Index Newspapers LLC v. U.S. Marshals Serv.

• Decision Date: 09 October 2020
• Docket Number: No. 20-35739,20-35739
• Citation: 977 F.3d 817
• Parties: INDEX NEWSPAPERS LLC, dba Portland Mercury; Doug Brown; Brian Conley ; Sam Gehrke; Mathieu Lewis-Rolland; Kat Mahoney; Sergio Olmos; John Rudoff; Alex Milan Tracy; Tuck Woodstock; Justin Yau, and those similarly situated, Plaintiffs-Appellees, v. UNITED STATES MARSHALS SERVICE; U.S. Department of Homeland Security, Defendants-Appellants, and City of Portland, a municipal corporation; John Does, 1-60; individual and supervisory officers of Portland Police Bureau and other agencies working in concert, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

977 F.3d 817

INDEX NEWSPAPERS LLC, dba Portland Mercury; Doug Brown; Brian Conley ; Sam Gehrke; Mathieu Lewis-Rolland; Kat Mahoney; Sergio Olmos; John Rudoff; Alex Milan Tracy; Tuck Woodstock; Justin Yau, and those similarly situated, Plaintiffs-Appellees,

v. UNITED STATES MARSHALS SERVICE; U.S. Department of Homeland Security, Defendants-Appellants,andCity of Portland, a municipal corporation; John Does, 1-60; individual and supervisory officers of Portland Police Bureau and other agencies working in concert, Defendants.

No. 20-35739

United States Court of Appeals, Ninth Circuit.

Filed October 9, 2020

ORDER

On May 25, 2020, George Floyd was killed by a Minneapolis police officer while being arrested. Bystanders on the sidewalk recorded videos of a police officer kneeling on Floyd's neck for several minutes while Floyd begged for his life. A video showing the last minutes of Floyd's life was circulated nationwide, and it ignited protests across the country in support of the Black Lives Matter movement.

This case arises out of the protests in Portland, Oregon. Most of the protests have been peaceful, but some have become violent. There have been incidents of vandalism, destruction of property, looting, arson, and assault, particularly late at night. Since the protests began, state and local authorities in Oregon have actively monitored the protests and engaged in crowd control measures. Plaintiffs—a newspaper organization and individual journalists, photojournalists, and legal observers who have attended the protests to serve as reporters and recorders—filed a class-action complaint against the City of Portland on June 28, 2020.

The complaint alleged that the City's response to the protests violated their rights under the First and Fourth Amendments to the United States Constitution, and Article I, Sections 8 and 26 of the Oregon Constitution. Specifically, plaintiffs asserted that although they had not participated in the protests, the local authorities shot them with less-lethal munitions (pepper balls, impact munitions, paint markers, and tear gas canisters), and pepper sprayed, shoved, and otherwise prevented them from recording and reporting on the protests and on law enforcement's response to the same. Four days after the complaint was filed, on July 2, the district court entered a temporary restraining order (TRO) against the City regulating the local authorities’ use of crowd-control tactics against journalists and legal observers. On July 16, the City and plaintiffs stipulated to a preliminary injunction that was largely identical to the TRO.

Many of the protests in Portland have centered around the Mark O. Hatfield Federal Courthouse. In response to the threat to federal property, the Department of Homeland Security (DHS) and the United States Marshals Service (USMS) (collectively, the Federal Defendants) deployed federal law enforcement agents to Portland. It appears undisputed that the intensity of the protests escalated after the Federal Defendants arrived.

Plaintiffs filed a second amended complaint on July 17 joining as defendants DHS and USMS. This complaint alleged that the Federal Defendants "intentionally targeted and used physical force and other forms of intimidation against journalists and authorized legal observers for the purpose of preventing or deterring them from observing and reporting on unreasonably aggressive treatment of lawful protestors." The district court entered a TRO against the Federal Defendants on July 23.

On July 29, 2020, DHS and the State of Oregon reached an agreement regarding their respective crowd control efforts. The agreement is not part of the record, but the district court described it as generally providing that the City would take the lead in responding to the protests. The court's findings also made clear that the agreement contains numerous caveats and is terminable at any time, without notice. Though the agreement was to take effect on July 29, the district court observed that the record includes video clips that purport to show federal agents firing tear gas and less-lethal munitions at journalists standing on SW Main Street on July 29 and into the morning of July 30. The district court found that "there was no one nearby on the street but numerous federal enforcement officers and six journalists when the munitions were deployed."

