Faison v. Jones

440 F.Supp.3d 1123

Tanya FAISON and Sonia Lewis, Plaintiffs,

v.Scott R. JONES, individually and as Sheriff of Sacramento County, Defendant.

No. 2:19-cv-00182-TLN-KJN

United States District Court, E.D. California.

Signed February 19, 2020

Filed February 21, 2020

John G. Heller, Rogers Joseph O'Donnell, Matthew Thomas Cagle, Christine Patricia Sun, American Civil Liberties Union of Northern California, San Francisco, CA, Sean Riordan, ACLU Foundation of Northern California, Sacramento, CA, for Plaintiffs.

Daniel K. Spradlin, James Hardy Eggart, Woodruff, Spradlin & Smart, Costa Mesa, CA, for Defendant.

ORDER

Troy L. Nunley, United States District Judge

This matter is before the Court on Plaintiffs Tanya Faison and Sonia Lewis's (collectively, "Plaintiffs") Motion for Preliminary Injunction. (ECF No. 9.) Defendant Scott R. Jones ("Defendant") filed an opposition. (ECF No. 13.) Plaintiffs filed a reply. (ECF No. 18.) Having carefully considered the parties' briefing and for the reasons set forth below, the Court GRANTS Plaintiffs' motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant is the Sheriff of Sacramento County, California. (ECF No. 9-1 at 7.) He was first elected in 2010 and was re-elected in 2014 and 2018. (ECF No. 13 at 6.) Defendant maintains a Facebook page titled "Sheriff Scott Jones" under the username @SheriffScottJones. (ECF No. 9-1 at 7.) Defendant asserts that his campaign consultants created the Facebook page in 2017 for campaign purposes and that the page currently has three administrators: Defendant and his two campaign consultants, Tab Berg and Kyle Macdonald. (ECF No. 13-2 at 4.)

The page features a profile photograph of Defendant in uniform and a banner photo of a Sacramento County Sheriff's Department vehicle across the top of the page. (ECF No. 9-4 at 6.) The page identifies Defendant as a "Public Figure." (Id. ) The page includes an "About" link, which directs visitors to a biography that highlights Defendant's role, goals, and initiatives as "the 36th Sheriff of Sacramento County." (Id. at 8.) The page also features posts by Defendant, comments by Facebook users in response to Defendant's posts, and Defendant's replies to comments. (See id. at 10–81.) At the time Plaintiffs filed their motion, Defendant's Facebook page had nearly 10,000 "followers." (ECF No. 9-1 at 7.) The page also allows the general public who do not "follow" the page to view it, and any unbanned Facebook user is able to comment on Defendant's posts. (ECF No. 13-2 at 9.) If Defendant bans a Facebook user from the page, the banned user can view the page but cannot comment on posts.¹ (Id. ; see also ECF No. 13 at 23.)

Defendant's posts are varied. Among them, Defendant posted about his 2018 campaign. (Id. at 7–8.) He posted about holidays, significant anniversaries, the passing of public figures, and personal updates about himself and his family. (Id. ) He posted about his swearing in for his third term as Sheriff. (ECF No. 9-4 at 10.) He posted a link to the Sheriff's Department's official press release after a shooting incident in Pittsburgh, Pennsylvania. (Id. at 12.)

Central to this dispute, Defendant repeatedly posted his opposition to calls for outside oversight of the Sheriff's Department after Sacramento County deputies shot and killed Mikel McIntyre, an African American man.² (Id. at 14.) In an October 31, 2018 post, Defendant urged his supporters to attend an upcoming Sacramento County Board of Supervisors meeting regarding oversight of the Sheriff's Department. (Id. ("I need those of you that support the Sheriff's Department, that support the independence of Sheriffs as elected officials, or are against yet another liberal takeover of law enforcement, to show up.")) Defendant reiterated this message in similar posts on November 5, 2018 (Id. at 47), November 7, 2018 (Id. at 40), November 27, 2018 (Id. at 49), December 2, 2018 (Id. at 60), and December 4, 2018 (Id. at 75).

In his November 7, 2018 post, Defendant posted a link to an op-ed he authored for the Sacramento Bee in which he defended the Department's independence and argued against outside oversight. (Id. at 39–40.) In his November 27, 2018 post, Defendant announced that the District Attorney's Office found all officers were fully justified in their use of force in the McIntyre shooting and posted a picture of himself in uniform talking to several law enforcement officers. (Id. at 49.) Defendant's posts generated dozens of comments and replies, including replies by Defendant himself, wherein Facebook users debated the merits of the controversy. (See, e.g. , id. at 18, 19, 20, 43, 52, 54, 64, 65, 66.)

