Judge Marco A. Hernandez initially drew the case in which the State of Oregon sought to stop federal officials from protecting his courthouse. But it was quickly reassigned to Judge Michael W. Mosman who kept his office in Eugene, Oregon. No doubt, Judge Hernandez reasoned that he might have had difficulty concentrating in his office in the Mark O. Hatfield Courthouse, in Portland Oregon. As federal officials suffered serious injuries while combatting arsonists attempting to burn the courthouse around the judge, he would have been weighing the request to send away the last ring of protection keeping him safe.
Some officers have permanently lost their eyesight from the lasers rioters use to blind them. So Judge Mosman’s location in Eugene spared him from the sounds of explosions and chants calling for the destruction of the Portland courthouse. Ignoring the chaos outside the Hatfield Courthouse, he applied the law even as the mob sought to tear down the walls protecting his colleagues in Portland.
Hysteria riddled the petition seeking the expulsion of federal protection for the Portland courthouse. Oregon AG Ellen F. Rosenblum breathlessly described two arrests made by federal officials as an American equivalent to the Chilean campaign to “disappear” and murder tens of thousands of political disadents. She wrote, “Ordinarily, a person exercising his right to walk through the streets of Portland who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped and is the victim of a crime.” She warned, “Oregon’s citizens are at risk of kidnapping by militias and other civilian ‘volunteers’ taking it onto themselves to pull peaceful protesters into their cars…”
Rosenblum asked for several things in her petition. But among them was a general declaration from the judge that, “that the tactics described in this complaint violate the First Amendment rights of the State’s citizens by restraining their ability to gather in peaceful protest…” Since Rosenblum implicitly declared the mob attempting to raze the courthouse, “peaceful,” her victory would have eliminated the last obstacles to “peacefully” burning down the building with federal officials trapped inside.
Rosenblum wrote, “Citizens peacefully gathering on the streets of Portland to protest racial inequality have the right to gather and express themselves under the First Amendment to the United States Constitution.” She boldly denied any justification or provocation for the arrests. She wrote, “Defendants’ actions are undertaken with the intent of discouraging lawful protest and therefore constitute an illegal prior restraint on the First Amendment right of Oregonians to peacefully protest racial inequality.” We don’t know whether Jjudge Mosman visited the scene of the Portland courthouse. But if he did, he would have seen firsthand the physical damage to the courthouse as protesters attempted to breach the walls protecting his fellow judges. He would have smelled the smoke rising from the many fires set by protestors. He might have feared for the physical safety of his fellow judges as he read Rosenblum’s fairytale of “peaceful” protestors.
Judge Mosman’s decision contained no hint of fear or political bias. In the midst of a battle to destroy the sister courthouse, he betrayed not one ounce of emotion. The judge was not persuaded by Rosenblum’s fantasy that counter-protesters would kidnap protestors. He wrote, “Oregon’s asserted interest …is entirely conjectural. First, the State candidly admits that it does not have a shred of evidence that counter-protesters have ever, anywhere, kidnapped a protester or anyone associated with protests. …Second, the asserted interest rests on an utterly implausible inference. The State’s reasoning is that counter-protesters, once they learn of seizures of protesters by federal agents, will dress up like police and go out on private missions to kidnap protesters. …[T]he idea that seizures by law enforcement will lead to kidnappings by private parties is a bridge too far.”
Contradicting Rosenblum’s claim that federal arrests of Oregoneons were part of an authoritarian campaign against free speech, the judge wrote, “Despite the broad language in the complaint, Oregon has shown—at most— that this type of seizure has happened twice.” The court concluded with tepid dismissiveness, “The State’s argument, regardless of how it is framed, rests on too little evidence…. The State has not met its burden to show that it has standing to seek injunctive relief, and I find that it does not have that standing. The State’s motion is therefore denied, as a temporary restraining order is unavailable on the record presented here.”
Rosenblum issued a post-decision public statement ensuring Oregonians that she would continue defending their “constitutional” rights to continue doing what they have been doing now for two months. She wrote, “We will continue to seek ways to fight to ensure the rights of every Oregonian to peacefully protest are preserved.”