977 F.3d 817
9th Cir.2020Background
- After George Floyd’s killing, months of Portland protests included largely peaceful demonstrations and some late-night violence (vandalism, arson, assaults); federal DHS and USMS agents were deployed to protect the federal courthouse.
- Plaintiffs are a newspaper and individual journalists, photojournalists, and legal observers who say federal agents repeatedly targeted them with less‑lethal munitions, pepper spray, and physical force while they were observing and recording protests.
- The district court found extensive documentary evidence (declarations, photos, videos) of numerous incidents in which journalists/legal observers were struck while not engaged in unlawful behavior, and entered a TRO and then a preliminary injunction restricting federal crowd‑control actions against journalists and legal observers and prescribing identification and other procedures.
- Federal Defendants sought a stay of the injunction pending appeal, arguing lack of standing, failure to show plaintiffs’ reporting motivated the conduct, no press right to remain during dispersal orders, and that the injunction is unworkable and harms their ability to protect federal property.
- A Ninth Circuit motions panel denied the stay: it deferred to the district court’s factual findings, concluded defendants had not shown a strong likelihood of success on the merits or likely irreparable harm, and lifted an administrative stay; Judge O’Scannlain dissented, arguing the injunction was legally unsupported and would impair law enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for injunctive relief | Plaintiffs face ongoing and repeated targeting and a chilling of First Amendment rights; documentary evidence shows repeated incidents, so future harm is non‑speculative | Following Lyons, plaintiffs lack imminent injury for equitable relief absent a credible threat of repeat misconduct | Court: Plaintiffs have standing — repeated documented incidents and ongoing risk make future injury non‑speculative; defendants unlikely to prevail on standing argument |
| First Amendment retaliation (causation) | Plaintiffs say exercising press rights was a substantial/motivating factor in agents’ use of force; record shows many incidents where identifiable press were targeted | Defendants argue no evidence that protected activity motivated agents’ actions | Court: Deferential to district court factual findings; record (dozens of incidents, expert opinion) supports likelihood plaintiffs will succeed on retaliation claim |
| First Amendment right‑of‑access to streets/sidewalks during protests | Press and legal observers have at least the same access as the public to observe police; public access to observe law enforcement serves important democratic oversight and is historically significant | Defendants say Press‑Enterprise framework does not apply to police riot control on public streets; even if it did, dispersal may be essential and narrowly tailored to protect federal property | Court: Applied Press‑Enterprise factors (public forum + public interest) and held plaintiffs likely to succeed on right‑of‑access claim; defendants did not show dispersal of press was essential or untailorable |
| Stay factors / unworkability & irreparable harm (Nken) | Injunction is targeted and workable; City adopted similar stipulation; injunction permits lawful dispersal orders and arrests for crimes | Injunction is unworkable in riots — forces split‑second distinctions, endangers agents and federal property, and will cause irreparable harm absent stay | Court: Defendants failed to show strong likelihood of success or likely irreparable harm; third & fourth Nken factors favor plaintiffs; stay denied (administrative stay lifted) |
Key Cases Cited
- Nken v. Holder, 556 U.S. 418 (2009) (stay‑pending‑appeal factors and demanding showing required)
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (standard for injunctive relief)
- Press‑Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (two‑part test for qualified First Amendment right of access)
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (historical basis for public/press access to governmental proceedings)
- City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (injunctive‑relief standing requires credible threat of future application of challenged conduct)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (constitutional standing framework)
- Thomas v. County of Los Angeles, 978 F.3d 504 (9th Cir. 2020) (repeated incidents remove speculation from standing analysis)
- Fed. Election Comm’n v. Furgatch, 869 F.2d 1256 (9th Cir. 1989) (factors to assess likelihood of future misconduct)
- Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755 (9th Cir. 2006) (elements of First Amendment retaliation claim)