Gibson v. Schmidt
| Citation | 522 F.Supp.3d 804 |
| Decision Date | 26 February 2021 |
| Docket Number | Case No. 3:20-cv-01580-IM |
| Parties | Joseph GIBSON and Russell Schultz, Plaintiffs, v. Mike SCHMIDT, in his official capacity as District Attorney of Multnomah County, Oregon, Multnomah County District Attorney's Office, and Brad Kalbaugh, in his official capacity as a Multnomah County Deputy District Attorney, Defendants. |
| Court | U.S. District Court — District of Oregon |
Derek Angus Lee, Angus Lee Law Firm, PLLC, 9105a NE Hwy 99, Suite 200, Vancouver, WA 98665, and James L. Buchal, Murphy & Buchal, LLP, 3425 SE Yamhill Street, Suite 100, Portland, OR 97214. Attorneys for Plaintiffs.
Jill Schneider and David Berryman, Oregon Department of Justice, 100 SW Market Street, Portland, OR 97201. Attorneys for Defendants.
Before this Court is Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, ECF 5, pursuant to Rule 65 of the Federal Rules of Civil Procedure. Plaintiffs are two individuals each charged in state court with a single count of riot under O.R.S. 166.015. ECF 35 at ¶¶ 2–3. Plaintiffs claim that District Attorney Mike Schmidt, Deputy District Attorney Brad Kalbaugh, and the Multnomah County District Attorney's Office ("Defendants") are selectively prosecuting the riot charges in bad faith for the purpose of retaliating against Plaintiffs for their political beliefs and expression in violation of the First, Fifth, and Fourteenth Amendments. Id. at ¶¶ 2, 5. They seek an order from this Court enjoining Defendants from continuing to pursue the state court criminal charges. ECF 5 at 7.
Plaintiffs initially filed the instant motion and an Emergency Motion for Expedited Discovery on September 16, 2020. ECF 5; ECF 10. The following day, Plaintiffs filed an Amended Motion for Expedited Discovery and this Court set a briefing schedule on the motions. ECF 12; ECF 16. On September 30, 2020, this Court granted the Amended Motion for Expedited Discovery in part, ECF 12, for the limited purpose of determining whether this Court must abstain from interfering with the state criminal prosecution pursuant to the abstention doctrine established in Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). This Court ordered supplemental briefing on the abstention issue. ECF 32; ECF 33. On February 19, 2021, following the completion of the limited discovery and supplemental briefing, this Court held a hearing to determine the threshold question of whether Younger abstention applies to this case. After considering the pleadings, briefings, declarations, exhibits, and arguments of counsel, this Court finds that Younger abstention applies to this case and therefore this Court cannot exercise jurisdiction over this matter. For the reasons that follow, this case is DISMISSED without prejudice and Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, ECF 5, is DENIED as moot.
Plaintiffs are Joseph Gibson and Russell Schultz. ECF 35 at ¶¶ 10–11. Under the name "Patriot Prayer," Gibson often uses social media to organize public events "promot[ing] patriotism, prayer, and living a God-fearing lifestyle." Gibson Decl., ECF 8 at ¶ 1. Gibson "view[s] Antifa as an anti-American terror group" and has publicly condemned what he sees as "the local government's indulgence and support of Antifa." Id. at ¶¶ 8–9. Schultz is a supporter of Gibson and often attends public demonstrations with him. Id. at ¶ 10.
On May 1, 2019, the events giving rise to Plaintiffs’ criminal charges took place outside Cider Riot, a Portland cider bar. Buchal Decl., ECF 6 at ¶ 29. Plaintiffs went to Cider Riot with a group of Patriot Prayer supporters to participate in "a demonstration intended to call attention to [Cider Riot's] status as a well-known hangout for Antifa members in Portland." Id.
Plaintiffs provided the Court with video recordings which document Gibson's activity at Cider Riot on May 1, 2019. Buchal Decl., ECF 6 at Exs. 2–3, 9–11. The videos show that as soon as Gibson and his supporters arrive, a hostile confrontation immediately begins between Gibson's group and members of Antifa. Id. at Ex. 10 (DX10) at 00:00–01:00. Gibson films members of Antifa while narrating commentary that Cider Riot is an "Antifa Bar," and the masked people in the bar's patio are Antifa members. Id. at 01:13–01:40. Several masked Antifa members respond by yelling at Gibson's group as well as throwing projectiles and spraying pepper spray at Gibson and his group. Id. at 01:30–04:00. One Antifa member spits on Gibson. Lee Decl., ECF 7 at ¶ 19. While the videos show Gibson discouraging the use of weapons at various points and generally avoiding physical altercations, it also shows him appearing to encourage one-on-one fist fights between members of Patriot Prayer and Antifa. Buchal Decl., ECF 6 at Ex. 10 (DX10) at 17:17–25:17.
