United States v. 2020-10-09 | 20-35739 | INDEX NEWSPAPERS LLC V. UNITED STATES MARSHALS SERVICE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INDEX NEWSPAPERS LLC, DBA
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-Appellees,
v.
UNITED STATES MARSHALS
SERVICE; U.S. DEPARTMENT OF
HOMELAND SECURITY,
Defendants-Appellants,
and
CITY OF PORTLAND, a municipal
corporation; JOHN DOES, 1–60;
individual and supervisory officers
of Portland Police Bureau and other
agencies working in concert,
Defendants.
No. 20-35739
D.C. No.
3:20-cv-01035-SI
ORDER

INDEX NEWSPAPERS V. U.S. MARSHALS2
Filed October 9, 2020
Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
and Morgan Christen, Circuit Judges.
Order;
Dissent by Judge O’Scannlain
SUMMARY
*
Civil Rights
The panel denied federal defendants’ emergency motion
for a stay pending appeal in an action alleging that during
protests in Portland, Oregon, law enforcement agents
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 protestors.
Plaintiffs—a newspaper organization and individual
journalists, photojournalists, and legal observers who have
attended the protests to serve as reporters and
recorders—filed a class-action complaint against the City of
Portland on June 28, 2020, and subsequently filed an
amended complaint joining as defendants the Department of
Homeland Security and the United States Marshals Service.
The district court entered preliminary injunctions against both
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

INDEX NEWSPAPERS V. U.S. MARSHALS3
the City and the federal defendants that regulated the use of
crowd-control tactics against journalists and legal observers.
The federal defendants appealed and sought a stay pending
appeal.
In denying the stay, the panel held that the federal
defendants had not made a strong showing that they were
likely to succeed on the merits. The panel first held that,
contrary to the federal defendants’ arguments, plaintiffs had
standing to pursue injunctive relief because their risk of
future injury was not speculative. The panel noted that
plaintiffs introduced powerful evidence of the federal
defendants’ ongoing, sustained pattern of conduct that
resulted in numerous injuries to members of the press
between the date the complaint was filed and the date the
district court entered its preliminary injunction. The panel
further noted that the federal defendants’ targeting of
plaintiffs chilled their First Amendment rights and was likely
to continue.
The panel held that the federal defendants had not made
a strong showing that they were likely to succeed on the
merits of plaintiffs’ First Amendment retaliation claim. The
panel noted that the district court’s extensive and thorough
factual findings provided robust support for its conclusion
that plaintiffs’ exercise of their First Amendment rights was
a substantial or motivating factor in the federal defendants’
conduct.
Addressing plaintiffs’ First Amendment right-of-access
to public streets and sidewalks claim, the panel held that,
given the deeply entrenched recognition of the public’s right
to access city streets and sidewalks, circuit precedent
establishing the right to film public police activity, and the

INDEX NEWSPAPERS V. U.S. MARSHALS4
broadly accepted principle that the public’s interest is served
by the role the press plays, the district court had strong
support for its conclusion that plaintiffs demonstrated a
likelihood of success on the merits of this claim. The panel
held that on the record at this preliminary stage the federal
defendants had not made the strong showing that dispersing
the press was essential or that their response was narrowly
tailored to serve the government’s interest in protecting
federal property.
The panel held that the federal defendants had not made
a strong showing that they were likely to suffer irreparable
injury as a result of the district court’s preliminary injunction.
The panel stated that the district court took care to address the
federal defendants’ concerns regarding the workability of the
injunction, and the federal defendants’ continued objection
that the injunction was unworkable was undermined by the
City’s agreement to operate pursuant to a substantially similar
order.
Finally, the panel held that the federal defendants failed
to show that the other parties to the litigation will not be
substantially injured if the district court’s preliminary
injunction was stayed pending appeal. The panel further held
that the public interest did not weigh in favor of a stay.
Dissenting, Judge O’Scannlain stated that the government
made a strong showing that it was likely to succeed in
demonstrating that the injunction lacked an adequate legal
basis, and that other factors also weighed in favor of a stay.
Judge O’Scannlain wrote that with its decision, the majority
validated the transformation of the First Amendment-based
“right of public access” to governmental proceedings into a
special privilege for self-proclaimed journalists and “legal

INDEX NEWSPAPERS V. U.S. MARSHALS5
observers” to disregard crowd dispersal orders issued by
federal law enforcement officers.
COUNSEL
Ethan P. Davis, Acting Assistant Attorney General; Sopan
Joshi, Senior Counsel to the Assistant Attorney General;
Mark R. Freeman, Mark B. Stern, and Michael Shih,
Appellate Staff; Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellants.
Matthew Borden, J. Noah Hagey, Athul K. Acharya, Gunnar
K. Martz, and Ronald J. Fisher, Braunhagey & Borden LLP,
San Francisco, California, for Plaintiffs-Appellees.
Katie Townsend, Bruce D. Brown, Gabe Rottman, Adam A.
Marshall, and Ellen Osoinach, Reporters Committee for
Freedom of the Press, Washington, D.C.; Duane A.
Bosworth, Davis Wright Tremaine LLP, Portland, Oregon;
for Amici Curiae Reporters Committee for Freedom of the
Press and 14 News Media Organizations.
Christa M. Anderson, Jennifer A. Huber, and Elizabeth A.
Egan, Keker Van Next & Peters LLP, San Francisco,
California, for Amici Curiae Committee to Protect
Journalists, Human Rights Watch, and Reporters Without
Borders.

INDEX NEWSPAPERS V. U.S. MARSHALS6
ORDER
On May 25, 2020, George Floyd was killed by a
Minneapolis police officer while being arrested. Bystanders
on the sidewalk recorded videos of a police officer kneeling
on Floyd’s neck for several minutes while Floyd begged for
his life. A video showing the last minutes of Floyd’s life was
circulated nationwide, and it ignited protests across the
country in support of the Black Lives Matter movement.
This case arises out of the protests in Portland, Oregon.
Most of the protests have been peaceful, but some have
become violent. There have been incidents of vandalism,
destruction of property, looting, arson, and assault,
particularly late at night. Since the protests began, state and
local authorities in Oregon have actively monitored the
protests and engaged in crowd control measures. Plaintiffs—
a newspaper organization and individual journalists,
photojournalists, and legal observers who have attended the
protests to serve as reporters and recorders—filed a class-
action complaint against the City of Portland on June 28,
2020.
The complaint alleged that the City’s response to the
protests violated their rights under the First and Fourth
Amendments to the United States Constitution, and Article I,
Sections 8 and 26 of the Oregon Constitution. Specifically,
plaintiffs asserted that although they had not participated in
the protests, the local authorities shot them with less-lethal
munitions (pepper balls, impact munitions, paint markers, and
tear gas canisters), and pepper sprayed, shoved, and otherwise
prevented them from recording and reporting on the protests
and on law enforcement’s response to the same. Four days
after the complaint was filed, on July 2, the district court

INDEX NEWSPAPERS V. U.S. MARSHALS7
entered a temporary restraining order (TRO) against the City
regulating the local authorities’ use of crowd-control tactics
against journalists and legal observers. On July 16, the City
and plaintiffs stipulated to a preliminary injunction that was
largely identical to the TRO.
Many of the protests in Portland have centered around the
Mark O. Hatfield Federal Courthouse. In response to the
threat to federal property, the Department of Homeland
Security (DHS) and the United States Marshals Service
(USMS) (collectively, the Federal Defendants) deployed
federal law enforcement agents to Portland. It appears
undisputed that the intensity of the protests escalated after the
Federal Defendants arrived.
Plaintiffs filed a second amended complaint on July 17
joining as defendants DHS and USMS. This complaint
alleged that the Federal Defendants “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
protestors.” The district court entered a TRO against the
Federal Defendants on July 23.
On July 29, 2020, DHS and the State of Oregon reached
an agreement regarding their respective crowd control efforts.
The agreement is not part of the record, but the district court
described it as generally providing that the City would take
the lead in responding to the protests. The court’s findings
also made clear that the agreement contains numerous caveats
and is terminable at any time, without notice. Though the
agreement was to take effect on July 29, the district court
observed that the record includes video clips that purport to

INDEX NEWSPAPERS V. U.S. MARSHALS8
show federal agents firing tear gas and less-lethal munitions
at journalists standing on SW Main Street on July 29 and into
the morning of July 30. The district court found that “there
was no one nearby on the street but numerous federal
enforcement officers and six journalists when the munitions
were deployed.”
The Federal Defendants assert that the Oregon State
Police are no longer enforcing crowd control in Portland, and
that the Portland Police are currently filling that role instead.
But it is clear that the federal agents have remained in
Portland, and Acting Secretary of DHS, Chad Wolf, stated
that “no determination of timetables for reduction in
protective forces has yet been made.”
1
On August 10, plaintiffs filed a motion for a preliminary
injunction against the Federal Defendants. After briefing was
complete, the parties stipulated that the court could base its
decision on the record and the parties’ arguments without
holding an evidentiary hearing. The record comprises dozens
of declarations, many of which include photographs and links
to video files. The district court issued a detailed, sixty-one
page order granting plaintiffs’ motion on August 20 and
entered a preliminary injunction with terms largely identical
to the terms of the July 23 TRO.
1
On July 28, plaintiffs filed a motion for a finding of contempt and
imposition of sanctions against the Federal Defendants, alleging several
violations of the July 23 TRO. The district court has not yet ruled on the
motion, but noted “serious concerns” that the Federal Defendants had not
complied with the July 23 TRO, and that some of the alleged misconduct
occurred after the Federal Defendants reached the agreement with
Governor Brown.

