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

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.