Index Newspapers LLC v. City of Portland

480 F.Supp.3d 1120

INDEX NEWSPAPERS LLC d/b/a Portland Mercury; Doug Brown; Brian Conley ; Sam Gehrke; Mathieu Lewis-Rolland; Kat Mahoney; Sergio Olmos; John Rudoff; Alex Milan Tracy; Tuck Woodstock; Justin Yau; and those similarly situated, Plaintiffs,

v.CITY OF PORTLAND; John Does 1-60; U.S. Department of Homeland Security; and U.S. Marshals Service, Defendants.

Case No. 3:20-cv-1035-SI

United States District Court, D. Oregon.

Signed August 20, 2020

Matthew Borden, J. Noah Hagey, Athul K. Acharya, and Gunnar K. Martz, Braunhagey & Borden llp, 351 California Street, Tenth Floor, San Francisco, CA 94104; Kelly K. Simon, American Civil Liberties Union Foundation of Oregon, P.O. Box 40585, Portland, OR 97240. Of Attorneys for Plaintiffs.

Denis M. Vannier and Naomi Sheffield, Senior Deputy City Attorneys; Ryan C. Bailey, Deputy City Attorney; and Youngwoo Joh, Assistant Deputy City Attorney, Office of the City Attorney, 1221 SW Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant City of Portland.

Ethan P. Davis, Acting Assistant Attorney General, Civil Division; Billy J. Williams, United States Attorney for the District of Oregon; David M. Morrell, Deputy Assistant Attorney General, Civil Division; Alexander K. Hass, Director, Federal Programs Branch; Brigham J. Bowen, Assistant Director, Federal Programs Branch; Joshua E. Gardner, Special Counsel, Federal Programs Branch; Andrew I. Warden, Senior Trial Counsel; Jeffrey A. Hall, Jordan L. Von Bokern, and Keri L. Berman, Trial Attorneys; U.S. Department of Justice, Civil Division, Federal Programs Branch, 1100 L. Street, NW, Washington, D.C. 20530. Of Attorneys for Defendants U.S. Department of Homeland Security and U.S. Marshals Service.

James L. Buchal, Murphy & Buchal llp, 3425 SE Yamhill Street, Suite 100, Portland, OR 97214. Of Attorney for Amicus Curiae National Police Association.

Duane A. Bosworth, Davis Wright Tremaine llp, 1300 SW Fifth Avenue, Suite 2400, Portland, OR 97201; Katie Townsend, Gabe Rottman, and Adam A. Marshall, The Reporters Committee for Freedom of the Press, 1156 15th Street NW, Suite 1020, Washington, D.C. 20005. Of Attorneys for Amici Curiae Reporters Committee for Freedom of the Press and 16 News Media Organizations.

OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION AGAINST FEDERAL DEFENDANTS

Michael H. Simon, District Judge.

"Open government has been a hallmark of our democracy since our nation's founding." Leigh v. Salazar , 677 F.3d 892, 897 (9th Cir. 2012). "When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate." Id. at 900. "The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press." Id. This lawsuit tests whether these principles are merely hollow words.

Plaintiffs Index Newspapers LLC doing business as Portland Mercury, Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau (collectively, "Plaintiffs") bring this putative class action against: (1) the City of Portland (the "City"); (2) numerous as-of-yet unnamed individual and supervisory officers of the Portland Police Bureau ("PPB") and other agencies allegedly working in concert with the PPB; (3) the U.S. Department of Homeland Security ("DHS"); and (4) the U.S. Marshals Service ("USMS"). The Court refers to DHS and USMS collectively as the "Federal Defendants." Plaintiffs are journalists and authorized legal observers. They allege violations of the First and Fourth Amendments of the United States Constitution and Article I, sections 8 and 26 of the Oregon Constitution. Plaintiffs seek declaratory and injunctive relief and money damages.

