Index Newspapers LLC v. United States Marshals Service
To be reported at 9th Cir. F.3d (2020)
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Rule of Law:
A party seeking a stay of a preliminary injunction pending appeal must demonstrate a strong likelihood of success on the merits and a likelihood of irreparable injury absent a stay, while also considering the injury to other parties and where the public interest lies. The First Amendment protects the right of the press and public to access public fora to observe and record law enforcement activity during protests, which right can only be overcome by a narrowly tailored restriction essential to preserve higher governmental interests.
Facts:
- On May 25, 2020, a Minneapolis police officer killed George Floyd during an arrest, sparking nationwide protests supporting the Black Lives Matter movement.
- In Portland, Oregon, many of these protests were peaceful, but some escalated into violence, including vandalism, destruction of property, looting, arson, and assault, particularly late at night, with rioters attacking the Mark O. Hatfield Federal Courthouse.
- Federal law enforcement agents from the Department of Homeland Security (DHS) and the United States Marshals Service (USMS) were deployed to Portland in response to threats to federal property and personnel.
- The intensity of the protests escalated after the Federal Defendants arrived in Portland, and 120 federal officers sustained injuries.
- Federal officers routinely left federal property to engage in crowd control and other enforcement on Portland's streets, sidewalks, and parks.
- Some individuals, including those wearing 'press' identifying marks, engaged in violent and unlawful conduct, such as attempting to breach the courthouse fence or assaulting federal officers.
- Despite this, numerous other incidents occurred where federal officers intentionally targeted identifiable journalists and legal observers, who were standing away from protestors and not engaged in unlawful activity, with less-lethal munitions, pepper spray, and physical force.
- For example, journalist Brian Conley, wearing a 'PRESS' vest and helmet, was pepper-sprayed at point-blank range by a federal officer while filming the officers spraying peaceful protestors.
Procedural Posture:
- On June 28, 2020, Index Newspapers LLC and individual journalists/legal observers (Plaintiffs) filed a class-action complaint against the City of Portland (City) in federal district court, alleging First and Fourth Amendment violations by local authorities.
- On July 2, 2020, 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, 2020, the City and Plaintiffs stipulated to a preliminary injunction against the City, largely identical to the TRO.
- On July 17, 2020, Plaintiffs filed a second amended complaint in the district court, joining the Department of Homeland Security (DHS) and the United States Marshals Service (USMS) (Federal Defendants) as defendants.
- On July 23, 2020, the district court entered a temporary restraining order against the Federal Defendants.
- On August 10, 2020, Plaintiffs filed a motion for a preliminary injunction against the Federal Defendants in the district court.
- On August 20, 2020, the district court issued a preliminary injunction against the Federal Defendants.
- On August 25, 2020, the district court denied the Federal Defendants' motion for a stay of the preliminary injunction pending appeal.
- On August 27, 2020, the Federal Defendants (appellants) filed an emergency motion for a stay pending appeal with the Ninth Circuit Court of Appeals, which a motions panel granted administratively pending full consideration.
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Issue:
Does a district court abuse its discretion by refusing to stay a preliminary injunction that restricts federal law enforcement's crowd control tactics against journalists and legal observers during public protests, where the injunction exempts them from general dispersal orders and requires federal officers to use identifying markings?
