Appeals Court Reinstates Injunction Blocking Federal Agents From Assaulting Portland Journalists

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.

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


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  • identicon
    Anonymous Coward, 22 Oct 2020 @ 3:51pm

    But if they do violate it deliberately, they won't be given the benefit of a doubt. Qualified immunity will not apply.

    This sounds like payday for anyone wearing a PRESS helmet near a federal building in Portland.

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

    • identicon
      Anonymous Coward, 22 Oct 2020 @ 5:04pm

      Re:

      sounds more like a rallying cry for agents provocateur.

      If the press don't abide by the agreement with the Portland Police Department, say, by impeding lawful enforcement efforts, those press protections won't apply.

      Of course, if you are a protestor, you would have to be stark raving nuts to provoke police response against the press.

      And curious thing. I'm betting that there are protestors willing to guard the press against this, for exactly that Agent Provocateur reason. Perhaps, already doing this thing.

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

  • icon
    That One Guy (profile), 22 Oct 2020 @ 3:59pm

    Not 'if', merely 'how quickly'

    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.

    So long as there are prosecutors willing and able to bring federal agents up on charges I foresee that getting real messy, as the Trump administration has made it pretty clear they're not big fans of 'law and order' being used against them, such that any attempt to do so will likely result in some major tempter tantrums as they do everything they can to avoid any sort of accountability(something which a lack of identification marks will likely assist).

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

    • identicon
      Paul B, 22 Oct 2020 @ 4:21pm

      Re: Not 'if', merely 'how quickly'

      The fed has not paid Portland for all the fines it racked up by blocking the streets. I for one would like to see the state impound federal assets as payment.

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

      • identicon
        Anonymous Coward, 22 Oct 2020 @ 5:17pm

        Re: Re: Not 'if', merely 'how quickly'

        So what do the specific agencies (who blocked the streets) have that can be impounded?

        It's not like you can, say, impound the federal courthouse because the US Marshal's office generated fines.

        ... and remember, the courts have no army to back up their judgements. Worse if you will, they rely on the Marshals cooperation to do what muscle work the courts DO do. Namely, making sure people show up in court when called.

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

        • identicon
          Anonymous Coward, 23 Oct 2020 @ 8:55am

          Re: Re: Re: Not 'if', merely 'how quickly'

          A lot of Federal stuff is actually on State land. They are given space by the state. If the Feds refuse to honor their agreements, the states have the right to ask them to leave.

          However, this is the nuclear option. The better option would be to forfeit state monuments to cover the fines.

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

      • icon
        zyffyr (profile), 22 Oct 2020 @ 7:09pm

        Re: Re: Not 'if', merely 'how quickly'

        Those 'fines' are nothing but a publicity stunt. Anyone who thinks that anything will ever come of them is delusional.

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

        • identicon
          Anonymous Coward, 23 Oct 2020 @ 3:49am

          Re: Re: Re: Not 'if', merely 'how quickly'

          I was told that fines are part of the law and order that some folk get all uppity about. Equal justice? LOL, yeah sure, whatever.

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

  • icon
    Scary Devil Monastery (profile), 22 Oct 2020 @ 11:58pm

    Now what does a JUDGE have to do with law and order, right...?

    Judge: "Agents of the government are not allowed to assault and abuse journalists without due cause! We wish we did not have to say this!"

    Local flatfeet: "Uh...Oh, okayyy."

    DHS, america's finest elite of law & order: "Bite me, Judge! I beat whoever the hell I like!"

    US news really shouldn't resemble Belarus news this much.

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

    • identicon
      David, 23 Oct 2020 @ 6:34am

      Re: Now what does a JUDGE have to do with law and order, right..

      US news really shouldn't resemble Belarus news this much.

      Well, at least the judge has not been fired/arrested for talking in a manner the government doesn't like.

      It will take a few more years of appointing underqualified judges grateful to do their masters' biddings before that part of the news matches better. I mean, Lukashenko has been in office more than 6 times longer than Trump. Give Trump a break.

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

      • icon
        Scary Devil Monastery (profile), 23 Oct 2020 @ 7:57am

        Re: Re: Now what does a JUDGE have to do with law and order, rig

        "I mean, Lukashenko has been in office more than 6 times longer than Trump. Give Trump a break."

        ...I'd like to say "Give him time" in an ominous voice but then recalled that in all likelihood he'll seriously try giving himself more time after november 3 and damn if that didn't sound like something I'd have to be James Earl Jones or Boris Karloff to bring off properly.

