Index Newspapers LLC v. United States Marshals Service ( 2020 )

FILED
FOR PUBLICATION
OCT 9 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INDEX NEWSPAPERS LLC, DBA No. 20-35739
Portland Mercury; DOUG BROWN;
BRIAN CONLEY; SAM GEHRKE; D.C. No. 3:20-cv-01035-SI
MATHIEU LEWIS-ROLLAND; KAT District of Oregon,
MAHONEY; SERGIO OLMOS; JOHN Portland
RUDOFF; ALEX MILAN TRACY;
TUCK WOODSTOCK; JUSTIN YAU,
and those similarly situated, ORDER
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.
Before: O’SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges.
Order by Judges RAWLINSON and CHRISTEN, Dissent by Judge O’SCANNLAIN
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
2
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
3
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
4
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
1
On July 28, plaintiffs filed a motion for a finding of contempt and
imposition of sanctions against the Federal Defendants, alleging several violations
of the July 23 TRO. The district court has not yet ruled on the motion, but noted
“serious concerns” that the Federal Defendants had not complied with the July 23
TRO, and that some of the alleged misconduct occurred after the Federal
Defendants reached the agreement with Governor Brown.
5
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
6
“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.
7
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
(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.
418, 433–434 (2009).
8
To decide whether to grant the Federal Defendants’ motion for a stay
pending appeal, our case law requires that we consider: (1) whether the Federal
Defendants have made a strong showing that they are likely to succeed on the
merits; (2) whether the Federal Defendants will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies. Id. at 426.
To decide whether the Federal Defendants have demonstrated a likelihood
that they will succeed on the merits of their claims, we review the district court’s
findings of fact for clear error, its legal conclusions de novo, and the injunction’s
scope for abuse of discretion. Armstrong v. Brown, 768 F.3d 975, 979 (9th Cir.
2014); Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998) (“A district court’s
factual findings are entitled to deference unless they are clearly erroneous.”).
II
The bar for obtaining a stay of a preliminary injunction is higher than the
Winter standard for obtaining injunctive relief. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). We have explained that the first two Nken factors are
the most critical, and that the second two factors are only considered if the first two
factors are satisfied. Nken, 556 U.S. at 434–35; Al Otro Lado v. Wolf, 952 F.3d
999, 1007 (9th Cir. 2020). The Federal Defendants must show a strong likelihood
9
of success on the merits. Doe #1 v. Trump, 957 F.3d 1050, 1062 (9th Cir. 2020).
And “simply showing some possibility of irreparable injury fails to satisfy the
second factor.” Nken, 556 U.S. at 434–35 (internal citations and quotations
omitted). The demanding standard applicable here requires that the Federal
Defendants show “that irreparable injury is likely to occur during the period before
the appeal is decided.” Doe #1, 957 F.3d at 1059.
A
The Federal Defendants argue they are likely to succeed on the merits for
three reasons. First, they argue plaintiffs lack standing to pursue injunctive relief
on their First Amendment retaliation claim because plaintiffs have not shown a
sufficient likelihood that they will be deprived of their constitutional rights if the
Federal Defendants’ crowd control measures are not subject to the district court’s
preliminary injunction pending appeal. Second, they argue they will succeed on
the merits of plaintiffs’ retaliation claim because there is no evidence to support the
district court’s conclusion that plaintiffs’ protected activity was a substantial or
motivating factor that prompted the Federal Defendants’ actions to disperse them.
Third, the Federal Defendants argue they are likely to succeed on plaintiffs’ First
Amendment right-of-access claim because the press and legal observers have no
First Amendment right to access the streets and sidewalks where the protests are
10
staged if the Federal Defendants order them to disperse. For these three reasons,
the Federal Defendants argue they are entitled to a stay of the preliminary
injunction pending appeal.2
1
Three elements make up the “irredicuble constitutional minimum of
standing”: (1) injury in fact; (2) a causal connection between the injury and the
conduct complained of; and (3) a likelihood that the injury will be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992).
Here, only the “injury in fact” element is disputed.
“A plaintiff threatened with future injury has standing to sue ‘if the
threatened injury is certainly impending, or there is a substantial risk the harm will
occur.’” In re Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir. 2018) (quoting
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). A plaintiff may not
rely “on mere conjecture about possible governmental actions” to demonstrate
injury, and must instead present “concrete evidence to substantiate their fears.”
2
Our case law has frequently observed the importance of the press as
surrogates for the public, but we have not considered whether legal observers serve
the same function. Neither the parties nor the district court focused on whether the
legal observers’ right of access differs from the one enjoyed by the press. Because
we do not need to decide this question in order to rule on the emergency motion for
a stay, we leave it for another day.
11
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 420 (2013). “Past exposure to illegal
conduct does not in itself show a present case or controversy regarding injunctive
relief . . . if unaccompanied by any continuing, present adverse effects.” City of
Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O’Shea v. Littleton, 414
U.S. 488, 495–96 (1974)).
The Federal Defendants’ standing argument relies primarily on Lyons, a case
involving a claim for injunctive relief asserted by a man who had been subjected to
a chokehold by police officers. Id. at 102. In Lyons, the Court explained that to
establish standing, the plaintiff was required to “credibly allege that he faced a
realistic threat from the future application of the City’s [chokehold] policy.” Id. at
106 n.7. Because Lyons had not been subjected to a second chokehold in the time
before he filed his federal complaint, the Supreme Court concluded that his
assertion that he might face such abuse in the future was premised on a speculative
sequence of events. Id. at 105–06. The Supreme Court explained that Lyons did
not have standing to pursue equitable relief barring the use of chokeholds because
“[p]ast exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” Id. at 102 (emphasis added) (citation omitted).
12
Here, plaintiffs’ injuries are different for several reasons. First, their risk of
future injury is not speculative. Plaintiffs introduced powerful evidence of the
Federal Defendants’ ongoing, sustained pattern of conduct that resulted in
numerous injuries to members of the press between the date the complaint was
filed and the date the district court entered its preliminary injunction. The district
court’s preliminary injunction included twelve pages solely dedicated to factual
findings that describe in detail dozens of instances in which the Federal Defendants
beat plaintiffs with batons, shot them with impact munitions, and pepper sprayed
them. The court’s findings were supported by nineteen declarations and video and
photographic evidence. The Federal Defendants do not argue that any of the
district court’s findings are clearly erroneous, and we conclude the findings are
amply supported.
As of the time the preliminary injunction was entered, the district court
found that the Federal Defendants had engaged in a pattern of conduct that had
persisted for weeks and was ongoing. After reviewing plaintiffs’ declarations,
photos, and video clips, the district court found that many victims had been
standing on public streets, sidewalks, and parks, well away from protestors, and
were not engaged in unlawful activity when they were shot, tear gassed, shoved, or
pepper sprayed by the Federal Defendants. Unlike Lyons, the district court found
13
that some journalists and legal observers monitoring the protests had been injured
by the Federal Defendants more than once. The district court’s findings are
compelling because “the possibility of recurring injury ceases to be speculative
when actual repeated incidents are documented.” Thomas v. Cnty. of Los Angeles,
978 F.3d 504, 507 (9th Cir. 1992) (internal quotation marks omitted).
The nature of plaintiffs’ injuries also sharply differs from the substantive
due process injury asserted in Lyons. Plaintiffs allege that the Federal Defendants’
crowd-control measures have “chilled” the exercise of their First Amendment
rights, and that this First Amendment injury is ongoing. A chilling of First
Amendment rights can constitute a cognizable injury, so long as the chilling effect
is not “based on a fear of future injury that itself [is] too speculative to confer
standing.” Munns v. Kerry, 782 F.3d 402, 410 (9th Cir. 2015) (citing Clapper, 568
U.S. at 417–18); Libertarian Party of L.A. Cty. v. Bowen, 709 F.3d 867, 870 (9th
Cir. 2013) (“[A]s the Supreme Court has recognized, a chilling of the exercise of
First Amendment rights is, itself, a constitutionally sufficient injury.”).
The district court agreed that the Federal Defendants’ targeting of the
plaintiffs chilled their First Amendment rights, and after analyzing the factors
prescribed by Furgatch, the court concluded that the Federal Defendants’ conduct
14
was likely to continue.3 Fed. Election Comm’n v. Furgatch, 869 F.2d 1256, 1263
n.5 (9th Cir. 1989). The district court issued a lengthy and detailed order and the
Federal Defendants do not challenge its factual findings. On this record, we
conclude the Federal Defendants have not made a strong showing that their
standing argument is likely to succeed, and have not shown that the district court
abused its discretion by entering a preliminary injunction. This cuts against the
emergency motion for a stay pending appeal.
2
We also conclude the Federal Defendants have not made the strong showing
required by Nken that they are likely to succeed on the merits of plaintiffs’ First
Amendment retaliation claim. For this claim, plaintiffs were required to show that
they were engaged in a constitutionally protected activity, the Federal Defendants’
actions would chill a person of ordinary firmness from continuing to engage in the
protected activity, and the protected activity was a substantial or motivating factor
3
Furgatch instructs courts to consider five factors when determining
whether conduct is likely to occur in the future: (1) the degree of scienter involved;
(2) the isolated or recurrent nature of the infraction; (3) the defendant’s recognition
of the wrongful nature of his conduct; (4) the extent to which the defendant’s
professional and personal characteristics might enable or tempt him to commit
future violations; and (5) the sincerity of any assurances against future violations.
Fed. Election Comm’n v. Furgatch, 869 F.2d 1256, 1263 n.5 (9th Cir. 1989). The
Federal Defendants do not argue that the district court misapplied any of these
factors, and we see no error.
15
in the Federal Defendants’ conduct. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d
755, 770 (9th Cir. 2006). The Federal Defendants do not contest the first or second
elements of the retaliation claim, nor does there appear to be a good faith basis for
doing so.4
The Federal Defendants only argue that they are likely to succeed on the
merits of plaintiffs’ retaliation claim because “plaintiffs have not shown their First
Amendment activity was a ‘substantial or motivating factor’ in the government’s
conduct.” This element of a First Amendment retaliation claim may be met with
either direct or circumstantial evidence, and we have said that it involves questions
of fact that normally should be left for trial. Ulrich v. City & Cty. of San
4
As to the first element, plaintiffs were clearly observing and recording
law enforcement activity in public, as the district court found. Fordyce v. City of
Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing plaintiff was exercising his
“First Amendment right to film matters of public interest” when filming activities
of police officers during a public protest march). The First, Third, Fifth, Seventh
and Eleventh Circuits have all recognized the public’s First Amendment right to
observe and film police activities in public. See Fields v. City of Philadelphia, 862
F.3d 353, 359–60 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 688
(5th Cir. 2017); Gericke v. Begin, 753 F.3d 1, 7 (1st Cir. 2014); ACLU of Illinois v.
