Judge temp bar on federal officers from using force, threats, dispersal: journos | Hacker News Reader

Judge temp bar on federal officers from using force, threats, dispersal: journos

oregonlive.com

18 pointsaspenmayer9 comments

The ruling:

https://assets.documentcloud.org/documents/7001472/Oregon-TR...

https://www.leagle.com/decision/infdco20200720809

Some judges are taking a rather dim view of the events in Portland, it seems. To wit:

> The temporary restraining order that [U.S. District Judge Michael H.] Simon issued for federal law enforcement is similar to one he granted earlier this month governing Portland police, except for one major difference that allows for individual federal officers or supervisors to be held liable if they intentionally disregard his ruling.

[Italics added for emphasis]

Original title was too long. It was:

Judge temporarily bars federal officers from using force, threats, dispersal orders against journalists, legal observers

Is there even precedent for that?

I mean, don't get me wrong; I dig the thought behind it, but is this actually something a judge can unilaterally do from the bench? Like, is this reversal of a reversal of a precedent, or have things gotten so heated the Judiciary is starting to flex some checks and balances muscle, and push the boundaries of their normally light touch with regard to pushing back against the Executive?

Be interesting to see how it turns out. I wager the Supreme Court will have to earn their keep this year.

IANAL but I believe the court could hold them personally in contempt, which has real legal implications, but they cannot invent penalties or restrictions on the executive out of whole cloth. Nor can they supercede any passed legislation limiting the liability of federal officers.

Personal liability shields for federal employees usually have clauses around acting willfully in violation of the law and/or criminally negligent. So the argument would be that they can be held personally in contempt as it would be a willful violation.

It’s a strong statement, but not sure it actually has teeth.

This is a decision granting plaintiffs' motion for a Temporary Restraining Order. Yes, federal judges can issue TROs against federal agencies which, in this case, are DHS and US Marshals Service. Precedent cited in the decision is Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 22 (2008) [A SCOTUS decision.]. The court's analysis considered the following: (1) [plaintiff] is likely to succeed on the merits; (2) [plaintiff] is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in [plaintiff]'s favor; and (4) that an injunction is in the public interest. (It's slightly confusing, but the court is treating this motion for TRO the same way as a motion for preliminary injunction.)

In the end, the court found for the plaintiffs and thus it issued a TRO for 14 days, unless extended (or overturned).

Of course, the federal agencies may choose to ignore a federal judge's order. But the federal judiciary doesn't take lightly to that transgression, and it would be a career limiting move for any federal agent, from cabinet-level officials down to foot soldiers, to ignore the judge's order.

It was one thing when the Mayor of Portland himself got tear gassed. If you have judges coming down from the bench to enforce a ruling, you’ll either hear it a mile away, or when it’s too late; either way, the judges always get their way. That is the law. Judges embody the rule of law in America, in these rare moments of checks and balances on a national scale, and the rest of the time too.

Thanks, I thought I understood it, I was just hoping someone else would also reach the same conclusions. I delve into these types of thing only as a pass time, so I wasn't sure if I was reading it correctly. It just seems so bizarre.

I never imagined the Judiciary would back or merit an order that essentially infringes on the Executive's prerogative to operate. As I understood it, the Judiciary could rmdismiss cases brought by the Executive as a check, but not outright tell the Executive how to operate via restraining order. That seems a little too "legislating from the bench" for what my detectors are tuned for right now.

What a strange time.

Who will enforce this? The police? There's nobody interested in enforcing such an order.

The courts understand that they (and the Police) have a legitimacy problem. As legitimacy deteriorates, the number and size of protests increases, which can reach a tipping point where there aren't enough police to push back.

This is exactly the problem we faced in Iraq as our tactics only increased the size and power of the insurgency.

> disregard or violate the order will be considered a violation of “a clearly established constitutional right” and therefore won’t shield the officer through the legal doctrine of qualified immunity.

Revoking Qualified Immunity is the lede.

> Revoking Qualified Immunity is the lede.

Thanks for catching this! I can’t believe they buried it; that belongs in the headline, I would think, but it was already contextually overloaded as it is.

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