Opinions:
Majority - Rawlinson and Christen, Circuit Judges
No, the district court did not abuse its discretion by refusing to stay the preliminary injunction because the Federal Defendants failed to show a strong likelihood of success on the merits or that they would suffer irreparable injury absent a stay, and the other Nken factors also weigh against a stay. The court found that Plaintiffs demonstrated a non-speculative risk of future injury and an ongoing chilling of their First Amendment rights, supported by powerful evidence of the Federal Defendants’ ongoing, sustained pattern of misconduct and numerous injuries. This evidence, including multiple injuries to some individuals, sufficiently distinguished the case from City of Los Angeles v. Lyons. The district court's factual findings regarding Plaintiffs' standing and the likelihood of future harm were amply supported and not clearly erroneous. Regarding the First Amendment retaliation claim, the Federal Defendants did not make a strong showing that they would prevail. The district court's extensive factual findings detailed dozens of instances where identifiable journalists and legal observers were targeted with force while not engaged in unlawful activity. This robust evidence strongly supported the conclusion that the exercise of First Amendment rights was a 'substantial or motivating factor' in the Federal Defendants' conduct, an assessment corroborated by expert testimony from Gil Kerlikowske. On the First Amendment right-of-access claim, the Federal Defendants also failed to show a strong likelihood of success. Applying the Press-Enterprise II test, the court concluded that Portland's streets and sidewalks have historically been open to the public, and public access, especially by the press, plays a significant positive role in democracy and government accountability. The injunction does not grant special rights to the press but recognizes their right of access as coextensive with the general public. The Federal Defendants did not demonstrate an 'overriding interest' that required blanket dispersal or that their actions were 'narrowly tailored,' especially given the City of Portland's ability to operate under a similarly worded injunction. The injunction also expressly permits arrests for crimes and prohibits journalists from impeding lawful federal activities. Furthermore, the Federal Defendants failed to demonstrate likely irreparable injury if the stay was denied. The injunction explicitly allows arrests for crimes, prohibits interference by journalists, states federal officers are not liable for incidental exposure to crowd control devices during lawful dispersal, and was deemed workable by the City and expert testimony. Finally, the court found that a stay would substantially injure the City and the Plaintiffs (due to the chilling of constitutional rights, which constitutes irreparable injury), and the public interest in upholding First Amendment principles and preventing constitutional violations outweighed the Federal Defendants' asserted harms.
Dissenting - O'Scannlain, Circuit Judge
Yes, the district court abused its discretion by refusing to stay the preliminary injunction because the Federal Defendants are likely to succeed on the merits, and the other Nken factors also favor a stay. The First Amendment right of public access, as articulated in Press-Enterprise II, has never been deemed to apply to riot control and crowd dispersal in a public street, which are spontaneous responses to criminal activity, not governmental 'proceedings.' The district court failed to evaluate the history of public access to law enforcement operations during riots, only to public streets. Additionally, the injunction unlawfully grants self-proclaimed journalists and 'legal observers' a special privilege to disregard dispersal orders that the general public must obey, which violates the principle that the press does not have special access rights beyond the public. Federal officers should not be bound by municipal policies regarding crowd dispersal when carrying out their statutory duty to protect federal property and personnel, as 40 U.S.C. § 1315 likely provides authority for actions beyond federal property when necessary for protection. The district court's narrow tailoring analysis failed to adequately account for the government's compelling interest in defending federal property and personnel, especially considering the chaotic nature of the protests and evidence of individuals falsely purporting to be press engaging in violent acts. Even if a retaliation claim were viable, it cannot justify the injunction. The general dispersal orders were not alleged or found to be retaliatory, making the injunction overbroad as it exempts plaintiffs from these non-retaliatory orders. Such relief is far broader than necessary to address the alleged injuries. The Federal Defendants would suffer irreparable harm because the injunction is unworkable. It forces federal officers to make difficult, snap judgments to distinguish journalists and legal observers amidst violent riots, particularly when some individuals use 'press' identification to commit crimes. Effectuating individual arrests is not always as feasible or safe as utilizing general crowd control tactics during a riot that threatens federal property and personnel. The harms to the government are serious, whereas any harm to plaintiffs from a stay is minimal if they have no right to remain in the street after a lawful dispersal order. The public interest in maintaining order and public safety favors a stay of an overbroad injunction that unduly interferes with law enforcement operations while offering little protection for plaintiffs' actual constitutional rights.
Analysis:
This Ninth Circuit decision underscores the robust First Amendment protection afforded to the press and legal observers in documenting public protests and law enforcement's response, even in volatile environments. By denying the stay, the court affirmed the district court's findings that federal agents likely engaged in retaliation and overstepped their authority by issuing general dispersal orders off federal property without narrow tailoring. This case sets a high bar for government entities to justify restrictions on journalistic access, particularly when less restrictive means are available and local authorities have demonstrated the feasibility of accommodating such access. The ruling reinforces the role of the press as a public surrogate in monitoring government actions and suggests a potentially limited scope for federal law enforcement's crowd control powers on local streets.
