all along that he is not interested in science, racial harmony or leading the basest elements of his base out of Dixie and into the 21st century. Yes, the kid from Queens enjoys his newfound status as a son of the Confederacy.

A Wall Street Journal editorial Thursday warned that he could be defeated because he has no message beyond personal grievances and “four more years of himself.”

But Trump has always been about Trump. And the presidency was always going to distill him to his Trumpiest essence.

I asked Tim O’Brien, the Trump biographer, what to expect as the man obsessed with winning faces humiliating rejection.

“He will descend further into abuse, alienation and authoritarianism,” O’Brien said. “That’s what he’s stewing on most of the time, the triple A’s.”

Good times.