Judge cites Trump tweets in restricting feds at protests
Federal police face off with protesters in front of the Mark O. Hatfield federal courthouse in downtown Portland as the city experiences another night of unrest on July 27, 2020 in Portland, Oregon. (Photo by Spencer Platt/Getty Images)
PORTLAND, Ore. - A federal judge found Friday that tweets by President Donald Trump helped incite improper conduct by federal officers responding to racial justice demonstrations in Portland, Oregon, and directed both sides in a lawsuit to determine "rules of engagement" for officers acting outside a U.S. courthouse.
U.S. District Judge Michael W. Mosman granted a preliminary injunction on a First Amendment claim in the case against the U.S. Department of Homeland Security filed by two state lawmakers, the Portland-based Western States Center, a church and a legal observer, The Oregonian/OregonLive reported.
However, Mosman rejected their claim that the federal officers violated the 10th Amendment's separation of powers.
He directed the parties to agree on the "contours" of the injunction, asking them to provide him with their best proposals within hours Friday because he wants a deal reached before Election Day, when mass protests are expected.
Mosman suggested the rules of engagement broadly curb any "violent or aggressive law enforcement activity against entirely peaceful protesters" and explore setting a perimeter for enforcement by federal officers outside the downtown Mark O. Hatfield United States Courthouse.
The judge said the rules might include prohibiting direct tear gassing or pepper spraying of nonviolent protesters and avoiding knocking down nonviolent protesters or chasing those who are separate from violent agitators. He said the officers also must have probable cause to arrest people.
Mosman said he doesn't expect the relief to address incidents in which peaceful protesters are interspersed with violent ones. But, the judge said, "if you're not mixed in with them and you're non-violent, bad things should not happen to you."
Lawyers for the plaintiffs had urged the court to restrict federal officers to a 9-square-block area outside the courthouse when protests happen.
"It's still a legitimate point that there ought to be some place in downtown Portland where one can come and say to themselves, look, I'm just not going to be mixing it up with federal law enforcement if I'm this far from the courthouse ---whether that's one block or four blocks or whatever it might be," Mosman said.
Once that so-called "line of scrimmage" is drawn, the parties need to agree on the rules of engagement at that boundary line, the judge said.
If they can't agree, Mosman said they should provide him with their two best proposals and he'll meet with them again, possibly later Friday.
The lawsuit was filed by state Democratic Reps. Janelle S. Bynum, who represents Clackamas, and Karin A. Power of Milwaukie, along with Portland lawyer and legal observer Sara D. Eddie, the First Unitarian Church of Portland and Western States Center, an organization that monitors right-wing extremism.
They sued Homeland Security, the U.S. Marshals Service, Federal Protective Service and U.S. Customs and Immigration Enforcement, saying the aggressive dispersal of protesters by federal agents encroached on state powers and breached the First Amendment by interfering with the right to protest.
Their attorneys Andrew M. Jacobs and Clifford S. Davidson had argued that the possibility of mass federal intervention remains, submitting Twitter statements by Trump and statements from Acting Homeland Security Secretary Chad F. Wolf.
Trump wrote on July 31, for example, "Homeland Security is not leaving Portland until local police complete cleanup of Anarchists and Agitators!" In an Aug. 20 tweet, Trump wrote, "Portland, which is out of control, should finally, after 3 months, bring in the National Guard. The Mayor and Governor are putting people's lives at risk. They will be held responsible. The Guard is ready to act immediately. The Courthouse is secured by Homeland!"
Mosman, ruling from the bench at a hearing Friday, said he couldn't ignore the tweets, and remarked how odd and new it is for a court to be asked to examine Twitter messages to determine the intent of the executive branch.
"Still there they are, and I don't feel I'm at liberty to just sort of wave them away," the judge said. "And so taking them into account, I think they satisfy the requirement of a substantial risk of future harm."
He said the record before him at this preliminary injunction stage suggests evidence of potential retaliation by federal officers against protesters based on their speech.
The officers have fired tear gas and impact munitions at crowds and journalists, hit some protesters with batons, fired an impact munition at the head of a protester who was holding a music speaker above his head, and removed at least one person from a city street and whisked him away in an unmarked van only to release him later with no charges.