Appeals court suspends protections for journalists, legal observers covering protests

By Rebecca Ellis (OPB)
Aug. 28, 2020 2:12 a.m. Updated: Aug. 28, 2020 6:23 p.m.

The order had allowed journalists and observers to stay behind as federal law enforcement dispersed protesters at nightly protests against police brutality

A split panel of judges on the Ninth Circuit Court of Appeals has temporarily suspended restrictions on federal officers interactions with legal observers and journalists documenting nightly protests against police brutality and for racial justice in Portland.

The decision comes as protesters return their attention to federal property, meaning neutral observers are likely to face federal officers whose ability to physically force them out of the area is, once again, unrestrained.


The original protections, issued by U.S. District Judge Michael Simon last week, had barred federal officers deployed to Portland from using physical force, arresting or dispersing anyone they should “reasonably know” is at the protests as a journalist or observer — unless the officers had probable cause to suspect the person had committed a crime. Judge Simon’s order had also allowed journalists and observers to stay behind as federal law enforcement dispersed protesters.

With the appeals court’s ruling, these protections disappear effective immediately — but it might not be permanent. It’s possible the court could put the protections back in place as soon as September 3rd when the court is briefed on the federal government’s request for a stay.

“We disagree with the court’s order, which is only temporary and not the final word. We look forward to having a chance to brief the issue on the merits,” said Matthew Borden, a partner at Braunhagey & Borden who is working on the case for the ACLU of Oregon, in a statement. “The freedom of the press protects a democracy from devolving into tyranny. Under the First Amendment, press and legal observers must be allowed to document what’s happening at protests without being assaulted, shot, detained, or arrested. The government cannot be held to account if there is no one left to document its actions.”

In the 2-1 decision, Judges Daniel Bress and Eric Miller, both Trump-appointed, wrote that Simon’s injunction lacked clarity, pointing to the multitude of ways federal officers had been asked to identify who was a journalist and legal observer. The judges wrote that the order would cause “irreparable harm to law enforcement efforts and personnel.”

Earlier this week, federal attorneys had written that the restrictions placed too much of a burden on federal officers to try to differentiate between protesters and neutral observers in a chaotic environment.


“An officer confronted by rioters, in the dark and in the fog of fear and uncertainty, and making split-second decisions that affect the officer’s life as well as the lives of fellow officers and the public, must carefully examine each and every member of a dangerous unlawful gathering,” the federal government’s motion read, adding that federal officers needed to scrutinize who in the crowd was wearing a press badge, carrying professional equipment or wearing distinctive clothing.

Judge Margeret McKeown issued a dissent, pointing, in part, to Simon’s rulings that stated the injunction should not impair law enforcement operations to protect federal property. Simon had written that he was persuaded by testimony from Gil Kerlikowske, a former commissioner of U.S. Customs and Border Protection, who said officers who were establishing a perimeter around the federal courthouse would have no reason to disperse journalists and observers.

“The government has failed to meet its burden to demonstrate either an emergency or irreparable harm to support an immediate administrative stay,” McKeown wrote.

U.S. Attorney General William Barr issued a statement Friday morning in support of the decision, saying the lower court’s ruling, which he called extensive but vague, had “unacceptably increased the risk” of federal officers suffering injuries and subjected them to “untenable conditions.”

Barr also doubled down on the Trump administration’s stance that Portland’s government was passively allowing orchestrated violence in the city.

“The city government has abetted the violence through action and inaction, neutered the ability of the police department to deal with the mobs, impeded the ability of police to coordinate with federal law enforcement, and refused to pursue charges against the rioters,” the statement read.

City Council has ordered Portland police not to work with federal officers deployed to Portland and new Multnomah County District Attorney Mike Schmidt announced earlier this month that he would drop many charges against protesters. The U.S. Attorneys Office for the District of Oregon announced Thursday it had charged 74 protesters with federal crimes.

The appeals court decision keeps in place part of Simon’s order: the request that federal defendants and the attorneys for the ACLU, which pushed for the injunction, meet and discuss what kind of “unique identifying markings” federal officers can wear to make them identifiable from afar. However, no final order can be issued on the matter until after the court is briefed on the stay.

A nearly identical injunction imposed by Simon barring the Portland Police Bureau from targeting journalists and legal observers and ordering them to disperse remains in place.