After a federal judge in Oregon blocked the Department of Homeland Security and the U.S. Marshal Service from targeting journalists, Homeland Security employees were advised that they would not be held liable for “incidentally” using crowd-control devices on journalists, according to a report from The Nation.
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U.S. District Judge Michael Simon last Thursday issued a temporary 14-day restraining order against the two agencies, barring them from “arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know” is a journalist or legal observer.
However, the American Civil Liberties Union, who brought the case against the agencies, asked Simon on Tuesday to sanction the agencies, citing videos, declarations and photos from journalists who say they continued to be targeted by federal agents just hours after Simon’s ruling.
The Department of Homeland Security advised employees after the order that “failure to comply with the court’s order may result in the United States, or you personally, being held in contempt of court,” according to a document ostensibly leaked to The Nation’s Ken Klippenstein.
However, the document stresses some exemptions to the ruling, claiming that officers would “not [be] held liable” if journalists or legal observers are “incidentally exposed to crowd-control devices” after an order to disperse is issued and they remain in the protest area.
“Incidentally means that the journalists or legal observers, while not the target of crowd control devices, still end up being exposed to the crowd-control devices because of where they are located,” the document continues, noting that agents “may not deliberately direct crowd-control devices at or near journalists.”
The document also points to certain hats or other markers that indicate a legal observer or journalist, telling agents “if the person does not have at least one of these indicators,” they should be treated like a “normal protestor” when agents are dispersing crowds.
Forbes has reached out to Homeland Security and the ACLU for comment.
Numerous reports have emerged of journalists at the Portland protests being tear-gassed and assaulted. Portland-based journalist and filmmaker Trip Jennings, who has covered uprisings all over the world in the past decade, tweeted photos of his bruised and bloodied face on Monday, claiming to have been shot by federal officers with an impact munition. 17-year-old high school reporter Eddy Binford Ross told the Washington Post last week that she was tear-gassed, flashbanged and shoved up against a wall by federal officers, as well as having a gun pointed at her by one.
Oregon Gov. Kate Brown announced Wednesday that Vice President Mike Pence agreed to withdraw federal agents from Portland after several weeks of intervention to protect a federal courthouse. Shortly after her announcement, however, she was contradicted by Acting Homeland Security Secretary Chad Wolf, who stated, “We are not removing any law enforcement while our facilities and law enforcement remain under attack.”
Homeland Security’s intervention in Portland has led to renewed scrutiny towards the department, created in 2003 the response to the September 11th attacks. In a Washington Post op-ed published Thursday, Richard Clarke, a member of the National Security Council under three presidents including George W. Bush, called for the dismantling of the department, which he labelled “ill-conceived” and “largely leaderless” under Trump. “The next administration would be well advised not to try to make the existing DHS structure work, for it will end up as another presidential administration that has failed in that task,” he wrote.