California judge may still block Trump from controlling National Guard in LA protests

SAN FRANCISCO (CN) — A federal judge ruled that he can still block President Donald Trump’s control of the National Guard in Los Angeles following a Ninth Circuit Court of Appeals decision earlier this month that upheld the president’s orders.

In a court order late Wednesday, U.S. District Judge Charles R. Breyer said that the Ninth Circuit’s recent decision will not prevent him from deciding if another preliminary injunction is warranted, as long as he doesn’t interfere with the higher court’s findings on appeal.

" The Ninth Circuit has left it to this court to determine whether defendants’ conduct exceeds their authority under the Posse Comitatus Act … and the court will do so," Breyer wrote.

At a previous hearing, Breyer said that though the appeals court ultimately stayed his earlier decision that would have returned control of the National Guard to California Governor Gavin Newsom, it was “not clear” if the higher court’s decision would prevent him from blocking the president’s orders again on different grounds.

Although both Newsom and Trump agreed that the judge had jurisdiction to decide if a preliminary injunction should be issued, they disagreed as to what steps the court should take next.

While the White House asked the judge to immediately deny the governor’s request for relief, Newsom asked to be granted “limited discovery” so he could look into the recent conduct of the federalized National Guard troops and Marines in L.A. and see if they were being used for their intended purpose of protecting federal law enforcement, not making arrests themselves.

The judge ultimately sided with Newsom and granted the governor’s request for discovery, although only for findings about the Posse Comitatus Act, which blocks federal troops from participating in regular civilian law enforcement except when authorized.

“We need to know more about what the troops’ orders are and how they are being deployed in Los Angeles communities. The court’s order allows us to gather those facts and continue to make our case in court,” California Attorney General Rob Bonta said in a statement.

The judge also rejected a bid by the Trump administration to transfer the case to the Central District of California, which is closer to L.A. Although Breyer said it could be “more convenient” in some respects, the judge found that it would ultimately burden another judge to quickly come up to speed with the fast-moving case, which in a matter of two weeks has produced hundreds of pages of briefing.

“That is not in the interest of justice,” Breyer ruled.

The development follows a Ninth Circuit panel’s ruling late last Thursday allowing Trump to further “federalize” the California National Guard in the Los Angeles protests while a lawsuit from Newsom pends against the White House in federal court.

Breyer previously stated that because the Ninth Circuit’s decision expressly does not address Newsom’s claims under the Posse Comitatus Act, an injunction on those grounds could still be fair game.

In its ruling, the Ninth Circuit panel noted that it was not making any decisions on California’s claims under the Posse Comitatus Act or the Administrative Procedure Act.

The judge’s decision is the latest development in Newsom’s lawsuit against the Trump administration.

Newsom sued Trump in federal court on June 9 — just days after the LA protests began and the state National Guard was mobilized— arguing that Trump’s deployment of the troops violates the 10th Amendment and the Administrative Procedure Act by exceeding his constitutional authority.

Since protests began on June 6, the Trump administration has ordered as many as 4,000 California National Guard troops and 700 Marines into LA since protests erupted in the beginning of June over U.S. Immigration and Customs Enforcement raids of downtown businesses and Home Depot parking lots, where day laborers gather to find work.

Newsom says that federal law requires a governor’s consent before the president can mobilize a state’s National Guard for domestic law enforcement. Without immediate court intervention, he warned, the unauthorized use of troops would harm state sovereignty, inflame tensions and fuel unrest.

Breyer initially issued a temporary restraining order on June 12 restoring Newsom’s control of the National Guard, but it was quickly blocked the same day with an emergency stay from a Ninth Circuit panel of judges.

In its unanimous opinion, not long after, the panel took issue with the breadth of Breyer’s temporary restraining order.

“Even if defendants failed to comply with the statute’s procedural requirement, such failure would not justify the injunctive relief imposed by the district court,” the panel said.

“The proper remedy would be injunctive relief tailored to defendants’ failure to issue the order through the governor — not an injunction prohibiting the president from exercising his lawful authority to call up the National Guard.”

Although the panel ultimately disagreed with Trump’s argument that his deployment decision was “unreviewable,” it still determined that the president was within his authority to send in the state National Guard.

This case was filed in the Northern District of California and heard at the Phillip Burton Federal Courthouse in San Francisco.