Appeals Court Says Not Allowing Federal Officers To Pepper Spray Journalists Makes Law Enforcement Too Difficult

from the protecting-the-right-to-be-tear-gassed dept

The Ninth Circuit Appeals Court has just stripped away the protections granted to journalists and legal observers covering ongoing protests in Portland, Oregon. After journalists secured an agreement from local police to stop assaulting journalists and make them exempt from dispersal orders, the DHS's ad hoc riot control force (composed of CBP, ICE, and Federal Protective Services) showed up and started tossing people into unmarked vans and assaulting pretty much everyone, no matter what credentials they displayed. Shortly after that, a federal court in Oregon granted a restraining order forbidding federal agents from attacking journalists and observers.

Not that granting the restraining order did much to prevent federal officers from beating journalists with batons, spraying them with pepper spray, or making sure they weren't left out of any tear gassings. The plaintiffs were soon back in court seeking sanctions against federal violators of the order. The DHS said it couldn't identify any of the officers and stated it had punished no one for violating the order. This prompted the judge to add more stipulations to the order, including the wearing of identification numbers by officers engaging in riot control.

Unfortunately for journalists and legal observers, the restraining order is no longer in place. It was rolled back by the Appeals Court in a very short order [PDF] with the court finding that a blanket order protecting journalists and observers from being assaulted makes things too tough for federal cops. (via Courthouse News)

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. 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.

DHS personnel will still have to comply with the stipulation of the now dead restraining order requiring them to ID themselves:

This order does not disturb the portion of the district court’s August 20, 2020 order directing the parties to confer regarding identifying markings…

The equally short dissent disagrees. The restraining order has been in place for more than a month at this point and the federal task force hasn't found itself unable to engage in crowd control and riot suppression efforts.

In light of the deferential review accorded to the district court’s factual finding at this stage, the district court’s extensive factual findings with respect to journalists and legal observers, including the finding that the injunction would not impair law enforcement operations to protect federal property and personnel, and the fact that a temporary restraining order has been in place since July 23, 2020, the government has failed to meet its burden to demonstrate either an emergency or irreparable harm to support an immediate administrative stay.

This will be appealed. And it may end up being something the Supreme Court will feel like addressing. There's a question that needs to be answered since the future will contain plenty of protests and plenty of people covering them. This was how the district court judge explained it in an earlier hearing:

Simon initially said at a hearing Tuesday that the question of whether journalists have different rights under the First Amendment than those of protesters, who legally must leave an area after a riot has been declared, was likely to end up before the U.S. Supreme Court.

But Judge Simon took a pass on that question in his decision -- the one now rejected by the Appeals Court.

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; but today is not that day.

With this rejection by the Appeals Court, that "someday" may be much closer than it was a little more than a week ago, when journalists and observers were still shielded from being assaulted by federal officers. The gloves are off now and federal agents are free to treat them like the rest of the crowd when deploying force.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 9th circuit, dhs, due process, journalists, portland, protests, restraining order


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 31 Aug 2020 @ 3:51pm

    Why do the US cops demand the right to initiate violence?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 31 Aug 2020 @ 4:43pm

      Re:

      Oh several reasons I imagine, from cowardice to sadism or a mix of the two.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Aug 2020 @ 7:58pm

        Re: Re:

        Straight-up authoritarianism, but that might count as a mix of the two mentioned, although i suspect it has other elements of its own.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Aug 2020 @ 8:04pm

      Re:

      Why do the US cops demand the right to initiate violence?

      Hate to break it to you. It is written into the law enforcement contract: The power of the government to enforce laws is ultimately the power of coercion. Coercion is, ultimately, a threat of violence.

      Don't want to pay your taxes?

      • we insist.

      Still not gonna.

      • then we'll take your assets.

      Over my dead body.

      • that can be arranged.

      the government will trump any resistance you make.
      ... except through the court system. It is, in fact, the whole purpose of the court system - to limit government power to what has been agreed upon (by passage of laws).

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 31 Aug 2020 @ 11:47pm

        Re: Re:

        Oh, you're one of those idiots who thinks that paying for the services you consume in a society is a bad thing, and doesn't understand the difference between civil and criminal law.

        reply to this | link to this | view in chronology ]

        • icon
          ECA (profile), 1 Sep 2020 @ 1:07pm

          Re: Re: Re:

          But paul,
          What of the concept that the City, state, FED arnt doing their JOBS?
          That they would rather Shut down the services we pay for, and keep the money themselves. Its happening.
          The Fed is so indebted to Social sec. that the interest rate at 2-3% is in the billions, for all they have borrowed almost Every year.
          They cant get the pentagon to Show any money they have paid out. And all of this for 2 of the oldest computers in the USA owned by the Pentagon and the IRS. Updating these system has Never been a priority. Every time they install a Tech Czar they have fired him. Probably because he wanted things upgraded at least to Current or 10 years old, NOT 50 years old.

