Court Blocks Federal Officers From Attacking, Arresting Reporters Covering Protests In Portland

Legal Issues

from the seems-like-this-should-have-been-obvious dept

A surge of federal agents swept into Portland, Oregon in response to ongoing protests in the city. The city hadn’t asked for federal help, but help arrived anyway. And it wasn’t much help. The blend of federal agents — drawn from the CBP, US Marshals Service, and ICE — rolled onto the streets in unmarked vehicles. Out of these vehicles sprang agents dressed like soldiers, wearing no markings clearly identifying the officers or the agency they represented. Residents were taken off the street to unknown locations for questioning. They were later released and given no paperwork that informed them who had detained them or for what reason.

This federal intervention was immediately greeted by several lawsuits, including one filed by Oregon’s Department of Justice. One set of plaintiffs has already secured a temporary restraining order against the federal government. (h/t Mike Scarcella)

Portland journalists sued the DHS — along with the Portland Police Bureau, US Marshals Service, and the city itself — over attacks on journalists and neutral observers by law enforcement officers. The federal agencies were added to the lawsuit shortly after they added themselves to mix in early July.

The court has granted the restraining order, finding that the government’s actions pose a threat to multiple Constitutional rights. There’s a history of violence against journalists by federal agents, detailed here in the court’s order [PDF].

On July 15, 2020, Plaintiff Justin Yau, while carrying photojournalist gear and wearing clothing clearly identifying him as press, asserts that he was targeted by a federal agent and had a tear-gas canister shot directly at him. At the time he was fired upon, he was taking pictures with his camera and recording with his cell phone while standing 40 feet away from protesters to make it clear that he was not part of the protests. In addition, late July 19th or early July 20th, Declarant Nathan Howard, a photojournalist who has been published in Willamette Week, Mother Jones, Bloomberg Images, Reuters, and the Associated Press, was covering the Portland protests. He was standing by other journalists, and no protesters, as federal agents went by. The nearest protester was a block away. Mr. Yau held up his press pass and repeatedly identified himself as press. A federal agent stated words to the effect of “okay, okay, stay where you are, don’t come closer.” Mr. Yau states that another federal agent, who was standing immediately to the left of the agent who gave Mr. Yau the “okay,” aimed directly at Mr. Yau and fired at least two pepper balls at him at close range.

Declarant Jungho Kim is a photojournalist whose work has been published in the San Francisco Chronicle and Ca/Matters, among others. He wears a neon yellow vest marked “PRESS” and a white helmet marked “PRESS” in the front and rear. He has covered protests in Hong Kong and California. He has experience with staying out of the way of officers and with distinguishing himself from a protester, such as by never chanting or participating in protest activity. He had never been shot at by authorities until covering the Portland protests on July 19, 2020. During the protest, federal agents pushed protesters away from the area where Mr. Kim was recording. He was around 30 feet away from federal agents, standing still, taking pictures, with no one around him. He asserts that suddenly and without warning, he was shot in the chest just below his heart with a less lethal munition.Because he was wearing a ballistic vest, he was uninjured. He also witnessed, and photographed, federal agents firing munitions into a group of press and legal observers.

Unbelievably, the federal government testified that it was unwilling to cease its violent acts towards journalists.

The Federal Defendants intend to keep dispersing journalists and legal observers. See ECF 67 at 20 (arguing that allowing journalists and legal observers to remain “is not a practicable option”). The actions by the federal agents described by Plaintiffs are part of a pattern of officially sanctioned conduct. The Federal Defendants argue that such conduct is necessary to protect federal property.

The government is begging for a restraining order and the court is more than willing to oblige. As it points out, the government is basically saying it is going to continue to do harm to people exercising their rights.

Plaintiffs, however, are not breaking any laws — to the contrary, they are engaging in constitutionally protected First Amendment activity. 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.

Here’s another one of the government’s rejected pitches: let us violate their rights and they can sue us later. Not an option, says the court.

The Federal Defendants also argue that Plaintiffs have legal remedies available, such as bringing a civil rights action or a lawsuit under the Federal Tort Claims Act, and thus a forward-looking equitable remedy is not appropriate. Backward-looking claims for money damages, however, 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.

Every one of the federal government’s arguments fail here. And for very good reason: every argument sucks. The court knocks them down one-by-one.

The Federal Defendants argue that Plaintiffs have an alternative location, because they can watch from a few blocks away. This argument is without merit. Federal agents are using tear gas, which decreases visibility, and the protests are at night. Reporting from a few blocks away is not a viable alternative location.

The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable.

And there it is: federal officers are blocked from arresting or physically harming reporters and observers. Reporters are not bound by orders to disperse. The government is forbidden from seizing any recording equipment unless the person is suspected of a criminal act. And if it does that, there’s a long set of rules for how seizures must be documented and what steps must be followed before the government can gain access to the content of seized devices.

This is probably the best part of the entire order — something that makes it clear federal officers aren’t going to get away with playing dumb when they start violating reporters’ rights.

Because the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity in any action brought against any individual employee, officer, or agent of the Federal Defendants under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), notice of this Order must be widely disseminated.

The government may be rethinking its “well, they can just sue for rights violations” argument. Walking into a lawsuit effectively naked is no federal officers’ idea of a good time. For the foreseeable future, the federal government will have to play by the rules it set: respecting the rights it supposed to be guaranteeing.

Filed Under: 1st amendment, dhs, dispersal, free speech, journalism, journalists, portland, restraining order