Alvarez, 679 F.3d 583, 600 (7th Cir. 2012); Smith v. City of Cumming, 212 F.3d
1332, 1333 (11th Cir. 2000). As to the second element of the retaliation claim, the
Federal Defendants do not challenge the district court’s finding that being shot
with less-lethal munitions like pepper balls, tear gas, and paint-marking munitions,
being pepper sprayed at close range, or being shoved by a law enforcement officer
would chill a person of ordinary firmness from continuing to exercise their First
Amendment rights.
16
Francisco, 308 F.3d 968, 979 (9th Cir. 2002). The district court’s extensive and
thorough factual findings provide robust support for its conclusion that plaintiffs’
exercise of their First Amendment rights was a substantial or motivating factor in
the Federal Defendants’ conduct. To highlight just four of the district court’s
findings:
• On July 29, plaintiff Brian Conley was wearing a photographer’s vest
marked “PRESS,” a helmet marked “PRESS,” and was carrying a
large camera with an attached LED light and telephoto lens. After
reviewing video footage submitted by plaintiffs, the district court
found that Conley was filming a line of federal officers moving down
the street pepper spraying peaceful protesters—including spraying a
woman in the face at point blank range who was on her knees in the
middle of the street with her hands up—when, without warning, a
federal officer pepper sprayed Conley at point blank range.
• On the night of July 19, Jungho Kim, a photojournalist, was wearing a
neon yellow vest marked “PRESS” and a white helmet marked
“PRESS” on the front and rear. The district court found that Kim was
standing alone, about 30 feet from federal agents, taking photographs,
when suddenly and without warning, Kim was shot in the chest, just
below his heart with a less-lethal munition. A photograph submitted
with Kim’s declaration shows that he was shot where the word
“PRESS” was printed on his vest.
• On the night of July 26, Daniel Hollis, a videographer, was wearing a
press pass and a helmet marked “PRESS” in bright orange tape, and
carrying a large, professional video-recording camera. Hollis was
filming a group of federal agents massed outside the federal
courthouse. “Almost immediately,” the federal agents shot at him,
striking him just left of his groin. He turned and began to run away,
but was shot again in the lower back.
17
• On July 27, Amy Katz, a photojournalist, was wearing a hat and tank
top marked “PRESS” and carrying a camera with a telephoto lens
while covering the protests. Katz was photographing a federal agent
who pushed a man down a flight of stairs while arresting him.
Another federal agent physically blocked Katz and tried to stop her
from photographing the arrest. Katz stepped to the side to continue
photographing the arrest, and the federal agent physically shoved her
away.
Plaintiffs’ expert witness, Gil Kerlikowske, provided a declaration
supporting the district court’s conclusion that these incidents were retaliatory in
nature and did not reflect appropriate crowd-control tactics.5 Kerlikowske opined
that defending the federal courthouse in Portland mainly involves establishing a
perimeter around the building, and that there is no need to target or disperse
journalists. According to Kerlikowske, in crowd-control situations it is
inappropriate to shoot non-lethal munitions at a person’s head, chest, or back.
Kerlikowske also opined that pepper balls and tear gas canisters should not be
aimed at people at all, as those munitions are intended to be shot at the ground
5
The district court found Kerlikowske to be a “qualified, credible, and
persuasive expert witness.” Kerlikowske is a former Commissioner of U.S.
Customs and Border Protection, served as the Chief of Police in Seattle,
Washington for 10 years, and as the Police Commissioner in Buffalo, New York.
The district court recognized Kerlikowske’s “substantial training and experience
with crowd control and civil unrest in the context of protests [and] use of force in
that context,” and observed that Kerlikowske has “led and orchestrated the policing
of hundreds of large and potentially volatile protests, many of which were
considerably larger than the recent protests in Portland.”
18
where they explode and release their contents into the air. In his view, virtually all
of the journalists’ injuries were caused by the improper use of force, including
shooting people who were not engaged in threatening acts, and the Federal
Defendants’ misuse of crowd-control munitions.
All told, the district court’s findings describe at least forty-five instances
similar to the four highlighted here, and all of them occurred between July 15 and
July 30 while plaintiffs were observing and recording the Black Lives Matter
protests in downtown Portland. The forty-five instances were “just several
examples selected” by the district court “from the extensive evidence provided by
Plaintiffs.” The court was clear that “[t]here are more.” Plaintiffs submitted a total
of nineteen declarations with their motions for a temporary restraining order and
preliminary injunction. Many of the events described by the declarations were
corroborated by accompanying photographs and video clips.
Because the district court’s findings include so many instances in which
plaintiffs were standing nowhere near protesters while photographing and
observing the Federal Defendants’ actions, they provide exceptionally strong
evidentiary support for the district court’s finding that some of the Federal
Defendants were motivated to target journalists in retaliation for plaintiffs’ exercise
of their First Amendment rights. Indeed, in response to this shocking pattern of
19
misconduct, the dissent contemplates that plaintiffs’ allegations may well support
Bivens actions and claims of excessive force against individual federal agents.6
The evidence that at least some of the Federal Defendants’ conduct was
retaliatory supports the district court’s conclusion that the plaintiffs are likely to
succeed on the merits of their retaliation claim. On this record, we do not hesitate
to conclude that the Federal Defendants have not made the required strong showing
that they are likely to prevail on the merits of the claim. This evidence of
retaliatory conduct also cuts against the emergency motion for a stay pending
appeal.7
3
The Federal Defendants have not shown that they are likely to succeed on
the merits of plaintiffs’ First Amendment right-of-access claim. To begin, the
Federal Defendants reframe the issue and mischaracterize the preliminary
injunction as recognizing a special, across-the-board exemption for members of the
press and legal observers. But the threshold issue presented is whether plaintiffs
6
A Bivens claim requires a showing of purposeful misconduct. See
Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009).
7
The dissent argues that the retaliation claim does not justify enjoining
the Federal Defendants from issuing dispersal orders because the dispersal orders
themselves are not retaliatory. This argument overlooks that the preliminary
injunction expressly states the Federal Defendants are not precluded from issuing
lawful crowd-dispersal orders for a variety of reasons.
20
have a constitutionally protected right to access the public forum where the protests
are staged, and as the district court observed, the preliminary injunction does not
afford plaintiffs any special rights beyond those enjoyed by the general public
pursuant to the First Amendment.
In Press-Enterprise II, the Supreme Court articulated a two-part test to
determine whether a member of the public has a First Amendment right to access a
particular place and process. Press-Ent. Co. v. Superior Court of Cal., 478 U.S. 1(1986). First, a court must ask “whether the place and process has historically been
open to the press and general public” and “whether public access plays a
significant positive role in the functioning of the particular process in question.”
Id. at 8. If a qualified right of access exists, the government can overcome that
right and bar the public by showing that it has “an overriding interest based on
findings that closure is essential to preserve higher values and is narrowly tailored
to serve that interest.” Id. at 9.
The Federal Defendants argue that the press is not entitled to any special
First Amendment right of access to observe and record the protests taking place on
Portland’s streets and sidewalks. But the Press-Enterprise II test is not dependent
upon plaintiffs’ occupation, and plaintiffs do not argue that it affords them a
special right of access not shared by the general public. We agree with plaintiffs
21
that the press is entitled to a right of access at least coextensive with the right
enjoyed by the public at large; the press is certainly not disfavored. See Pell v.
Procunier, 417 U.S. 817, 833–34 (1974). Indeed, the Supreme Court has
repeatedly observed that excluding the media from public fora can have
particularly deleterious effects on the public interest, given journalists’ role as
“surrogates for the public,” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
572–73 (1980); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975) (“Without
the information provided by the press most of us and many of our representatives
would be unable to vote intelligently or to register opinions on the administration
of government generally.”). Recognizing the outsized effect of denying access to
the press, we have observed that the Supreme Court’s Press-Enterprise II test
“balances the vital public interest in preserving the media’s ability to monitor
government activities against the government’s need to impose restrictions if
22
necessary for safety or other legitimate reasons.” Leigh v. Salazar, 677 F.3d 892,
900 (9th Cir. 2012).8
The Federal Defendants do not contest that the place—Portland’s streets and
sidewalks—and the process—public protests and law enforcement’s response to
them—have historically been open to the public. See Hague v. Comm. for Indus.
Org., 307 U.S. 496, 515 (1939) (“Wherever the title of streets and parks may rest,
they have immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.”).
Public demonstrations and protests are clearly protected by the First
Amendment, and a protest not open to the press and general public is not a public
demonstration. See, e.g., Snyder v. Phelps, 562 U.S. 443, (2011) (reiterating that
“speech on matters of public concern . . . is at the heart of the First Amendment’s
protection” (internal quotation marks omitted)); City of Houston v. Hill, 482 U.S.
8The Press-Enterprise II test emerged from a line of cases involving
access to criminal judicial proceedings, but by its terms the test is not limited to
any particular type of plaintiff or any particular type of forum. The Ninth Circuit
and several other courts have applied Press-Enterprise II’s analytical framework to
other settings, including planning commission meetings, student disciplinary
records, state environmental agency records, settlement records, transcripts of state
utility commission meetings, resumes of candidates for school superintendents, and
legislator’s telephone records, among others. See Leigh, 677 F.3d at 899 and n.5
(collecting cases).
23
451, 472 (1987) (“[T]he First Amendment recognizes, wisely we think, that a
certain amount of expressive disorder not only is inevitable in a society committed
to individual freedom, but must itself be protected if that freedom would
survive.”); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–12 (1982)
(holding that a boycott of local businesses “clearly involved constitutionally
protected activity” including “speech, assembly, association, and petition”);
Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996) (“Activities such as
demonstrations, protest marches, and picketing are clearly protected by the First
Amendment.”).
Nor do the Federal Defendants deny that public access plays a significant
positive role in the functioning of our democracy. Just as streets and sidewalks
historically have been recognized as being open to the public, the press has long
been understood to play a vitally important role in holding the government
accountable.9 Indeed, the public became aware of the circumstances surrounding
George Floyd’s death because citizens standing on a sidewalk exercised their First
9
Leigh, 677 F.3d at 897 (“A popular Government, without popular
information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy;
or, perhaps both.” (quoting 9 WRITINGS OF JAMES MADISON 103 (G. Hunt ed.
1910))).
24
Amendment rights and filmed a police officer kneeling on Floyd’s neck until he
died.
“The free press is the guardian of the public interest,” and “[o]pen
government has been a hallmark of our democracy since our nation’s founding.”
Leigh, 677 F.3d at 897, 900. “In a society in which each individual has but limited
time and resources with which to observe at first hand the operations of his
government, he relies necessarily upon the press to bring to him in convenient
form the facts of those operations.” Cox Broad. Corp., 420 U.S. at 490–91.