INDEX NEWSPAPERS V. U.S. MARSHALS9
The district court’s order began by observing that the
Constitution reserves the general police power to the states,
and pursuant to the general police power, local officials have
the authority to issue general dispersal orders on the public
streets and sidewalks. The court noted that the City had
separately stipulated that it would not require members of the
press or legal observers to disperse, and explained that the
Federal Defendants did not assert the authority to issue
general dispersal orders to clear city streets and that the
statutory authority the Federal Defendants relied upon did not
so provide. The court’s order recounts the Federal
Defendants’ position, which was that federal officers had
been dispatched to Portland with the stated mission to protect
federal property and personnel. Nevertheless, the district
court was confronted with compelling photographic evidence
showing that federal officers “routinely have left federal
property and engaged in crowd control and other enforcement
on the streets, sidewalks and parks of the City of Portland.”
The court’s order detailed several of the dozens of
declarations, photos, and video clips introduced into evidence
to support plaintiffs’ contention that at least some of the
federal officers had intentionally targeted journalists and legal
observers in retaliation for their news-reporting efforts.
Having explained that local officials had separately
stipulated they were not requiring journalists and legal
observers to disperse, the preliminary injunction entered to
address the Federal Defendants’ conduct states that
journalists and legal observers “shall not be subject to arrest
for not dispersing following the issuance of an order to
disperse.” The order states that journalists and legal
observers may not impede, block, or otherwise physically
interfere with the lawful activities of the Federal Defendants,
and recognizes that the Federal Defendants are free to issue

INDEX NEWSPAPERS V. U.S. MARSHALS10
“otherwise lawful crowd-dispersal orders for a variety of
lawful reasons;” i.e. crowd-dispersal orders not issued to clear
city streets and sidewalks. The preliminary injunction also
requires that journalists and observers “must comply with all
laws other than general dispersal orders.”
Because the Federal Defendants argued that some
protestors had masqueraded as members of the press by
wearing press badges or clothing identifying them as
members of the press corps, the order provides that it does not
protect unlawful conduct and that anyone, even a person who
appears to be a journalist, is subject to arrest for engaging in
such conduct. Finally, the injunction sets out a number of
indicia to assist the Federal Defendants in distinguishing
between journalists, legal observers, and protesters. These
indicia include visual identifiers such as press passes, people
standing off to the side of protests not engaging in protest
activities, people not intermixed with protest activities, and
people carrying professional-grade photographic equipment.
The order requires that the Federal Defendants’ uniforms bear
marks allowing federal officers to be identified. The
injunction also provides that if a journalist or legal observer
is incidentally exposed to crowd-control devices after
remaining in the area where such devices are deployed to
enforce a lawful dispersal order, the Federal Defendants will
not be liable for violating the injunction.
On August 25, the district court denied the Federal
Defendants’ motion for a stay of the preliminary injunction
pending appeal, principally concluding that the Federal
Defendants had not shown a sufficient likelihood that they
would suffer irreparable injury absent a stay. On appeal, a
divided three-judge motions panel issued a brief, two-page
order on August 27 granting the Federal Defendants’ motion

INDEX NEWSPAPERS V. U.S. MARSHALS11
for an administrative stay of the injunction pending resolution
of their emergency motion for a stay pending appeal.
Having considered the parties’ complete briefing, and
after hearing oral argument, we conclude that the Federal
Defendants have not shown a strong likelihood of success on
the merits. The Federal Defendants also failed to demonstrate
they are likely to suffer irreparable injury if the preliminary
injunction is not stayed pending appeal. Accordingly, we
deny the Federal Defendants’ emergency motion.
I
“A stay is not a matter of right, even if irreparable injury
might otherwise result to the appellant.” Virginian Ry. Co. v.
United States, 272 U.S. 658, 672 (1926). “The party
requesting a stay bears the burden of showing that the
circumstances justify an exercise of that discretion.” Nken v.
Holder, 556 U.S. 418, 433–434 (2009).
To decide whether to grant the Federal Defendants’
motion for a stay pending appeal, our case law requires that
we consider: (1) whether the Federal Defendants have made
a strong showing that they are likely to succeed on the merits;
(2) whether the Federal Defendants will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies. Id. at 426.
To decide whether the Federal Defendants have
demonstrated a likelihood that they will succeed on the merits
of their claims, we review the district court’s findings of fact
for clear error, its legal conclusions de novo, and the
injunction’s scope for abuse of discretion. Armstrong v.

INDEX NEWSPAPERS V. U.S. MARSHALS12
Brown, 768 F.3d 975, 979 (9th Cir. 2014); Walters v. Reno,
145 F.3d 1032, 1047 (9th Cir. 1998) (“A district court’s
factual findings are entitled to deference unless they are
clearly erroneous.”).
II
The bar for obtaining a stay of a preliminary injunction is
higher than the Winter standard for obtaining injunctive
relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). We have explained that the first two Nken factors are
the most critical, and that the second two factors are only
considered if the first two factors are satisfied. Nken,
556 U.S. at 434–35; Al Otro Lado v. Wolf, 952 F.3d 999,
1007 (9th Cir. 2020). The Federal Defendants must show a
strong likelihood of success on the merits. Doe #1 v. Trump,
957 F.3d 1050, 1062 (9th Cir. 2020). And “simply showing
some possibility of irreparable injury fails to satisfy the
second factor.” Nken, 556 U.S. at 434–35 (internal citations
and quotations omitted). The demanding standard applicable
here requires that the Federal Defendants show “that
irreparable injury is likely to occur during the period before
the appeal is decided.” Doe #1, 957 F.3d at 1059.
A
The Federal Defendants argue they are likely to succeed
on the merits for three reasons. First, they argue plaintiffs
lack standing to pursue injunctive relief on their First
Amendment retaliation claim because plaintiffs have not
shown a sufficient likelihood that they will be deprived of
their constitutional rights if the Federal Defendants’ crowd
control measures are not subject to the district court’s
preliminary injunction pending appeal. Second, they argue

INDEX NEWSPAPERS V. U.S. MARSHALS13
they will succeed on the merits of plaintiffs’ retaliation claim
because there is no evidence to support the district court’s
conclusion that plaintiffs’ protected activity was a substantial
or motivating factor that prompted the Federal Defendants’
actions to disperse them. Third, the Federal Defendants argue
they are likely to succeed on plaintiffs’ First Amendment
right-of-access claim because the press and legal observers
have no First Amendment right to access the streets and
sidewalks where the protests are staged if the Federal
Defendants order them to disperse. For these three reasons,
the Federal Defendants argue they are entitled to a stay of the
preliminary injunction pending appeal.
2
1
Three elements make up the “irredicuble constitutional
minimum of standing”: (1) injury in fact; (2) a causal
connection between the injury and the conduct complained
of; and (3) a likelihood that the injury will be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–561 (1992). Here, only the “injury in fact” element
is disputed.
“A plaintiff threatened with future injury has standing to
sue ‘if the threatened injury is certainly impending, or there
is a substantial risk the harm will occur.’” In re Zappos.com,
Inc., 888 F.3d 1020, 1024 (9th Cir. 2018) (quoting Susan B.
2
Our case law has frequently observed the importance of the press as
surrogates for the public, but we have not considered whether legal
observers serve the same function. Neither the parties nor the district
court focused on whether the legal observers’ right of access differs from
the one enjoyed by the press. Because we do not need to decide this
question in order to rule on the emergency motion for a stay, we leave it
for another day.

INDEX NEWSPAPERS V. U.S. MARSHALS14
Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). A
plaintiff may not rely “on mere conjecture about possible
governmental actions” to demonstrate injury, and must
instead present “concrete evidence to substantiate their fears.”
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 420 (2013).
“Past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.”
City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)
(quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)).
The Federal Defendants’ standing argument relies
primarily on Lyons, a case involving a claim for injunctive
relief asserted by a man who had been subjected to a
chokehold by police officers. Id. at 102. In Lyons, the Court
explained that to establish standing, the plaintiff was required
to “credibly allege that he faced a realistic threat from the
future application of the City’s [chokehold] policy.” Id. at
106 n.7. Because Lyons had not been subjected to a second
chokehold in the time before he filed his federal complaint,
the Supreme Court concluded that his assertion that he might
face such abuse in the future was premised on a speculative
sequence of events. Id. at 105–06. The Supreme Court
explained that Lyons did not have standing to pursue
equitable relief barring the use of chokeholds because “[p]ast
exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.”
Id. at 102 (emphasis added) (citation omitted).
Here, plaintiffs’ injuries are different for several reasons.
First, their risk of future injury is not speculative. Plaintiffs
introduced powerful evidence of the Federal Defendants’
ongoing, sustained pattern of conduct that resulted in

INDEX NEWSPAPERS V. U.S. MARSHALS15
numerous injuries to members of the press between the date
the complaint was filed and the date the district court entered
its preliminary injunction. The district court’s preliminary
injunction included twelve pages solely dedicated to factual
findings that describe in detail dozens of instances in which
the Federal Defendants beat plaintiffs with batons, shot them
with impact munitions, and pepper sprayed them. The court’s
findings were supported by nineteen declarations and video
and photographic evidence. The Federal Defendants do not
argue that any of the district court’s findings are clearly
erroneous, and we conclude the findings are amply supported.
As of the time the preliminary injunction was entered, the
district court found that the Federal Defendants had engaged
in a pattern of conduct that had persisted for weeks and was
ongoing. After reviewing plaintiffs’ declarations, photos, and
video clips, the district court found that many victims had
been standing on public streets, sidewalks, and parks, well
away from protestors, and were not engaged in unlawful
activity when they were shot, tear gassed, shoved, or pepper
sprayed by the Federal Defendants. Unlike Lyons, the district
court found that some journalists and legal observers
monitoring the protests had been injured by the Federal
Defendants more than once. The district court’s findings are
compelling because “the possibility of recurring injury ceases
to be speculative when actual repeated incidents are
documented.” Thomas v. Cnty. of Los Angeles, 978 F.3d 504,
507 (9th Cir. 1992) (internal quotation marks omitted).
The nature of plaintiffs’ injuries also sharply differs from
the substantive due process injury asserted in Lyons.
Plaintiffs allege that the Federal Defendants’ crowd-control
measures have “chilled” the exercise of their First
Amendment rights, and that this First Amendment injury is