When Gibson notices a fist fight breaking out between two men, he immediately runs over and instructs the crowd to put weapons away and "let them fight" because it is "mutual combat." Id. at 17:17–34. When someone near Gibson tells him that "mutual combat" is not legal he responds, .... Id. at 17:42–18:32. Gibson helps form a circle around the fight as he continues to narrate it, saying repeatedly, "[t]his is the way it's supposed to be, two men fighting." Id. at 19:20–32. When one of the men appears to step back from the fight, Gibson shouts at him, Id. at 19:32–43.
The man returns to the fight and Gibson continues to narrate, instructing members of the crowd to put away weapons and not intervene. Id. at 19:43–20:02. When one man falls and the fight appears to end, Gibson approaches the man still standing and says, Id. at 20:02–46. He then turns the camera on himself and says, Id. at 21:20–23. Gibson appears to begin to leave the area with the man who fell at the end of the fight. Id. at 21:45–53.
Gibson then abruptly changes course and walks back toward Cider Riot after discovering that another Patriot Prayer member wants to engage in a fight. Id. at 21:52–22:00. When Gibson gets back to the crowd, he says, Id. at 22:00–15. He asks members of the Antifa side of the crowd if they want to fight with the member of Patriot Prayer, saying Id. at 22:17–23:44. Gibson then points to one member of the crowd and says, "I know you want to." Id.
When it appears that no one wants to engage in the fight, Gibson encourages members of the Patriot Prayer group to leave. Id. at 23:44–24:46. But before Gibson's group leaves, a female member of the Antifa group appears to approach someone in Gibson's group and is knocked to the ground, apparently unconscious. Id. at 24:46–25:20; Kalbaugh Decl., ECF 54 at Ex. C.
Unlike Gibson, Schultz's actions at Cider Riot are not fully documented on video submitted to this Court. However, an affidavit submitted in support of Schultz's arrest claims detectives observed video of Schultz "taunting and physically threatening members of the Antifa group in an effort clearly designed to provoke a physical altercation," and helping to form a circle around the men engaged in a fist fight. Kalbaugh Decl., ECF 54 at Ex. C.
Several police reports have also been made part of the record which provide a broader perspective of what various witnesses told the police and what police personally observed about the events on that day. Buchal Decl., ECF 52 at 151–178. Based on those reports, some members of Gibson's group acted aggressively toward the Antifa members by throwing projectiles and spraying pepper spray at Antifa members, and wielding batons. Id. ; Kalbaugh Decl., ECF 54 at Ex. C.
After reviewing police reports, viewing video evidence, and speaking with law enforcement, Defendant Deputy District Attorney Kalbaugh decided to issue criminal charges against Plaintiffs and four of their associates stemming from their conduct at Cider Riot on May 1, 2019. Kalbaugh Decl., ECF 54 at ¶ 4. To commence prosecution, Kalbaugh presented an affidavit of probable cause, an arrest warrant, a charging instrument, and a motion to seal to a judge pursuant to O.R.S. 133.110. Id. at ¶ 6. After reviewing the documents, the judge signed the arrest warrant and granted the government's motion to seal the affidavit and accompanying charging document. Id. at ¶ 7. Next, Kalbaugh presented evidence to a grand jury, which endorsed the indictments as true bills in accordance with O.R.S. 132.400. Id. at ¶¶ 8–9. Plaintiffs were subsequently arraigned on the indictments in accordance with O.R.S. 135.010. Id. at ¶ 11. After arraignment, Gibson filed a demurrer arguing that the facts set forth in his indictment were insufficient to sustain the charge against him. Buchal Decl., ECF 28 at Ex. 9. The argument was fully briefed and ultimately rejected by the state court. Id. at Ex. 43. Trial in the state court prosecution is currently scheduled for March 8, 2021. None of the Antifa members at Cider Riot on May 1, 2019 were charged with crimes. Lee Decl., ECF 7 at ¶ 23.
During an October 23, 2020 hearing on Plaintiff Gibson's motion to compel discovery in his state court criminal case, Plaintiffs’ counsel informed the presiding judge that he believed the conduct underlying Gibson's criminal charges was protected speech, and that the district attorney's office initiated the criminal...
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