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 1 Sep 2020 @ 11:11pm

            Re: Re: Re: Re:

            "What of the concept that the City, state, FED arnt doing their JOBS?"

            Your political system should be working that one out. In the rest of the world we sometimes pay higher taxes, but because we generally demand value for money we get things like free healthcare thrown in alongside a non-militarised police force who aren't abusing citizens. If you don't get that value for money, the problem isn't that you're paying taxes.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Sep 2020 @ 2:09am

        Re: Re:

        Learn the difference between countering and initiating, one is a function of the police, the other should not be.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 2 Sep 2020 @ 3:07am

        Re: Re:

        "Hate to break it to you. It is written into the law enforcement contract: The power of the government to enforce laws is ultimately the power of coercion. Coercion is, ultimately, a threat of violence. "

        That's not "Hate to break it to you". That's just "Here, have a straw man argument".

        Last I checked, government forces initiating violence against a peaceful journalist places the state of freedom in a nation in question.
        If the enforcer in question insists he can't do his job without assaulting peaceful journalists then that question is subsequently answered in a very bad way.

        If a random troll then shows up to defend the government-sanctioned violence with a comparison to taxes then that just indicates a non-zero proportion of the population wants the country turned towards unapologetic fascism.

        "... except through the court system. It is, in fact, the whole purpose of the court system - to limit government power to what has been agreed upon (by passage of laws)."

        Odd, then, that the laws on the books clearly have the officer as being wrong but the courts are silent about the matter, putting precedence on the books that cops are exculpated from guilt over assaulting innocent civilians.

        In a saner society this whole mess would be an indication that the US has abandoned any pretense at being a free country - because that argument is verbatim Mussolinis arguments in favor of fascism.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2020 @ 3:59pm

    US police have been so unchecked it's baffling how they consider these violations to be a literal right of doing their job. This is a very strange "the law is above the law" situation that is occuring in the US right now.

    reply to this | link to this | view in chronology ]

    • identicon
      kitsune106, 31 Aug 2020 @ 4:06pm

      Re: I feel

      someone shoudl reread the declaration of independence, but strip of historical references, and see if it rings true to what is happening now....

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 31 Aug 2020 @ 4:56pm

        'You said it, not me...'

        I don't have the link on my at the time sadly, but a while back someone posted a link to an article about how a radio station had a tradition of reciting the declaration of independence during the fourth of july for obvious reasons, except this time around they had people throwing fits claiming it was 'anti-Trump',

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 31 Aug 2020 @ 5:04pm

          T’was NPR to which you refer, and Trump supporters thought NPR doing the recitation on Twitter was an attack on Trump. (Says a lot about how they think of Trump, then.)

          reply to this | link to this | view in chronology ]

          • icon
            Samuel Abram (profile), 31 Aug 2020 @ 5:23pm

            Re:

            I claim responsibility for bringing up the "Trumpers think the Declaration of Independence is referring to Trump" story, but I believe it was PaulT who provided the link.

            reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 31 Aug 2020 @ 7:08pm

            Re:

            Of all the own-goals to make, 'our guy is such tyrannical douche that a document calling out a past ruler for abuses of power simply must be talking about our guy' has to be be one of the funnier and more telling ones, all the more so given which document it was and what that says about their familiarity with it.

            reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 2 Sep 2020 @ 3:12am

      Re:

      "This is a very strange "the law is above the law" situation that is occuring in the US right now."

      What is by far more concerning is the way about half of the US apparently still sees no wrong in this.
      Mussolini, Stalin or Erich Honecker could hold one of their classical old speeches about how society couldn't afford individuals legal rights - and a lot of americans would see no wrong in this.

      It's like watching "Animal Farm" play out in real life.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 2 Sep 2020 @ 8:43am

        Re: Re:

        Now that would make for an interesting PR stunt, have someone pretend to be loud and proud Trump supporter read out, verbatim, a speech from one of those people and see how many people in Trump's cult end up cheering it on.

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 2 Sep 2020 @ 9:29am

          Re: Re: Re:

          Trump has already tweeted a Mussolini quote, so we're partway there.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 3 Sep 2020 @ 8:08am

            Re: Re: Re: Re:

            ...not just halfway.

            Read through some of Trump's campaign material and media blurbs. Now go to the history archives and compare what he says to some of Hitler's early rhetoric about Slavic immigrants, the "leftists", the Jews, and his political adversaries.

            It's not too strange that the gist, meaning and tone are identical. It's the cookie-cutter template of an autocrat trying to establish power primarily by appointing scapegoats within ethnic minorities and political adversaries by marginalizing and demonizing them.
            It is, however, rhetoric not normally used by any serious civilized politician, even in the US.

