The judge said he was considering ordering that federal agents — including scores of officers the Trump administration dispatched to the city from across the country — wear numbers about 8 inches high that would make it easier to assess whether some officers are violating a temporary restraining order the court issued last week.
Simon said he was thinking of something like the jerseys professional sports players wear, minus the names, which he said would expose law enforcement officers to the threat of doxing by the public.
The judge’s restraining order bars law enforcement from targeting journalists or legal observers and also gives those categories of individuals the right to remain in areas even if authorities require the general public to disperse because of riotlike conditions.
Simon’s unusual proposal came after lawyers for the journalists and for the federal government filed competing legal motions in recent days about the implementation of the court’s order.
Several members of the press contend they have been hit with less-than-lethal munitions at close range in direct violation of the court’s order. And Justice Department attorneys say individuals masquerading as members of the press have been wreaking havoc by attempting to scale the courthouse’s new perimeter fence or effectively shielding violent protesters by mingling among them.
During the telephone conference, Simon said he was troubled by both sets of allegations. He said some videos the plaintiffs presented do appear to show intentional targeting of the press. And he even publicly mulled the possibility of criminal contempt proceedings or a ban from the state for any agents who might defy his order.
“Some of the videos … several of them give me some serious concerns whether or not there are violations of the temporary restraining order,” the judge said.
Justice Department officials insisted there was no systematic effort to defy the court’s order. An unusual declaration filed in the case Friday by William Levi, chief of staff to Attorney General William Barr, said Barr issued instructions last week that there be “complete compliance” by federal officials with the court’s directive.
But Simon also said there was some evidence that people were abusing the privileges he had accorded the press in his order. “There may be some people wearing press on their clothing and they’re engaging in unlawful acts,” said the judge, an appointee of President Barack Obama.
A lawyer for the journalists and legal observers who brought the case downplayed those instances.
“We haven’t had a situation where any officer has been injured by someone marked press or that they’ve meaningfully interfered with officers doing their jobs,” said Matthew Borden, an attorney working with the American Civil Liberties Union on the case. “What we’ve been talking about in our contempt motion is a very deliberate and intentional violation of the injunction.”
Borden also argued that allowing such behavior by federal agents to continue unchecked could be disastrous. “My biggest fear is that somebody’s going to get killed,” the attorney said.
Simon quickly chimed in at that suggestion. “I don’t want anybody on either side of this issue to get killed. I don’t want any of the protesters to get killed and I don’t want any law enforcement officers to get killed,” the judge said.
A Justice Department lawyer, Jordan Von Bokern, sounded unenthusiastic about the judge’s suggestion to emblazon the federal agents with big numbers.
Van Bokern noted that federal authorities recently struck an agreement with the state of Oregon to have Oregon State Police take over the job of securing the courthouse’s outer perimeter. While the Justice Department has formally asked the judge to cancel the TRO, Van Bokern urged Simon to let the new deal with the state be implemented before ordering any major changes to how federal agents must conduct themselves.
“The federal presence, the federal engagement with protesters … appears it will be drawing down in the coming days. It would be premature to build up an entire process” in the meantime, the DOJ attorney said. “The federal police force is decreasing its deployment, and there will likely be less interaction with protesters in the ways that give rise to the plaintiffs’ complaints here.”
However, Simon said he is closely watching developments in the media and noted that acting Homeland Security Secretary Chad Wolf told reporters earlier this week that the federal agents weren’t leaving town and were ready to step in if the state can’t maintain order.
“I did also see the statement by the acting secretary Wolf that he’s going to keep the federal police force here … and if they’re needed, they will deployed at a moment’s notice,” the judge said. “If no one has to leave the building, no one has to put on jerseys that have unique identifying codes.”
The judge made no immediate change to his current restraining order that runs through Aug. 6. It could be extended for two weeks or longer if the parties agree.