INDEX NEWSPAPERS V. U.S. MARSHALS16
ongoing. A chilling of First Amendment rights can constitute
a cognizable injury, so long as the chilling effect is not “based
on a fear of future injury that itself [is] too speculative to
confer standing.” Munns v. Kerry, 782 F.3d 402, 410 (9th
Cir. 2015) (citing Clapper, 568 U.S. at 417–18); Libertarian
Party of L.A. Cty. v. Bowen, 709 F.3d 867, 870 (9th Cir.
2013) (“[A]s the Supreme Court has recognized, a chilling of
the exercise of First Amendment rights is, itself, a
constitutionally sufficient injury.”).
The district court agreed that the Federal Defendants’
targeting of the plaintiffs chilled their First Amendment
rights, and after analyzing the factors prescribed by Furgatch,
the court concluded that the Federal Defendants’ conduct was
likely to continue.
3
Fed. Election Comm’n v. Furgatch,
869 F.2d 1256, 1263 n.5 (9th Cir. 1989). The district court
issued a lengthy and detailed order and the Federal
Defendants do not challenge its factual findings. On this
record, we conclude the Federal Defendants have not made a
strong showing that their standing argument is likely to
succeed, and have not shown that the district court abused its
discretion by entering a preliminary injunction. This cuts
against the emergency motion for a stay pending appeal.
3
Furgatch instructs courts to consider five factors when determining
whether conduct is likely to occur in the future: (1) the degree of scienter
involved; (2) the isolated or recurrent nature of the infraction; (3) the
defendant’s recognition of the wrongful nature of his conduct; (4) the
extent to which the defendant’s professional and personal characteristics
might enable or tempt him to commit future violations; and (5) the
sincerity of any assurances against future violations. Fed. Election
Comm’n v. Furgatch, 869 F.2d 1256, 1263 n.5 (9th Cir. 1989). The
Federal Defendants do not argue that the district court misapplied any of
these factors, and we see no error.

INDEX NEWSPAPERS V. U.S. MARSHALS17
2
We also conclude the Federal Defendants have not made
the strong showing required by Nken that they are likely to
succeed on the merits of plaintiffs’ First Amendment
retaliation claim. For this claim, plaintiffs were required to
show that they were engaged in a constitutionally protected
activity, the Federal Defendants’ actions would chill a person
of ordinary firmness from continuing to engage in the
protected activity, and the protected activity was a substantial
or motivating factor in the Federal Defendants’ conduct.
Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th
Cir. 2006). The Federal Defendants do not contest the first or
second elements of the retaliation claim, nor does there
appear to be a good faith basis for doing so.
4
4
As to the first element, plaintiffs were clearly observing and
recording law enforcement activity in public, as the district court found.
Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing
plaintiff was exercising his “First Amendment right to film matters of
public interest” when filming activities of police officers during a public
protest march). The First, Third, Fifth, Seventh and Eleventh Circuits
have all recognized the public’s First Amendment right to observe and
film police activities in public. See Fields v. City of Philadelphia,
862 F.3d 353, 359–60 (3d Cir. 2017); Turner v. Lieutenant Driver,
848 F.3d 678, 688 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1, 7 (1st
Cir. 2014); ACLU of Illinois v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012);
Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). As to
the second element of the retaliation claim, the Federal Defendants do not
challenge the district court’s finding that being shot with less-lethal
munitions like pepper balls, tear gas, and paint-marking munitions, being
pepper sprayed at close range, or being shoved by a law enforcement
officer would chill a person of ordinary firmness from continuing to
exercise their First Amendment rights.

INDEX NEWSPAPERS V. U.S. MARSHALS18
The Federal Defendants only argue that they are likely to
succeed on the merits of plaintiffs’ retaliation claim because
“plaintiffs have not shown their First Amendment activity
was a ‘substantial or motivating factor’ in the government’s
conduct.” This element of a First Amendment retaliation
claim may be met with either direct or circumstantial
evidence, and we have said that it involves questions of fact
that normally should be left for trial. Ulrich v. City & Cty. of
San Francisco, 308 F.3d 968, 979 (9th Cir. 2002). The
district court’s extensive and thorough factual findings
provide robust support for its conclusion that plaintiffs’
exercise of their First Amendment rights was a substantial or
motivating factor in the Federal Defendants’ conduct. To
highlight just four of the district court’s findings:
•On July 29, plaintiff Brian Conley was wearing a
photographer’s vest marked “PRESS,” a helmet
marked “PRESS,” and was carrying a large camera
with an attached LED light and telephoto lens. After
reviewing video footage submitted by plaintiffs, the
district court found that Conley was filming a line of
federal officers moving down the street pepper
spraying peaceful protesters—including spraying a
woman in the face at point blank range who was on
her knees in the middle of the street with her hands
up—when, without warning, a federal officer pepper
sprayed Conley at point blank range.
•On the night of July 19, Jungho Kim, a
photojournalist, was wearing a neon yellow vest
marked “PRESS” and a white helmet marked
“PRESS” on the front and rear. The district court
found that Kim was standing alone, about 30 feet
from federal agents, taking photographs, when

INDEX NEWSPAPERS V. U.S. MARSHALS19
suddenly and without warning, Kim was shot in the
chest, just below his heart with a less-lethal munition.
A photograph submitted with Kim’s declaration
shows that he was shot where the word “PRESS” was
printed on his vest.
•On the night of July 26, Daniel Hollis, a
videographer, was wearing a press pass and a helmet
marked “PRESS” in bright orange tape, and carrying
a large, professional video-recording camera. Hollis
was filming a group of federal agents massed outside
the federal courthouse. “Almost immediately,” the
federal agents shot at him, striking him just left of his
groin. He turned and began to run away, but was shot
again in the lower back.
•On July 27, Amy Katz, a photojournalist, was
wearing a hat and tank top marked “PRESS” and
carrying a camera with a telephoto lens while
covering the protests. Katz was photographing a
federal agent who pushed a man down a flight of
stairs while arresting him. Another federal agent
physically blocked Katz and tried to stop her from
photographing the arrest. Katz stepped to the side to
continue photographing the arrest, and the federal
agent physically shoved her away.
Plaintiffs’ expert witness, Gil Kerlikowske, provided a
declaration supporting the district court’s conclusion that
these incidents were retaliatory in nature and did not reflect

INDEX NEWSPAPERS V. U.S. MARSHALS20
appropriate crowd-control tactics.
5
Kerlikowske opined that
defending the federal courthouse in Portland mainly involves
establishing a perimeter around the building, and that there is
no need to target or disperse journalists. According to
Kerlikowske, in crowd-control situations it is inappropriate to
shoot non-lethal munitions at a person’s head, chest, or back.
Kerlikowske also opined that pepper balls and tear gas
canisters should not be aimed at people at all, as those
munitions are intended to be shot at the ground where they
explode and release their contents into the air. In his view,
virtually all of the journalists’ injuries were caused by the
improper use of force, including shooting people who were
not engaged in threatening acts, and the Federal Defendants’
misuse of crowd-control munitions.
All told, the district court’s findings describe at least
forty-five instances similar to the four highlighted here, and
all of them occurred between July 15 and July 30 while
plaintiffs were observing and recording the Black Lives
Matter protests in downtown Portland. The forty-five
instances were “just several examples selected” by the district
court “from the extensive evidence provided by Plaintiffs.”
The court was clear that “[t]here are more.” Plaintiffs
submitted a total of nineteen declarations with their motions
5
The district court found Kerlikowske to be a “qualified, credible,
and persuasive expert witness.” Kerlikowske is a former Commissioner
of U.S. Customs and Border Protection, served as the Chief of Police in
Seattle, Washington for 10 years, and as the Police Commissioner in
Buffalo, New York. The district court recognized Kerlikowske’s
“substantial training and experience with crowd control and civil unrest
in the context of protests [and] use of force in that context,” and observed
that Kerlikowske has “led and orchestrated the policing of hundreds of
large and potentially volatile protests, many of which were considerably
larger than the recent protests in Portland.”

INDEX NEWSPAPERS V. U.S. MARSHALS21
for a temporary restraining order and preliminary injunction.
Many of the events described by the declarations were
corroborated by accompanying photographs and video clips.
Because the district court’s findings include so many
instances in which plaintiffs were standing nowhere near
protesters while photographing and observing the Federal
Defendants’ actions, they provide exceptionally strong
evidentiary support for the district court’s finding that some
of the Federal Defendants were motivated to target journalists
in retaliation for plaintiffs’ exercise of their First Amendment
rights. Indeed, in response to this shocking pattern of
misconduct, the dissent contemplates that plaintiffs’
allegations may well support Bivens actions and claims of
excessive force against individual federal agents.
6
The evidence that at least some of the Federal
Defendants’ conduct was retaliatory supports the district
court’s conclusion that the plaintiffs are likely to succeed on
the merits of their retaliation claim. On this record, we do not
hesitate to conclude that the Federal Defendants have not
made the required strong showing that they are likely to
prevail on the merits of the claim. This evidence of
retaliatory conduct also cuts against the emergency motion
for a stay pending appeal.
7
6
A Bivens claim requires a showing of purposeful misconduct. See
Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009).
7
The dissent argues that the retaliation claim does not justify
enjoining the Federal Defendants from issuing dispersal orders because
the dispersal orders themselves are not retaliatory. This argument
overlooks that the preliminary injunction expressly states the Federal
Defendants are not precluded from issuing lawful crowd-dispersal orders
for a variety of reasons.