            Just sayin' there's a reason why neo-nazis all flock to Trump's banner and it isn't just his casual nod towards racism but has a lot to do with the fact you can fit large parts of his rhetoric into their holy bible of "Mein Kampf".

            Trump is like a minion with dreams of someday growing up to match his role models - Putin and Kim Jong-un, mainly - and it's fortunate he's only capable of mimicking his idols.

            reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 31 Aug 2020 @ 4:52pm

    'Look, the job requires them to assault people...'

    Given the order’s breadth and lack of clarity, particularly in its non-exclusive indicia of who qualifies as “Journalists” and “Legal Observers,”

    When you've got goons in uniform assaulting, shooting and kidnapping people who annoy them simply because they can making the scope of people who they are not allowed to do that to as wide as possible is very much a desirable choice, as narrowing it down would allow them to claim that the person they shot/pepper-sprayed didn't fall into the protected categories and therefore were free game.

    appellants have also demonstrated that, in the absence of a stay, the order will cause irreparable harm to law enforcement efforts and personnel.

    Strange, I read that section and almost immediately it was like the world's largest stock-yard was right outside my window, the overwhelming stench of bullshit filling the room.

    The only way I can even think that 'you're not allowed to assault and/or pepper spray people watching what you're doing' would cause 'irreparable harm to law enforcement efforts and personnel' is if what they are doing is so egregious, so unacceptable to the general public that letting the public know about it will cause things to get even worse, with people returning the favor and shooting back, and if that is the case the problem is not on the side of the protesters or the watchers.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Aug 2020 @ 8:01pm

      Re: 'Look, the job requires them to assault people...'

      The even more fun part seems to be that they almost never arrest any of the actual people involved in crimes, just reporters and demonstrators.

      reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 31 Aug 2020 @ 5:40pm

    Has DHS et al ad hoc started wearing brown shirts yet?

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 2 Sep 2020 @ 3:21am

      Re:

      "This is a very strange "the law is above the law" situation that is occuring in the US right now."

      Funny you should mention it - the DHS standard uniform observed is indeed khaki brown camo.

      ...which tells us more about which branch of the DHS is out there, given that they're wearing the outfit you'd mainly expect to see in use alongside the southern border rather than urban camo or forest pattern-disruptive.

      I'm sure the fact that it matches colors with Ernst Röhm's old SA is just ironic because they don't share many other traits - except possibly that they also believe beating up journalists and innocent bystanders is their job.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2020 @ 6:09pm

    UN observers

    I am honestly surprised we don't have UN war crimes observers here already. My guess is both sides would end up with charges if they did come and observe what is happening.

    reply to this | link to this | view in chronology ]

  • icon
    BernardoVerda (profile), 31 Aug 2020 @ 6:58pm

    It's not even about journalists

    The police don't really care (that much) if they're dealing with journalists, even though they really don't like the attention.

    After all, they weren't letting the presence of clearly identified cameras and journalists stop them from exhibiting flagrantly bad behaviour, before this legal decision came down.

    They just want complete freedom to disregard and ignore the rights of anyone, whenever they feel like it -- whether or not the targets of their actions happen to have major legal backing (for example, the legal department of a major newspaper or TV network) to protect them.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Aug 2020 @ 7:57pm

    • the order will cause irreparable harm to law enforcement efforts and personnel.*

    How so? Let's see the facts and arguments.

    an otherwise lawful order to disperse

    Are they though, really?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 31 Aug 2020 @ 9:31pm

      Re:

      Come now, how could you not trust a group shooting/pepper-spraying reporters and/or peaceful protesters in the face to make accurate and honest determinations as to what counts as a protest(which they can't just order gone) and what counts as a riot(which they can)? I'm sure they would never just decide to declare a protest a riot so they could have cover to open fire and/or drive people off, that would be downright dishonest.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 1:14am

    So basically america's fucked, 2020 is its final year somewhat "stable". The journalist attacks, the constant attacks on CDA 230, trump's very blatant cheating through barr and hijacking the three letter agencies, the protests/riots by idiots who don't realize nothing will change with trumrp in charge, covid and the unbelievable amount of retards that are voting trump because disney/[insert], not the democrats, embrace far-woke garbage.

    Time to get used to living in a third world country and china being the superpower.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 5:23am

    USA Fascism, here we come! and once the 'Land of the Free, Home of the Brave' gets it, it will take more than WWIII to get rid of it, especially when it is being not just condoned but welcomed by the President! what a disgrace!!

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 2 Sep 2020 @ 3:25am

      Re:

      "...especially when it is being not just condoned but welcomed by the President! what a disgrace!!"

