Journalists and legal observers should have to follow lawful orders by federal officers to disperse when violence erupts outside the Mark O. Hatfield U.S. Courthouse, federal lawyers argue in new court papers filed Tuesday.
Any court-ordered exemption for journalists and the observers would be improper and impractical, the lawyers said.
The response follows a motion filed by 10 journalists and observers with the American Civil Liberties Union of Oregon seeking a temporary restraining order to hold federal officers to the same restrictions that a judge recently placed on Portland police.
A hearing will be held at 1 p.m. Thursday in Portland.
On July 2, U.S. District Judge Michael H. Simon ruled that journalists with professional or authorized press passes and legal observers are exempt from Portland police orders requiring protesters to leave 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.
Such restrictions would be unworkable for federal officers, wrote Andrew I. Warden, a U.S. Department of Justice senior trial counsel.
As federal officers have aggressively fired tear gas and impact munitions since early July to break up crowds of demonstrators outside the federal courthouse downtown, the plaintiffs have filed sworn statements from additional journalists, photojournalists and legal observers who have been hit by less-lethal rounds, with photos of wounds to their backs, arms and legs.
Since May 28, when someone threw a Molotov cocktail at the U.S. Immigration and Enforcement field office in Portland, the federal courthouse and the Edith Green Wendall Wyatt federal building have been targets of violent demonstrators late at night into early morning hours, according to the federal response.
There are 114 officers from the Federal Protective Service, U.S. Marshals Service, U.S. Customs and Border Protection and Immigration and Enforcement protecting federal buildings and property in Portland, according to Gabriel Russell, regional director of the Federal Protective Services.
Federal officials estimate the cost to repair damage at the courthouse so far exceeds $50,000 -- including cleaning up graffiti scrawled over its exterior, fixing broken security cameras and access devices and replacing shattered glass doors at the main entrance, according to the documents.
Twenty-eight federal officers have been injured from thrown objects, including ball bearings fired from wrist rockets, improvised explosives and fireworks, glass bottles and a sledgehammer used to break through a wooden board blocking the employee entrance, the documents say.
“Simply put, the federal government has the legal obligation and right to protect federal property and federal officers, and the public has a compelling interest in the protection of that property and personnel,‘' Warden wrote. “The press is free to observe and report on the destruction of that property, but it is not entitled to special, after-hours access to that property in the face of lawful order to disperse.”
Any injuries to journalists or others, he said, resulted from “the unintended consequence of an otherwise constitutional use of force under the circumstances.” He called the journalists’ descriptions of injuries sustained on the street “threadbare accounts of isolated incidents.”
Matthew Borden, an attorney for the journalists, said the federal actions, backed by President Donald Trump, have ”included attacking media who dared to try to report what his minions are doing to demonstrators.”
On July 12, for example, the American Civil Liberties Union said federal agents shot with impact munitions at least two journalists and chased legal observers away from the scene with their batons.
On Sunday night, photojournalist John Rudoff said he was standing in an open, lit area when he was hit while documenting federal agents exiting the courthouse and shooting tear gas and other munitions. “Suddenly, and for no reason, a federal agent shot me in my right shoulder, inches from my head,” Rudoff said. “Based on the contusion, I believe it was a 40mm rubber bullet.”
Federal lawyers argue that isolating and identifying each press representative through a press pass or legal observer through a particular colored-hat or vest would be too difficult in the course of a dispersal action.
“Having an unspecified number of people who lawfully may remain, however, will not only greatly complicate efforts to clear an area and restore order, it will also present a clear risk to safety,” Warden wrote.
-- Maxine Bernstein
Email at mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
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