INDEX NEWSPAPERS V. U.S. MARSHALS22
3
The Federal Defendants have not shown that they are
likely to succeed on the merits of plaintiffs’ First Amendment
right-of-access claim. To begin, the Federal Defendants
reframe the issue and mischaracterize the preliminary
injunction as recognizing a special, across-the-board
exemption for members of the press and legal observers. But
the threshold issue presented is whether plaintiffs have a
constitutionally protected right to access the public forum
where the protests are staged, and as the district court
observed, the preliminary injunction does not afford plaintiffs
any special rights beyond those enjoyed by the general public
pursuant to the First Amendment.
In Press-Enterprise II, the Supreme Court articulated a
two-part test to determine whether a member of the public has
a First Amendment right to access a particular place and
process. Press-Ent. Co. v. Superior Court of Cal., 478 U.S.
1 (1986). First, a court must ask “whether the place and
process has historically been open to the press and general
public” and “whether public access plays a significant
positive role in the functioning of the particular process in
question.” Id. at 8. If a qualified right of access exists, the
government can overcome that right and bar the public by
showing that it has “an overriding interest based on findings
that closure is essential to preserve higher values and is
narrowly tailored to serve that interest.” Id. at 9.
The Federal Defendants argue that the press is not entitled
to any special First Amendment right of access to observe and
record the protests taking place on Portland’s streets and
sidewalks. But the Press-Enterprise II test is not dependent
upon plaintiffs’ occupation, and plaintiffs do not argue that it

INDEX NEWSPAPERS V. U.S. MARSHALS23
affords them a special right of access not shared by the
general public. We agree with plaintiffs that the press is
entitled to a right of access at least coextensive with the right
enjoyed by the public at large; the press is certainly not
disfavored. See Pell v. Procunier, 417 U.S. 817, 833–34
(1974). Indeed, the Supreme Court has repeatedly observed
that excluding the media from public fora can have
particularly deleterious effects on the public interest, given
journalists’ role as “surrogates for the public,” Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 572–73 (1980);
Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975)
(“Without the information provided by the press most of us
and many of our representatives would be unable to vote
intelligently or to register opinions on the administration of
government generally.”). Recognizing the outsized effect of
denying access to the press, we have observed that the
Supreme Court’s Press-Enterprise II test “balances the vital
public interest in preserving the media’s ability to monitor
government activities against the government’s need to
impose restrictions if necessary for safety or other legitimate
reasons.” Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir.
2012).
8
8
The Press-Enterprise II test emerged from a line of cases involving
access to criminal judicial proceedings, but by its terms the test is not
limited to any particular type of plaintiff or any particular type of forum.
The Ninth Circuit and several other courts have applied Press-Enterprise
II’s analytical framework to other settings, including planning commission
meetings, student disciplinary records, state environmental agency
records, settlement records, transcripts of state utility commission
meetings, resumes of candidates for school superintendents, and
legislator’s telephone records, among others. See Leigh, 677 F.3d at 899
and n.5 (collecting cases).

INDEX NEWSPAPERS V. U.S. MARSHALS24
The Federal Defendants do not contest that the
place—Portland’s streets and sidewalks—and the process—
public protests and law enforcement’s response to them—
have historically been open to the public. See Hague v.
Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (“Wherever
the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and,
time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing
public questions.”).
Public demonstrations and protests are clearly protected
by the First Amendment, and a protest not open to the press
and general public is not a public demonstration. See, e.g.,
Snyder v. Phelps, 562 U.S. 443, (2011) (reiterating that
“speech on matters of public concern . . . is at the heart of the
First Amendment’s protection” (internal quotation marks
omitted)); City of Houston v. Hill, 482 U.S. 451, 472 (1987)
(“[T]he First Amendment recognizes, wisely we think, that a
certain amount of expressive disorder not only is inevitable
in a society committed to individual freedom, but must itself
be protected if that freedom would survive.”); NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 907–12 (1982)
(holding that a boycott of local businesses “clearly involved
constitutionally protected activity” including “speech,
assembly, association, and petition”); Collins v. Jordan, 110
F.3d 1363, 1371 (9th Cir. 1996) (“Activities such as
demonstrations, protest marches, and picketing are clearly
protected by the First Amendment.”).
Nor do the Federal Defendants deny that public access
plays a significant positive role in the functioning of our
democracy. Just as streets and sidewalks historically have
been recognized as being open to the public, the press has

INDEX NEWSPAPERS V. U.S. MARSHALS25
long been understood to play a vitally important role in
holding the government accountable.
9
Indeed, the public
became aware of the circumstances surrounding George
Floyd’s death because citizens standing on a sidewalk
exercised their First Amendment rights and filmed a police
officer kneeling on Floyd’s neck until he died.
“The free press is the guardian of the public interest,” and
“[o]pen government has been a hallmark of our democracy
since our nation’s founding.” Leigh, 677 F.3d at 897, 900.
“In a society in which each individual has but limited time
and resources with which to observe at first hand the
operations of his government, he relies necessarily upon the
press to bring to him in convenient form the facts of those
operations.” Cox Broad. Corp., 420 U.S. at 490–91.
Transparency assures that the government’s response is
carried out “fairly to all concerned,” and public access
discourages “misconduct of participants, and decisions based
on secret bias or partiality.” Richmond Newspapers, 448 U.S.
at 569. Given our deeply entrenched recognition of the
public’s right to access city streets and sidewalks, circuit
precedent establishing the right to film public police activity,
and the broadly accepted principle that the public’s interest is
served by the role the press plays, the district court had strong
support for its conclusion that plaintiffs demonstrated a
likelihood of success on the merits of their First Amendment
right-of-access claim.
9
Leigh, 677 F.3d at 897 (“A popular Government, without popular
information, or the means of acquiring it, is but a Prologue to a Farce or
a Tragedy; or, perhaps both.” (quoting 9 WRITINGS OF JAMES MADISON
103 (G. Hunt ed. 1910))).

INDEX NEWSPAPERS V. U.S. MARSHALS26
We are mindful that the Federal Defendants could have
overcome plaintiffs’ right of access by demonstrating “an
overriding interest based on findings that closure is essential
to preserve higher values and is narrowly tailored to serve
that interest.” Press-Enterprise II, 478 U.S. at 9. There is no
question the Federal Defendants have a strong interest in
protecting federal property and persons on federal property,
and we do not doubt the district court’s findings related to the
difficult and dangerous situation posed by protesters who
engaged in violent and criminal conduct. But Federal
Defendants argue that dispersing the press, regardless of
whether they are on federal property, is essential to protecting
the government’s interests. They further argue that their
dispersal orders cannot be tailored in any way and that the
district court erred by granting a special exemption from
crowd-control measures to members of the press and legal
observers. We disagree.
First, the district court did not grant a special exemption
to the press; it found that dispersing the press was not
essential to protecting the government’s interests. The
district court was faced with a mountain of evidence that the
Federal Defendants routinely left federal property to engage
in crowd control. The injunction recognizes that the Federal
Defendants did not claim the authority to issue general
dispersal orders on Portland’s streets and sidewalks, that local
law enforcement retains that authority pursuant to the general
police power, and that Portland’s law enforcement agreed not
to require journalists and legal observers to disperse. The
preliminary injunction does nothing to hinder Federal
Defendants from arresting individuals engaged in violent or
criminal acts.

INDEX NEWSPAPERS V. U.S. MARSHALS27
The Federal Defendants’ argument that the injunction
grants a broad special exemption to the plaintiffs hinges on
the implied assumption that they have the authority to take
action to disperse members of the public who are neither on
federal property nor threatening it. At oral argument before
our court, the Federal Defendants declined to provide their
view of the scope of their authority to take such action, but
the district court’s order makes clear that, in the district court,
the Federal Defendants did not argue they have “the legal
authority to declare a riot and order persons to disperse from
the city streets in Portland.” We need not precisely define the
limits of the Federal Defendants’ authority in order to resolve
their emergency motion, but it cannot be debated that the
United States Constitution reserves the general police power
to the states, U.S. CONST. amend. X; United States v.
Morrison, 529 U.S. 598, 618 (2000), and the district court
found that the Federal Defendants “routinely have left federal
property and engaged in crowd control and other enforcement
on the streets, sidewalks, and parks of the City of Portland.”
The district court did not question that the provision relied
upon by the Federal Defendants, 40 U.S.C. § 1315, grants
them the authority to protect federal property, including
issuing and enforcing dispersal orders against people on or
threatening federal property. Paragraph six of the injunction
expressly recognizes that the Federal Defendants may issue
“lawful crowd-dispersal orders for a variety of lawful
reasons.” In footnoting that the authority provided by § 1315
does not allow the Federal Defendants to declare an unlawful
assembly on the city’s streets or to disperse people from city
streets, the court carefully distinguished the Federal
Defendants’ ability to disperse people from federal property
and described their authority outside the property as limited
to performing authorized duties “to the extent necessary to