Transparency assures that the government’s response is carried out “fairly to all
concerned,” and public access discourages “misconduct of participants, and
decisions based on secret bias or partiality.” Richmond Newspapers, 448 U.S. at
569. Given our deeply entrenched recognition of the public’s right to access city
streets and sidewalks, circuit precedent establishing the right to film public police
activity, and the broadly accepted principle that the public’s interest is served by
the role the press plays, the district court had strong support for its conclusion that
plaintiffs demonstrated a likelihood of success on the merits of their First
Amendment right-of-access claim.
We are mindful that the Federal Defendants could have overcome plaintiffs’
right of access by demonstrating “an overriding interest based on findings that
25
closure is essential to preserve higher values and is narrowly tailored to serve that
interest.” Press-Enterprise II, 478 U.S. at 9. There is no question the Federal
Defendants have a strong interest in protecting federal property and persons on
federal property, and we do not doubt the district court’s findings related to the
difficult and dangerous situation posed by protesters who engaged in violent and
criminal conduct. But Federal Defendants argue that dispersing the press,
regardless of whether they are on federal property, is essential to protecting the
government’s interests. They further argue that their dispersal orders cannot be
tailored in any way and that the district court erred by granting a special exemption
from crowd-control measures to members of the press and legal observers. We
disagree.
First, the district court did not grant a special exemption to the press; it
found that dispersing the press was not essential to protecting the government’s
interests. The district court was faced with a mountain of evidence that the Federal
Defendants routinely left federal property to engage in crowd control. The
injunction recognizes that the Federal Defendants did not claim the authority to
issue general dispersal orders on Portland’s streets and sidewalks, that local law
enforcement retains that authority pursuant to the general police power, and that
Portland’s law enforcement agreed not to require journalists and legal observers to
26
disperse. The preliminary injunction does nothing to hinder Federal Defendants
from arresting individuals engaged in violent or criminal acts.
The Federal Defendants’ argument that the injunction grants a broad special
exemption to the plaintiffs hinges on the implied assumption that they have the
authority to take action to disperse members of the public who are neither on
federal property nor threatening it. At oral argument before our court, the Federal
Defendants declined to provide their view of the scope of their authority to take
such action, but the district court’s order makes clear that, in the district court, the
Federal Defendants did not argue they have “the legal authority to declare a riot
and order persons to disperse from the city streets in Portland.” We need not
precisely define the limits of the Federal Defendants’ authority in order to resolve
their emergency motion, but it cannot be debated that the United States
Constitution reserves the general police power to the states, U.S. CONST. amend. X;
United States v. Morrison, 529 U.S. 598, 618 (2000), and the district court found
that the Federal Defendants “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 district court did not question that the provision relied upon by the
Federal Defendants, 40 U.S.C. § 1315, grants them the authority to protect federal
27
property, including issuing and enforcing dispersal orders against people on or
threatening federal property. Paragraph six of the injunction expressly recognizes
that the Federal Defendants may issue “lawful crowd-dispersal orders for a variety
of lawful reasons.” In footnoting that the authority provided by § 1315 does not
allow the Federal Defendants to declare an unlawful assembly on the city’s streets
or to disperse people from city streets, the court carefully distinguished the Federal
Defendants’ ability to disperse people from federal property and described their
authority outside the property as limited to performing authorized duties “to the
extent necessary to protect the property and persons on the property.” 40
U.S.C. § 1315(b)(1) (emphasis added). But the Federal Defendants’ suggestion
that § 1315 confers authority to take action to disperse members of the public who
28
are neither on nor threatening federal property is dubious.10 See United States v.
Baldwin, 745 F.3d 1027, 1029 (10th Cir. 2014) (Gorsuch, J.) (discussing § 1315
and its implementing regulations as they relate to “[p]ersons in and on [Federal]
property” (alterations in original)). On remand, the district court may have
occasion to more precisely define the scope of the Federal Defendants’ authority if
the Federal Defendants indicate that they intend to issue dispersal orders outside of
federal property for lawful purposes.
The district court was not persuaded that the Federal Defendants’ response
to the plaintiffs was essential or narrowly tailored to serve the government’s
interests. Press-Enterprise II, 478 U.S. at 9. The district court’s conclusions are
well supported and the Federal Defendants have not established that they will
likely prevail in their efforts to show that the dispersal of press was essential. Nor
10
Pursuant to § 1315, the Secretary of Homeland Security “shall protect
the buildings, grounds, and property that are owned, occupied, or secured by the
Federal Government . . . and the persons on the property.” 40 U.S.C. § 1315(a).
Relevant here, the governing regulations: (1) prohibit disorderly conduct “in or on
Federal property,” 41 C.F.R. § 102–74.390; (2) prohibit people “entering in or on
Federal property” from improperly disposing of rubbish on property, willfully
damaging property, stealing property, creating a hazard on property, throwing
articles at a building, or climbing on a building, 41 C.F.R. § 102–74.380; and (3)
require people “in and on property” to obey the “lawful direction of federal police
officers and other authorized individuals,” 41 C.F.R. § 102–74.385; United States
v. Baldwin, 745 F.3d 1027, 1029 (10th Cir. 2014) (Gorsuch, J.) (construing 41
C.F.R. § 102–74.385 as being applicable to people “in and on [Federal] property”
(alteration in original)).
29
did the Federal Defendants show that the need to defend federal property made it
impossible to tailor their dispersal orders.
The district court cited plaintiffs’ expert, Kerlikowske, who opined that
“[d]efending the federal courthouse in Portland mainly involves establishing a
perimeter around the building, and there is no reason to target or disperse
journalists from that position.” The district court further relied on Kerlikowske’s
opinion that “trained and experienced law enforcement personnel are able to
protect public safety without dispersing journalists and legal observers and can
differentiate press from protesters, even in the heat of crowd control.” The district
court found this expert qualified, credible, and persuasive. Rather than deferring to
the court’s findings, the dissent examines the record anew, decides that
Kerlikowske did not adequately address crowd control, and questions the district
court’s tailoring analysis. But the Federal Defendants conceded that they made no
effort to tailor their response, and on the record at this preliminary stage they have
not made the strong showing required by Nken that dispersing the press was
essential or that their response was narrowly tailored to serve the government’s
interest in protecting federal property.
We also agree with the district court that the City’s ability to comply with a
similarly worded injunction strongly undercuts the Federal Defendants’ argument.
30
The City has not required journalists and authorized legal observers to disperse
when it has issued crowd control orders to the protesters. After the district court
entered the first temporary restraining order against the City on July 2, the district
court “specifically invited the City to move for amendment or modification if the
original TRO was not working or to address any problems at the preliminary
injunction phase.” But the City did not seek modification. Instead, on July 16 the
City stipulated to entry of a preliminary injunction that was “nearly identical to the
original TRO.” The City’s willingness to tailor the dispersal orders it issues
pursuant to its general police power is strong evidence that the Federal Defendants’
dispersal of journalists and legal observers is not essential to defend federal
property, and that it is possible for the Federal Defendants to tailor their methods
more narrowly.
By its terms, the preliminary injunction the district court entered against the
Federal Defendants addresses each of the reasons the Federal Defendants advanced
to argue that it was impossible to tailor their dispersal orders. As to the contention
that journalists or legal observers might interfere with federal law enforcement if
not required to disperse, the preliminary injunction expressly prohibits journalists
and legal observers from impeding, blocking, or otherwise interfering with the
lawful conduct of the Federal Defendants. The preliminary injunction leaves the
31
Federal Defendants free to make arrests if there is probable cause to believe a
crime has been committed, even if the perpetrator is dressed as a journalist or legal
observer. The preliminary injunction also provides that the Federal Defendants
will not be liable for violating the injunction if journalists or legal observers remain
in the area after a dispersal order is issued, and are incidentally exposed to crowd-
control devices. Finally, though the Federal Defendants argued that large and
unique identifying markings on their uniforms could inhibit their ability to carry
out their duties, the district court concluded they did not support this claim.
Indeed, the district court went to great lengths to make sure the terms of the
injunction do not impede the federal defendants’ ability to safely achieve their
mission.11
The dissent faults us for deferring to the district court’s findings, but that is
precisely what our precedent requires. Walters, 145 F.3d at 1047. It is not our role
11
Plaintiffs’ expert Kerlikowske opined that identifiable markings on
law enforcement officers’ uniforms increase accountability, act as a check and
deterrent against misconduct, and will not interfere with federal officers’ ability to
perform their duties. This term of the injunction was added after the Federal
Defendants were unable to identify their own officers in videos submitted in
support of plaintiffs’ still-pending motion for sanctions and contempt of the July
23 TRO. The Federal Defendants contend the district court overreached, but
requiring the officers’ uniforms to bear unique identifiable markings is a common-
sense method to ensure that non-compliance with the court’s order may be
addressed.
32
to second-guess the district court’s factual findings; we review the district court’s
findings for clear error, and we do not see any. The dissent is not so constrained.
It reviews the facts de novo, reframes all of the protests as riots, and concludes the
Federal Defendants must be permitted to issue dispersal orders without limit. Yet
the majority of the protests have been peaceful, and the record is replete with
instances in which members of the press were targeted when they were not mixed
with, or even proximate to, protesters. Even the Federal Defendants recognize that
the general police power is reserved to the states, and the response to protesters on
the public streets of Portland is being handled by the state and local police. As for
the Federal Defendants’ actions on federal property, the injunction expressly
recognizes that the Federal Defendants are free to issue dispersal orders for a
variety of lawful reasons. Their authority to issue dispersal orders to protect
federal property has not been questioned.
But on the record before us, the Federal Defendants have not shown the
general dispersal orders they issued were lawful, much less essential or narrowly
tailored. Press-Enterprise II, 478 U.S. at 9. We do not condone any form of
violence, nor did the district court, but the court found no evidence that any of the
named plaintiffs engaged in unlawful conduct. The many peaceful protesters,
journalists, and members of the general public cannot be punished for the violent
33
acts of others. “[T]he proper response to potential and actual violence is for the
government to ensure an adequate police presence . . . and to arrest those who
actually engage in such conduct, rather than to suppress legitimate First
Amendment conduct as a prophylactic measure.” Collins v. Jordan, 110 F.3d
1363, 1373 (9th Cir. 1996) (internal citations omitted). Accordingly, we conclude
the Federal Defendants have not made a strong showing that they are likely to
succeed on the merits of plaintiffs’ First Amendment right-of-access claim, nor that
this argument supports their emergency motion for a stay pending appeal.