      That the president embraces it is the less bad issue here. That a significant proportion of the US population are in favor of scrapping the constitution in favor of fascism is far, far worse.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 8:55am

    Simon initially said at a hearing Tuesday that the question of whether journalists have different rights under the First Amendment than those of protesters, who legally must leave an area after a riot has been declared, was likely to end up before the U.S. Supreme Court.

    Suppose a decision was made that "journalists" were different. You'd have to define what exactly was required to be a journalist and if you didn't, everyone at the protest would just show up wearing a jacket with a big "PRESS" label on the back.

    reply to this | link to this | view in chronology ]

    • identicon
      JT, 1 Sep 2020 @ 11:57am

      Re:

      It's already happening. If you look at the videos of the riots you'll that some people who are lighting things on fire and breaking windows have "Press" Patches on their riot gear.

      That's the problem, in the heat of the moment Police cant verify who is legit press and who's LARPing as Press just so they can go wherever they want.
      Public Events require public vetting of who is given press credentials and access, but that's not something you can do on the street in the middle of chaos.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Sep 2020 @ 12:23pm

        Re: Re:

        Arresting someone carrying out a crime is one thing; shooting rubber bullets, pepper balls and tear gas at someone visibly photographing what is happening is another. Confusing the two, and allowing the police to get away with unnecessary violence is what has lead to the current protests.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 1 Sep 2020 @ 1:45pm

          Re: Re: Re:

          Arresting someone carrying out a crime is one thing; shooting rubber bullets, pepper balls and tear gas at someone visibly photographing what is happening is another.

          Indeed. If someone throws a brick through a window, arrest them. Doesn't matter if they claim to be a reporter or not.

          Someone who is just taking pictures, or someone holding a microphone and speaking to an over-the-shoulder camera held by someone else? Unlikely to be a violent offender. Doesn't matter if they claim to be a reporter or not.

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 1 Sep 2020 @ 11:13pm

            Re: Re: Re: Re:

            "Indeed. If someone throws a brick through a window, arrest them. Doesn't matter if they claim to be a reporter or not."

            You will notice that the reporter he's referring to was the guy filming the one throwing the brick, not the person throwing it.

            "Someone who is just taking pictures, or someone holding a microphone and speaking to an over-the-shoulder camera held by someone else? Unlikely to be a violent offender. "

            Yet, they still get shot. by your idiot police:

            https://www.nytimes.com/2020/05/30/us/minneapolis-protests-press.html

            reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 1 Sep 2020 @ 4:11pm

        Re: Re:

        It's already happening. If you look at the videos of the riots you'll that some people who are kidnapping innocent bystanders windows have "Police" Patches on their riot gear.

        That's the problem, in the heat of the moment People cant verify who is legit police and who's LARPing as Police just so they can do whatever they want.

        Public Events require public vetting of who is given Law Enforcement credentials and access, but that's not something you can do on the street in the middle of chaos.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Sep 2020 @ 10:54am

    This just in from Geneva....

    Convention apparently determined 'too difficult' to comply with during war times...

    That medical red-cross symbols just became the 1st line targets as it's too difficult not to target medical personnel during war (and that big red cross in a white background makes such a good 'bullseye'...)

    Protection for sick, wounded, sorry too difficult, we will just kill them all from now on and let allah sort them out...

    We know US police already do things that would be considered 'war crimes' if they were done in a time of war, is it any surprise they want additional power to violate the other agreed upon wartime practices? How long before they go from chemical warfare (Pepper spray and similar chemicals) to biological warfare.

    I heard a plan where they are going to release hundreds of thousands of those little black buggers to try and infect their own women in the gene pool, which will result in widespread infertility among the children of female population. (mosquito's that is..., but see where your mind went...)

    If we continue to allow the force designed to 'protect and serve' to wage an illegal war on the populace, how long will it be before there are only right wing nut job republican's looking for a worthless sycophant to rule them? (oh wait, we are here already... where do we go from here?)

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 3 Sep 2020 @ 3:25am

    Given how the court seems to think that being pepper sprayed without any justification doesn't violate any rights, nor does it constitute assault & battery (either the criminal or civil versions), it makes me wonder:

    What would happen to you if you pepper sprayed a 9th Circuit Appeals judge in his courtroom? If it's not an assault and it's not a violation of rights, that means it would be legal, right?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 3 Sep 2020 @ 8:34am

      The modern day 'Get out of Jail Free' card

      I imagine that question would hinge not on the action but whether the one doing so had a badge, as for many courts all the matters is the badge, not what was done, and while I certainly wouldn't advocate or support such an action it would be funny watching them torture some logic as to why that still wasn't a crime(because badge) or why it was this time though they'd just got done saying pepper-spraying people is fine.

      reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.