(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.