Appeals Court Reinstates Injunction Blocking Federal Agents From Assaulting Portland Journalists

Free Speech

from the Constitution-still-applies,-even-in-'democrat'-cities dept

The city of Portland, Oregon is still in the midst of anti-police brutality protests stemming from the killing of Minneapolis resident George Floyd by police officer Derek Chauvin. Federal officers arrived in Portland in July, making their presence known by engaging some extremely questionable tactics.

Their arrival was met with their addition to an ongoing lawsuit against law enforcement seeking an injunction banning cops of all types from assaulting or dispersing journalists and legal observers. The plaintiffs secured an injunction. They also secured an agreement from local police to stop treating those reporting and observing protests as protesters, exempting them from dispersal orders and forbidding them from being targeted with crowd control measures, such as tear gas and rubber bullets.

The federal interlopers gave zero fucks. They were added to the injunction but immediately violated it. The feds’ excuse? Sometimes protesters and rioters disguised themselves as press to avoid being dispersed and/or assaulted. The district court pointed out the local police had made no such accusations and appeared capable of controlling crowds without violating their agreement.

The federal agencies appealed. In August, the Ninth Circuit Court of Appeals stayed the injunction. A short opinion stated the federal government had shown evidence it would suffer “irreparable harm” if officers weren’t allowed to assault members of the press and other non-protesters. The emergency stay of the district court’s injunction was granted.

The Appeals Court has now fully addressed the government’s arguments and reversed its stance. The federal defendants are no longer exempt from the injunction forbidding them from assaulting journalists.

The government made three arguments in favor of assaulting journalists and observers. First, it argued journalists would not be deprived of Constitutional rights if assaulted or otherwise removed from areas where protests are taking place. It also argued that observing or recording protests (as observers or journalists) was not protected by the First Amendment — not when dispersal orders have been given. Finally, it argued federal officers were not targeting journalists and observers for being journalists and observers, so any OC spray/bullets headed in their direction were just part of solid, proven crowd control efforts. This last argument was made despite recordings being submitted to the court that showed federal officers appearing to deliberately target journalists with pepper spray and other forms of force.

The Appeals Court [PDF] says a lot of what the government is asserting simply isn’t true. There’s ample evidence showing federal officers deliberately targeted journalists and observers.

The district court’s preliminary injunction included 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 court’s findings were supported by nineteen declarations and video and photographic evidence. The Federal Defendants do not argue that any of the district court’s findings are clearly erroneous, and we conclude the findings are amply supported.

As of the time the preliminary injunction was entered, the district court found that the Federal Defendants had engaged in a pattern of conduct that had persisted for weeks and was ongoing. After reviewing plaintiffs’ declarations, photos, and video clips, the district court found that many victims had been standing on public streets, sidewalks, and parks, well away from protestors, and were not engaged in unlawful activity when they were shot, tear gassed, shoved, or pepper sprayed by the Federal Defendants. Unlike Lyons, the district court found that some journalists and legal observers monitoring the protests had been injured by the Federal Defendants more than once.

The plaintiffs’ arguments clearly aren’t speculative. Actual harm has been shown. And, given the fact federal officers did this repeatedly despite the district court’s injunction, there’s every reason to believe they will continue to do so.

The court also points out the government’s claims that its officers’ actions against journalists were not retaliatory is clearly bullshit. The Appeals Court says federal officers engaged in retaliatory actions repeatedly. Referring to evidence submitted to the district court, the Appeals Court highlights four acts of retaliation by federal officers.

On July 29, plaintiff Brian Conley was wearing a photographer’s vest marked “PRESS,” a helmet marked “PRESS,” and was carrying a large camera with an attached LED light and telephoto lens. After reviewing video footage submitted by plaintiffs, the district court found that Conley was filming a line of federal officers moving down the street pepper spraying peaceful protesters—including spraying a woman in the face at point blank range who was on her knees in the middle of the street with her hands up—when, without warning, a federal officer pepper sprayed Conley at point blank range.

On the night of July 19, Jungho Kim, a photojournalist, was wearing a neon yellow vest marked “PRESS” and a white helmet marked “PRESS” on the front and rear. The district court found that Kim was standing alone, about 30 feet from federal agents, taking photographs, when suddenly and without warning, Kim was shot in the chest, just below his heart with a less-lethal munition. A photograph submitted with Kim’s declaration shows that he was shot where the word “PRESS” was printed on his vest.

On the night of July 26, Daniel Hollis, a videographer, was wearing a press pass and a helmet marked “PRESS” in bright orange tape, and carrying a large, professional video-recording camera. Hollis was filming a group of federal agents massed outside the federal courthouse. “Almost immediately,” the federal agents shot at him, striking him just left of his groin. He turned and began to run away, but was shot again in the lower back.

On July 27, Amy Katz, a photojournalist, was wearing a hat and tank top marked “PRESS” and carrying a camera with a telephoto lens while covering the protests. Katz was photographing a federal agent who pushed a man down a flight of stairs while arresting him. Another federal agent physically blocked Katz and tried to stop her from photographing the arrest. Katz stepped to the side to continue photographing the arrest, and the federal agent physically shoved her away.

That’s only four incidents. The district court listed at least forty-five similar instances — all of which occurred after the government had been hit with an injunction banning it from engaging in this behavior. The lower court also stated it was “clear” there were more instances that weren’t detailed in its decision.

The Appeals Court says the press has the same right to access the general public does. It can record officers’ actions from public streets and sidewalks. The press certainly does not have less access than protesters, which was the government’s argument. The Appeals Court says dispersing the press from these areas is not essential to protecting the government’s interests.

And the government’s interests — as far as Portland goes — are very limited. The government gives the court no reason why its task of defending federal property requires it to remove press and observers from public areas away from this property or deliberately target press with crowd control weapons.

Finally, the Appeals Court again notes local law enforcement had no problem abiding by the restraining order, even though its jurisdiction covered far more than federal buildings. Every argument the government raised in defense of it assaulting journalists is undercut by the agreement struck between press members and the Portland Police. The feds should have no problem abiding by the injunction, the Appeals Court says.

By its terms, the preliminary injunction the district court entered against the Federal Defendants addresses each of the reasons the Federal Defendants advanced to argue that it was impossible to tailor their dispersal orders. As to the contention that journalists or legal observers might interfere with federal law enforcement if not required to disperse, the preliminary injunction expressly prohibits journalists and legal observers from impeding, blocking, or otherwise interferingwith the lawful conduct of the Federal Defendants. The preliminary injunction leaves the Federal Defendants free to make arrests if there is probable cause to believe a crime has been committed, even if the perpetrator is dressed as a journalist or legal observer. The preliminary injunction also provides that the Federal Defendants will not be liable for violating the injunction if journalists or legal observers remain in the area after a dispersal order is issued, and are incidentally exposed to crowd-control devices. Finally, though the Federal Defendants argued that large and unique identifying markings on their uniforms could inhibit their ability to carry out their duties, the district court concluded they did not support this claim.

The stay is lifted. The injunction secured three months ago is back in effect. If recent history is any indication of future performance, it will soon be violated by federal agents still in Portland. But if they do violate it deliberately, they won’t be given the benefit of a doubt. Qualified immunity will not apply.

Filed Under: 1st amendment, dhs, journalism, portland, protests