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

  • icon
    Bloof (profile), 23 Oct 2020 @ 4:01am

    But how are the federal forces meant to do the job nobody asked them to do if they can't do it in absolute secrecy with the ability to have any and all footage of their actions just vanish into the ether? Their criminal actions are only criminal if there are witnesses. Won't someone please think of the unaccountable shock troops!?

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

  • icon
    Hugo S Cunningham (profile), 23 Oct 2020 @ 7:59am

    https://reason.com/2020/09/04/youre-not-allowed-to-film-the-fight-for-control-over-who-reports-from- portland/

    Will the judge issue an injunction against progressives who block reporting of Portland unrest?

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

    • icon
      Scary Devil Monastery (profile), 23 Oct 2020 @ 8:12am

      Re:

      "Will the judge issue an injunction against progressives who block reporting of Portland unrest?"

      I think that in the current political climate I'd stay leery of news pushed out by a libertarian think tank funded in the millions by the bloody Koch foundation and Sarah Scaife foundation.

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

      • icon
        Hugo S Cunningham (profile), 23 Oct 2020 @ 8:34am

        Re: Re:

        Freedom is slavery...

        (I thought Orwell was just having fun, but apparently not...)

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

        • icon
          bhull242 (profile), 23 Oct 2020 @ 12:11pm

          Re: Re: Re:

          No, but the outlet Reason is biased against so-called “Progressives”, and the article is nonsensical. In this day and age, it would be impossible to get away with something like that.

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

          • identicon
            Anonymous Coward, 23 Oct 2020 @ 1:00pm

            Re: Re: Re: Re:

            Wait, What's this I hear?
            I was told the entire known universe is biased against conservatives.

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

          • icon
            Hugo S Cunningham (profile), 23 Oct 2020 @ 8:51pm

            Re: Re: Re: Re:

            "Reason" has been biased against abusive policing (the ostensible cause of much of this summer's unrest) for years, even decades longer than many of this summer's self-righteous activists. In particular, "Reason" has long opposed the War on (Some) Drugs, which generates a disproportionate amount of ill-will between cops and fraught communities. (Cops enforcing Drug Prohibition tend to act as and be seen as occupiers, while cops arresting muggers and rapists tend to be seen as defenders). "Reason" also opposes (1) civil forfeiture without conviction for crime (aka robbery at badge-point), (2) militarization of police, and (3) Fourth Amendment violations, eg lying to get search warrants.

            Some people are annoyed, however, when "Reason" calls out progressive fibs. For example, "Reason"s Robby Soave was one of the very first to research the tapes of the Covington Kids case and blow up the fable of MAGA-hat-wearing high-school bullies stalking a peace-loving native-American Vietnam veteran.

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

            • icon
              Scary Devil Monastery (profile), 28 Oct 2020 @ 4:08am

              Re: Re: Re: Re: Re:

              "Some people are annoyed, however, when "Reason" calls out progressive fibs."

              When you know the guy pushing out the news is being paid by people with a vested interest you really need to sift the information for poison. Because all the best trolls and astroturfers establish credibility before they sneak the important falsehood in.

              "Reason" may, as you say, have an agenda which in many respects corresponds closely to moral principles. That doesn't alter the fact that it's still a libertarian think-tank founded by the Koch and Sarah Scaife foundation.

              Now, if a foundation, like Scaife has been outed as being a lot of the money behind climate change denial, anti-LGBT advocacy, unionbusting, and similar issues then you know what they pour money into has an agenda which closely links to those issues.

              As for the Koch foundation backing "Reason"...I probably don't need to continue.

              Now if a think-tank backed by the biggest contributors to societal regression published anything then, even if what they say sounds legit, you should still observe the same caution that you would facing a "news" story by Fox or OANN.

              Think tanks don't publish information based on moral principles. They issue information which aligns with the desires of the people paying their salaries and grants.
              Thus if the funding entity is rotten, the think-tank funded by that entity is guaranteed to be as well.

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

        • icon
          Scary Devil Monastery (profile), 28 Oct 2020 @ 4:11am

          Re: Re: Re:

          "Freedom is slavery..."

          Not sure why you'd invoke newspeak when we were discussing the merits of caution when observing what comes out of a think-tank funded by the same people who consistently pour hundreds of millions of dollars into climate change denial, anti-LGBTQ advocacy, unionbusting and all the other "modern conservative" values espoused by the worst possible examples of the current GOP...

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

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