(CN) — Federal agents will no longer be restrained from assaulting and arresting journalists when dispersing protesters in Portland, Oregon after the Ninth Circuit temporarily stayed a lower court order that the judges said lacked clarity in the visible identification it required journalists to wear.
In a split ruling, two judges on a three-judge panel issued a temporary stay on Thursday, finding that U.S. District Judge Michael Simon’s 61-page injunction was overly broad and lacked clarity.
The majority, both of whom were appointed by President Donald Trump, wrote that the federal government was facing “irreparable harm” from the ruling, and that it was likely correct when it argued that journalists can’t be exempt from orders to disperse that the general public must follow.
Judge Margaret McKeown dissented. The Bill Clinton appointee wrote that she would have kept Simon’s injunction in place. The government had asked the Ninth Circuit for an emergency stay, but McKeown found that the government hadn’t shown an emergency, given that a restraining order with virtually the same terms had been in place for over a month before Simon issued his injunction.
According to the website for the Ninth Circuit Court of Appeals, three-judge panels for motions like the one filed by the government in this case are being heard this month by McKeown, Judge Barry Silverman, who was also appointed by Clinton, and Judge Daniel Bress, a Trump appointee. But in an unusual move, Judge Eric Miller, a Trump appointee, apparently subbed in for Silverman.
Federal agents are still in Portland. The Department of Homeland Security called the idea that “DHS forces are standing down and withdrawing” a “myth.”
“There has been no reduction in federal presence; federal law enforcement officers remain in Portland at augmented levels. Reports and implications to the contrary are irresponsible and dishonest,” the department said in an Aug. 4 press release.
Unlike their outsized presence in July, federal agents have mostly been out of sight since Gov. Kate Brown brokered a deal with Chad Wolf, acting secretary for the U.S. Department of Homeland Security, to have Oregon State Police guard the Mark O. Hatfield Federal Courthouse downtown.
But over the last week, federal agents have again been cracking down on protests when they are centered around federal buildings like those occupied by Immigration and Customs Enforcement.
In a proposed class action lawsuit, journalists and legal observers initially sued local police, claiming they were targeting them for arrest and assault simply for doing their jobs. Portland police agreed on July 16 to rules allowing journalists and legal observers to remain in an area declared closed in order to observe and report on arrests that followed, and any accompanying police violence.
Shortly after President Trump sent federal agents to Portland under Operation Diligent Valor, U.S. District Judge Michael Simon let the journalists and legal observers add federal agents with the U.S. Department of Homeland Security, the U.S. Marshals Service, Customs and Border Control and Federal Protective Services as defendants in the case.
Judge Simon entered and extended a temporary restraining order barring federal agents from assaulting and arresting journalists and legal observers. And on Aug. 20, Simon made his restraining order more permanent, issuing a preliminary injunction with the added requirement that federal agents wear unique identifying numbers.
Dozens of journalists and legal observers have filed declarations in the case, documenting instances where they say federal agents targeted them for assault, even though they were clearly marked as professionals and couldn’t have been mistaken for protesters. Over a dozen of those incidents happened after Judge Simon’s restraining order was in place, according to declarations.
In hearings in the case, Simon said the question of whether journalists can be allowed to remain after police or federal agents have issued orders to disperse was a question likely to end up before the U.S. Supreme Court.
He said the idea raised the question of whether journalists are allowed to continue to exercise their First Amendment right to observe and report government actions after police have ordered the dispersal of members of the general public who are themselves in the act of exercising their First Amendment right to protest.
In his ruling, however, Simon determined that the issue was not properly at hand.
He found that federal agents in Portland lack authority to declare a riot and clear the city’s streets, and that they aren’t even asserting that right in their claims. And he noted local police have already stipulated to an injunction saying they will not arrest journalists or legal observers for failing to obey orders to disperse.
“Someday, a court may need to decide whether the First Amendment protects journalists and authorized legal observers, as distinct from the public generally, from having to comply with an otherwise lawful order to disperse from city streets when journalists and legal observers seek to observe, document, and report the conduct of law enforcement personnel,” Simon wrote in a footnote. “But today is not that day.”
That day appeared sooner than Simon seemed to have expected, in a three-page Ninth Circuit order where the majority was comprised of Judges Eric Miller and Daniel Bress – both Trump appointees.
“Based on our preliminary review, appellants have made a strong showing of likely success on the merits that the district court’s injunction exempting ‘Journalists’ and ‘Legal Observers’ from generally applicable dispersal orders is without adequate legal basis,” Judges Miller and Bress wrote.
Government attorneys have claimed that protesters are wearing fake press badges in order to gain cover to commit crimes, and that Simon’s restraining order and injunction put them in the position of risking contempt of court by apprehending such people. But Judge Simon pointed out in his ruling that there is no bar against arresting anyone at a protest — including journalists and legal observers — for suspected illegal activity.
The appeals court appeared to side with the government on that point.
“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 wrote.
Judge Simon had initially floated the idea of having the American Civil Liberties Union issue its blue vest to journalists in order to make them more clearly identifiable — an option the ACLU and attorneys for the journalists rejected as unconstitutional.
Simon withdrew the idea, but even that might not have been enough for the ruling to survive appeal, since the Ninth Circuit included in its criticism of Simon’s ruling the “nonexclusive indicia” Simon required of legal observers, who must wear either blue ACLU vests or bright green hats issued by the National Lawyers Guild.
The appeals court left in place Judge Simon’s order for the parties to discuss ways to better identify federal agents, who do not wear unique identifying information. The government has said it has been unable to determine which agents are responsible for the alleged assaults documented in the declarations. But the appeals court said Simon can’t rule on that issue until the appeals court resolves the government’s current motion for a stay.
Attorneys for the journalists and legal observers will now file a response to the Ninth Circuit’s stay of Simon’s order. The government will likely respond to that filing, and then the appeals court will enter a final order.
For now, federal agents will have the unfettered ability to disperse journalists and legal observers at protests against racism and police brutality that have stretched into their third month.
Matthew Borden, attorney for ACLU of Oregon and partner at Braunhagey & Borden, said in a statement on Thursday that he disagrees with the court’s order and looks forward to filing a brief on the issues.
“The freedom of the press protects a democracy from devolving into tyranny,” Borden said. “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.”
During an Aug 18. hearing, Borden underscored the danger at issue.
“If TV cameras hadn’t been there in Selma, nobody would know that people were beaten.”