Feds ask Ninth Circuit to lift block on excessive force against journalists

(CN) — The U.S. Department of Homeland Security on Friday asked a Ninth Circuit panel to pause a preliminary injunction that prohibits federal agents from using excessive and indiscriminate force against journalists and peaceful protesters at demonstrations in Southern California.

Michael Shih, an attorney for the government, argued that the injunction issued in September by U.S. District Judge Hernán Vera should be stayed pending appeal because it is overbroad and imposes unworkable restrictions on federal law enforcement officers.

While the appellate panel didn’t tip its hand as to how it will rule on the government’s request, the three judges worried that the Joe Biden appointee’s preliminary injunction is at odds with the U.S. Supreme Court’s decision earlier this year in Trump v CASA Inc., which restricted any injunctive relief courts can provide only to the actual plaintiffs in a lawsuit.

Vera’s order covers journalists — as represented by the LA Press Club, which brought the lawsuit — legal observers and protesters in general to the extent that they don’t pose a threat to law enforcement, even though the case includes only two protesters as named plaintiffs.

“How, in light of the Supreme Court’s direction to us in CASA, would it be appropriate for us to affirm an injunction which appears to run in favor of every protester,” U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, wondered. “How would that type of relief survive the Supreme Court’s statement in CASA?”

Matthew Borden, an attorney for the LA Press Club, responded that in order to limit the preliminary injunction to just the two named protesters in the complaint, law enforcement would have to be provided with pictures of these two people and instructed to not use excessive force against just them.

“The only way you can get relief for Ms. Olmeda, for example, is to have DHS stop using excessive force or retaliate against protesters,” Borden argued, referring to one of the named protesters in the lawsuit. “Otherwise, it wouldn’t benefit Ms. Olmeda. It wouldn’t provide complete relief to her because she could show up at a protest and, if police were allowed to use excessive force against protesters, she could be among them.”

The other two judges on the panel were U.S. Circuit Judge Ronald Gould, a Bill Clinton appointee, and U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee.

Gould said the case before them was “challenging” and that they would endeavor to issue a decision as soon as possible.

Protests erupted across LA County after ICE initiated unprecedented immigration enforcement raids across the region in June, rounding up Latino-looking workers at bus stops, Home Depot parking lots, car washes and towing yards.

The protests prompted President Donald Trump to deploy the National Guard in Los Angeles, supposedly to protect federal buildings.

“With tensions escalating, officers from the Federal Protective Services, Immigration and Customs Enforcement and U.S. Customs and Border Protection unleashed crowd control weapons indiscriminately and with surprising savagery,” Vera wrote in his decision to issue a preliminary injunction.

In downtown LA, the judge noted, journalists were repeatedly hit with pepper balls — plastic projectiles filled with a chemical irritant — while taking cover behind media trucks.

Vera also pointed to federal agents teargassing a small group of protesters, including teens, seniors and local officials in Maywood as well as shooting two reporters in the head with rubber bullets in Paramount. In Camarillo and Carpinteria, federal agents deployed countless volleys of tear gas, rubber bullets and smoke bombs on family members of detained farm workers, concerned public officials, journalists and protesters, the judge added.

The LA Press Club, the NewsGuild-Communications Workers of America and individual journalists, legal observers and protesters filed a trio of lawsuits against Homeland Security, the LA Police Department and the LA County Sheriff’s Department over the purported violence law enforcement directed against them during the protests.

The journalists cite the widely reported attack on Australian reporter Lauren Tomasi, who was shot in the back with a rubber bullet. Video footage shows an LAPD officer in riot gear turning and aiming a large gun at Tomasi, making the incident appear deliberate. Australian Prime Minister Anthony Albanese called it “horrific.”

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