INDEX NEWSPAPERS V. U.S. MARSHALS28
protect the property and persons on the property.” 40 U.S.C.
§ 1315(b)(1) (emphasis added). But the Federal Defendants’
suggestion that § 1315 confers authority to take action to
disperse members of the public who are neither on nor
threatening federal property is dubious.
10
See United States
v. Baldwin, 745 F.3d 1027, 1029 (10th Cir. 2014) (Gorsuch,
J.) (discussing § 1315 and its implementing regulations as
they relate to “[p]ersons in and on [Federal] property”
(alterations in original)). On remand, the district court may
have occasion to more precisely define the scope of the
Federal Defendants’ authority if the Federal Defendants
indicate that they intend to issue dispersal orders outside of
federal property for lawful purposes.
The district court was not persuaded that the Federal
Defendants’ response to the plaintiffs was essential or
narrowly tailored to serve the government’s interests. Press-
Enterprise II, 478 U.S. at 9. The district court’s conclusions
are well supported and the Federal Defendants have not
established that they will likely prevail in their efforts to
10
Pursuant to § 1315, the Secretary of Homeland Security “shall
protect the buildings, grounds, and property that are owned, occupied, or
secured by the Federal Government . . . and the persons on the property.”
40 U.S.C. § 1315(a). Relevant here, the governing regulations:
(1) prohibit disorderly conduct “in or on Federal property,” 41 C.F.R.
§ 102-74.390; (2) prohibit people “entering in or on Federal property”
from improperly disposing of rubbish on property, willfully damaging
property, stealing property, creating a hazard on property, throwing
articles at a building, or climbing on a building, 41 C.F.R. § 102-74.380;
and (3) require people “in and on property” to obey the “lawful direction
of federal police officers and other authorized individuals,” 41 C.F.R.
§ 102-74.385; United States v. Baldwin, 745 F.3d 1027, 1029 (10th Cir.
2014) (Gorsuch, J.) (construing 41 C.F.R. § 102-74.385 as being
applicable to people “in and on [Federal] property” (alteration in
original)).

INDEX NEWSPAPERS V. U.S. MARSHALS29
show that the dispersal of press was essential. Nor did the
Federal Defendants show that the need to defend federal
property made it impossible to tailor their dispersal orders.
The district court cited plaintiffs’ expert, Kerlikowske,
who opined that “[d]efending the federal courthouse in
Portland mainly involves establishing a perimeter around the
building, and there is no reason to target or disperse
journalists from that position.” The district court further
relied on Kerlikowske’s opinion that “trained and
experienced law enforcement personnel are able to protect
public safety without dispersing journalists and legal
observers and can differentiate press from protesters, even in
the heat of crowd control.” The district court found this
expert qualified, credible, and persuasive. Rather than
deferring to the court’s findings, the dissent examines the
record anew, decides that Kerlikowske did not adequately
address crowd control, and questions the district court’s
tailoring analysis. But the Federal Defendants conceded that
they made no effort to tailor their response, and on the record
at this preliminary stage they have not made the strong
showing required by Nken that dispersing the press was
essential or that their response was narrowly tailored to serve
the government’s interest in protecting federal property.
We also agree with the district court that the City’s ability
to comply with a similarly worded injunction strongly
undercuts the Federal Defendants’ argument. The City has
not required journalists and authorized legal observers to
disperse when it has issued crowd control orders to the
protesters. After the district court entered the first temporary
restraining order against the City on July 2, the district court
“specifically invited the City to move for amendment or
modification if the original TRO was not working or to

INDEX NEWSPAPERS V. U.S. MARSHALS30
address any problems at the preliminary injunction phase.”
But the City did not seek modification. Instead, on July 16
the City stipulated to entry of a preliminary injunction that
was “nearly identical to the original TRO.” The City’s
willingness to tailor the dispersal orders it issues pursuant to
its general police power is strong evidence that the Federal
Defendants’ dispersal of journalists and legal observers is not
essential to defend federal property, and that it is possible for
the Federal Defendants to tailor their methods more narrowly.
By its terms, the preliminary injunction the district court
entered against the Federal Defendants addresses each of the
reasons the Federal Defendants advanced to argue that it was
impossible to tailor their dispersal orders. As to the
contention that journalists or legal observers might interfere
with federal law enforcement if not required to disperse, the
preliminary injunction expressly prohibits journalists and
legal observers from impeding, blocking, or otherwise
interfering with the lawful conduct of the Federal Defendants.
The preliminary injunction leaves the Federal Defendants free
to make arrests if there is probable cause to believe a crime
has been committed, even if the perpetrator is dressed as a
journalist or legal observer. The preliminary injunction also
provides that the Federal Defendants will not be liable for
violating the injunction if journalists or legal observers
remain in the area after a dispersal order is issued, and are
incidentally exposed to crowd-control devices. Finally,
though the Federal Defendants argued that large and unique
identifying markings on their uniforms could inhibit their
ability to carry out their duties, the district court concluded
they did not support this claim. Indeed, the district court
went to great lengths to make sure the terms of the injunction

INDEX NEWSPAPERS V. U.S. MARSHALS31
do not impede the federal defendants’ ability to safely
achieve their mission.
11
The dissent faults us for deferring to the district court’s
findings, but that is precisely what our precedent requires.
Walters, 145 F.3d at 1047. It is not our role to second-guess
the district court’s factual findings; we review the district
court’s findings for clear error, and we do not see any. The
dissent is not so constrained. It reviews the facts de novo,
reframes all of the protests as riots, and concludes the Federal
Defendants must be permitted to issue dispersal orders
without limit. Yet the majority of the protests have been
peaceful, and the record is replete with instances in which
members of the press were targeted when they were not
mixed with, or even proximate to, protesters. Even the
Federal Defendants recognize that the general police power
is reserved to the states, and the response to protesters on the
public streets of Portland is being handled by the state and
local police. As for the Federal Defendants’ actions on
federal property, the injunction expressly recognizes that the
Federal Defendants are free to issue dispersal orders for a
variety of lawful reasons. Their authority to issue dispersal
orders to protect federal property has not been questioned.
11
Plaintiffs’ expert Kerlikowske opined that identifiable markings on
law enforcement officers’ uniforms increase accountability, act as a check
and deterrent against misconduct, and will not interfere with federal
officers’ ability to perform their duties. This term of the injunction was
added after the Federal Defendants were unable to identify their own
officers in videos submitted in support of plaintiffs’ still-pending motion
for sanctions and contempt of the July 23 TRO. The Federal Defendants
contend the district court overreached, but requiring the officers’ uniforms
to bear unique identifiable markings is a common-sense method to ensure
that non-compliance with the court’s order may be addressed.

INDEX NEWSPAPERS V. U.S. MARSHALS32
But on the record before us, the Federal Defendants have
not shown the general dispersal orders they issued were
lawful, much less essential or narrowly tailored. Press-
Enterprise II, 478 U.S. at 9. We do not condone any form of
violence, nor did the district court, but the court found no
evidence that any of the named plaintiffs engaged in unlawful
conduct. The many peaceful protesters, journalists, and
members of the general public cannot be punished for the
violent acts of others. “[T]he 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, 1373 (9th Cir. 1996) (internal
citations omitted). Accordingly, we conclude the Federal
Defendants have not made a strong showing that they are
likely to succeed on the merits of plaintiffs’ First Amendment
right-of-access claim, nor that this argument supports their
emergency motion for a stay pending appeal.
B
We turn next to the second Nken factor: whether the
Federal Defendants have shown a likelihood they will suffer
irreparable injury if the district court’s preliminary injunction
is not stayed pending appeal. Nken, 556 U.S. at 426. The
Federal Defendants contend the district court abused its
discretion because the scope of the injunction is unworkable.
Specifically, they argue the injunction will force federal
officers to make snap judgments to distinguish journalists and
legal observers from protesters. They argue federal officers
will face irreparable injury absent a stay pending appeal
because the preliminary injunction will hinder their ability to
safely protect federal property and people on federal property,

INDEX NEWSPAPERS V. U.S. MARSHALS33
and will generally place them in the untenable position of
having to choose between risking their safety and violating
the preliminary injunction.
The district court was not persuaded, and for purposes of
their emergency motion for a stay pending appeal, the Federal
Defendants have not shown that the court likely erred. First,
as we have explained, the preliminary injunction entered
against the Federal Defendants is one of two preliminary
injunctions the district court entered. In a separate
preliminary injunction, the City stipulated that it would not
require journalists and legal observers to disperse from
Portland’s streets and sidewalks after it issues general
dispersal orders. In the lengthy preliminary injunction the
court issued to address the Federal Defendants’ conduct, the
court took pains to explain that the general police power is
reserved to the states, and that the Federal Defendants had not
taken the position that they had the authority to issue general
dispersal orders on Portland’s streets and sidewalks.
Second, it is clear the district court has worked tirelessly
to respond to a tense and sometimes chaotic situation. In
order to provide clear direction, the district court required the
Federal Defendants to broadly disseminate, to the federal
agents responding to the protesters, the three pages of its
opinion and order that enumerate the terms of the injunction.
The Federal Defendants read one sentence from the three-
page excerpt in isolation and argue that the preliminary
injunction provides a special, citywide exemption to dispersal
orders for journalists and legal observers. In fact, it is
apparent the district court was actually providing the Federal
Defendants with an unambiguous statement of actions they
may and may not take in the field, including the requirement
that the Federal Defendants mark their uniforms in some way

