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Judge restricts federal crowd control measures around Portland courthouse

A federal judge has restricted federal law enforcement officers from dispersing protesters beyond a one-block radius around the Mark O. Hatfield federal courthouse.

In an injunction issued Monday, Judge Michael W. Mosman said federal officers had likely violated protesters' First Amendment rights and chilled the exercise of free speech.

Mosman’s order creates what he called an “excluded area” around the courthouse within which federal law enforcement can engage in crowd control activities. Outside that area, federal officials cannot use otherwise legally permissible crowd dispersal techniques.

“Beyond that line federal agents must cease crowd control activities, including clearing people away from the U.S. Courthouse,” the order says

The injunction only applies to the Mark O. Hatfield Courthouse and does not prevent federal officers from making arrests, conducting investigations or pursuing individuals believed to have violated federal law beyond the excluded area.

“If you set off a firework at the building, and they see you do it, they can chase you down,” said Cliff Davidson, an attorney with Snell & Wilmer, the firm that filed the lawsuit. “And it doesn’t matter if they’re chasing you inside the zone or outside the zone, they can still do that.”

The judge’s order also doesn’t prevent federal officers from using general crowd control measures inside the excluded area that might affect people outside of it, such as tear gas.

The injunction was requested by plaintiffs in a lawsuit filed against the Department of Homeland Security, Customs and Border Protection, the Federal Protective Service and U.S. Marshals Service. The lawsuit alleges federal officers have repeatedly engaged in policing activities far from federal properties, actively sought to deter First Amendment rights, arrested protesters without probable cause, and used tear gas and munitions to attack peaceful protesters.

“Our argument is the federal law enforcement presence is a pretext to suppress speech which it opposes,” Davidson said. “And as evidence of that, we cited extensive tweets and official statements by both the president and [Acting Secretary of Homeland Security] Chad Wolf.”

Mosman appears to have agreed.

“Unfortunately for the federal agents, they operate under the burden of statements from the President (and for Border Patrol agents, Acting Secretary Wolf) expressing precisely such a motivation,” Mosman wrote. “For these and other reasons discussed at oral argument, I have found Plaintiffs are entitled to some form of injunctive relief.”

The Department of Homeland Security did not immediately respond to a request for comment.

Davidson said he believes it’s the first time President Donald Trump’s tweets have been cited as official statements since a July 2019 ruling finding that Trump uses Twitter to conduct official business.

Mosman has set a hearing for Nov. 9 to determine if federal law enforcement will be required to issue warnings before dispersing protesters. The injunction will stay in effect until it is lifted by the court.

Federal officers deploy tear gas against people protesting racism and police violence in front of the Mark O. Hatfield federal courthouse in Portland, Ore., on July 18, 2020. The federal police presence in Portland has galvanized protesters, bringing out larger crowds than in preceding weeks.
Jonathan Levinson /
Federal officers deploy tear gas against people protesting racism and police violence in front of the Mark O. Hatfield federal courthouse in Portland, Ore., on July 18, 2020. The federal police presence in Portland has galvanized protesters, bringing out larger crowds than in preceding weeks.

Copyright 2020 Oregon Public Broadcasting