Two judges have dismissed most of the allegations raised in separate lawsuits that challenged the tactics of federal agents during mass social justice protests in downtown Portland last summer.
The American Civil Liberties Union of Oregon filed suit last July on behalf of four volunteer medics who alleged officers with the U.S. Department of Homeland Security and the U.S. Marshals Service unfairly targeted them.
Another group filed suit alleging the actions of federal agents outside the Mark O. Hatfield United States Courthouse encroached on state powers and violated the First Amendment rights of protesters to demonstrate.
The medics suit sought a court order prohibiting officers from targeting medics and sought damages for injuries the medics sustained.
U.S. District Judge Karin J. Immergut this month found that the medics lacked a distinct uniform, had varying degrees of medical training, weren’t readily identifiable and therefore weren’t capable of being targeted by the federal officers.
She also noted over half of the medic’s allegations that federal agents unlawfully shot pepper balls or used tear gas on them “appear to have occurred” after they resisted dispersal orders.
“In many instances, alleged plaintiffs were not actively providing medical aid when they were harmed,” Immergut wrote in her ruling. “Plaintiffs admittedly position themselves right next to protesters in areas which pose the most risk of harm, rather than standing apart from the crowd, undermining the suggestion their harm was the result of intentional targeting.”
Immergut and U.S. District Judge Michael W. Mosman both found that the separate suits before them failed to show an impending risk that plaintiffs would be harmed by federal officers in the future.
The medics had argued the indiscriminate force used by federal agents outside the courthouse last year so chilled their free speech that they didn’t feel they could safely attend future protests.
But Immergut called that fear “too speculative” and noted that circumstances have changed under a new presidential administration.
She noted President Joe Biden on May 14 revoked former President Donald Trump’s executive order on “Protecting American Monuments, Memorials and Statues and Combating Recent Criminal Violence.”
She also noted the nightly protests outside the federal courthouse have turned into smaller, less frequent demonstrations outside the U.S. Immigration and Customs Enforcement building in South Portland. That has led to far fewer encounters between federal agents and demonstrators, she wrote.
Immergut rejected the argument from the medics that she shouldn’t declare the lawsuit moot simply because the alleged unlawful conduct has stopped.
She wrote that “the changed circumstances … were entirely out of Federal Defendants’ control. “
“President Trump and Acting Secretary Chad Wolf — the source of the alleged policy causing Plaintiffs’ risk of future harm — no longer hold office. … Indeed, the alleged wrongdoers no longer hold any authority over Federal Defendants,” her ruling said.
Immergut dismissed the medics’ request for a court injunction or other court relief against federal officers.
But she kept alive their claim for financial damages for alleged civil rights violations by federal agents, and all other claims still pending against the city of Portland.
“We’re obviously disappointed and we disagree with her opinion,” said Kelly Simon, an attorney for the ACLU. “What we saw last year was frankly a constitutional nightmare.”
Simon pointed to a statement by U.S. Department of Justice lawyers, who wrote in a court filing in March, that, “Federal Defendants have not changed their actual, longstanding policies regarding use of force and rules of engagement in situations involving crowd control or the protection of federal property.”
“I think the court made a mistake in overlooking that clear statement from the federal defendants, which shows medics continue to be at risk of harm,” Simon said.
Separately, Mosman earlier this month dismissed the suit filed by two state lawmakers, Portland lawyer and legal observer Sara D. Eddie, the First Unitarian Church of Portland and the Portland-based Western States Center, an organization that monitors right-wing extremism.
It named Homeland Security, the Marshals Service, the Federal Protective Service and Customs and Immigration Enforcement.
Mosman said the political climate has significantly changed since last year, with the current administration repudiating the actions under Trump.
Mosman had previously issued a preliminary injunction the day before Election Day, finding that actions by federal officers had chilled the plaintiffs’ rights to protest.
The judge then had cited tweets by Trump and Wolf that he found helped incite improper conduct by federal officers and reflected a retaliatory motive based on speech.
In his dismissal, Mosman cited “considerable changes in the landscape of this case,” including the new presidential administration and its repudiation of the tweets in question.
Attorney Clifford S. Davidson, who represented the plaintiffs, said of Mosman’s ruling, “Our clients won when it mattered most. They are pleased to have obtained an injunction against the Trump Administration’s blatant retaliation against dissent, and that the Executive Order calling for that retaliation is now repealed.”
In another pending case against federal law enforcement, Mark Pettibone, who alleges he was taken off the street without warning on July 15 in downtown Portland, whisked away in an unmarked van and then released from the federal courthouse without any charges, is urging the government to identify the officers who took him into their custody.
The U.S. Department of Homeland Security and U.S. Marshals Service urged a judge to dismiss his pending suit and submitted Immergut’s ruling in the medics case for a judge to review. The federal agencies also asked a judge to put a hold on the sharing of discovery evidence while their motion to dismiss is considered.
U.S. Magistrate Judge Youlee Yim You Wednesday ordered the federal agencies to identify by name the officers who detained Pettibone, and to answer other written questions submitted by the plaintiffs as their dismissal motion is pending.
In a court filing, a Federal Protection Service deputy regional director wrote that Pettibone was detained on July 15 for a “possible violation” of the assault on a federal officer statute, “due to suspected aiming of a laser at the eyes of a Federal law enforcement officer.” The U.S. Attorney’s office declined prosecution, “so Pettibone was released,” and the Federal Protective Services did not make any entries about Pettibone in its law enforcement computer system, the regional director Patrick J. Zitny wrote. Pettibone’s name, however, is found on a “master log of detentions” maintained by the Federal Protection Service, Zitny wrote.
Pettibone’s lawyer Rachel C. Lee said her client wants to expunge all the records and information the federal agencies collected as a result of his alleged unlawful detention.
Attorney Michael Patrick Clendenen, for the U.S. Department of Homeland Security, argued Wednesday that federal law enforcement doesn’t have any formal arrest record of Pettibone, and any logbooks of him showing he was held in a cell aren’t subject to expungement.
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