9th Circuit Appeals Court Rejects Oregon Judge's Order Protecting "Press" from Federal Agents in Portland

AP Photo/Marcio Jose Sanchez

 

This bit of news slipped past on Thursday in the wake of events in Kenosha and the RNC Convention speech by Pres. Trump.

The Ninth Circuit Court of Appeals temporarily blocked an Order from an Oregon judge placing restrictions on federal agents in Portland concerning their actions involving the press and legal observers.

I have written two stories in recent weeks about orders by Federal District Court Judge Michael Simon in Portland — and Obama appointee – which placed restrictions on alleged conduct by federal law enforcement agents claimed by members of the “press” and “legal observers” as having been targeted at them by the agents.  Judge Simon first issued a temporary restraining order, and later, after hearing additional evidence, entered a preliminary injunction which made the restrictions permanent while the case brought by news agencies and others was pending before him.

Federal Judge Orders Federal Agents to Not Target Press for Enforcement Action.

Federal Judge Orders Federal Agents to Wear “Unique Identifying Markings”.

On Thursday, in a 2-1 decision, the Appeals Court suspended the restrictions imposed by Judge Simon’s Preliminary Injunction.

One particularly noteworthy feature of the ruling is that both judges in the majority, Daniel Bress and Eric Miller, are both Trump appointees to the Court.  This shows the influence — even in the notoriously liberal Ninth Circuit Court of Appeals — that emphasis on confirming conservative judges to the Circuit Courts of Appeal is having on critical decisions at the appellate level.   Because of a high turnover of judges on the Ninth Circuit in recent years, and the Senate ending the practice of allowing filibusters on Circuit Court nominees, Pres. Trump has appointed 10 of the 29 Judges on the Court.  In eight years in office, Pres. Obama only appointed 7 judges to the Court.  Overall, 13 of the 29 full-time judges were appointed by Pres. Bush or Pres. Trump.  There are 9 full-time judges still on the Court who were appointed by Pres. Clinton — all more than 20 years ago.  Some of those judges would be expected to retire in the next four years.  Five of them are older than 70.

Yesterday’s ruling is only an “Administrative Stay”.  That is a temporary ruling that allows for a stay while a full Motion for Stay of the lower court’s ruling can be prepared and presented to the Court.  The schedule for briefing that Motion is set for next week.

In granting the application for an Administrative Stay, the Court wrote:

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. 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.

Judge Margaret McKeown, one of the Clinton appointees, dissented from the decision, stating that at this state Judge Simon’s factual findings are reviewed only for “clear error” and there was insufficient evidence presented in the Government’s application for an Administrative Stay to establish such error.

The competing viewpoints between the judges is an excellent example of the philosophical difference between conservative and liberal judges. The Trump appointees looked at what Judge Simon had ordered and concluded that it was overbroad and lacking in clarity in terms of what it ordered Executive Branch officials to do.  On that basis, the intervened until both sides could fully brief and argue the substance of Judge Simon’s findings and orders.

The Clinton appointee would simply defer to the district court judge without consideration of whether the judge was correct to even act in the first instance, and whether his order makes any sense.

The latter philosophy turns federal district court judges into policymakers.  The judge does what he wishes, and unless his decision is “clearly erroneous” — in this case — his decision stands. No review is needed for whether he had the authority to act at all.

As noted in the quoted passage above, Judge Simon’s order required federal agents to take note of, recognize, and alter their dispersal orders so as to not interfere with the “press” and “legal observers”.  His order included a “non-exclusive” list of identifying features that the federal agents would need to consider in making a determination of who is and is not “press” or “legal observers.”  The obvious impact of his Order was to have rioters dress up like “press” and “legal observers” based on Judge Simon’s announced criterion, and thereby attempt to evade being targeted by federal agents’ efforts to disperse rioting crowds.

Attorney General Barr issued a statement early on Friday praising the decision to grant the temporary stay.

Apparently, the Ninth Circuit Court of Appeals is not lost for all time.  That is good news for the 61 million Americans who live within the Court’s jurisdiction.