PORTLAND, Ore. (AP) — The 9th U.S. Circuit Court of Appeals on Thursday temporarily lifted a lower court’s preliminary injunction on federal law enforcement officers’ use of force, threats and dispersal orders against journalists and legal observers working at Portland protests.
The injunction was put in place by U.S. District Court Judge Michael H. Simon while the federal government appeals the restriction.
The appeals court said Simon’s injunction was “without adequate legal basis.” It concluded that the government showed the order “will cause irreparable harm to law enforcement efforts and personnel.”
The ruling for now basically puts journalists and legal observers on the same level as demonstrators during orders to disperse and the use of force.
The matter was heard by 9th Circuit Judges Eric Miller, Daniel Bress and M. Margaret McKeown. Miller and Bress, both appointed to the bench by President Donald Trump, lifted the injunction.
McKeown, appointed to the appeals court by President Bill Clinton, dissented, saying the government “failed to meet its burden to demonstrate either an emergency or irreparable harm” to support lifting the injunction.
The American Civil Liberties Union of Oregon issued a statement saying it disagrees with the 9th Circuit decision, describing it as not the final word.
“The freedom of the press protects a democracy from devolving into tyranny,” the ACLU said. “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.”
The measure to halt federal officers from using force, threats and dispersal orders had been sought by journalists and legal observers represented by the ACLU of Oregon.
Attorneys submitted statements from journalists, photojournalists and legal observers who have been shot by federal officers with impact munitions outside the Mark O. Hatfield United States Courthouse during the federal response to the demonstrations against police violence and systemic racism.
U.S. Department of Justice attorneys argued that it was too difficult for federal officers to distinguish peaceful demonstrators from violent ones. They said federal officers must make split-second decisions and, wearing masks, helmets and other face-coverings, they can’t stop to determine who is a member of the press or a legal observer — all while commercial fireworks are being thrown at them and lasers shined in their eyes and everyone before them has their cellphone out filming their actions.