Judge denies federal request to suspend protections for journalists, legal observers

By Rebecca Ellis (OPB)
Aug. 28, 2020 12:28 a.m. Updated: Aug. 26, 2020 12:30 a.m.

Attorneys for the federal government argued the protections were “unworkable” in chaotic protests

A judge has denied a request by the Trump administration to suspend new protections for journalists and legal observers documenting the nightly protests for racial justice and against police brutality in Portland as the government appeals the ruling.

Last week, Judge Michael Simon issued a preliminary injunction against the U.S. Department of Homeland Security and the U.S. Marshals Service that barred federal officers deployed to Portland from assaulting journalists and legal observers and required them to wear unique numbers so they could be easily identified from afar.


But attorneys for the federal government argued the injunction was “unworkable” and asked for a stay Monday while they appealed the ruling.


The judge’s order 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. Federal attorneys wrote that these restrictions place too much of a burden on law enforcement to differentiate between protesters and observers in a chaotic environment.

“An officer confronted by rioters, in the dark and in the fog of fear and uncertainty, and making split-second decisions that affect the officer’s life as well as the lives of fellow officers and the public, must carefully examine each and every member of a dangerous unlawful gathering to determine whether any of them has a ‘press badge,’ ‘professional equipment’ ‘distinctive clothing,’ is distant from ‘protest activities,’ or has some other indicia of being a journalist or a legal observer,” the federal government’s motion read.

In his Tuesday decision, Simon countered that the city of Portland had found his nearly identical order placed on the Portland Police Bureau workable — and the city had even gone so far as to ask that the same restrictions be placed on federal law enforcement.

Simon also said he was persuaded by testimony from Gil Kerlikowske, a former commissioner of U.S. Customs and Border Protection, who told the court he felt that properly trained law enforcement should be able to tell the difference between press and protesters. He also said that officers who were establishing a perimeter around the federal courthouse would have no reason to disperse journalists and observers.

The federal government still intends to seek a stay from the U.S. Court of Appeals.