B
We turn next to the second Nken factor: whether the Federal Defendants
have shown a likelihood they will suffer irreparable injury if the district court’s
preliminary injunction is not stayed pending appeal. Nken, 556 U.S. at 426. The
Federal Defendants contend the district court abused its discretion because the
scope of the injunction is unworkable. Specifically, they argue the injunction will
force federal officers to make snap judgments to distinguish journalists and legal
observers from protesters. They argue federal officers will face irreparable injury
absent a stay pending appeal because the preliminary injunction will hinder their
ability to safely protect federal property and people on federal property, and will
34
generally place them in the untenable position of having to choose between risking
their safety and violating the preliminary injunction.
The district court was not persuaded, and for purposes of their emergency
motion for a stay pending appeal, the Federal Defendants have not shown that the
court likely erred. First, as we have explained, the preliminary injunction entered
against the Federal Defendants is one of two preliminary injunctions the district
court entered. In a separate preliminary injunction, the City stipulated that it would
not require journalists and legal observers to disperse from Portland’s streets and
sidewalks after it issues general dispersal orders. In the lengthy preliminary
injunction the court issued to address the Federal Defendants’ conduct, the court
took pains to explain that the general police power is reserved to the states, and that
the Federal Defendants had not taken the position that they had the authority to
issue general dispersal orders on Portland’s streets and sidewalks.
Second, it is clear the district court has worked tirelessly to respond to a
tense and sometimes chaotic situation. In order to provide clear direction, the
district court required the Federal Defendants to broadly disseminate, to the federal
agents responding to the protesters, the three pages of its opinion and order that
enumerate the terms of the injunction. The Federal Defendants read one sentence
from the three-page excerpt in isolation and argue that the preliminary injunction
35
provides a special, citywide exemption to dispersal orders for journalists and legal
observers. In fact, it is apparent the district court was actually providing the
Federal Defendants with an unambiguous statement of actions they may and may
not take in the field, including the requirement that the Federal Defendants mark
their uniforms in some way to allow officers to be identified, thereby incentivizing
compliance with the court’s orders. Read as a whole, the preliminary injunction
does not provide a special exemption for journalists and legal observers. Rather,
the terms of the injunction account for the City’s stipulation that journalists and
legal observers will not be required to disperse from Portland’s streets and
sidewalks. The injunction also accounts for the district court’s finding that the
Federal Defendants, at least at this preliminary stage, have not shown that it is
essential to disperse press to protect federal property, nor that their response was
narrowly tailored.
Third, the preliminary injunction unambiguously provides that the Federal
Defendants will not be held liable for violating the preliminary injunction by
incidentally exposing journalists or legal observers to otherwise lawful crowd-
control measures. The Federal Defendants’ argument that they may be irreparably
harmed if individuals disguise themselves as journalists or legal observers in order
to commit crimes or interfere with law enforcement is similarly unpersuasive
36
because the order explicitly allows the Federal Defendants to arrest anyone if they
have probable cause to believe a crime is being committed—regardless of whether
that person is, or appears to be, a journalist or legal observer. The preliminary
injunction expressly prohibits journalists and legal observers from impeding,
blocking, or otherwise physically interfering with the lawful activities of the
Federal Defendants.
The district court recognized that Federal Defendants have sustained injuries
over the course of the summer, but found no evidence that any of the named
plaintiffs engaged in any of the unlawful conduct that caused their injuries, and the
Federal Defendants point to no evidence that the injuries they sustained were more
severe or more frequent during the time they were operating under the substantially
similar terms of the July 23 TRO, or that the alleged confusion in distinguishing
between protestors and plaintiffs resulted in any injury.
The district court was heavily influenced by the City’s agreement to enter
into a stipulated preliminary injunction that largely mirrors the preliminary
injunction entered against the Federal Defendants, and observed “[t]he City did not
contend that the terms of the stipulated preliminary injunction were intrusive,
unworkable, or vague.” In fact, the City supported entry of the instant preliminary
injunction against the Federal Defendants, arguing “[t]he actions of [F]ederal
37
[D]efendants are escalating violence, inflaming tensions in [Portland], and harming
Portlanders who seek to engage in nonviolent protests in support of racial justice.”
Plaintiffs’ expert, Gil Kerlikowske, also seriously undermined the Federal
Defendants’ argument that they faced irreparable injury. Relying on
Kerlikowske’s expert opinion, the district court concluded that the Federal
Defendants’ concerns regarding the workability of the injunction were
exaggerated. The district court noted Kerlikowske’s statement that “during his
tenure in Seattle, law enforcement did not target or disperse journalists and there
were no adverse consequences.” Kerlikowske opined that the prohibitions
contained in the July 23 temporary restraining order, which the district court
incorporated into the preliminary injunction, were both safe and workable for law
enforcement. Kerlikowske stated that dispersing press and legal observers is not
necessary to protect public safety, and further explained that trained and
38
experienced law enforcement personnel can differentiate press from protesters in
the heat of crowd control.12
On the present record, despite the Federal Defendants’ assertion that all of
their officers and agents are adequately trained, the district court found numerous
instances in which Federal Defendants shot munitions directly at journalists’ and
legal observers’ chests, arms, backs, and heads while they were standing entirely
apart from the protesters. These methods directly conflict with Kerlikowske’s
opinion that crowd-control munitions are not appropriately aimed at the upper
body, and that pepper balls and tear gas canisters should not be aimed at people at
all. We review the court’s findings for clear error, and for purposes of the Federal
Defendants’ emergency motion, the Federal Defendants have not shown that they
will likely establish the district court’s findings are clearly erroneous.
We also conclude the Federal Defendants’ have not made the required
showing that they will suffer irreparable harm if the preliminary injunction is not
12
Plaintiffs’ briefing repeatedly asserts that the Federal Defendants lack
crowd control training, and the Federal Defendants repeatedly respond that they are
trained in the appropriate use of force. At this preliminary stage, the record did not
allow the district court to determine whether the Federal Defendants differentiate
between crowd control training and training in the proper use of force. Nor does
the record make clear whether the training provided to U.S. Marshals differs from
the training provided to personnel from the Department of Homeland Security.
Those questions may be resolved at a later stage in the proceedings.
39
stayed pending a decision on the merits of their appeal. The district court took care
to address the Federal Defendants’ concerns regarding the workability of the
injunction. The terms of the injunction itself adequately address their concerns,
and the Federal Defendants’ continued objection that the injunction is unworkable
is undermined by the City’s agreement to operate pursuant to a substantially
similar order. Kerlikowske’s opinions, which the court found persuasive and
credible, further support the district court’s finding that the terms of the
preliminary injunction are safe and workable.
The dissent decides that the Federal Defendants are likely to suffer
irreparable harm absent a stay pending appeal because the preliminary injunction
does not explain how arresting individual suspects is as feasible or safe as using
general crowd control tactics during a riot. But the district court found that the
protests have been largely peaceful, and the preliminary injunction does not
prevent the Federal Defendants from issuing lawful dispersal orders to protect
federal property if and when it is threatened by violent protests. We conclude the
Federal Defendants have not shown that they will suffer irreparable injury if the
district court’s preliminary injunction is not stayed.
C
40
The Federal Defendants have not satisfied the first two Nken factors, but we
briefly note that the final two factors also strongly suggest the Federal Defendants’
motion must be denied. See Nken, 556 U.S. at 435; Al Otro Lado, 952 F.3d at
1006.
1
The third Nken factor asks whether the other parties to the litigation will be
substantially injured if the district court’s preliminary injunction is stayed pending
appeal. Nken, 556 U.S. at 426.
The City supported the imposition of the preliminary injunction against the
Federal Defendants. As explained, the City asserted that the Federal Defendants’
presence in Portland escalated violence and inflamed tensions. Although the
Federal Defendants have entered into some type of agreement with Governor
Brown, the district court voiced “serious concerns that the Federal Defendants
have not fully complied with the Court’s original TRO.” The district court also
highlighted evidence in the record suggesting intentional targeting of journalists or
legal observers after the imposition of the TRO. Further, the district court found
that the day after the Federal Defendants reached the agreement with the Governor,
federal agents fired tear gas at journalists standing nowhere near protesters. In
light of this evidence, and the Federal Defendants’ stated intention to remain in
41
Portland to continue to protect the federal buildings should they deem local
authorities’ efforts unsatisfactory, the likelihood that the City will suffer substantial
injury supports denial of the emergency motion for a stay pending appeal.
Plaintiffs also face substantial injury if the Federal Defendants’ motion is
granted because the district court found that the Federal Defendants’ conduct
chilled the exercise of their First Amendment rights. The district court made this
finding after reviewing plaintiffs’ vivid descriptions and photographic evidence of
injuries they sustained as bystanders. “It is well established that the deprivation of
constitutional rights ‘unquestionably constitutes irreparable injury.” Melendres v.
Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976)); see also, e.g., Assoc. Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012)
(“The loss of First Amendment freedoms, even for minimal periods of time,
unquestionably constitutes irreparable injury.”). In sum, the Federal Defendants
have failed to show that the other parties to the litigation will not be substantially
injured if the district court’s preliminary injunction is stayed pending appeal.
2
The fourth Nken factor requires courts to determine where the public interest
lies. Nken, 556 U.S. at 426. When the government is a party, the irreparable injury
and public interest factors merge, id. at 435, but the Federal Defendants are
42
incorrect to suggest that a showing of harm to the government commands the
conclusion that the public interest weighs entirely in favor of whichever outcome
the government seeks. Our court has consistently balanced the public interest on
the side of the plaintiffs against the public interest on the side of the government to
determine where the public interest lies. See, e.g., Padilla v. Immigration &
Customs Enforcement, 953 F.3d 1134, 1147–48 (9th Cir. 2020) (determining the
“balance of the equities and public interest favors plaintiffs”).
Here, the public interest on the Federal Defendants’ side is the uncontested
interest in protecting federal agents and property. The harms the Federal
Defendants assert relate to the potential challenges the preliminary injunction poses
to their ability to safely and effectively protect federal property and personnel. On
the other hand, plaintiffs also assert a strong public interest: “It is always in the
public interest to prevent the violation of a party’s constitutional rights.” Padilla,
953 F.3d at 1147–48 (internal quotation marks omitted). When weighing public
interests, courts have “consistently recognized the significant public interest in
upholding First Amendment principles.” Assoc. Press, 682 F.3d at 826 (quoting
Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002),
abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
22 (2008)). The Federal Defendants assert a very important public interest, but the
43
record fully supports the district court’s conclusion that the Federal Defendants’
interest does not require dispersing plaintiffs. They have not threatened federal
property, and the journalists, in particular, provide a vitally important service to the
public. Accordingly, the final Nken factor does not weigh in favor of a stay.
