Attorney General Bill Barr released a statement on Friday praising the U.S. Court of Appeals for the Ninth Circuit for issuing an administrative stay of a lower court order “exempting ‘Journalists’ and ‘Legal Observers’ from generally applicable dispersal orders” in Portland.
A three-judge panel decided 2-1 on Thursday that the DOJ made a “strong showing of likely success on the merits” that the lower court injunction—prohibiting federal officers from using force against “journalists” and “legal observers” amid an unlawful assembly or riot—was issued “without adequate legal basis.”
“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,” the Ninth Circuit order read. “The August 20, 2020 order is stayed, temporarily, pending resolution of the emergency motion. This administrative stay preserves the status quo as it existed before the district court’s preliminary injunction and temporary restraining order.”
“This order does not disturb the portion of the district court’s August 20, 2020 order directing the parties to confer regarding identifying markings and directing that the parties submit proposals to the district court within 14 days if the parties cannot reach an agreement,” the order continued, setting deadlines. “However, the district court shall not issue a final order regarding identifying markings pending this court’s resolution of the emergency motion. Appellees’ response to the emergency motion is due by 9:00 a.m. PDT September 2, 2020. Appellants’ optional reply is due by 5:00 p.m. PDT September 3, 2020.”
Circuit Judges Daniel A. Bress and Eric D. Miller, both appointed by President Donald Trump, were in the major. Circuit Judge M. Margaret McKeown, a Bill Clinton appointee, was the lone dissenter.
Circuit Judge McKeown said that the administrative stay of the injunction was warranted because the government “failed to meet its burden.”
I respectfully dissent and would deny the Federal Defendants’ request for an administrative stay. The factual conclusions underlying the entry of a preliminary injunction are reviewed for clear error. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In light of the deferential review accorded to the district court’s factual finding at this stage, the district court’s extensive factual findings with respect to journalists and legal observers, including the finding that the injunction would not impair law enforcement operations to protect federal property and personnel, and the fact that a temporary restraining order has been in place since July 23, 2020, the government has failed to meet its burden to demonstrate either an emergency or irreparable harm to support an immediate administrative stay. I concur in the order with respect to the markings.
Attorney General Barr was clear about his views on the immediate impact of this decision. The Attorney General agreed that the district court’s injunction was vague but not harmless. He argued that it placed federal law enforcement in a dangerous situation.
“Last night, the U.S. Court of Appeals for Ninth Circuit entered an order temporarily blocking an injunction entered by a federal district court in Portland that imposed extensive but vaguely defined constraints on federal law enforcement personnel striving to protect the federal courthouse and surrounding areas in Portland from destruction,” Barr said in a statement. “In practical effect, the district court’s order prevented the federal government from effectively addressing violent mobs through the general crowd-control measures that are required, and it unacceptably increased the risk of serious injury to federal law enforcement officers. The Ninth Circuit’s decision is an important step that will allow federal officers to continue carrying out their important security responsibilities without being subject to untenable conditions.”
Barr said that some individuals have merely claimed to be “journalists” and “legal observers” in order to “cover” for “violent offenders.”
“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,” Barr continued. “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.”
In closing, Barr pointed to a Thursday press release from U.S. Attorney for the District of Oregon Billy J. Williams, which named 74 individuals who were arrested in Portland and charged with federal crimes.
“The message should be unmistakable: The First Amendment protects the rights to speak and assemble, but not to attack people or property,” Barr said. “The Department of Justice will continue to fully and fairly enforce federal law against these violent rioters.”
[image via Doug Mills-Pool/Getty Images]
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