§ 1.6.4 Extent and Irreparability of Harm. As stated in the preceding section, the court must first consider the likelihood of irreparable harm to be suffered by the plaintiff pending litigation, if restraints are not granted. “Simply stated, the threat of irreparable harm renders a situation urgent because it means a party is in danger of losing something irretrievable.” Ford Motor Co. v. Todecheene, 221 F. Supp. 2d 1070, 1088 (D. Ariz. 2002) , citing 11A Wright Miller & Kane, Federal Practice and Procedure § 2948.1 at 139 . “Irreparable harm must be shown by the moving party to be imminent, not remote or speculative.” Reuters Ltd. v. United Press International, Inc., 903 F.2d 904, 907 (2d Cir. 1990) ; Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989) . “[U]nder the district court’s ordinary equity injunction [the movant] must show that it is likely to suffer irreparable harm if equitable relief is denied.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990) . Accord Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999) (“a significant threat of irreparable injury”).
Under current federal law, “[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008) . “[T]he movant’s failure to sustain its burden of proving irreparable harm ends the inquiry ‘and the denial of the injunctive request is warranted.’” Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 371 (8th Cir. 1991) (quoting Gelco Corp. v. Coniston Partners, 811 F.2d 414, 420 (8th Cir. 1987) ).
An injunction should not issue “against state officers engaged in the administration of the States’ criminal laws in the absence of irreparable injury which is both great and immediate.” Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1049 (9th Cir. 1999) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 112, 103 S. Ct. 1660 (1983) ). On the other hand, the courts have consistently held that a racially discriminatory law enforcement policy constitutes ongoing harm and thereby supports standing to seek an injunction. Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 985 (D. Ariz. 2011) . Injunctive relief is appropriate when plaintiffs show that police misconduct is purposely aimed at minorities and that such was condoned and tacitly authorized by department policymakers. Id. If an individual or entity faces the imminent threat of enforcement of a preempted state law and the resulting injury may not be remedied by monetary damages, the individual or entity is likely to suffer irreparable harm. United States v. Arizona , 703 F. Supp. 2d 980, 1006 ( D. Ariz. 2010). Similarly, the government suffers irreparable harm where it is unable to enforce its policies and achieve its objectives where state enforcement of statutes interfere with federal law. Id. at 1007.
Consequently, the requirement of immediate and irreparable injury is the most significant condition affecting issuance and, where the matter is decided ex parte, may be the only factor actually considered. In fact, unlike Rule 65(a)...