The Federal Defendants have not made a strong showing that they are likely
to succeed on the merits of plaintiffs’ claims. Nor have they shown that they are
likely to suffer irreparable injury as a result of the district court’s preliminary
injunction. Further, a stay of the district court’s injunction would substantially
injure both the City and the plaintiffs. For these reasons, we cannot say at this
juncture that the Federal Defendants are entitled to a stay of the preliminary
injunction pending appeal. The Federal Defendants’ emergency motion for a stay
pending appeal is DENIED, and the administrative stay entered August 27, 2020 is
lifted.
44
Index Newspapers v. U.S. Marshals Serv., No. 20-35739
FILED
OCT 9 2020
O’SCANNLAIN, J., dissenting:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In the words of the majority—and I agree—“the district court has worked
tirelessly to respond to a tense and sometimes chaotic situation” 1 arising from
peaceful urban protest events that have degenerated into riots and destructive mob
violence, resulting, inevitably, in crowd dispersal actions by law enforcement.
Unfortunately, because the constitutional interests of the parties are misaligned in
the provisions of the injunction before us, I must, respectfully, dissent from the
order. Since the government is likely to prevail on the merits and the other
requisite factors are met, I would grant the motion for stay pending appeal.
With its decision today, the majority of this motions panel validates the
transformation of the First Amendment-based “right of public access” to
governmental proceedings into a special privilege for self-proclaimed journalists
and “legal observers” to disregard crowd dispersal orders issued by federal law
enforcement officers. The district court’s injunction erroneously curtails an
important law enforcement tool for responding to protest events that threaten
federal property and personnel, thereby limiting options available for federal
officers precisely when they are most needed. While well-meaning, the district
court’s decision constitutes a significant and unwarranted departure from the
1
Majority Opinion at 35.
1
traditional, qualified “right of public access” to criminal judicial proceedings that
has been carefully delineated by the Supreme Court. In short, the majority’s
decision approves the mutation of a very limited historical right reinforced by a
millennium of legal tradition into a broad, amorphous entitlement that finds
support nowhere in our precedents or in the historical sources of the First
Amendment.
Similarly, the majority’s decision to uphold the injunction before us
ostensibly rests on the deference that it accords to the district court’s factual
findings with respect to plaintiffs’ “retaliation” claim, which, indeed, reveal quite a
disturbing pattern of apparent misconduct by certain federal officers. But even
these unfortunate facts cannot justify granting journalists and “legal observers” a
unique exemption from lawful dispersal orders—orders that were neither found,
nor alleged, to be retaliatory.
I
Because the facts set forth in the majority opinion do not adequately reveal
the full picture, I respectfully restate them as found in the record.
A
In the early morning of July 3, 2020, the recent and ongoing political
protests in downtown Portland, Oregon took a violent and destructive turn. Rioters
smashed the glass entryway doors of the Mark O. Hatfield Federal Courthouse and
2
attempted to set fire to the building. They threw balloons containing an accelerant
into the lobby and fired powerful commercial fireworks toward the accelerant,
which ignited a fire in the lobby. Vandalism, destruction of property, and assault
on federal law enforcement officers securing the building continued throughout the
Fourth of July holiday weekend, and federal agents made multiple arrests.
Before July 3rd, federal law enforcement officers at the Hatfield Courthouse
had been stationed in a defensive posture, intended to de-escalate tensions with
protesters by remaining inside and responding only to breach attempts on the
building and assaults on personnel or to other serious crimes. With limited support
from the Portland Police Bureau (“PPB”), however, federal agents struggled to
contain protests that often focused on the Courthouse and frequently devolved into
violence in the late evenings and early mornings.
When this pattern of violent unrest culminated in the July 3rd attack, the
Department of Homeland Security (“DHS”) changed its tactics and authorized
federal agents to take additional action to protect the Courthouse, and to identify
and to arrest serious offenders. After federal officers adopted this more assertive
posture, the protests became larger and more intense. These protest events were
chaotic and dynamic, and federal officers had frequent confrontations with rioters.
According to DHS’s Gabriel Russell, the law enforcement officer leading the
federal response in Portland, 120 federal officers experienced injuries, including
3
broken bones, hearing damage, eye damage, a dislocated shoulder, sprains, strains,
and contusions. Conflict between federal officers and rioters continued until the
early morning of July 30th, after which incidents diminished as a result of DHS
reaching an agreement with the Governor of Oregon for the Oregon State Police to
provide security in the areas adjacent to the Hatfield Courthouse.
During the period of unrest, journalists and “legal observers” ostensibly
reporting on law enforcement’s response to the riots were frequently interspersed
with protesters when events degenerated into violence. Some of these individuals
even participated in violent and unlawful conduct, including assaults on federal
officers and destruction of federal property. For example, a person with a helmet
marked “press” used a grinder to attempt to breach the fence surrounding the
Hatfield Courthouse. Another person with a “press” helmet entered Courthouse
property and encouraged others to join, yelling to the crowd that “they can’t arrest
us all!” A man wearing a vest labeled “press” was seen throwing a hard object
toward police. In yet another incident, a Courthouse staff member reported being
kicked by someone wearing clothing marked “press.”
B
Plaintiffs are a newspaper organization and individual journalists and “legal
observers,” some of whom are affiliated with the National Lawyers Guild (“NLG”)
and the American Civil Liberties Union (“ACLU”). They allege that federal law
4
enforcement officers with DHS and the U.S. Marshals Service (“USMS”)
operating in Portland during the month of July (1) infringed their First Amendment
“right of access” to public streets and sidewalks to observe and to document law
enforcement’s response to the riots near the Hatfield Courthouse; and, (2)
deliberately and unlawfully “retaliated” against them for exercising their putative
First Amendment right to report on those events by targeting them with tear gas,
less-lethal munitions, and pepper spray.
Plaintiffs initially filed suit against the City of Portland, and unnamed
individual PPB officers, in federal district court, alleging similar constitutional
violations arising out of the PPB’s response to the protest events. For example,
Plaintiffs alleged a “broader pattern of the Portland police repeatedly and
intentionally shooting, gassing, and beating journalists and [legal] observers.”
Among other incidents, Plaintiffs alleged that the PPB slammed a reporter from
The Oregonian in the back with a truncheon, even as she was displaying her press
pass, and shoved a reporter from the Portland Tribune into a wall, after he had
identified himself as media, when he initially refused to comply with an order to
disperse. Plaintiffs further alleged that the PPB had publicly announced that it
would use force to disperse reporters unless they had been previously selected to
embed with officers. Plaintiffs obtained a temporary restraining order (“TRO”)
against the PPB, without the City of Portland’s consent, on July 2nd, with terms
5
similar to those contained in the instant preliminary injunction. In its order
granting the TRO, the district court concluded that Plaintiffs had demonstrated
“serious questions going to the merits” with respect to their claim of a First
Amendment-based “right of public access” to observe law enforcement’s response
to protest events. The TRO specified that press and “legal observers” were exempt
from any orders to disperse issued by the PPB.
After alleged retaliation by a federal law enforcement agent on July 12th,
plaintiffs filed an emergency motion seeking the district court’s leave to file an
amended complaint describing such incident and also adding DHS and USMS as
defendants in the case. The City of Portland filed an objection, arguing, inter alia,
that plaintiffs’ claims against the City of Portland and those against DHS and
USMS raised no common questions of law or fact. The City maintained that PPB
operates under fundamentally different conditions than federal law enforcement
agencies, including different directives governing the use of force, different
limitations on the use of force, and a separate command structure.
On July 16th, before the district court had an opportunity to rule on the
motion to bring DHS and USMS into the case, plaintiffs and the City jointly filed a
“Stipulated Preliminary Injunction” that substantially mirrored the TRO’s terms.
The following day, the district court granted plaintiffs’ motion for leave to file the
operative Second Amended Complaint.
6
The Second Amended Complaint sets forth independent causes of action
based on the First and Fourth Amendments of the U.S. Constitution and Article I,
Sections 8 and 26 of the Oregon Constitution. It seeks both damages and equitable
relief. The day it was filed, Plaintiffs immediately moved for a TRO against DHS
and USMS, with the request for injunctive relief limited only to their
aforementioned First Amendment claims.
On July 22nd, the City filed a brief in support of the entry of the TRO
against DHS and USMS. The City accused both agencies of escalating violence,
harming non-violent protesters, and effectively kidnapping people off of Portland
streets. Notably, on the same day, the Portland City Council passed a resolution
prohibiting the PPB from cooperating with federal officers deployed in Portland.
The district court granted the TRO on July 23rd and extended it for an
additional 14 days on August 6th. On August 20th, the district court entered the
instant preliminary injunction, from which DHS and USMS now seek emergency
relief pending appeal.
The preliminary injunction provides, among other things, that journalists and
“legal observers” are exempt 2 from general dispersal orders issued by federal
2
The precise language of the district court’s order provided that journalists and
“legal observers” “shall not be required to disperse following the issuance of an
order to disperse, and such persons shall not be subject to arrest for not dispersing
following the issuance of an order to disperse.”
7
officers. It further requires that federal officers refrain from using force or
threatening arrest to compel such persons to disperse after an order to disperse has
been issued. It also sets forth a non-exclusive list of indicia by which officers are
to determine who qualifies as a journalist or “legal observer.” 3
3
The eight-part injunction entered by the district court is lengthy, not to say
labyrinthine, but warrants repetition in full for appreciation of its extraordinary
scope:
1. The Federal Defendants, their agents and employees, and all persons acting
under their direction are enjoined from arresting, threatening to arrest, or
using physical force directed against any person whom they know or
reasonably should know is a Journalist or Legal Observer (as explained
below), unless the Federal Defendants have probable cause to believe that
such individual has committed a crime. For purposes of this Order, such
persons shall not be required to disperse following the issuance of an order
to disperse, and such persons shall not be subject to arrest for not dispersing
following the issuance of an order to disperse. Such persons shall, however,
remain bound by all other laws. No Journalist or Legal Observer protected
order this Order, however, may impede, block, or otherwise physically
interfere with the lawful activities of the Federal Defendants.
2. The Federal Defendants, their agents and employees, and all persons acting
under their direction are further enjoined from seizing any photographic
equipment, audio- or video- recording equipment, or press passes from any
person whom they know or reasonably should know is a Journalist or Legal
Observer (as explained below), or ordering such person to stop
photographing, recording, or observing a protest, unless the Federal
Defendants are also lawfully seizing that person consistent with this Order.
Except as expressly provided in Paragraph 3 below, the Federal Defendants
must return any seized equipment or press passes immediately upon release
of a person from custody.
3. If any Federal Defendant, their agent or employee, or any person acting
under their direction seize property from a Journalist or Legal Observer who
is lawfully arrested consistent with this Order, such Federal Defendant shall,
8
as soon thereafter as is reasonably possible, make a written list of things
seized and shall provide a copy of that list to the Journalist or Legal
Observer. If equipment seized in connection with an arrest of a Journalist or
Legal Observer lawfully seized under this Order is needed for evidentiary
purposes, the Federal Defendants shall promptly seek a search warrant,
subpoena, or other court order for that purpose. If such a search warrant,
subpoena, or other court order is denied, or equipment seized in connection
with an arrest is not needed for evidentiary purposes, the Federal Defendants
shall immediately return it to its rightful possessor.