INDEX NEWSPAPERS V. U.S. MARSHALS34
to allow officers to be identified, thereby incentivizing
compliance with the court’s orders. Read as a whole, the
preliminary injunction does not provide a special exemption
for journalists and legal observers. Rather, the terms of the
injunction account for the City’s stipulation that journalists
and legal observers will not be required to disperse from
Portland’s streets and sidewalks. The injunction also
accounts for the district court’s finding that the Federal
Defendants, at least at this preliminary stage, have not shown
that it is essential to disperse press to protect federal property,
nor that their response was narrowly tailored.
Third, the preliminary injunction unambiguously provides
that the Federal Defendants will not be held liable for
violating the preliminary injunction by incidentally exposing
journalists or legal observers to otherwise lawful crowd-
control measures. The Federal Defendants’ argument that
they may be irreparably harmed if individuals disguise
themselves as journalists or legal observers in order to
commit crimes or interfere with law enforcement is similarly
unpersuasive because the order explicitly allows the Federal
Defendants to arrest anyone if they have probable cause to
believe a crime is being committed—regardless of whether
that person is, or appears to be, a journalist or legal observer.
The preliminary injunction expressly prohibits journalists and
legal observers from impeding, blocking, or otherwise
physically interfering with the lawful activities of the Federal
Defendants.
The district court recognized that Federal Defendants
have sustained injuries over the course of the summer, but
found no evidence that any of the named plaintiffs engaged
in any of the unlawful conduct that caused their injuries, and
the Federal Defendants point to no evidence that the injuries

INDEX NEWSPAPERS V. U.S. MARSHALS35
they sustained were more severe or more frequent during the
time they were operating under the substantially similar terms
of the July 23 TRO, or that the alleged confusion in
distinguishing between protestors and plaintiffs resulted in
any injury.
The district court was heavily influenced by the City’s
agreement to enter into a stipulated preliminary injunction
that largely mirrors the preliminary injunction entered against
the Federal Defendants, and observed “[t]he City did not
contend that the terms of the stipulated preliminary injunction
were intrusive, unworkable, or vague.” In fact, the City
supported entry of the instant preliminary injunction against
the Federal Defendants, arguing “[t]he actions of [F]ederal
[D]efendants are escalating violence, inflaming tensions in
[Portland], and harming Portlanders who seek to engage in
nonviolent protests in support of racial justice.”
Plaintiffs’ expert, Gil Kerlikowske, also seriously
undermined the Federal Defendants’ argument that they faced
irreparable injury. Relying on Kerlikowske’s expert opinion,
the district court concluded that the Federal Defendants’
concerns regarding the workability of the injunction were
exaggerated. The district court noted Kerlikowske’s
statement that “during his tenure in Seattle, law enforcement
did not target or disperse journalists and there were no
adverse consequences.” Kerlikowske opined that the
prohibitions contained in the July 23 temporary restraining
order, which the district court incorporated into the
preliminary injunction, were both safe and workable for law
enforcement. Kerlikowske stated that dispersing press and
legal observers is not necessary to protect public safety, and
further explained that trained and experienced law

INDEX NEWSPAPERS V. U.S. MARSHALS36
enforcement personnel can differentiate press from protesters
in the heat of crowd control.
12
On the present record, despite the Federal Defendants’
assertion that all of their officers and agents are adequately
trained, the district court found numerous instances in which
Federal Defendants shot munitions directly at journalists’ and
legal observers’ chests, arms, backs, and heads while they
were standing entirely apart from the protesters. These
methods directly conflict with Kerlikowske’s opinion that
crowd-control munitions are not appropriately aimed at the
upper body, and that pepper balls and tear gas canisters
should not be aimed at people at all. We review the court’s
findings for clear error, and for purposes of the Federal
Defendants’ emergency motion, the Federal Defendants have
not shown that they will likely establish the district court’s
findings are clearly erroneous.
We also conclude the Federal Defendants’ have not made
the required showing that they will suffer irreparable harm if
the preliminary injunction is not stayed pending a decision on
the merits of their appeal. The district court took care to
address the Federal Defendants’ concerns regarding the
workability of the injunction. The terms of the injunction
12
Plaintiffs’ briefing repeatedly asserts that the Federal Defendants
lack crowd control training, and the Federal Defendants repeatedly
respond that they are trained in the appropriate use of force. At this
preliminary stage, the record did not allow the district court to determine
whether the Federal Defendants differentiate between crowd control
training and training in the proper use of force. Nor does the record make
clear whether the training provided to U.S. Marshals differs from the
training provided to personnel from the Department of Homeland
Security. Those questions may be resolved at a later stage in the
proceedings.

INDEX NEWSPAPERS V. U.S. MARSHALS37
itself adequately address their concerns, and the Federal
Defendants’ continued objection that the injunction is
unworkable is undermined by the City’s agreement to operate
pursuant to a substantially similar order. Kerlikowske’s
opinions, which the court found persuasive and credible,
further support the district court’s finding that the terms of
the preliminary injunction are safe and workable.
The dissent decides that the Federal Defendants are likely
to suffer irreparable harm absent a stay pending appeal
because the preliminary injunction does not explain how
arresting individual suspects is as feasible or safe as using
general crowd control tactics during a riot. But the district
court found that the protests have been largely peaceful, and
the preliminary injunction does not prevent the Federal
Defendants from issuing lawful dispersal orders to protect
federal property if and when it is threatened by violent
protests. We conclude the Federal Defendants have not
shown that they will suffer irreparable injury if the district
court’s preliminary injunction is not stayed.
C
The Federal Defendants have not satisfied the first two
Nken factors, but we briefly note that the final two factors
also strongly suggest the Federal Defendants’ motion must be
denied. See Nken, 556 U.S. at 435; Al Otro Lado, 952 F.3d
at 1006.
1
The third Nken factor asks whether the other parties to the
litigation will be substantially injured if the district court’s

INDEX NEWSPAPERS V. U.S. MARSHALS38
preliminary injunction is stayed pending appeal. Nken,
556 U.S. at 426.
The City supported the imposition of the preliminary
injunction against the Federal Defendants. As explained, the
City asserted that the Federal Defendants’ presence in
Portland escalated violence and inflamed tensions. Although
the Federal Defendants have entered into some type of
agreement with Governor Brown, the district court voiced
“serious concerns that the Federal Defendants have not fully
complied with the Court’s original TRO.” The district court
also highlighted evidence in the record suggesting intentional
targeting of journalists or legal observers after the imposition
of the TRO. Further, the district court found that the day after
the Federal Defendants reached the agreement with the
Governor, federal agents fired tear gas at journalists standing
nowhere near protesters. In light of this evidence, and the
Federal Defendants’ stated intention to remain in Portland to
continue to protect the federal buildings should they deem
local authorities’ efforts unsatisfactory, the likelihood that the
City will suffer substantial injury supports denial of the
emergency motion for a stay pending appeal.
Plaintiffs also face substantial injury if the Federal
Defendants’ motion is granted because the district court
found that the Federal Defendants’ conduct chilled the
exercise of their First Amendment rights. The district court
made this finding after reviewing plaintiffs’ vivid
descriptions and photographic evidence of injuries they
sustained as bystanders. “It is well established that the
deprivation of constitutional rights ‘unquestionably
constitutes irreparable injury.” Melendres v. Arpaio,
695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns,
427 U.S. 347, 373 (1976)); see also, e.g., Assoc. Press v.

INDEX NEWSPAPERS V. U.S. MARSHALS39
Otter, 682 F.3d 821, 826 (9th Cir. 2012) (“The loss of First
Amendment freedoms, even for minimal periods of time,
unquestionably constitutes irreparable injury.”). In sum, the
Federal Defendants have failed to show that the other parties
to the litigation will not be substantially injured if the district
court’s preliminary injunction is stayed pending appeal.
2
The fourth Nken factor requires courts to determine where
the public interest lies. Nken, 556 U.S. at 426. When the
government is a party, the irreparable injury and public
interest factors merge, id. at 435, but the Federal Defendants
are incorrect to suggest that a showing of harm to the
government commands the conclusion that the public interest
weighs entirely in favor of whichever outcome the
government seeks. Our court has consistently balanced the
public interest on the side of the plaintiffs against the public
interest on the side of the government to determine where the
public interest lies. See, e.g., Padilla v. Immigration &
Customs Enforcement, 953 F.3d 1134, 1147–48 (9th Cir.
2020) (determining the “balance of the equities and public
interest favors plaintiffs”).
Here, the public interest on the Federal Defendants’ side
is the uncontested interest in protecting federal agents and
property. The harms the Federal Defendants assert relate to
the potential challenges the preliminary injunction poses to
their ability to safely and effectively protect federal property
and personnel. On the other hand, plaintiffs also assert a
strong public interest: “It is always in the public interest to
prevent the violation of a party’s constitutional rights.”
Padilla, 953 F.3d at 1147–48 (internal quotation marks
omitted). When weighing public interests, courts have

INDEX NEWSPAPERS V. U.S. MARSHALS40
“consistently recognized the significant public interest in
upholding First Amendment principles.” Assoc. Press,
682 F.3d at 826 (quoting Sammartano v. First Judicial Dist.
Court, 303 F.3d 959, 974 (9th Cir. 2002), abrogated on other
grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
22 (2008)). The Federal Defendants assert a very important
public interest, but the record fully supports the district
court’s conclusion that the Federal Defendants’ interest does
not require dispersing plaintiffs. They have not threatened
federal property, and the journalists, in particular, provide a
vitally important service to the public. Accordingly, the final
Nken factor does not weigh in favor of a stay.
The Federal Defendants have not made a strong showing
that they are likely to succeed on the merits of plaintiffs’
claims. Nor have they shown that they are likely to suffer
irreparable injury as a result of the district court’s preliminary
injunction. Further, a stay of the district court’s injunction
would substantially injure both the City and the plaintiffs.
For these reasons, we cannot say at this juncture that the
Federal Defendants are entitled to a stay of the preliminary
injunction pending appeal. The Federal Defendants’
emergency motion for a stay pending appeal is DENIED, and
the administrative stay entered August 27, 2020 is lifted.

