UPDATE (6:51 p.m. PT) - U.S. District Judge Michael H. Simon has issued a temporary restraining order against the city of Portland, placing new restrictions on how officers can interact with journalists and legal observers documenting the nightly protests against police violence.
The order, issued Thursday evening, bars police from arresting or using physical force against anyone they "know or reasonably should know” is a journalist or legal observer - unless officers have probable cause that the person has committed a crime.
The order also states that police can’t remove cameras, recording equipment, or press passes of journalists and legal observers nor can they ask them to disperse.
The ruling comes out of a lawsuit filed by attorneys with the Oregon chapter of the American Civil Liberties Union against the city and its police force. Attorneys allege officers have been targeting and injuring journalists and legal observers covering the protests. This week, the attorneys asked the city to issue a temporary restraining order against the city to prevent police from interfering with journalists and legal observers as they document protests against police violence.
Attorneys with the ACLU had been hoping the judge would intervene before the start of the long weekend. On Thursday afternoon, Judge Simon issued protections that will last for the next 14 days.
"I'm really grateful we were able to secure a TRO before the weekend," said Kelly Simon, interim legal director with the ACLU of Oregon. "And I'm hopeful it will be able to protect our clients as well as all legal observers and journalists who are there to documents police behavior especially at this time where we've seen so many violations."
The ACLU's Simon noted that, while officers can still arrest journalists and observers if there's probable cause of a crime, the order is clear that these groups can stay behind and document protests once police order everyone to leave.
“The probable cause language does give some discretion to make arrest of folks who are engaged in criminal behavior, but what the order makes clear is that when a person is simply present and refusing to disperse, that is not criminal behavior,” she said.
The police bureau has been clear in the past that journalists are not exempt from its dispersal orders. During the nightly protests, journalists and observers have struggled to stay on location and document what happens after the police give a dispersal order. This is often the tipping point where protests become the most dangerous, as police use weapons such as tear gas to get protesters to leave an area.
In his ruling, Judge Simon wrote that there was a benefit to having observers on the ground to monitor police conduct.
“The public streets historically have been open to the press and general public, and public observation of police activities in the streets plays a significant positive role in ensuring conduct remains consistent with the Constitution,” he wrote. "Further, there are at least serious questions regarding the police tactics directed toward journalists and other legal observers and whether restrictions placed upon them by the PPB are narrowly tailored.”
According to the order, legal observers should be identified by the green hats, worn by observers from the National Lawyers Guild or blue vests, worn by observers from the ACLU. Journalists should be identified by either a press pass or clothing that identifies them as press. The order says the police will not be held liable for interfering with members of the press who are not identifiable in either of these ways.
At a status conference about the order earlier in the day, Judge Simon had expressed concern over how police could identify journalists. He made it clear he was not interested in issuing an order that would prevent anyone with a camera phone from dispersing, and said he was concerned that exempting anyone with a press pass would be too broad.
“Am I just inviting people to go home and print themselves something on a piece of paper that says ‘press pass’ or ‘independent journalist?’” Simon asked Matthew Borden, an attorney with BraunHagey & Borden serving as co-counsel on the suit.
“Is there potentially someone who is bad who might try and opportunistically take advantage of this situation? I think that can be said of a lot of things,” Borden responded. “But on the other hand, do you kill everyone in the village because you think some of them might be Viet Cong?”
Borden also noted that, in the past, press passes alone, even from well-known institutions such as Willamette Week and the Portland Mercury, had not provided much protection from the police.
Naomi Sheffield, Portland's deputy city attorney, said during the phone conference that she too was concerned that protesters would start printing up their own press passes. She also said she wanted to ensure that, if the judge did issue an order, it could clearly translate into practical rules police officers could follow on the ground.
“We need to make sure whether every one of 100, potentially, PPB officers understand and can identify who those people are that aren’t required to disperse,” she said. “And so I think we need something that can be clearly articulated to them or it will be very, very difficult for the city to comply.”
After an initial conference Wednesday, the city's attorneys appeared prepared for an order that was more narrow in scope and would offer protections specifically for the six observers and journalists named in the lawsuit as plaintiffs: Tuck Woodstock, Doug Brown, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, and John Rudoff.
But Judge Simon said Thursday he was worried if he limited his ruling to plaintiffs only, he didn’t want a narrow order to be misinterpreted or abused as “basically creating an open season, if you will, on Oregonian reporters or KBOO reporters.”
Sheffield questioned whether the city was responsible for ensuring other law enforcement agencies helping the city’s bureau to police the protests, such as the Multnomah County Sheriff’s Office and the Oregon State Police, would be responsible for abiding by the restrictions placed on the judge. The answer wasn’t clear.
Judge Simon has said he would be open to having another hearing Friday if either of the parties wanted him to reconsider the potential order.