4. To facilitate the Federal Defendants’ identification of Journalists protected
under this Order, the following shall be considered indicia of being a
Journalist: visual identification as a member of the press, such as by carrying
a professional or authorized press pass, carrying professional gear such as
professional photographic equipment, or wearing a professional or
authorized press badge or other official press credentials, or distinctive
clothing, that identifies the wearer as a member of the press. It also shall be
an indicium of being a Journalist under this Order that the person is standing
off to the side of a protest, not engaging in protest activities, and not
intermixed with persons engaged in protest activities, although these are not
requirements. These indicia are not exclusive, and a person need not exhibit
every indicium to be considered a Journalist under this Order. The Federal
Defendants shall not be liable for unintentional violations of this Order in
the case of an individual who does not carry or wear a press pass, badge, or
other official press credential, professional gear, or distinctive clothing that
identifies the person as a member of the press.
5. To facilitate the Federal Defendants’ identification of Legal Observers
protected under this Order, the following shall be considered indicia of being
a Legal Observer: wearing a green National Lawyers Guild-issued or
authorized Legal Observer hat (typically a green NLG hat) or wearing a blue
ACLU-issued or authorized Legal Observer vest. It also shall be an indicium
of being a Legal Observer protected under this Order that the person is
standing off to the side of a protest, not engaging in protest activities, and
not intermixed with persons engaged in protest activities, although these are
not requirements.
6. The Federal Defendants are not precluded by the Order from issuing
otherwise lawful crowd-dispersal orders for a variety of lawful reasons. The
9
A prior motions panel of this court entered an administrative stay of the
injunction pending the adjudication of the government’s motion for emergency
Federal Defendants shall not be liable for violating this injunction if a
Journalist or Legal Observer is incidentally exposed to crowd-control
devices after remaining in the area where such devices were deployed after
the issuance of an otherwise lawful dispersal order.
7. Plaintiffs and the Federal Defendants shall promptly confer regarding how
the Federal Defendants can place unique identifying markings (using
numbers and/or letters) on the uniforms and/or helmets of the officers and
agents of the Federal Defendants who are specially deployed to Portland so
that they can be identified at a reasonable distance and without unreasonably
interfering with the needs of these personnel. Based on the Court’s
understanding that Deputy U.S. Marshals and Courtroom Security Officers
stationed in Portland who are under the direction of the U.S. Marshal for the
District of Oregon are not part of the force that has given rise to events at
issue in the lawsuit, they are exempt from this requirement. Agents wearing
plain clothes and assigned to undercover duties also are exempt from this
requirement. If the parties agree on a method of marking, they shall submit
the terms of their agreement in writing to the Court, and the Court will then
issue a modified preliminary injunction that incorporates the parties’
agreement. If the parties cannot reach agreement within 14 days, each party
may submit its own proposal, and each side may respond to any other
party’s proposal within seven days thereafter. The Court will resolve any
disputes on this issue and modify this preliminary injunction appropriately.
8. To promote compliance with this Preliminary Injunction, the Federal
Defendants are ordered to provide copies of the verbatim text of the first
seven provisions of this Preliminary Injunction, in either electronic or paper
form, within 14 calendar days to: (a) all employees, officers, and agents of
the Federal Defendants currently deployed in Portland, Oregon (or who later
become deployed in Portland, Oregon while this Preliminary Injunction is in
force), including but not limited to all personnel in Portland, Oregon who are
part of Operation Diligent Valor, Operation Legend, or any equivalent; and
(b) all employees, officers, and agents of the Federal Defendants with any
supervisory or command authority over any person in group (a) above.
10
relief. As the court, in its role as this motions panel, today denies such emergency
request for a stay pending appeal, the injunction will go back into effect and this
matter will proceed before the district court, pending disposition of the
government’s appeal of the preliminary injunction by a merits panel of this court.
Plaintiffs’ Fourth Amendment and state constitutional claims did not form part of
the request for preliminary relief and remain pending before the district court, as
do plaintiffs’ requests for compensatory and punitive damages, attorney’s fees, and
costs. As the City’s stipulation to a preliminary injunction resolved only Plaintiffs’
request for equitable relief, Plaintiffs’ remaining claims against the City and
individual PPB officers also remain pending in the district court.
II
I agree with the majority that the Nken v. Holder factors must determine our
disposition of the government’s request for emergency relief, but I respectfully
disagree with how the majority analyzes those factors. 556 U.S. 418, 426 (2009).
I address each factor in turn, beginning with the government’s burden to make a
strong showing of likelihood of success on the merits.4
4
Upon appeal of a preliminary injunction, the district court’s conclusions of law
are reviewed de novo, its underlying factual findings are reviewed for clear error,
and the scope of the injunction is reviewed for abuse of discretion. Padilla v.
Immigration & Customs Enf’t, 953 F.3d 1134, 1141 (9th Cir. 2020). In addition,
“we review First Amendment questions de novo since they present mixed
questions of law and fact, requiring us to apply principles of First Amendment
11
The district court granted injunctive relief on the basis of Plaintiffs’ two
First Amendment claims: (1) a “right of public access” to public streets and
sidewalks to observe and to document law enforcement officers engaged in riot
control and crowd dispersal; and (2) a right to be free from “retaliation” by federal
officers for reporting on law enforcement’s response to civil unrest.
A
1
With respect to the “right of public access” issue, the district court purported
to apply the framework articulated in Press-Enterprise Co. v. Superior Court of
Cal. (“Press-Enterprise II”) for evaluating “claim[s] of a First Amendment right of
access to criminal proceedings[.]” 478 U.S. 1, 8–9 (1986). Pursuant to that
doctrine, in evaluating a purported claim of public access to a proceeding, a court
must consider: (1) “whether the place and process have historically been open to
the press and general public;” and (2) “whether public access plays a significant
positive role in the functioning of the particular process in question.” Id. “If the
particular proceeding in question passes these tests of experience and logic, a
qualified First Amendment right of public access attaches.” Id. “A presumptive
right of access to any particular proceeding may be overcome by an overriding
jurisprudence to the specific facts of this case.” Gerritsen v. City of Los Angeles,
994 F.2d 570, 575 (9th Cir. 1993).
12
government interest based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” Id.But the First Amendment-based right of public access and its corresponding
framework have never been deemed to apply to riot control and crowd dispersal in
a public street. 5 The Supreme Court has discussed only a qualified right of access
to certain criminal judicial proceedings and has never recognized a right of public
access outside of that context. See Press-Enterprise II, 478 U.S. at 8–9 (right of
public access to preliminary hearings in criminal cases); Press-Enterprise Co. v.
Superior Court of Cal., 464 U.S. 501, 503, 508 (1984) (right of public access to
voir dire hearings in criminal cases); Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 580 (1980) (right of public access to criminal trials).
5
The majority, echoing arguments offered by plaintiffs’ counsel, invokes prior
decisions of our court referencing a First Amendment-based right to record law
enforcement activity in public. See Reed v. Lieurance, 863 F.3d 1196, 1211 (9th
Cir. 2017); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). Those
cases are inapposite, however, as they do not address situations where law
enforcement is responding to rioting and violent unrest. At most, those cases
merely recognize the right of a person to use a recording device in a public forum,
before any measures have been taken to restrict access to the forum, such as
issuance of a general dispersal order. They certainly do not stand for the
extraordinary proposition that an individual is exempt from a dispersal order or
other riot control measure merely because he is engaged in the act of recording law
enforcement operations. Moreover, as a matter of doctrine, neither case applied
right-of-public-access analysis. In fact, Reed applied public forum analysis, which
the district court notably chose not to do here. 863 F.3d at 1211. Cf. fn. 9, infra.
13
In the decades since Press-Enterprise II, the courts of appeals have
expanded the right-of-public-access doctrine considerably beyond its initial,
paradigmatic application to criminal proceedings—including, in our court, to a
variety of non-criminal, non-adjudicative, governmental proceedings, such as a
horse gather on federal land, Leigh v. Salazar, 677 F.3d 892, 894 (9th Cir. 2012),
and a referendum on a regulatory order conducted by the U.S. Department of
Agriculture, Cal-Almond, Inc. v. U.S. Dept. of Agriculture, 960 F.2d 105, 109 (9th
Cir. 1992)—but the doctrine is not without limit. Rather, the Press-Enterprise II
framework has been confined to claims of access to specific governmental
proceedings and has never been applied to public spaces in general or to private
events therein. Cf. Leigh, 677 F.3d at 894 (evaluating access to horse gather, not to
federal lands); Whiteland Woods, L.P. v. Township of W. Whiteland, 193 F.3d 177,
181 (3d Cir. 1999) (evaluating access to town planning commission meeting, not to
town hall). Here, protests in a public street are privately sponsored and organized
events, and when they degenerate into riots, the crowd control measures taken by
law enforcement are spontaneous and temporary responses to ongoing criminal
activity. Protests and resulting riots are simply not governmental proceedings to
which a right of public access may be claimed.6
6
Curiously, the complaint might be better viewed as claiming a “right of
exclusion” from crowd dispersal actions by federal law enforcement. Plaintiffs
seek access to a putative proceeding, the necessary impact of which they actually
14
Similarly, even where the Press-Enterprise II framework applies, it requires
a court to evaluate a claim of access by first determining whether “the place and
the process” have historically been open to the public, and whether the public’s
presence plays a critical role in the specific proceeding at issue. 478 U.S. at 8–9
(emphasis added). Here, the district court noted that streets, sidewalks, and parks
constitute traditional public fora, which have been open to speech and expression
from “time out of mind,” Hague v. Comm. for Indus. Org., 307 U.S. 496, 515
(1939), but it failed to evaluate any history of public access to law enforcement
operations responding to ongoing criminal activity, including violent civil unrest
that threatens federal property and personnel. In the absence of historical analysis
regarding the proceeding, as distinguished from the place, a presumptive right of
public access simply does not attach. Cf. Leigh, 677 F.3d at 894 (calling for
inquiry into history of public access to horse gathers, not to federal lands).
The district court’s reasoning here is reflective of an emerging pattern of
lower courts expanding the right-of-public-access doctrine well beyond its original
scope, with little consideration of a limiting principle. Cf., e.g., N.Y. Civil Liberties
Union v. N.Y. City Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) (noting, with
approval, that “there is no principle that limits the First Amendment right of
wish to avoid. This contradiction highlights the discrepancy between plaintiffs’
claims and traditional right-of-public-access case law.
