PORTLAND, Ore. (CN) — Federal agents are once again restrained from targeting journalists and legal observers for assault and arrest during ongoing protests against police brutality and systemic racism — at least while the Ninth Circuit considers the government’s appeal.
Daily protests have become the norm in Portland, in the months since Minneapolis police killed George Floyd by kneeling on his neck for nearly nine minutes. Protesters, medics and members of the press have filed numerous legal actions challenging police and federal agents over their copious use of tear gas, rubber bullets, flash bangs and other “less lethal” weapons.
In August, journalists and legal observers won an injunction barring federal agents from assaulting them and requiring them to wear unique identifying numbers.
The government appealed, and a motions panel for the Ninth Circuit Court of Appeals stayed the lower court’s injunction. In a split ruling, the majority wrote that the federal government faced “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.
But on Friday, a three-judge panel for the Ninth Circuit, once again divided, lifted the stay and reinstated the lower court’s injunction. Judge Johnnie Rawlinson, a Clinton appointee, and Judge Morgan Christen, who was appointed by Obama, denied the government’s request for an emergency stay of the restraining order. Judge Diarmuid O’Scannlain, who was appointed by President Ronald Reagan, wrote a dissenting opinion.
Contrary to the fanfare of an early August announcement from local officials, federal agents have not left Portland.
Oregon Governor Kate Brown brokered a deal with the federal government for Oregon State Troopers to temporarily take over the protection of federal buildings like the Mark O. Hatfield Federal Courthouse, where protests had become centered.
Since then, Portland Police have taken over for state troopers, in part due to state police anger over the policy of a newly elected district attorney who has decided not to pursue low-level charges against protesters. But the federal officers Gov. Brown called an “occupying force” are still here.
As the Ninth Circuit noted in Friday’s order, “it is clear that the federal agents have remained in Portland.” The majority pointed to a statement from Acting Secretary of DHS Chad Wolf, who said “no determination of timetables for reduction in protective forces has yet been made.”
The court ruled that the injunction was necessary because the threat of injury was not theoretical, and was part of a persistent and ongoing pattern.
“Plaintiffs introduced powerful evidence of the federal defendants’ ongoing, sustained pattern of conduct that resulted in numerous injuries to members of the press,” Rawlinson and Christen wrote, including “twelve pages solely dedicated to factual findings that describe in detail dozens of instances in which the federal defendants beat plaintiffs with batons, shot them with impact munitions, and pepper sprayed them.”
The government didn’t dispute the claim that its agents were the ones behind all those violent incidents. It just claimed that the journalists hadn’t shown that federal agents were motivated by the desire to stop them from reporting — that they weren’t trying to chill journalists’ First Amendment rights.
But the judges pointed to dozens of documented incidents where federal agents shot directly at journalists clearly marked as press with rubber bullets and pepper spray, often hitting them squarely on their press badge or on block letters affixed to their clothing, spelling out the word “PRESS.”
Friday’s order even contemplates whether the allegations are grounds for a so-called Bivens claim, which requires evidence of intentional misconduct.