Decide rejects ACLU lawyer’s request to query Homeland Safety chief about Portland protests – for now

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A lawyer for journalists and legal observers suing federal officers returned to court Friday seeking an order to allow him to question Acting Homeland Security Secretary Chad F. Wolf under oath on the administration’s plan or schedule to withdraw extra federal forces from Portland.

Attorney Matthew Borden said state and federal officials have made conflicting statements about the pullout and his clients want to “get to the bottom of things.”

The American Civil Liberties Union is preparing later this month to urge the court to turn a temporary restraining order into a longer-lasting preliminary injunction to bar federal officers from assaulting, threatening to assault or arresting journalists or legal observers documenting demonstrations in the city to protest police violence and racism in the United States. The temporary order was extended this week to last through Aug. 20.

U.S. Department of Justice attorney Joshua Gardner argued that the journalists and legal observers who filed suit haven’t met the high bar needed to depose a sitting cabinet secretary. He had offered to make a lower-level federal official available to the plaintiffs’ lawyers but they rejected that proposal, Gardner said.

Gardner also pointed to documents already filed with the court. They don’t provide a timeline for when the special detachment of officers will leave, but Homeland Security leaders do write that federal officers will remain in the city until they’re convinced federal buildings in Portland are no longer at risk.

Wolf told a Senate committee on Thursday that the full contingent of Homeland Security officers sent to Portland will remain on standby in the city. He said Portland continues to see “violent incidents targeting local police,” referencing late-night unrest this week outside police precincts and the police union office.

The federal officers have remained out of sight for more than a week since Wolf and Gov. Kate Brown made a pact to have state police on July 30 take over duty outside the federal courthouse downtown. Federal agents previously had spent several weeks responding with tear gas, riot-control projectiles and batons to a group of protesters targeting the courthouse with fireworks, fires and thrown rocks, bottles and other objects. A splinter group of protesters has now turned attention back to Portland police.

The ACLU’s suit urges the judge to “stop the federal agents’ occupation of Portland.” Their lawyers have submitted at least a dozen statements from journalists, photojournalists and legal observers who have suffered shots to the back, neck and legs from impact munitions fired by federal officers outside the Mark O. Hatfield United States Courthouse in the last month.

In recent court filings, Allen Scott Jones, deputy director of operations for the Federal Protective Service, wrote that federal officers assigned to the courthouse are in a “reactionary law enforcement presence with instructions to only respond to criminal activity outside of the facility in coordination with the Oregon State Police.”

The U.S. Marshal Service Special Operations Group officers also remain at the courthouse, “ready to assist” the Oregon State Police and Federal Protective Service “when operationally required to quell acts of violence,” wrote Andrew Smith, assistant director of the U.S. Marshals Service tactical operations division.

That could occur when state police are outnumbered by “rioters,” Smith wrote.

Oregon State Police have been deputized as federal officers, responsible for maintaining security outside the courthouse, including “working inside and outside the fence, moving back violent crowds and making arrests as necessary,” Smith wrote.

U.S. District Judge Michael H. Simon agreed with the Justice Department that the ACLU lawyer hadn’t thoroughly exhausted less burdensome methods to find out the information the plaintiffs seek.

Borden agreed to submit questions that must be answered under oath in writing by the federal defendants by 5 p.m. Monday. Federal officials will have by the end of the day Tuesday to answer any potential followup questions. The judge also approved a protective order on any confidential information presented to the plaintiffs.

If the journalists and legal observers can’t get their questions answered, Simon said, “then we may need a deposition of Mr. Wolf, but I don’t see the necessity of that yet.”

— Maxine Bernstein

Email at [email protected]; 503-221-8212

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