INDEX NEWSPAPERS V. U.S. MARSHALS41
O’SCANNLAIN, Circuit Judge, dissenting:
In the words of the majority—and I agree—“the district
court has worked tirelessly to respond to a tense and
sometimes chaotic situation”
1
arising from peaceful urban
protest events that have degenerated into riots and destructive
mob violence, resulting, inevitably, in crowd dispersal
actions by law enforcement. Unfortunately, because the
constitutional interests of the parties are misaligned in the
provisions of the injunction before us, I must, respectfully,
dissent from the order. Since the government is likely to
prevail on the merits and the other requisite factors are met,
I would grant the motion for stay pending appeal.
With its decision today, the majority of this motions panel
validates the transformation of the First Amendment-based
“right of public access” to governmental proceedings into a
special privilege for self-proclaimed journalists and “legal
observers” to disregard crowd dispersal orders issued by
federal law enforcement officers. The district court’s
injunction erroneously curtails an important law enforcement
tool for responding to protest events that threaten federal
property and personnel, thereby limiting options available for
federal officers precisely when they are most needed. While
well-meaning, the district court’s decision constitutes a
significant and unwarranted departure from the traditional,
qualified “right of public access” to criminal judicial
proceedings that has been carefully delineated by the
Supreme Court. In short, the majority’s decision approves
the mutation of a very limited historical right reinforced by a
millennium of legal tradition into a broad, amorphous
1
Majority Opinion at 33.

INDEX NEWSPAPERS V. U.S. MARSHALS42
entitlement that finds support nowhere in our precedents or in
the historical sources of the First Amendment.
Similarly, the majority’s decision to uphold the injunction
before us ostensibly rests on the deference that it accords to
the district court’s factual findings with respect to plaintiffs’
“retaliation” claim, which, indeed, reveal quite a disturbing
pattern of apparent misconduct by certain federal officers.
But even these unfortunate facts cannot justify granting
journalists and “legal observers” a unique exemption from
lawful dispersal orders—orders that were neither found, nor
alleged, to be retaliatory.
I
Because the facts set forth in the majority opinion do not
adequately reveal the full picture, I respectfully restate them
as found in the record.
A
In the early morning of July 3, 2020, the recent and
ongoing political protests in downtown Portland, Oregon took
a violent and destructive turn. Rioters smashed the glass
entryway doors of the Mark O. Hatfield Federal Courthouse
and attempted to set fire to the building. They threw balloons
containing an accelerant into the lobby and fired powerful
commercial fireworks toward the accelerant, which ignited a
fire in the lobby. Vandalism, destruction of property, and
assault on federal law enforcement officers securing the
building continued throughout the Fourth of July holiday
weekend, and federal agents made multiple arrests.

INDEX NEWSPAPERS V. U.S. MARSHALS43
Before July 3rd, federal law enforcement officers at the
Hatfield Courthouse had been stationed in a defensive
posture, intended to de-escalate tensions with protesters by
remaining inside and responding only to breach attempts on
the building and assaults on personnel or to other serious
crimes. With limited support from the Portland Police
Bureau (“PPB”), however, federal agents struggled to contain
protests that often focused on the Courthouse and frequently
devolved into violence in the late evenings and early
mornings.
When this pattern of violent unrest culminated in the July
3rd attack, the Department of Homeland Security (“DHS”)
changed its tactics and authorized federal agents to take
additional action to protect the Courthouse, and to identify
and to arrest serious offenders. After federal officers adopted
this more assertive posture, the protests became larger and
more intense. These protest events were chaotic and
dynamic, and federal officers had frequent confrontations
with rioters. According to DHS’s Gabriel Russell, the law
enforcement officer leading the federal response in Portland,
120 federal officers experienced injuries, including broken
bones, hearing damage, eye damage, a dislocated shoulder,
sprains, strains, and contusions. Conflict between federal
officers and rioters continued until the early morning of July
30th, after which incidents diminished as a result of DHS
reaching an agreement with the Governor of Oregon for the
Oregon State Police to provide security in the areas adjacent
to the Hatfield Courthouse.
During the period of unrest, journalists and “legal
observers” ostensibly reporting on law enforcement’s
response to the riots were frequently interspersed with
protesters when events degenerated into violence. Some of

INDEX NEWSPAPERS V. U.S. MARSHALS44
these individuals even participated in violent and unlawful
conduct, including assaults on federal officers and destruction
of federal property. For example, a person with a helmet
marked “press” used a grinder to attempt to breach the fence
surrounding the Hatfield Courthouse. Another person with a
“press” helmet entered Courthouse property and encouraged
others to join, yelling to the crowd that “they can’t arrest us
all!” A man wearing a vest labeled “press” was seen
throwing a hard object toward police. In yet another incident,
a Courthouse staff member reported being kicked by someone
wearing clothing marked “press.”
B
Plaintiffs are a newspaper organization and individual
journalists and “legal observers,” some of whom are affiliated
with the National Lawyers Guild (“NLG”) and the American
Civil Liberties Union (“ACLU”). They allege that federal
law enforcement officers with DHS and the U.S. Marshals
Service (“USMS”) operating in Portland during the month of
July (1) infringed their First Amendment “right of access” to
public streets and sidewalks to observe and to document law
enforcement’s response to the riots near the Hatfield
Courthouse; and, (2) deliberately and unlawfully “retaliated”
against them for exercising their putative First Amendment
right to report on those events by targeting them with tear gas,
less-lethal munitions, and pepper spray.
Plaintiffs initially filed suit against the City of Portland,
and unnamed individual PPB officers, in federal district court,
alleging similar constitutional violations arising out of the
PPB’s response to the protest events. For example, Plaintiffs
alleged a “broader pattern of the Portland police repeatedly
and intentionally shooting, gassing, and beating journalists

INDEX NEWSPAPERS V. U.S. MARSHALS45
and [legal] observers.” Among other incidents, Plaintiffs
alleged that the PPB slammed a reporter from The Oregonian
in the back with a truncheon, even as she was displaying her
press pass, and shoved a reporter from the Portland Tribune
into a wall, after he had identified himself as media, when he
initially refused to comply with an order to disperse.
Plaintiffs further alleged that the PPB had publicly announced
that it would use force to disperse reporters unless they had
been previously selected to embed with officers. Plaintiffs
obtained a temporary restraining order (“TRO”) against the
PPB, without the City of Portland’s consent, on July 2nd,
with terms similar to those contained in the instant
preliminary injunction. In its order granting the TRO, the
district court concluded that Plaintiffs had demonstrated
“serious questions going to the merits” with respect to their
claim of a First Amendment-based “right of public access” to
observe law enforcement’s response to protest events. The
TRO specified that press and “legal observers” were exempt
from any orders to disperse issued by the PPB.
After alleged retaliation by a federal law enforcement
agent on July 12th, plaintiffs filed an emergency motion
seeking the district court’s leave to file an amended complaint
describing such incident and also adding DHS and USMS as
defendants in the case. The City of Portland filed an
objection, arguing, inter alia, that plaintiffs’ claims against
the City of Portland and those against DHS and USMS raised
no common questions of law or fact. The City maintained
that PPB operates under fundamentally different conditions
than federal law enforcement agencies, including different
directives governing the use of force, different limitations on
the use of force, and a separate command structure.

INDEX NEWSPAPERS V. U.S. MARSHALS46
On July 16th, before the district court had an opportunity
to rule on the motion to bring DHS and USMS into the case,
plaintiffs and the City jointly filed a “Stipulated Preliminary
Injunction” that substantially mirrored the TRO’s terms. The
following day, the district court granted plaintiffs’ motion for
leave to file the operative Second Amended Complaint.
The Second Amended Complaint sets forth independent
causes of action based on the First and Fourth Amendments
of the U.S. Constitution and Article I, Sections 8 and 26 of
the Oregon Constitution. It seeks both damages and equitable
relief. The day it was filed, Plaintiffs immediately moved for
a TRO against DHS and USMS, with the request for
injunctive relief limited only to their aforementioned First
Amendment claims.
On July 22nd, the City filed a brief in support of the entry
of the TRO against DHS and USMS. The City accused both
agencies of escalating violence, harming non-violent
protesters, and effectively kidnapping people off of Portland
streets. Notably, on the same day, the Portland City Council
passed a resolution prohibiting the PPB from cooperating
with federal officers deployed in Portland.
The district court granted the TRO on July 23rd and
extended it for an additional 14 days on August 6th. On
August 20th, the district court entered the instant preliminary
injunction, from which DHS and USMS now seek emergency
relief pending appeal.

INDEX NEWSPAPERS V. U.S. MARSHALS47
The preliminary injunction provides, among other things,
that journalists and “legal observers” are exempt
2
from
general dispersal orders issued by federal officers. It further
requires that federal officers refrain from using force or
threatening arrest to compel such persons to disperse after an
order to disperse has been issued. It also sets forth a non-
exclusive list of indicia by which officers are to determine
who qualifies as a journalist or “legal observer.”
3
2
The precise language of the district court’s order provided that
journalists and “legal observers” “shall not be required to disperse
following the issuance of an order to disperse, and such persons shall not
be subject to arrest for not dispersing following the issuance of an order
to disperse.”
3
The eight-part injunction entered by the district court is lengthy, not
to say labyrinthine, but warrants repetition in full for appreciation of its
extraordinary scope:
1.The Federal Defendants, their agents and
employees, and all persons acting under their
direction are enjoined from arresting, threatening
to arrest, or using physical force directed against
any person whom they know or reasonably should
know is a Journalist or Legal Observer (as
explained below), unless the Federal Defendants
have probable cause to believe that such individual
has committed a crime. For purposes of this Order,
such persons shall not be required to disperse
following the issuance of an order to disperse, and
such persons shall not be subject to arrest for not
dispersing following the issuance of an order to
disperse. Such persons shall, however, remain
bound by all other laws. No Journalist or Legal
Observer protected order this Order, however, may
impede, block, or otherwise physically interfere
with the lawful activities of the Federal
Defendants.