Before the Court is Plaintiffs' motion for preliminary injunction against the Federal Defendants. Plaintiffs allege that agents of the Federal Defendants from around the United States, specially deployed to Portland, Oregon to protect the federal courthouse, have repeatedly targeted and used physical force against journalists and authorized legal observers who have been documenting the daily Black Lives Matter protests in this city. These federal agents include special tactical units from U.S. Customs and Border Protection under the U.S. Department of Homeland Security ("BORTAC") and other special tactical units from the U.S. Marshals Service under the U.S. Department of Justice ("Special Operations Group" or "SOG").

Although these federal agents are highly trained in some areas of law enforcement, Plaintiffs contend that neither these agents nor their commanders have any special training or experience in civilian crowd control. Plaintiffs allege that some of these officers have 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 of lawful protesters. In response, the Federal Defendants argue that they are merely protecting the federal courthouse and its personnel from potential or actual violence and that any interference with protected First Amendment activity is merely incidental.

The Ninth Circuit has stated:

Demonstrations can be expected when the government acts in highly controversial ways, or other events occur that excite or arouse the passions of the citizenry. The more controversial the occurrence, the more likely people are to demonstrate. Some of these demonstrations may become violent. The courts have held that the 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, 1372 (9th Cir. 1996) (citation omitted). Here, the actions of the Federal Defendants, or at least some of their officers, prevent, deter, or otherwise chill the constitutionally protected newsgathering, documenting, and observing work of journalists and authorized legal observers, who peacefully stand or walk on city streets and sidewalks during a protest. As further explained by the Ninth Circuit in Collins :

It has been clearly established since time immemorial that city streets and sidewalks are public fora. Restrictions on First Amendment activities in public fora are subject to a particularly high degree of scrutiny.

Id. at 1371 (citations and quotation marks omitted).

The Federal Defendants also argue that Plaintiffs are seeking special protections for journalists and legal observers under the First Amendment but that journalists and legal observers are entitled to no greater rights than those afforded to the public generally. In support, the Federal Defendants cite Branzburg v. Hayes , 408 U.S. 665, 680-82, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), which held that although the First Amendment protects news gathering, it does not provide a reporter's privilege against testifying before a grand jury. In that case, the Supreme Court noted: "It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." Id. at 684, 92 S.Ct. 2646 ; see also Cal. First Amendment Coal. v. Calderon , 150 F.3d 976, 981 (9th Cir. 1998) (same). The Federal Defendants argue, in essence, that Plaintiffs' requested preliminary injunction violates the traditional "nondiscrimination" interpretation of the First Amendment's Press Clause.¹

At first glance, one might think that the journalists and legal observers here are seeking protection against having to comply with an otherwise lawful order to disperse from city streets after a riot has been declared, when the public generally does not have that protection. When local law enforcement lawfully declares a riot and orders people to disperse from city streets, generally they must comply or risk arrest. The question of whether journalists have any greater rights than the public generally, however, is not actually presented in the pending motion for preliminary injunction. That is because the Federal Defendants are not asserting that they have the legal authority to declare a riot and order persons to disperse from the city streets in Portland; nor does the authority they cite for their presence and actions in Portland so provide.² It is only state and local law enforcement that may lawfully issue an order declaring a riot or unlawful assembly on city streets. That is simply part of a state or city's traditional police power.

Here, Plaintiffs and the City have already stipulated to a preliminary injunction that provides that the Portland Police will not arrest any journalist or authorized legal observer for failing to obey a lawful order to disperse. Thus, the question of whether an otherwise peaceful and law-abiding journalist or authorized legal observer has a First Amendment right not to disperse when faced with a general dispersal order issued by state or local authorities does not arise in this motion.³

Plaintiffs and the Federal Defendants have stipulated that an evidentiary hearing with live witness testimony is unnecessary and that the Court may base its decision on the written record and oral argument of counsel. For the reasons that follow, the Court GRANTS Plaintiffs' motion for preliminary injunction against the Federal Defendants.

STANDARDS

A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Defense Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary...