Order temporarily blocks Feds from targeting press, legal observers in Portland

https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/23/894953202/order-temporarily-blocks-feds-from-targeting-press-and-legal-observers-in-portla

by coronadisaster • 6 years ago

72 68 6 years ago

npr.org

mcherm• 6 years ago

An interesting point that this article does not mention, but which can be found in other articles [2] or the order [2]:

The judge issuing the order specifically stated that this court has reviewed and ruled on the the order so it is clearly established that it is legal and thus qualified immunity does not apply.

I had not previously seen that technique for (potentially?) avoiding qualified immunity.

[1] https://www.oregonlive.com/portland/2020/07/judge-inclined-t...

[2] https://aclu-or.org/sites/default/files/field_documents/aclu...

drtillberg• 6 years ago

Similar function to a consent judgment[1]. Remedies can include citation for contempt, continuing supervision .

[1] https://www.lexisnexis.com/lexis-practice-advisor/the-journa...

blickentwapft• 6 years ago

Better start printing thousands of T-shirts saying JOURNALIST.

ThePowerOfFuet• 6 years ago

PRESS.

entropea• 6 years ago

Temporarily?? I could've sworn this was a permanent right of US citizens?

dragonwriter• 6 years ago

The TRO means that there can be actual punishment, fairly swiftly, for violations, because violations become contempt of court for which the court can issue civil penalties on a near-immediate basis. All the things that make holding government agencies and government agents accountable and laborious are cut through when there is a specific court order and not just general law in play.

eternalban• 6 years ago

I've never read 'The Patriot Act' in full.

dj_mc_merlin• 6 years ago

...preventing federal agents from "arresting, threatening to arrest, or using physical force" directed at anyone they know to be a journalist or legal observer, unless they have probable cause to believe they have committed a crime.

Is that not the case already?

DebtDeflation• 6 years ago

Right?

Along with:

The order also blocks the defendants from seizing any photographic, audio and video recording equipment and press passes from people in those two categories, as well as from ordering them to stop recording or observing a protest.

I feel like I'm living in Bizarro World. You have to actually have committed a crime in order to be legitimately arrested? Police can't just take your lawful property? Police can't order citizens to "not observe" what is happening? We needed a restraining order to acknowledge this?

xtian2• 6 years ago

All “police reform” measures I’ve seen simply codify things cops would be doing already if their culture and systems weren’t completely irredeemable. It’s nothing more than a tactic to distract and fragment consensus.

contrarianmop• 6 years ago

In the United States, much like in similar authoritarian countries, the police appears to be able to arrest journalists without probable cause. Happened live where journalists reporting live have been arrested and / or beaten. A sad state of affairs.

skissane• 6 years ago

they know to be a journalist or legal observer

When the standard is "know", it actually becomes quite hard to prove a violation. It isn't enough just to demonstrate that the fact is true, you also have to prove that the person who committed the violation subjectively knew it was true.

The text of the order says "reasonably should know". That means even if an individual federal agent didn't know, they can still violate the order if they reasonably should have known. But, what an individual agent reasonably should have known is itself a quite difficult question that can produce a lot of legal argument.

What if a federal agent is told by their superiors that "violent protestors are falsely pretending to be journalists/legal observers to take advantage of this order"? Even if the statement is false, so long as the agent trusts their superiors and genuinely believes it is true, they would fail to meet the "know" standard. (Knowledge is justified true belief, and if you don't believe it, you can't know it.)

Of course, maybe in such a case they "reasonably should have known" that what their superiors said is false. But how are they supposed to know that, and is it reasonable to expect them to know that?

Putting that aside, I think the US government is going to want to appeal. And if it makes it to the Supreme Court, whose side is the conservative majority going to favour?

YokoZar• 6 years ago

The order applies to the superiors issuing commands too, and spells out explicit forms of identifying marks for covered people.

The reality is Border Patrol agents were purposefully shooting members of the press with rubber bullets and seizing their equipment regardless of their rights.

Just because there's some contrivance where an agent might justify this behavior doesn't mean they or their superiors won't be held in immediate contempt for violating this order. Judges aren't idiots, and this is about as harsh of a warning as they can issue before the case even gets finished.

jadell3• 6 years ago

If someone is wearing press credentials, or is being followed by a huge news camera, or is clearly speaking into said camera with a microphone, then I find it unreasonable that any officer can't assume that person is a journalist.

And if that's seriously the standard they want to hold others to, then I think it's reaonsable to assume a random person in camo without any law enforcement ID on them trying to shove me into a van is a kidnapper and I should be legally protected in using violent force against them to defend myself.

prepend• 6 years ago

What’s strange is that this order only applies to journalists and legal observers. So if I’m just a peaceful protester, I can be arrested or be the subject of physical force without probable cause?

coldpie• 6 years ago

Yes. That's kind of a big part of what these protests are about.

kergonath2• 6 years ago

The wording implies that it’s ok to take cameras and recording devices from non-journalists as well, which sounds more than a bit dystopian.

dungdongdang5• 6 years ago

If the large crowd is told to disperse by government agents, you are no longer a peaceful protester. You are free to protest, but you are not free to protest at any location at any time. If once told to move, you do not, you can, and were always able to be removed by use of physical force.

The reason these peaceful crowds are told to disperse, is they are often not peaceful, they leave much damage to regular citizen's and business property behind, and it's not your call whether the crowd poses a danger to my car parked on the street, or my place of work. It's up to the law enforcement assessing risk of the crowd causing damage, and if they think it will, even if they have not, they have to disperse. Like when the crowd starts ignoring the fact that cars drive on the streets trying to get home from work, and starts walking through and blocking traffic. Or even leaving a pile of trash and destroying the lawn of public or private property, which I have to pay to restore with taxes.

Does your peaceful protest stay on the sidewalk? Does it carry its trash to the nearest garbage can instead of dropping it on the street? Does it destroy zero property and wait for the walk sign at intersections? Because if not, the issue is not with the protest. It's with the things you are doing which are not peaceful, to people not part of your peaceful protest.

I was moving apartments during one of these "peaceful" protests in Chicago. At that point, they weren't burning buildings and destroying stores yet. It took me 12 hours to move 2 minivan-loads of stuff. My brother was helping me. When the police tried to get people to clear the roads, the people did not. Instead, they threw a bunch of flamable shit in the parking lot where regular people's cars were, and destroyed those cars. Because the cops tried to clear the road so people, on the last of the month, could move their shit into the new apartment. after working a full day. and having to work the next day. after having 2 hours of sleep.

by the way, when my brother got home, his girlfriend's shitty old car was broken into and needed to be repaired. good thing she was unemployed and couldn't pay for it, otherwise it might have cost $200 instead of the free ducktape + plastic bag combo.

peaceful for you does not mean peaceful for everyone. and the cops, and the feds, are there to make it peaceful for everyone - not just you. when told to disperse, so people like me can simply live our already stressful lives, you refuse to, you are no longer peaceful, and should be thrown into a van and removed. and if that takes tear gas, I'm cool with that, just like you're cool with completely fucking up my life.

let me ask you this: forget protests. regular workday, mid-afternoon. a group of people decide to just start walking in the middle of the road dropping garbage everywhere and won't leave. what do you think should happen to them? nothing? does the group being large make it ok?

kergonath2• 6 years ago

Yeah. The fact that an order was needed in the first place is troubling. I thought there were laws already about capricious and arbitrary arrests of regular people, not only journalists.

mijoharas3• 6 years ago

I came to ask the exact same thing. According to this article[0] I read the other week, (and according to my admittedly limited understanding of US law) you definitely need probable cause to arrest someone.

Has this right been repealed in the US? Is this not currently the case? If so, are there court decisions that have temporarily repealed these rights? Am I misunderstanding something?

The cynical part of my mind tells me that nothing has changed apart from the police brazenly ignoring the law, but I'd like to understand if I'm missing something in this regard.

[0] https://lawandcrime.com/legal-analysis/two-dhs-officials-app...

chefkoch• 6 years ago

I'm not really sure how this is going to be enforced if the federal agents cannot be identified?

stronglikedan3• 6 years ago

They can be identified by their badges, just like any other law enforcement officer. They all wear badges with unique badge numbers.

guerrilla• 6 years ago

You missed the part where they have been removing and covering their badges fairly consistently.

IAmEveryone2• 6 years ago

It’s civil law, not criminal. It adds an extra zero to the settlement a one-eyed journalist will get from their lawsuit against DHS about 26 months from now.

cabaalis• 6 years ago

U.S. District Judge Michael Simon issued a restraining order Thursday preventing federal agents from "arresting, threatening to arrest, or using physical force" directed at anyone they know to be a journalist or legal observer, unless they have probable cause to believe they have committed a crime.
The order also blocks the defendants from seizing any photographic, audio and video recording equipment and press passes from people in those two categories, as well as from ordering them to stop recording or observing a protest.

Why is this not within the already defined rights of all Americans? I fail to see why journalists would need a special use case.

jhauris• 6 years ago

Another poster mentioned that this order negates claims of qualified immunity. You're correct, this is already a protected right; I believe the order makes it so no officer can claim they made some kind of reasonable mistake and thus can't be held personally liable.

jessaustin8• 6 years ago

Police (and some journalists themselves) would love to see 1A limited to journalists and 2A limited to racist rednecks (...and, one supposes, 3A limited to families without pretty teenage daughters). The more the population can be divided, the better, for authoritarians.

mijoharas3• 6 years ago

sorry, what are 1A, 2A and 3A?

ISL• 6 years ago

This should not require a court order.

coronadisaster• 6 years ago

Dang, did you mess with the ranking of this post?

Order temporarily blocks Feds from targeting press, legal observers in Portland

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