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Ninth Circuit Lifts Order Protecting Journalists and Legal Observers in Portland

PORTLAND, OR - AUGUST 22: Protesters and Portland police clash while dispersing a crowd gathered in front of the Portland Police Bureau North Precinct early in the morning on August 22, 2020 in Portland, Oregon. Friday marked the 86th night of protests in Portland following the death of George Floyd. (Photo by Nathan Howard/Getty Images)
By Laura Temme, Esq. on September 02, 2020 1:33 PM

The Ninth Circuit Court of Appeals recently rolled back an order from a federal judge in Oregon that granted protection for journalists and legal observers from forced dispersal by federal law enforcement. The decision stems from a temporary restraining order sought by a newspaper and several journalists earlier this summer.

The plaintiffs argued that police and federal law enforcement tried to suppress reporting on misconduct by intimidating legal observers and members of the press at protests in Portland, Oregon. The federal defendants claim they must be allowed to disperse press and legal observers along with protesters - saying that allowing them to remain "is not a practicable option."

Journalists Seek Protection From the Courts

Index Newspapers, along with several journalists and legal observers, filed for a temporary restraining order in July claiming First Amendment retaliation by the Department of Homeland Security and the U.S. Marshals Service. They alleged that federal law enforcement officers in Portland were "assaulting news reporters, photographers, legal observers, and other neutrals who are documenting the police's violent response to protests."

Each of the journalists and legal observers involved in the case shared a similar story: They had positioned themselves away from protesters, wore apparel that identified them as press or a legal observer, and verbally identified themselves to federal agents.

They were shot with rubber bullets, tear-gassed, and hit with batons anyway.

District Court Judge Michael Simon found that a temporary restraining order was appropriate, saying:

"It is one thing to ask citizens to obey the law in the future to avoid future alleged harm. But it is quite another for the Federal Defendants to insist that Plaintiffs must forgo constitutionally protected activity if they wish to avoid government force and interference."

Judge Simon granted the TRO, stating that police could not arrest or use physical force against someone acting legally and who officers "reasonably know" is a reporter or legal observer.

Split Ninth Circuit Temporarily Suspends Protections

The split Ninth Circuit panel found that Judge Simon's order was overly broad. Namely, they concluded that it was not specific enough about who qualified as a journalist or legal observer:

"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."

Judges Miller and Bress, both Trump appointees, granted the federal defendants' request to stay the order. For now, reporters and legal observers could be subjected to the same violent dispersal techniques being used on protesters. However, they could have valid First Amendment claims after the fact. Although, as Judge Simon pointed out in the original order:

"Backward-looking claims for money damages...would not provide the relief Plaintiffs are seeking. Plaintiffs desire access and the ability to exercise their First Amendment rights to observe and report on government misconduct."

Related Resources:

What Do "Legal Observers" Do? (FindLaw's Greedy Associates)

Podcast: Feds in Portland and Yada Yada Law School (FindLaw's "Don't Judge Me")

10th Circuit Weighs In On Qualified Immunity (FindLaw's Tenth Circuit)

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