Court: Journalists remain exempt from dispersal orders at Portland protests

The split panel denied an emergency motion to put a hold on the injunction that bars federal officers from using force, threats and dispersal orders against journalists


By Maxine Bernstein
The Oregonian, Portland, Ore.

PORTLAND, Ore. — Journalists and legal observers will remain exempt from federal officers' orders to disperse during Portland protests as federal agencies appeal a lower court’s preliminary injunction, a panel of the 9th U.S. Circuit Court of Appeals ruled Friday.

In a 2-1 ruling, the panel denied the emergency motion by the U.S. Department of Homeland Security and U.S. Marshals Service to put a hold on the injunction that U.S. District Judge Michael H. Simon granted on Aug. 20 setting out the exemption.

Federal agents use crowd control munitions, including tear gas, to clear out protesters from outside of the ICE building in South Portland. October 6, 2020. (Beth Nakamura/Staff)
Federal agents use crowd control munitions, including tear gas, to clear out protesters from outside of the ICE building in South Portland. October 6, 2020. (Beth Nakamura/Staff)

Friday’s 9th Circuit decision lifted a temporary hold issued at the end of August by another 9th Circuit panel before oral arguments were heard in the case.

“Having considered the parties' complete briefing, and after hearing oral argument, we conclude that the Federal Defendants have not shown a strong likelihood of success on the merits,” the latest ruling said. “The Federal Defendants also failed to demonstrate they are likely to suffer irreparable injury if the preliminary injunction is not stayed pending appeal."

The ruling comes as the city marks more than four months of social justice protests that have often ended with clashes between police and some protesters who have set fires, thrown fireworks and other objects at officers and vandalized government buildings. Officers have used gas and impact munitions and have pushed demonstrators down city streets to clear the crowds.

Simon’s order barred federal officers from using force, threats and dispersal orders against journalists or legal observers at the protests.

He issued the injunction after the ACLU submitted 34 separate statements from journalists, photojournalists and legal observers who said they had suffered shots to the back, neck and legs from munitions fired by federal officers outside the Mark O. Hatfield United States Courthouse in downtown since early July.

Attorney Sopan Joshi, representing the U.S. Department of Homeland Security and U.S. Marshals Service, had argued that Simon’s injunction is too broad, vague and unworkable.

But 9th Circuit Judges Morgan Christen and Johnie B. Rawlinson found that the risk of injuries to the journalists and legal observers is real and well-documented. They noted extensive videos that supported the accounts of harm suffered, even when the journalists and observers were standing on public streets, sidewalks and in parks “well away” from protesters and “not engaged in unlawful activity when they were shot, tear gassed, shoved, or pepper sprayed” by federal officers.

“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 majority opinion said. "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.''

Christen and Rawlinson also wrote that evidence of potential retaliatory intent in the federal officers' actions also cut against granting the emergency motion to halt the injunction.

“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,” the majority opinion said.

The judges found the declaration of Gil Kerlikowske, a former commissioner of U.S. Customs and Border Protection and a former Seattle police chief, compelling. They noted that in Kerlikowske’s view “virtually all of the journalists' injuries were caused by the improper use of force, including shooting people who were not engaged in threatening acts, and the Federal Defendants' misuse of crowd-control munitions.”

Christen and Rawlinson further found that journalists are entitled to a right of access “at least coextensive with the right enjoyed by the public at large" and that public access is an important part of democracy.

Were it not for citizens standing on a sidewalk filming the Minneapolis police encounter with George Floyd, a man who died in police custody after an officer knelt on his neck, the public might not have become aware of it, sparking a social justice movement nationwide, their ruling said.

“Given our deeply entrenched recognition of the public’s right to access city streets and sidewalks, circuit precedent establishing the right to film public police activity, and the broadly accepted principle that the public’s interest is served by the role the press plays, the district court had strong support for its conclusion that plaintiffs demonstrated a likelihood of success on the merits of their First Amendment right-of-access claim,” the majority ruled.

The appeals panel pointed out there was a “mountain of evidence” that federal officers had routinely left federal property to engage in crowd control and the injunction recognized that federal officers “did not claim the authority to issue general dispersal orders on Portland’s streets and sidewalks, that local law enforcement retains that authority pursuant to the general police power, and that Portland’s law enforcement agreed not to require journalists and legal observers to disperse.”

While the majority opinion said the court didn’t need to define the limits of federal officers’ authority, “it cannot be debated that the United States Constitution reserves the general police power to the states."

The appeals panel called the arguments by federal agencies that federal officers have authority to disperse people who are neither on nor threatening federal property “dubious.”

Simon’s order doesn’t prevent federal officers from arresting anyone, including journalists or legal observers, who are involved in violent or criminal acts or dispersing anyone from federal property, they wrote.

The injunction expressly prevents journalists and legal observers “from impeding, blocking, or otherwise interfering with the lawful conduct” of federal defendants. It also says federal officers aren’t liable if journalists or legal observers remain in an area and are " incidentally exposed" to crowd control munitions.

Christen was nominated by President Barack Obama and Rawlinson was nominated by President Bill Clinton.

Attorney Matthew Borden, who argued on behalf of the ACLU of Oregon, called the ruling "a crucial victory'' for civil liberties and the freedom of the press.

“The court’s Opinion affirms that the government cannot use violence to control the narrative about what is happening at these historic protests,” he said in a statement.

Ninth Circuit Judge Diarmuid F. O’Scannlain, nominated by President Ronald Reagan, dissented. He criticized the majority opinion for granting a “special privilege to self-proclaimed journalists and legal observers” that he argued isn’t supported by the First Amendment or court precedent.

“The injunction is thus at odds with a core First Amendment principle and a common-sense rule of thumb: the media have the same rights as the rest of us," O’Scannlain wrote.

Despite evidence in the record of “quite a disturbing pattern of apparent misconduct by certain federal officers,” O’Scannlain wrote, “even these unfortunate facts cannot justify granting journalists and ‘legal observers’ a unique exemption from lawful dispersal orders — orders that were neither found, nor alleged, to be retaliatory.”

When protests in a public street “degenerate into riots, the crowd control measures taken by law enforcement are spontaneous and temporary responses to ongoing criminal activity. Protests and resulting riots are simply not governmental proceedings to which a right of public access may be claimed," the dissent said.

O’Scannlain further argued that just because Portland police and city of Portland agreed to an injunction allowing the press and legal observers not to disperse doesn’t mean federal officers must follow it because federal law takes precedence over state or local laws.

He also said it’s reasonable for federal officers to take some crowd control actions adjacent to a federal building or courthouse and not wait until "violent opportunists have breached the property line or entered the building before taking any protective measures.''

O’Scannlain went on, writing, “According to the majority, the injunction merely prevents federal agents from seeking to disperse the press from local streets and sidewalks when the City’s current policy is that press may remain there, even during riots, but does not seek to regulate crowd dispersal on federal property. On this view, the injunction is a wholesome exercise in federalism!”

He said it will compromise the security of federal officers and property.

Seven days after Simon issued his injunction granting the exemption for journalists and legal observers, the 9th Circuit temporarily halted it, finding it lacked an “adequate legal basis.”

A different three-judge panel, also in a 2-1 split, concluded then that the government showed the order would “cause irreparable harm to law enforcement efforts and personnel.” The temporary ruling came from Circuit Judges Eric Miller and Daniel Bress, with Judge M. Margaret McKeown dissenting.

©2020 The Oregonian (Portland, Ore.)

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