Plaintiffs are "co-leads" of Black Lives Matter Sacramento ("BLM"). (ECF No. 9-1 at 9.) BLM is a group that has expressed vocal criticism of law enforcement's treatment of African Americans in and around Sacramento, including fatal shootings of African Americans. (Id. at 9– 10.) Plaintiffs have publicly criticized Defendant and the Sacramento County Sheriff's Department and have advocated for mandatory oversight of the Department. (Id. at 10.)

Plaintiff Faison's claim relates to Defendant's November 5, 2018 post, in which Defendant criticized Phil Serna, a member of the Sacramento County Board of Supervisors, and posted a picture of Serna holding a BLM t-shirt. (ECF No. 9-4 at 47.) Defendant also included screenshots of posts from BLM and Fasion's Facebook pages that were critical of law enforcement. (Id. ) Faison asserts that she commented on the post from her personal Facebook account as follows: "I think it's creepy that you have saved screen shots from my page from November 2015... You[r] concern of my abilities looks to be real. Thank you for your confidence in me." (ECF No. 9-1 at 11.) According to Plaintiffs, Defendant deleted the comment, along with other critical comments Faison made on the page. (Id. ) Defendant then banned Faison from his page altogether. (Id. ) Later that night, Faison used a second profile she maintains to again comment on Defendant's page, including a comment stating, "Stop deleting my comments." (Id. ) Defendant responded by deleting those comments and banning Fasion's second profile from his page. (Id. ) As of the filing of the instant motion, Faison remains banned and is therefore unable to comment on the page. (Id. )

Plaintiff Lewis's claim relates to Defendant's October 31, 2018 post, which Defendant began, "Can you imagine the Sheriff's Department being controlled by... Black Lives Matter?" (ECF No. 9-4 at 14.) Later in the post, Defendant encouraged supporters to attend the upcoming Board of Supervisors meeting. (Id. ) Lewis asserts that she posted a comment stating Defendant was resisting external oversight and accountability. (ECF No. 9-1 at 11.) Lewis claims Defendant deleted the comments and banned Lewis from the page. (Id. at 12.) As of the filing of the instant motion, Lewis remains banned and is therefore unable to comment on the page. (Id. )

Plaintiffs filed suit on January 30, 2019, seeking declaratory and injunctive relief and damages under 42 U.S.C. § 1983. (ECF No. 1.) Plaintiffs assert that by deleting their posts and banning them from his Facebook page, Defendant deprived Plaintiffs of their right to free speech under the First Amendment to the U.S. Constitution and Article 1, Section 2(a) of the California Constitution. (Id. ) Plaintiffs filed the instant Motion for Preliminary Injunction on March 20, 2019. (ECF No. 9.)

II. STANDARD OF LAW

Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam)). "The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." University of Texas v. Camenisch , 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (emphasis added); see also Costa Mesa City Employee's Assn. v. City of Costa Mesa , 209 Cal. App. 4th 298, 305, 146 Cal.Rptr.3d 677 (2012) ("The purpose of such an order is to preserve the status quo until a final determination following a trial.") (internal quotation marks omitted); GoTo.com, Inc. v. Walt Disney, Co. , 202 F.3d 1199, 1210 (9th Cir. 2000) ("The status quo ante litem refers not simply to any situation before the filing of a lawsuit, but instead to the last uncontested status which preceded the pending controversy.") (internal quotation marks omitted). In cases where the movant seeks to alter the status quo, preliminary injunction is disfavored, and a higher level of scrutiny must apply. Schrier v. University of Co. , 427 F.3d 1253, 1259 (10th Cir. 2005). A preliminary injunction is not automatically denied simply because the movant seeks to alter the status quo, but instead the movant must meet heightened scrutiny. Tom Doherty Associates, Inc. v. Saban Entertainment, Inc. , 60 F.3d 27, 33–34 (2d Cir. 1995).

"A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter , 555 U.S. at 20, 129 S.Ct. 365. A plaintiff must "make a showing on all four prongs" of the Winter test to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1135 (9th Cir. 2011). In evaluating a plaintiff's motion for preliminary injunction, a district court may weigh the plaintiff's showings on the Winter elements using a sliding-scale approach. Id. A stronger showing on the balance of the hardships may support issuing a preliminary injunction even where the plaintiff shows that there are "serious questions on the merits... so long as the...