The U.S. Court of Appeals for the Ninth Circuit issued a stay Thursday against a lower court injunction that prevented federal law enforcement from arresting journalists during riots in Portland — which rioters abused by posing as “press.”
A July order by Judge U.S. Judge Michael H. Simon — a Barack Obama appointee — prevented federal law enforcement from dispersing journalists and “legal observers” during protests. The U.S. Department of Justice appealed the injunction.
Acting Deputy Secretary of Homeland Security Ken Cuccinelli told the Senate Judiciary Committee earlier this month that rioters had abused the injunction by wearing signs saying “press” — and then launching violent attacks on federal officers.
In a district court filing, the Department of Justice provided several explicit examples:
For example, a protester carrying a shield that identified him as press was taken into custody for impeding federal officers who were attempting to control the crowd, and was found to be in possession of a gun. Another individual who self-identified as a reporter unlawfully entered federal property and, after refusing to leave, resisted arrest. A third individual wearing indicia of press membership and self-reporting as press, was arrested for failing to comply with lawful direction of a federal officer, and discovered to be carrying commercial grade fireworks, which, throughout the protests, have been used as a tactic to harass federal officers, and which are illegal in Oregon. On July 28, 2020, an officer observed an individual wearing a helmet bearing the word “PRESS” and using a power tool to attempt to breach the fence around the Courthouse. In the early morning on July 29, 2020, an individual wearing “press” identification on his helmet breached the security barrier around the courthouse by jumping over the perimeter fence. Most recently, on the night of July 29, 2020, an individual wearing “press” identification assisted another protester to breach the perimeter fence.
The local Portland Police Bureau likewise reported rioters wearing “press” insignia were throwing rocks at police officers.
Other — legitimate — journalists confirmed those reports.
After #antifa smashed the front glass of the @ICEgov building in Portland tonight, officers responded to clear them out. Many of the people wearing “PRESS” markings are throwing projectiles at officers. #PortlandRiots pic.twitter.com/6r2izscqRM
— Andy Ngô (@MrAndyNgo) August 20, 2020
In a 2-1 ruling, a panel of Ninth Circuit judges held: “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.”
The panel left in place a portion of the lower court order that directed the government and the American Civil Liberties Union, which filed for the injunction, to work together to create football-style jersey numbers for officers to wear so that anyone using excessive force could be identified.
Attorney General William Barr celebrated the Ninth Circuit’s decision in a press statement:
As the Department of Justice explained in our briefing, federal officers in Portland – like law enforcement in other parts of the country – have confronted aggressive mob violence. Behind the veil of “protests,” highly organized violent operators have carried out direct attacks on federal personnel and property, particularly the federal courthouse in Portland. Shielded by the crowds, which make it difficult for law enforcement to detect or reach them, violent opportunists in Portland have attacked the courthouse and federal officers with explosives, lasers, projectiles, and other dangerous devices. In some cases, purported “journalists” or “legal observers” have provided cover for the violent offenders; in others, individuals wearing supposed press badges have themselves attacked law enforcement or trespassed on federal property. More than 200 federal officers have been injured in Portland alone.
The Portland city government has the ability to stop this. Instead, 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. By contrast, the U.S. Attorney’s Office in Portland has charged 74 people with federal crimes arising from the Portland riots, including arson, assaulting federal officers, and destruction of federal property. The message should be unmistakable: The First Amendment protects the rights to speak and assemble, but not to attack people or property. The Department of Justice will continue to fully and fairly enforce federal law against these violent rioters.”
The two judges signing the majority opinion were Eric D. Miller and Daniel Aaron Bress, both appointees of President Donald Trump.
The dissenting judge was M. Margaret McKeown, a Bill Clinton appointee.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.