The Federal Defendants assert that the Oregon State Police are no longer enforcing crowd control in Portland, and that the Portland Police are currently filling that role instead. But it is clear that the federal agents have remained in Portland, and Acting Secretary of DHS, Chad Wolf, stated that "no determination of timetables for reduction in protective forces has yet been made."¹

On August 10, plaintiffs filed a motion for a preliminary injunction against the Federal Defendants. After briefing was complete, the parties stipulated that the court could base its decision on the record and the parties’ arguments without holding an evidentiary hearing. The record comprises dozens of declarations, many of which include photographs and links to video files. The district court issued a detailed, sixty-one page order granting plaintiffs’ motion on August 20 and entered a preliminary injunction with terms largely identical to the terms of the July 23 TRO.

The district court's order began by observing that the Constitution reserves the general police power to the states, and pursuant to the general police power, local officials have the authority to issue general dispersal orders on the public streets and sidewalks. The court noted that the City had separately stipulated that it would not require members of the press or legal observers to disperse, and explained that the Federal Defendants did not assert the authority to issue general dispersal orders to clear city streets and that the statutory authority the Federal Defendants relied upon did not so provide. The court's order recounts the Federal Defendants’ position, which was that federal officers had been dispatched to Portland with the stated mission to protect federal property and personnel. Nevertheless, the district court was confronted with compelling photographic evidence showing that federal officers "routinely have left federal property and engaged in crowd control and other enforcement on the streets, sidewalks and parks of the City of Portland." The court's order detailed several of the dozens of declarations, photos, and video clips introduced into evidence to support plaintiffs’ contention that at least some of the federal officers had intentionally targeted journalists and legal observers in retaliation for their news-reporting efforts.

Having explained that local officials had separately stipulated they were not requiring journalists and legal observers to disperse, the preliminary injunction entered to address the Federal Defendants’ conduct states that journalists and legal observers "shall not be subject to arrest for not dispersing following the issuance of an order to disperse." The order states that journalists and legal observers may not impede, block, or otherwise physically interfere with the lawful activities of the Federal Defendants, and recognizes that the Federal Defendants are free to issue "otherwise lawful crowd-dispersal orders for a variety of lawful reasons;" i.e. crowd-dispersal orders not issued to clear city streets and sidewalks. The preliminary injunction also requires that journalists and observers "must comply with all laws other than general dispersal orders."

Because the Federal Defendants argued that some protestors had masqueraded as members of the press by wearing press badges or clothing identifying them as members of the press corps, the order provides that it does not protect unlawful conduct and that anyone, even a person who appears to be a journalist, is subject to arrest for engaging in such conduct. Finally, the injunction sets out a number of indicia to assist the Federal Defendants in distinguishing between journalists, legal observers, and protesters. These indicia include visual identifiers such as press passes, people standing off to the side of protests not engaging in protest activities, people not intermixed with protest activities, and people carrying professional-grade photographic equipment. The order requires that the Federal Defendants’ uniforms bear marks allowing federal officers to be identified. The injunction also provides that if a journalist or legal observer is incidentally exposed to crowd-control devices after remaining in the area where such devices are deployed to enforce a lawful dispersal order, the Federal Defendants will not be liable for violating the injunction.

On August 25, the district court denied the Federal Defendants’ motion for a stay of the preliminary injunction pending appeal, principally concluding that the Federal Defendants had not shown a sufficient likelihood that they would suffer irreparable injury absent a stay. On appeal, a divided three-judge motions panel issued a brief, two-page order on August 27 granting the Federal Defendants’ motion for an administrative stay of the injunction pending resolution of their emergency motion for a stay pending appeal.

Having considered the parties’ complete briefing, and after hearing oral argument, we conclude that the Federal Defendants have not shown a strong likelihood of success on the merits. The Federal Defendants also failed to demonstrate they are likely to suffer irreparable injury if the preliminary injunction is not stayed pending appeal. Accordingly, we deny the Federal Defendants’ emergency motion.

I

"A stay is not a matter of right, even if irreparable injury might otherwise result to the appellant." Virginian Ry. Co. v. United States , 272 U.S. 658, 672, 47 S.Ct. 222, 71 L.Ed. 463 (1926). "The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion." Nken v. Holder , 556 U.S....