Judge issues preliminary injunction against federal officers deployed to Portland

By Rebecca Ellis (OPB)
Portland, Ore. Aug. 21, 2020 1:12 a.m. Updated: Aug. 21, 2020 1:37 a.m.

The ruling requires federal officers wear “unique identifying markings” that make them easy to identify from afar

A judge has issued new restrictions on federal law enforcement deployed to Portland, barring federal officers from assaulting journalists and legal observers and requiring they wear unique numbers so they can be easily identified at a distance.

The ruling was part of a preliminary injunction issued Thursday afternoon by Judge Michael Simon against the U.S. Department of Homeland Security and the U.S. Marshals Service. The ruling ensures that the protections Simon had previously carved out for legal observers and journalists documenting the nightly protests against police violence will last longer than his original restraining order, which expired Thursday.


During multiple court hearings on the order, the judge had pressed an attorney for the federal government on whether officials had been able to identify any of the officers who can be seen on video attacking and dispersing journalists and legal observers — in violation of Simon’s original restrictions. The answer had remained no.

Simon had originally floated the idea of having federal officers wear large, white, football jersey-style numbers to make them easier to identify. But he ultimately left that decision up to the federal defendants and the attorneys for the ACLU, which pushed for the injunction. If the two sides can’t come to an agreement on what these “unique identifying markings” should look like in the next two weeks, Simon said the court will weigh in.


Since the agreement hammered out between the White House and the governor to have state troopers guard federal property, federal officers deployed to Portland have largely stayed out of sight. But Oregon withdrew state troopers last week, raising new questions over whether Portland would see more violent clashes between federal officers and local protesters. On Wednesday evening, as protesters headed toward ICE facilities, the federal officers reappeared and assisted in dispersing protesters for the first time this month.

Federal attorneys had argued in court hearings that further protections for journalists and observers were unnecessary with the presence of federal officers winding down. Lawyers for the ACLU had countered that this did not appear to be the case, pointing to DHS’s own statement which called reports of federal officers withdrawing “irresponsible and dishonest.”

Ultimately, Simon sided with attorneys for the ACLU, agreeing that journalists and legal observers needed continued protection. Like the original restraining order the judge issued in late July, the injunction bars federal officers from using physical force, arresting or dispersing anyone they should “reasonably know” is at the protests as a journalist or observer — unless the officers have probable cause to suspect the person has committed a crime.

Journalists and observers are also not required to follow orders to disperse, according to the order. While his order explicitly carves out protections for these two groups, he wrote that he believed federal officers did not have the right to disperse anybody from Portland streets.

“It is only state and local law enforcement that may lawfully issue an order declaring a riot or unlawful assembly on city streets,” he wrote. “That is simply part of a state or city’s traditional police power.”

Throughout July, while federal law enforcement served as the primary police presence at protests, federal officers regularly responded with force that many on the ground saw as disproportionate and excessive compared with the crimes committed by a small number of participants who would throw objects at police and set fire to dumpsters and debris. In his ruling, Simon wrote that these actions, while “dangerous and difficult for law enforcement,” did not give federal officers “carte blanche to attack journalists and legal observers and infringe their First Amendment rights.”

“Further, many declarants note that they have covered protests in war zones around the world in areas with riotous protests such as Hong Kong, Oakland, and Seattle, and have never been subjected to the type of egregious and violent attacks by law enforcement personnel as they have suffered in Portland,” the filing read. “If military and law enforcement personnel can engage around the world without attacking journalists, the Federal Defendants can respect Plaintiffs’ First Amendment rights in Portland, Oregon.”