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.
“Because the district court’s findings include so many instances in which plaintiffs were standing nowhere near protesters while photographing and observing the federal defendants’ actions, they provide exceptionally strong evidentiary support for the district court’s finding that some of the federal defendants were motivated to target journalists in retaliation for plaintiffs’ exercise of their First Amendment rights,” Rawlinson and Christen wrote.
“Indeed, in response to this shocking pattern of misconduct, the dissent contemplates that plaintiffs’ allegations may well support Bivens actions and claims of excessive force against individual federal agents.”
Judge Simon’s injunction allowed press and legal observers to remain in an area after police and federal agents had ordered protesters to disperse. The government argued that essentially gave the press “special” First Amendment rights.
But the Ninth Circuit brushed off that claim, saying the injunction simply found that it was not necessary for federal agents to disperse journalists in order to protect federal property. Journalists, on the other hand, have a vital role to play during and after dispersal orders.
“Public demonstrations and protests are clearly protected by the First Amendment, and a protest not open to the press and general public is not a public demonstration,” the majority wrote.
And they noted the democratic function of recording and publicizing police actions.
“Just as streets and sidewalks historically have been recognized as being open to the public, the press has long been understood to play a vitally important role in holding the government accountable,” Rawlinson and Christen wrote.
“Indeed, the public became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.”
In his dissent, Judge O’Scannlain painted a wholly different picture, casting the largely peaceful protests as “riots and destructive mob violence, resulting, inevitably, in crowd dispersal actions by law enforcement.”
O’Scannlain questioned the value of protecting journalists’ rights under the First Amendment to observe police actions during an era of extended civil unrest and increasing conflict between local and federal authorities.
“Protests and resulting riots are simply not governmental proceedings to which a right of public access may be claimed,” O’Scannlain wrote.
He offered a remarkable metaphor for the “doctrine” of legal opinions protecting journalists’ right to access public places for reporting purposes: “If the majority’s reasoning here is any indication, the doctrine is growing haphazardly, like a weed in an untended garden, presaging conflict with more established legal rights and powers,” O’Scannlain wrote. “This doctrinal disorder warrants further review.”
Friday’s order resolves the government’s emergency motion to stay Judge Simon’s injunction. But it does not resolve the government’s appeal of its motion to dismiss the case against it. It may be months before the Ninth Circuit rules on the appeal and hands the case back to Judge Simon.
But for now, the majority endorsed Judge Simon’s finding that, while federal agents may do what’s necessary to protect federal property, they do not have authority to clear Portland’s streets.
They added that Simon might consider detailing where federal agents have authority to disperse protesters.
“We need not precisely define the limits of the Federal Defendants’ authority in order to resolve their emergency motion, but it cannot be debated that the United States Constitution reserves the general police power to the states, and the district court found that the Federal Defendants “routinely have left federal property and engaged in crowd control and other enforcement on the streets, sidewalks, and parks of the City of Portland.”
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