Oregon ACLU lawyer asks judge to hold federal law enforcement in contempt

By Rebecca Ellis (OPB)
Portland, Ore. July 28, 2020 8:24 p.m.

Attorneys allege federal law enforcement violated an order restricting their interactions with journalists and legal observers.

Attorneys for the American Civil Liberties Union of Oregon have asked a judge to hold federal law enforcement in contempt for allegedly violating an order that protected legal observers and journalists covering nightly protests against racism and police violence in Portland.

In a Tuesday filing, attorneys with the ACLU also asked a judge to order Chad Wolf, acting secretary for the Department of Homeland Security, and Ken Cuccinelli, acting deputy secretary, to appear before the court and explain why the federal officers deployed by the agency should not be sanctioned for violating the temporary restraining order.

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Last Thursday, U.S. District Judge Michael H. Simon issued a temporary restraining order on officers from the U.S. Department of Homeland Security and the U.S. Marshals Service sent to Portland to guard federal buildings.

The new restrictions barred federal officers from arresting, threatening to arrest or using physical force against someone who they should “reasonably know” is a journalist or a legal observer unless they have probable cause to believe that person has committed a crime. Under the order, journalists and observers were not required to follow orders to disperse nor could a federal officer tell them to stop documenting the protest.

But attorneys for the ACLU allege federal officers violated the order almost immediately.

“Every day it has existed, federal agents have intentionally violated the Court’s TRO,” read the motion, using an acronym for a temporary restraining order. “As a result of the federal agents’ defiance of the Court’s order, the free press remains unsafe while trying to document and observe the cataclysmic violence that federal authorities are inflicting on Portland.”

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Along with the motion, the ACLU submitted declarations from 9 legal observers and journalists, who detailed their experiences with federal officers in recent days that attorneys will argue went against Simon’s order. Included in those filings are two declarations from OPB reporters Rebecca Ellis and Jonathan Levinson who were covering protests Thursday night and say they were shot at by federal officers with projectiles and ordered to disperse.

The new filings also include an account from legal observer Haley Nicholson, who said, on July 24, an officer shot her in the heart with a projectile from 4 feet away, while wearing their green hats associated with the National Lawyers Guild. The temporary restraining order went into effect on July 23.

“I thought that I was safe because of the Court’s TRO,” said Nicholson in the motion. “After the federal agent shot me, I was utterly in shock that he felt free to violate this Court’s order so brazenly.'

Kathryn Elsesser, a freelance photojournalist who was on assignment with the Agence France-Presse, said in a declaration that she was shot in the back of the arm in the early morning of July 25, with some type of munition while standing alone at the edge of the crowd. Elsesser said she had a press pass with the words “PRESS” on her helmet in large letters.

“Because there was no one else around me, federal agents must have been targeting me from across the street,” she wrote. “But I have no idea why.”

As part of the motion, attorneys with the ACLU are also pushing for officers who they say violated the judge’s order to be identified and banned from “engaging in armed operations” within the state as well as a complete ban on lethal and so-called less-lethal weapons, which federal officers have routinely used during the nightly protests to try and disperse crowds.


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