483 F.Supp.3d 956
D. Or.2020Background
- In 2020 Portland protests, four volunteer "protest medics" sought a TRO to bar the City, Officer Pettey, and unnamed officers from arresting, using force against, seizing supplies from, or ordering medics to disperse while they were providing aid.
- Medics identify themselves with improvised markings (duct-taped or painted crosses) and provide varied aid (eye wash, bandages, carrying injured, supplies); none wore a standardized uniform or had uniform certifications.
- Plaintiffs alleged First Amendment retaliation (that providing medical aid is expressive conduct) and Fourth Amendment excessive force and unlawful seizure claims based on several incidents where medics were allegedly teargassed, hit with projectiles, or arrested during dispersals.
- Police and municipal defendants described recurring violence at protests, frequent dispersal orders and riots, and argued medics were not readily distinguishable from other protesters and sometimes positioned between police and crowds.
- The medics sought a mandatory, two-week TRO exempting them from lawful dispersal orders; court heard argument and considered related TROs and new restrictions on crowd-control (including existing TRO limits on tear gas).
- The district court denied the TRO, finding plaintiffs failed to show likelihood of success, irreparable harm, and that the requested special exemptions were unworkable and posed public-safety and equity concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether providing medical aid at protests is protected expressive conduct warranting exemption from dispersal orders | Medics: rendering aid is expressive conduct tied to protest message and thus protected; they should not be forced to disperse while treating | City: medics lack a uniformized, "inherently expressive" identity; conduct is not clearly distinguishable and may be regulated to serve public safety | Court: did not find medics have unique First Amendment status allowing exemption; plaintiffs unlikely to prevail on that theory |
| Whether officers targeted medics with excessive force / retaliatory arrests (Fourth Amendment) | Medics: were singled out, suffered injuries from crowd-control tactics, and were arrested because of medic status | City: force used during dispersal operations; medics often intermixed with protesters; disputed factual narratives; some arrests had plausible probable cause | Court: allegations raise serious questions but record insufficient for mandatory injunction; merits and credibility issues require fuller development |
| Whether plaintiffs face likely irreparable future harm absent an injunction | Medics: risk of being wronged again given past incidents | City: medics are not systematically targeted; existing policy changes and TROs limit some crowd-control uses; plaintiffs delayed seeking relief | Court: plaintiffs failed to show imminent, likely irreparable harm; policy changes and lack of clear identifiability weigh against injunction |
| Whether balance of equities and public interest support a medic-specific TRO | Medics: protecting medics and injured protesters serves public interest in safety and free expression | City: medic exemption would complicate crowd control, confuse officers, and risk public safety because medics are not clearly distinguishable | Court: public-safety and enforcement concerns, and unworkability of a special exemption, weigh against granting TRO |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (preliminary injunction/TRO standard)
- Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2009) (heightened standard for mandatory injunctions)
- Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (mandatory injunction burden requires clear favoring law and facts)
- Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) (TRO factors mirror preliminary injunction analysis)
- All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (sliding-scale approach among injunction factors)
- hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985 (9th Cir. 2019) (clarifying interplay of injunction factors/sliding scale)
- Graham v. Connor, 490 U.S. 386 (1989) (Fourth Amendment objective reasonableness test for excessive force)
- United States v. O’Brien, 391 U.S. 367 (1968) (test for permissible regulation of expressive conduct)
- Hartman v. Moore, 547 U.S. 250 (2006) (elements of First Amendment retaliation analysis)
- Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009) (particularized-message test for expressive conduct)
- Hurley v. Irish–Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) (expressive conduct need not convey a specific message)
- City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (standing/irreparable harm requirement for injunctive relief)
- Tennessee v. Garner, 471 U.S. 1 (1985) (totality-of-circumstances in use-of-force analysis)
- Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012) (contextual, fact-intensive excessive force inquiry)