Updated 08.06.20 5 PM EDT: The TRO has been extended; a more detailed formal order will follow, but here is the docket summary text, via PACER:
“…Full docket text for document 126:
MINUTES OF TELEPHONE ORAL ARGUMENT: ORDER – For the reasons stated on the record, the Court finds good cause and extends the temporary restraining order (ECF [84]) for an additional 14 days, until August 20, 2020, at 5:00 p.m. The Court also DENIES the Federal Defendants’ motion for reconsideration of temporary restraining order (ECF [101]). SCHEDULING The Court sets a preliminary injunction briefing and hearing schedule as follows: (1) Plaintiffs’ opening brief is due by August 9, 2020; (2) Defendants’ response is due by August 12, 2020; (3) Plaintiffs’ reply is due by 5:00 p.m. on August 14, 2020; and (4) a Preliminary Injunction Hearing (by telephone) remains set for August 18, 2020, at 10:00 a.m. The Court will provide the parties with a call-in number by email. Matthew Borden, Athul K. Acharya, Kelly K. Simon, and Gunner Martz present as counsel for Plaintiffs. Naomi Scheffield present as counsel for Defendant City of Portland. Jordan Von Bokern present as counsel for Defendants U.S. Marshal Service and DHS. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja)….” End, update.
I will not belabor it — but simply attach the very cogently argued 23 page memo of law, soundly grounded in over a half-century of well-settled law, related to the unfettered access rights, of “the press” (broadly defined) at mass protests (well-settled, as a constitutional law matter, under Amendment First / right of access — ever since the violence at the Democratic Convention in Chicago, in 1968). If you want to understand the issues — and make a reasoned decision, read that one. [Here is a recent backgrounder, of mine, on the now looming Thursday hearing.]
The meat of it comes down to the fact that Trump regularly says one thing, and then tweets… the opposite. It was said the troops were withdrawing, then Trump tweeted a subsequent direct threat to the Mayor of Portland, saying the troops were “staying.” It is quoted in the first memo, in detail, and here’s the more general point:
“…[T]here is no reason to believe that federal agents’ wrongful behavior will not recur, especially since the federal defendants “continue[] to defend the legality” of their conduct. Knox v. Serv. Employees Int’l Union, Local 1000, 567 U.S. 298, 307 (2012). If the Court allows the TRO to expire, the federal agents will be “free to return to [their] old ways.” Friends of the Earth, 528 U.S. at 189 (quotation marks omitted). Heavily armed paramilitary troops remain in Portland, ready to resume their unlawful activities at a moment’s notice should the political winds shift. Absent an unequivocal — and enforceable — promise from the President that his paramilitary forces will withdraw from Portland and no longer assault journalists and legal observers, the Court should extend its protection and renew the TRO….”
On the other hand, now — if you think our Bill of Rights — as embedded, for over two centuries, in our constitution is merely… a series of suggestions… ones that may always be summarily disregarded, by law enforcement — if they find it merely “inconvenient” to comply, for example, by requiring them to re-arrange the layers of the gear on their backs (for the now plainly urgent purpose of knowing who… shot or pepper-sprayed you, by an alpha numeric code, not even a real name!)… then you’ll love this 33 page comedy of circular arguments, almost none of which cite to any specific authorizing case, or statute — in short, to any binding… precedent.
Overall, I am beyond disgusted with Trump’s lawless shock troops, so I won’t quote the specifics of the dozens of violations of the TRO by these goons — they are laid out in exquisite detail in that first memo.
And… if you’re in need of some paper — to start your barbeque pit, this evening, that second memo is great… for briquette / dried hickory chip kindling starter.
The TRO will be extended, Condor confidently predicts — and the officers will be required to attach very large unique identifier codes, to their tactical gear/battle fatigues. Rain — out.
नमस्ते
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