Judge extends restraining order against federal officers in Portland

By Rebecca Ellis (OPB)
Aug. 6, 2020 8:26 p.m.

The judge sided with the ACLU, who argued that the threat of violence remained even as the federal officers became less visible.

A federal judge has decided to extend protections for legal observers and journalists monitoring nightly protests in Portland against police brutality for another two weeks.

The Thursday ruling came over the objections of the federal government, who argued that the restraining order issued against the U.S. Department of Homeland Security and the U.S. Marshals Service was now irrelevant. That order barred federal officers from using physical force, arresting, or dispersing anyone they should “reasonably know” was at the protests as a journalist or observer. Attorneys for the federal agencies argued the circumstances had changed with the federal presence in Portland supposed to wind down — and that the order should therefore be allowed to lapse.


“The state and local police have resumed the traditional policing functions that they had previously left in the hands of federal law enforcement, and as a result ... the federal response has diminished almost to zero,” argued Jordan Von Bokern, an attorney for the federal government. “And that’s been going on for a week now.”

But Judge Michael Simon sided with attorneys working with the American Civil Liberties Union of Oregon, who argued that the threat of violence remained even as the federal officers became less visible.


“As soon as the court lifts the injunction, the federal officers could come streaming out of the building and unleash the same destruction and mayhem that brought us to your doorstep in the first place,” said Matt Borden, an attorney working with the ACLU.

“And this is not some form of conjecture of speculation, this is in their own words,” Borden continued, pointing to a Tuesday statement by DHS that called reports the federal officers were standing down and withdrawing “irresponsible and dishonest.”

The ruling comes as part of a lawsuit filed by the ACLU of Oregon, alleging local and federal law enforcement have been targeting and attacking journalists during more than two months of nightly protests against racism and police brutality. Two weeks ago, Simon issued an initial restraining order on the federal officers, following mounting accounts of officers injuring journalists and observers on the ground.

Simon said Thursday, he would extend the order as it was currently written and not include the two changes he had floated last week.

During a hearing last week, Simon considered the idea of asking the ACLU to credential journalists at the protests, following reports of protesters masquerading as press. He had also considered ordering officers wear large white football jersey-style numbers to make them easier to identify. Von Bokern said Thursday the federal government had not yet identified any of the officers who appear to be violating the judge’s ruling in footage submitted to the court.

Simon said he was still considering making potential changes to the restrictions if he decided to issue a longer-lasting preliminary injunction that would make it easier to identify both press and federal officers engaged in misconduct. A hearing on an injunction is scheduled for August 18.

But Simon said a system for credentialing press through the ACLU will not be part of this system. He said he was persuaded by arguments made by the Reporters Committee for Freedom of the Press, which had pushed for the judge to nix the idea, arguing the First Amendment barred any sort of credentialing system for journalists. The ACLU of Oregon had also submitted a filing saying the organization was ill-equipped to decide who should be considered media and who could not.