15
[public] access to any one particular type of government process”). When the
Supreme Court first articulated the First Amendment right of public access in
Richmond Newspapers, Inc. v. Virginia, it drew on an extensive historical record of
public access to criminal trials in the Anglo-American legal tradition, dating back
to “the days before the Norman Conquest.” 448 U.S. at 580. After canvassing
more than a thousand years of “unbroken, uncontradicted” history, the Court felt
justified in concluding that the right to attend criminal trials is “implicit in the
guarantees of the First Amendment.” Id. In Press-Enterprise II, the Court limited
its inquiry to post-Bill of Rights history, but nonetheless identified a “near
uniform” “tradition of accessibility” to preliminary hearings in criminal cases
dating back to the “celebrated trial of Aaron Burr” in 1807. 478 U.S. at 10–11.
Lower courts, by contrast, including ours, have extended the right of public
access largely without extensive historical backing and without further guidance
from the Supreme Court regarding the specific contours of the doctrine. If the
majority’s reasoning here is any indication, the doctrine is growing haphazardly,
like a weed in an untended garden, presaging conflict with more established legal
rights and powers. This doctrinal disorder warrants further review.
2
Even if right-of-public-access analysis were appropriate under these
circumstances, any right to access the proceeding in question must apply equally to
16
the press and the public. See Cal. First Amendment Coal. v. Woodford, 299 F.3d
868, 873 n.2 (9th Cir. 2002) (“As members of the press, plaintiffs’ First
Amendment right of access to governmental proceedings is coextensive with the
general public’s right of access.” (citing Houchins v. KQED, Inc., 438 U.S. 1, 15–
16 (1978)). Indeed, it is a long-established and fundamental principle of
constitutional law that “the First Amendment does not guarantee the press a
constitutional right of special access to information not available to the public
generally.” Branzburg v. Hayes, 408 U.S. 665, 684 (1972). Cf. Erwin
Chemerinsky, Protect the Press: A First Amendment Standard for Safeguarding
Aggressive Newsgathering, 33 U. Rich. L. Rev. 1143, 1145 (2000) (“[The Supreme
Court’s] rulings, without exception, have failed to provide any First Amendment
protection for newsgathering. Indeed, the Court has declared that there is no
exemption for the press from general laws. In other words, while engaged in
newsgathering, the press is not exempt from tort liability or criminal laws, no
matter how compelling the need for reporting to protect the public’s health and
safety.”)
But here, the district court’s injunction, by its own terms, grants self-
identified journalists and “legal observers” a special privilege to disregard
dispersal orders with which the general public must comply, which has no legal
17
basis. The injunction is thus at odds with a core First Amendment principle and a
common-sense rule of thumb: the media have the same rights as the rest of us.7
The majority opinion here rejects this characterization of the injunction and
insists that it creates no special rights. According to the majority, the injunction
merely prevents federal agents from seeking to disperse the press from local streets
and sidewalks when the City’s current policy is that press may remain there, even
during riots, but does not seek to regulate crowd dispersal on federal property. On
this view, the injunction is a wholesome exercise in federalism!
But the majority’s analysis is inconsistent with the plain text of the district
court’s order and misapplies principles of constitutional structure. The injunction,
by its own terms, appears to extend to dispersal orders issued on federal property,
7
Even if journalists had some special claim to enhanced Constitutional protection
when reporting on law enforcement activities, grounded in the First Amendment’s
“freedom of the press” clause, “legal observers” have never been accorded any
special recognition under our law. Cf. Wise v. City of Portland, No. 3:20-CV-
01193-IM, 2020 WL 5231486, at *7 (D. Or. Sept. 2, 2020) (declining to recognize
special status for “protest medics” in similar Portland protests) (“[T]his Court has
found no legal authority for affording protest medics, as defined by Plaintiffs,
unique recognition under the First Amendment beyond that afforded any individual
who attends a protest. . . . They simply have no unique status under the First
Amendment that allows them to disregard lawful [dispersal] orders.”). That the
district court’s injunction appears to empower the ACLU and NLG to bestow
immunity from lawful dispersal orders is particularly dubious given the status of
these organizations as perennial litigation adversaries of law enforcement agencies.
In sum, like “protest medics,” there is no cognizable basis for “legal observers” to
receive “special dispensation” to disregard lawful dispersal orders. Wise, 2020 WL
5231486 at *2.
18
and is certainly not geographically limited in any explicit way. The injunction thus
allows the press, but not others, to disregard dispersal orders that are clearly
lawful. That can only be understood as a special dispensation that is not consistent
with the First Amendment.
In any event, even if federal agents are located on City property when they
issue, or seek to enforce, an order to disperse, principles of federalism do not
justify carving out a special exemption for the press from such orders simply
because City police would typically allow for one. The Federal Government is
indeed acknowledged by all to be one of limited and enumerated powers, see Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 534 (2012), and it is not entitled to
exercise general or residual powers, see United States v. Comstock, 560 U.S. 126,
153 (2010) (Kennedy, J., concurring) (“Residual power, sometimes referred to
(perhaps imperfectly) as the police power, belongs to the States and the States
alone”), such as the prevention and punishment of crime and disorder on local
streets, sidewalks, and parks, see United States v. Morrison, 529 U.S. 598, 618
(2000) ([W]e can think of no better example of the police power, which the
Founders denied the National Government and reposed in the States, than the
suppression of violent crime and vindication of its victims.”).
It is an inversion of our constitutional structure, however, to require federal
officers to abide by municipal policies regarding crowd dispersal when carrying
19
out their statutory prerogative to protect federal property and personnel. Federal
officials are prohibited, of course, from “commandeering” state and local law
enforcement officers to help secure federal property and must instead rely on
voluntary cooperation with state and local officials for this purpose. See Printz v.
United States, 521 U.S. 898, 935 (1997). Where such cooperation is inadequate,
the federal government must deploy its own agents. In these circumstances, the
agency’s lawful directives regarding crowd dispersal, i.e., those adopted pursuant
to a constitutionally enacted federal statute or rule, take precedence over state and
local ones, not the other way around. Such an arrangement does not violate
principles of federalism or dual sovereignty but is rather required by them. See,
e.g., Alden v. Maine, 527 U.S. 706, 732 (1999) (federal government sets the
supreme law of the land when acting within its enumerated powers).
The majority opinion relies heavily on the district court’s conclusion, with
which it agrees, that it is, in fact, unlawful for federal agents to issue orders to
disperse if they are situated beyond federal property. According to the majority,
DHS and USMS have never claimed to have such authority, and the federal statute
upon which they principally rely, 40 U.S.C. § 1315, does not provide for it.
The suggestion that the government has simply conceded this question is
overstated. Although this issue was not adequately briefed by either party, the
government has consistently articulated the position, both before the district court
20
and on appeal, that federal law enforcement officers may issue dispersal orders on
federal property, and in several circumstances, may effectuate those orders beyond
federal property, such as by establishing a secure perimeter. In particular, the
government has invoked § 1315(b)(1), which provides that the Secretary of
Homeland Security may designate DHS agents to protect federal property,
including designating agents for duty in “areas outside the property to the extent
necessary to protect the property and persons on the property.”
I am inclined to agree with the government’s general understanding of its
statutory authority. As the government has pointed out, it would be unreasonable
to require that federal officers charged with securing federal buildings wait until
violent opportunists have breached the property line or entered the building before
taking any protective measures. There is very likely a statutory basis for at least
some crowd dispersal activity adjacent to a federal courthouse faced with violent
unrest and the other challenging circumstances at issue here.
I also agree with the majority, however, that a determination of the precise
scope of DHS’s and USMS’s statutory authority is not required for resolution of
this emergency motion. Indeed, the statutory question muddles the First
Amendment analysis upon which the district court’s injunction is ultimately
grounded. Presumably, if federal officers have no statutory basis for dispersals
beyond federal property, then any such dispersals are ultra vires, and the inquiry is
21
at an end. There is no reason to proceed to an evaluation of the constitutional
rights of persons subject to such purportedly unlawful measures, let alone to
construct a complex injunction that distinguishes the rights of press and “legal
observers” from the rights of other participants in a protest. Ultimately, a lack of
federal statutory authority for off-property dispersals, as such, cannot serve as the
sole, or even primary, basis upon which this particular injunction is upheld, given
its reliance on a painstaking analysis of purported constitutional violations with
respect to specific persons. Thus, even if I were to accept the majority’s view that
the injunction’s aim is simply to prohibit off-property dispersals by federal
officers, which I do not, the injunction’s terms would be woefully underinclusive.
3
Even if a presumptive right of access for press and “legal observers” to
witness law enforcement’s response to a riot could be said to exist, the inquiry does
not end there. Under Press-Enterprise II, a presumptive right of public access to
any particular proceeding may be overcome by an overriding government interest
based on findings that closure is essential to preserve higher values and is narrowly
tailored to serve that interest. 478 U.S. at 8–9.
The district court’s narrow tailoring analysis failed to take proper account of
the government’s interests in defense of federal personnel and property, which
justify use of general dispersal orders during riot control situations that threaten
22
federal resources, even in a public forum. 8 Here, considering the chaotic and
dynamic situation during Portland’s recent protest events, which have frequently
devolved into riots, along with the nefarious actions by certain individuals falsely
purporting to be press or “legal observers,” closure of the forum through general
dispersal orders is essential to the defense of federal personnel and property.
Indeed, the closure of governmental proceedings has been deemed proper in
several instances where the government’s interest was arguably less immediate and
the restriction on access was equally broad. Cf., e.g., Dhiab v. Trump, 852 F.3d
1087, 1095 (D.C. Cir. 2017) (government’s interest in preventing future threats to
military operations would justify closure of habeas proceedings); U.S. v. Index
Newspapers LLC, 766 F.3d 1072, 1087 (9th Cir. 2014) (government’s interest in
8
In addition, the district court’s narrow tailoring analysis was conceptually flawed
because the closure evaluated in the Press-Enterprise II framework should be that
of a specific governmental proceeding, not of a public forum generally. Utilizing
“right-of-public-access” analysis to evaluate the closure of a “traditional public
forum,” such as a public street, is unsettling because government restrictions on
First Amendment activity in such locations are usually evaluated under “public
forum analysis,” which has been more extensively developed in the case law and
provides more guidance regarding the policing of protest events. See, e.g., Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); Int’l Action
Ctr. v. City of New York, 587 F.3d 521, 527 (2d Cir. 2009); Coal. to Protest
Democratic Nat’l Convention v. City of Boston, 327 F. Supp. 2d 61, 69–70 (D.
Mass.), aff’d sub nom. Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8 (1st Cir.
2004).
