Appeals Court Lifts Order Protecting Journalists, Legal Observers From Dispersal Orders in Portland Protests

August 28, 2020 Updated: August 28, 2020

A federal appeals court has lifted a lower court’s order that limited the amount of force federal agents could use against journalists and legal observers while dispersing protesters in Portland, Oregon.

A divided panel of the U.S. Court of Appeals for Ninth Circuit temporarily lifted a preliminary injunction on Thursday night that exempted journalists and legal observers from dispersal orders. The 2–1 panel found that the U.S. District Court Judge Michael Simon’s ruling was broad and lacked clarity.

“Given the order’s breadth and lack of clarity, particularly in its non-exclusive indicia of who qualifies as ‘Journalists’ and ‘Legal Observers,’ appellants have also demonstrated that, in the absence of a stay, the order will cause irreparable harm to law enforcement efforts and personnel,” the judges in the majority, who were both Trump appointees, wrote (pdf).

Meanwhile, Judge Margaret McKeown, a Bill Clinton appointee, dissented, saying that the government had not shown an emergency of irreparable harm given that Simon’s order has been in place for over a month.

“In light of the deferential review accorded to the district court’s factual finding at this stage, the district court’s extensive factual findings with respect to journalists and legal observers, including the finding that the injunction would not impair law enforcement operations to protect federal property and personnel, and the fact that a temporary restraining order has been in place since July 23, 2020, the government has failed to meet its burden to demonstrate either an emergency or irreparable harm to support an immediate administrative stay,” McKeown wrote.

In recent months, Portland had seen unrest and nightly riots in the wake of the in-custody death of George Floyd in Minneapolis in late May. Federal agents were sent to the city to protect the federal courthouse and surrounding areas from destruction. The violence had led to over 600 arrests between local and federal law enforcement. Meanwhile, more than 200 federal officers have been injured in Portland alone.

The American Civil Liberties Union (ACLU), among several others, filed a lawsuit in response to law enforcement actions during the unrest, saying that journalists, photojournalists, and legal observers were targeted and injured, teargassed, and beaten amid attempts to quell the violence. The lawsuit asked the court to declare the actions unconstitutional and prohibit federal agents from using force against journalists and legal observers.

Simon granted the request blocking federal agents from arresting, threatening to arrest, or using physical force against journalists and legal observers. The judge extended his order on Aug. 20 (pdf).

The Justice Department said Simon’s order prevented the federal government from effectively addressing the violence through general crowd-control measures and had increased the risk of serious injury to federal law enforcement officers.

Attorney General William Barr said in a statement that perpetrators of violence who have hijacked the protests are using the crowds to make it more difficult for law enforcement to detect or reach them. He said that in some cases purported “journalists” or “legal observers” have provided cover for violent individuals and some had even attacked officers or trespassed on federal property.

He called the Ninth Circuit’s decision a crucial step to allow federal agents to carry out their “important security responsibilities without being subject to untenable conditions.”

“The Portland city government has the ability to stop this. Instead, the city government has abetted the violence through action and inaction, neutered the ability of the police department to deal with the mobs, impeded the ability of police to coordinate with federal law enforcement, and refused to pursue charges against the rioters,” Barr said.

“The First Amendment protects the rights to speak and assemble, but not to attack people or property. The Department of Justice will continue to fully and fairly enforce federal law against these violent rioters,” he added.

In response to the ruling, the ACLU said although they disagree with the court’s order, it is only “temporary and not the final word.”

“We look forward to having a chance to brief the issue on the merits. The freedom of the press protects a democracy from devolving into tyranny,” they said in a statement. “Under the First Amendment, press and legal observers must be allowed to document what’s happening at protests without being assaulted, shot, detained, or arrested. The government cannot be held to account if there is no one left to document its actions.”

On Friday, the Justice Department announced that 74 people are facing federal charges for crimes committed during rioting in Portland in previous months. The individuals were charged with offenses such as assaulting a federal officer, throwing a bomb at the federal courthouse, and operating a drone in restricted airspace.

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