23
secrecy justified closure of certain grand jury proceedings); ACLU v. Holder, 673
F.3d 245, 252 (4th Cir. 2011) (government’s interest in integrity of ongoing fraud
investigation justified sealing of complaints filed in False Claims Act actions).
Moreover, if the categories of “journalist” and “legal observer” in fact
include all members of the public engaged in observation, as distinguished from
speech or protest—as the majority seems to suggest—then the government’s
interests in full closure of the “proceeding” are even more compelling. Otherwise,
in the event of a riot in a public forum that threatens federal property, federal
officers could disperse only members of the public that are speaking, assembling,
and protesting, but not members of the public that are observing or documenting.
Peaceful protesters caught up in the riot would have to obey the dispersal order, but
peaceful observers would not. This differential treatment is groundless and, in any
event, would render federal dispersal orders a dead letter, even in the face of an
undeniable threat to federal property and personnel. Federal law enforcement
agents simply would not be allowed to clear the street. Such a prohibition is not
only inconsistent with the government’s overriding interest in security in cases of
violent unrest that threatens federal property and personnel, it is also contrary to
established law in other First Amendment settings, which permits general dispersal
orders in similar circumstances. Cf., e.g., Bible Believers v. Wayne Cty., Mich.,
805 F.3d 228, 252 (6th Cir. 2015) (“The police may go against the hecklers,
24
cordon off the speakers, or attempt to disperse the entire crowd if that becomes
necessary.”). Carr v. D.C., 587 F.3d 401, 409–10 (D.C. Cir. 2009) (“[W]hen
police face an unruly crowd they may give a dispersal order and then arrest those
who, after reasonable opportunity to comply, fail to do so. We continue to
acknowledge that this tactic will be invaluable to police in certain circumstances. A
dispersal order might well be necessary in a situation in which a crowd is
substantially infected with violence or otherwise threatening public safety.”
(internal citations and quotation marks omitted)); Wise, 2020 WL 5231486 at *2
(recognizing propriety of general dispersal orders in response to Portland riots).
The only way the majority arrives at a different conclusion is by according
deference to the district court’s factual findings, which placed heavy emphasis on
the City of Portland’s consent to abide by an injunction with nearly identical terms
and a declaration submitted by former DHS official Gil Kerlikowske stating that
law enforcement officers may respond effectively to riots without dispersing
journalists and “legal observers.” Evaluating whether a government measure is
narrowly tailored is not simply a matter of ordinary fact-finding, however. Narrow
tailoring is viewed as a mixed question of fact and law that requires a delicate
balancing of legal principles as applied to specific circumstances. See Gilbrook v.
City of Westminster, 177 F.3d 839, 861 (9th Cir. 1999); Gerritsen v. City of Los
Angeles, 994 F.2d 570, 575 (9th Cir. 1993) (“[W]e review First Amendment
25
questions de novo since they present mixed questions of law and fact, requiring us
to apply principles of First Amendment jurisprudence to the specific facts of this
case.” (internal quotation marks omitted)); see also Mastrovincenzo v. City of New
York, 435 F.3d 78, 100 (2d Cir. 2006) (“Our narrow-tailoring inquiry requires us to
apply principles of First Amendment jurisprudence to the specific facts of this
case, and therefore we treat this issue as a mixed question of law and fact that we
may resolve on appeal.” (internal quotations marks omitted)); Casey v. City of
Newport, R.I., 308 F.3d 106, 116 (1st Cir. 2002) (“Inescapably, the application of
the narrow tailoring test entails a delicate balancing judgment.” (citations
omitted)). Accordingly, I would revisit the district court’s narrow tailoring inquiry,
which I believe did not correctly balance the interests at stake.
The City’s stipulation does not have the import that the district court, and the
majority, ascribe to it. That the City ultimately agreed to the terms of the
injunction does not show that it complied with them, let alone that it did so and
managed to protect property and personnel. In any event, the City’s agreeableness
should not be overstated here. The PPB is still alleged to have followed until
recently a policy of dispersing press and “legal observers,” the TRO was entered
26
without the City’s consent, and, after the City agreed to a preliminary injunction, it
suggested that modifications would be required.9
Moreover, as already discussed, holding DHS and USMS to the City’s
policies and practices reflects a misunderstanding of the relationship between
federal and local law enforcement, each of which operates under a separate
command structure and is typically entitled to set different enforcement priorities
and to follow different directives regarding lawful crowd control tactics, including
general dispersal orders. In this case, the City not only sought to distinguish the
PPB from federal law enforcement, it has been explicitly adverse to the presence of
federal officers in Portland, leveling serious allegations of unlawful conduct
against them, and even going so far as to prohibit the PPB from cooperating with
federal agents to provide security for the Hatfield Courthouse. The City’s actions,
and its filings in the district court, suggest that it has a divergent assessment of the
severity of the threat posed to federal personnel and property by protest events that
degenerate into riots, and of the proper manner of dealing with that threat. The
9
The City also resisted a very similar request for injunctive relief brought by so-
called “protest medics.” Wise, 2020 WL 5231486 at *2. The City apparently
argued, and the district court agreed, that an injunction exempting “protest medics”
from dispersal orders would be unworkable for the PPB. Why the City expects the
PPB to identify and to exempt “legal observers,” but not “protest medics,” is
difficult to understand. Cf. fn. 7, supra.27
City is entitled, of course, to utilize different crowd control tactics, but the City’s
choices obviously do not bind federal law enforcement agencies.
Similarly, Kerlikowske’s testimony does not adequately address crowd
control under the specific circumstances faced by federal officers in Portland. For
example, he deals in a conclusory manner with the evidence placed in the record
regarding the involvement of putative journalists and “legal observers” in criminal
acts, stating that federal officers “were not fooled” by the “press” labels and that
trained officers are capable of dealing with such incidents on an individualized
basis. But effectuating an arrest may not be feasible or safe in the chaotic and
dynamic environment of a riot that threatens federal property and personnel, which
is why dispersal orders—and related crowd control tactics, such as deployment of
tear gas—are understood to be legitimate law enforcement tools in the first place.
Cf. Wise, 2020 WL 5231486 at *2 (recognizing propriety of general dispersal
orders in responding to Portland riots); Don't Shoot Portland v. City of Portland,
No. 3:20-CV-00917-HZ, 2020 WL 3078329, at *4 (D. Or. June 9, 2020) (allowing
use of tear gas in situations where safety of public or police is at risk). Given the
conclusory nature of Kerlikowske’s testimony on this point, it is hardly definitive.
Accordingly, the government has made a strong showing that it is likely to
succeed in demonstrating that the First Amendment-based right of public access
does not support the district court’s injunction.
28
B
With respect to the “retaliation” claim, the district court also concluded that
plaintiffs were likely to succeed, largely based on its detailed factual findings
indicating a disturbing pattern of unwarranted force by federal agents. The
majority opinion here discusses the “retaliation” claim extensively and ultimately
defers to these factual findings.
Even if plaintiffs’ retaliation claim were viable, however, that claim alone
cannot justify this injunction. The district court’s factual findings regarding
retaliation, while apparently based on a meticulous examination of the record, bear
no relation to the injunctive relief actually entered. General dispersal orders were
not among the acts alleged to be retaliatory, nor did the district court make any
findings to support such a conclusion. An injunction that exempts plaintiffs—not
to mention, journalists and “legal observers” more generally—from dispersal
orders is thus far broader than necessary to provide relief for the injuries alleged,
and documented, as a result of retaliation.10 Indeed, Judge Immergut, of the very
same district court, relied on such reasoning in denying a similar request for
injunctive relief based on First Amendment “retaliation” just two weeks after the
10
Remarkably, some of the allegations in the complaint regarding “retaliation”
may well support Bivens actions and claims of excessive force against individual
officers, but that is not what is before us today. Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388, 395 (1971).
29
instant preliminary injunction was entered. Wise, 2020 WL 5231486 at *8
(injunction not warranted where instances of alleged targeting appeared to occur
when “protest medics” refused to follow dispersal orders).
Accordingly, I would hold that, regardless of whether plaintiffs’ have stated
a valid First Amendment “retaliation” claim, an injunction that exempts them from
non-retaliatory dispersal orders is overbroad and an abuse of discretion. See Cal.
v. Azar, 911 F.3d 558, 584 (9th Cir. 2018) (“The scope of the remedy must be no
broader and no narrower than necessary to redress the injury shown by the
[plaintiff].”)
I conclude that DHS and USMS have made a strong showing that they are
likely to succeed in demonstrating that the district court’s extraordinary injunction
was issued without an adequate legal basis. This critical Nken factor favors grant
of the government’s emergency motion for stay pending appeal.
III
The remaining Nken factors also favor a stay pending appeal here. First,
while a closer question, the government has shown that it is likely to suffer
irreparable harm during the pendency of the appeal if the injunction is not stayed,
because it is unworkable for federal officers to distinguish journalists and “legal
observers” in the midst of a riot that threatens federal property and personnel based
30
on the nebulous criteria established by the district court, particularly in light of the
incidents of press and “legal observer” involvement in violent unrest.
The majority rejects the government’s showing on this factor, stating that the
injunction is carefully drawn to avoid undue interference with DHS’s and USMS’s
defense of federal resources, that the PPB has been operating safely and effectively
under nearly identical terms, and that Kerlikowske’s declaration indicates that
general dispersal orders are unnecessary for crowd control. The majority’s
characterization of the order as carefully drawn is misleading because the order
merely restates existing legal rules, such as an officer’s power to make an arrest
based on probable cause. And the order does not explain how effectuating arrest of
individual suspects is as feasible or safe as utilizing general crowd control tactics
during a riot that threatens federal property and personnel. Similarly, the City’s
stipulation and Kerlikowske’s declaration do not warrant the treatment they
receive, for the reasons discussed above.
Second, the harms to the government are serious because the injunction’s
curtailment of general dispersal orders will compromise the security of federal
personnel and property, whereas, if there is no right of public access, as I have
argued, then any harm to plaintiffs from a stay is minimal because they do not have
a right to remain in the street after they have been ordered to disperse, and the
injunction does not protect them from retaliation. Third, for similar reasons, the
31
public interest in maintenance of order and public safety also favors stay of an
overbroad injunction that unduly interferes with law enforcement operations, while
offering little, if any, protection for plaintiffs’ actual constitutional rights. This
combination of showings justifies a stay pending appeal. See Leiva-Perez v.
Holder, 640 F.3d 962, 970 (9th Cir. 2011) (stay warranted where irreparable harm
is probable, there is a strong likelihood of success on the merits, and the public
interest does not weigh heavily against a stay).
IV
Because the government has made a strong showing that it is likely to
succeed in demonstrating that the injunction lacks an adequate legal basis, and the
other Nken factors also weigh in favor of a stay, I respectfully dissent and would
grant the emergency motion for stay pending appeal.
32