INDEX NEWSPAPERS V. U.S. MARSHALS48
2.The Federal Defendants, their agents and
employees, and all persons acting under their
direction are further enjoined from seizing any
photographic equipment, audio- or video-
recording equipment, or press passes from any
person whom they know or reasonably should
know is a Journalist or Legal Observer (as
explained below), or ordering such person to stop
photographing, recording, or observing a protest,
unless the Federal Defendants are also lawfully
seizing that person consistent with this Order.
Except as expressly provided in Paragraph 3
below, the Federal Defendants must return any
seized equipment or press passes immediately
upon release of a person from custody.
3.If any Federal Defendant, their agent or employee,
or any person acting under their direction seize
property from a Journalist or Legal Observer who
is lawfully arrested consistent with this Order, such
Federal Defendant shall, as soon thereafter as is
reasonably possible, make a written list of things
seized and shall provide a copy of that list to the
Journalist or Legal Observer. If equipment seized
in connection with an arrest of a Journalist or
Legal Observer lawfully seized under this Order is
needed for evidentiary purposes, the Federal
Defendants shall promptly seek a search warrant,
subpoena, or other court order for that purpose. If
such a search warrant, subpoena, or other court
order is denied, or equipment seized in connection
with an arrest is not needed for evidentiary
purposes, the Federal Defendants shall
immediately return it to its rightful possessor.
4.To facilitate the Federal Defendants’ identification
of Journalists protected under this Order, the
following shall be considered indicia of being a
Journalist: visual identification as a member of the

INDEX NEWSPAPERS V. U.S. MARSHALS49
press, such as by carrying a professional or
authorized press pass, carrying professional gear
such as professional photographic equipment, or
wearing a professional or authorized press badge
or other official press credentials, or distinctive
clothing, that identifies the wearer as a member of
the press. It also shall be an indicium of being a
Journalist under this Order that the person is
standing off to the side of a protest, not engaging
in protest activities, and not intermixed with
persons engaged in protest activities, although
these are not requirements. These indicia are not
exclusive, and a person need not exhibit every
indicium to be considered a Journalist under this
Order. The Federal Defendants shall not be liable
for unintentional violations of this Order in the
case of an individual who does not carry or wear a
press pass, badge, or other official press credential,
professional gear, or distinctive clothing that
identifies the person as a member of the press.
5.To facilitate the Federal Defendants’ identification
of Legal Observers protected under this Order, the
following shall be considered indicia of being a
Legal Observer: wearing a green National Lawyers
Guild-issued or authorized Legal Observer hat
(typically a green NLG hat) or wearing a blue
ACLU-issued or authorized Legal Observer vest.
It also shall be an indicium of being a Legal
Observer protected under this Order that the person
is standing off to the side of a protest, not engaging
in protest activities, and not intermixed with
persons engaged in protest activities, although
these are not requirements.
6.The Federal Defendants are not precluded by the
Order from issuing otherwise lawful crowd-
dispersal orders for a variety of lawful reasons.
The Federal Defendants shall not be liable for

INDEX NEWSPAPERS V. U.S. MARSHALS50
violating this injunction if a Journalist or Legal
Observer is incidentally exposed to crowd-control
devices after remaining in the area where such
devices were deployed after the issuance of an
otherwise lawful dispersal order.
7.Plaintiffs and the Federal Defendants shall
promptly confer regarding how the Federal
Defendants can place unique identifying markings
(using numbers and/or letters) on the uniforms
and/or helmets of the officers and agents of the
Federal Defendants who are specially deployed to
Portland so that they can be identified at a
reasonable distance and without unreasonably
interfering with the needs of these personnel.
Based on the Court’s understanding that Deputy
U.S. Marshals and Courtroom Security Officers
stationed in Portland who are under the direction of
the U.S. Marshal for the District of Oregon are not
part of the force that has given rise to events at
issue in the lawsuit, they are exempt from this
requirement. Agents wearing plain clothes and
assigned to undercover duties also are exempt from
this requirement. If the parties agree on a method
of marking, they shall submit the terms of their
agreement in writing to the Court, and the Court
will then issue a modified preliminary injunction
that incorporates the parties’ agreement. If the
parties cannot reach agreement within 14 days,
each party may submit its own proposal, and each
side may respond to any other party’s proposal
within seven days thereafter. The Court will
resolve any disputes on this issue and modify this
preliminary injunction appropriately.
8.To promote compliance with this Preliminary
Injunction, the Federal Defendants are ordered to
provide copies of the verbatim text of the first
seven provisions of this Preliminary Injunction, in

INDEX NEWSPAPERS V. U.S. MARSHALS51
A prior motions panel of this court entered an
administrative stay of the injunction pending the adjudication
of the government’s motion for emergency relief. As the
court, in its role as this motions panel, today denies such
emergency request for a stay pending appeal, the injunction
will go back into effect and this matter will proceed before
the district court, pending disposition of the government’s
appeal of the preliminary injunction by a merits panel of this
court. Plaintiffs’ Fourth Amendment and state constitutional
claims did not form part of the request for preliminary relief
and remain pending before the district court, as do plaintiffs’
requests for compensatory and punitive damages, attorney’s
fees, and costs. As the City’s stipulation to a preliminary
injunction resolved only Plaintiffs’ request for equitable
relief, Plaintiffs’ remaining claims against the City and
individual PPB officers also remain pending in the district
court.
II
I agree with the majority that the Nken v. Holder factors
must determine our disposition of the government’s request
either electronic or paper form, within 14 calendar
days to: (a) all employees, officers, and agents of
the Federal Defendants currently deployed in
Portland, Oregon (or who later become deployed in
Portland, Oregon while this Preliminary Injunction
is in force), including but not limited to all
personnel in Portland, Oregon who are part of
Operation Diligent Valor, Operation Legend, or
any equivalent; and (b) all employees, officers, and
agents of the Federal Defendants with any
supervisory or command authority over any person
in group (a) above.

INDEX NEWSPAPERS V. U.S. MARSHALS52
for emergency relief, but I respectfully disagree with how the
majority analyzes those factors. 556 U.S. 418, 426 (2009).
I address each factor in turn, beginning with the government’s
burden to make a strong showing of likelihood of success on
the merits.
4
The district court granted injunctive relief on the basis of
Plaintiffs’ two First Amendment claims: (1) a “right of public
access” to public streets and sidewalks to observe and to
document law enforcement officers engaged in riot control
and crowd dispersal; and (2) a right to be free from
“retaliation” by federal officers for reporting on law
enforcement’s response to civil unrest.
A
1
With respect to the “right of public access” issue, the
district court purported to apply the framework articulated in
Press-Enterprise Co. v. Superior Court of Cal. (“Press-
Enterprise II”) for evaluating “claim[s] of a First Amendment
right of access to criminal proceedings[.]” 478 U.S. 1, 8–9
(1986). Pursuant to that doctrine, in evaluating a purported
claim of public access to a proceeding, a court must consider:
4
Upon appeal of a preliminary injunction, the district court’s
conclusions of law are reviewed de novo, its underlying factual findings
are reviewed for clear error, and the scope of the injunction is reviewed for
abuse of discretion. Padilla v. Immigration & Customs Enf’t, 953 F.3d
1134, 1141 (9th Cir. 2020). In addition, “we review First Amendment
questions de novo since they present mixed questions of law and fact,
requiring us to apply principles of First Amendment jurisprudence to the
specific facts of this case.” Gerritsen v. City of Los Angeles, 994 F.2d
570, 575 (9th Cir. 1993).

INDEX NEWSPAPERS V. U.S. MARSHALS53
(1) “whether the place and process have historically been
open to the press and general public;” and (2) “whether public
access plays a significant positive role in the functioning of
the particular process in question.” Id. “If the particular
proceeding in question passes these tests of experience and
logic, a qualified First Amendment right of public access
attaches.” Id. “A presumptive right of access to any
particular proceeding may be overcome by an overriding
government interest based on findings that closure is essential
to preserve higher values and is narrowly tailored to serve
that interest.” Id.
But the First Amendment-based right of public access and
its corresponding framework have never been deemed to
apply to riot control and crowd dispersal in a public street.
5

The Supreme Court has discussed only a qualified right of
access to certain criminal judicial proceedings and has never
recognized a right of public access outside of that context.
See Press-Enterprise II, 478 U.S. at 8–9 (right of public
5
The majority, echoing arguments offered by plaintiffs’ counsel,
invokes prior decisions of our court referencing a First Amendment-based
right to record law enforcement activity in public. See Reed v. Lieurance,
863 F.3d 1196, 1211 (9th Cir. 2017); Fordyce v. City of Seattle, 55 F.3d
436, 439 (9th Cir. 1995). Those cases are inapposite, however, as they do
not address situations where law enforcement is responding to rioting and
violent unrest. At most, those cases merely recognize the right of a person
to use a recording device in a public forum, before any measures have
been taken to restrict access to the forum, such as issuance of a general
dispersal order. They certainly do not stand for the extraordinary
proposition that an individual is exempt from a dispersal order or other riot
control measure merely because he is engaged in the act of recording law
enforcement operations. Moreover, as a matter of doctrine, neither case
applied right-of-public-access analysis. In fact, Reed applied public forum
analysis, which the district court notably chose not to do here. 863 F.3d
at 1211. Cf. fn. 9, infra.

INDEX NEWSPAPERS V. U.S. MARSHALS54
access to preliminary hearings in criminal cases); Press-
Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 503,
508 (1984) (right of public access to voir dire hearings in
criminal cases); Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 580 (1980) (right of public access to criminal
trials).
In the decades since Press-Enterprise II, the courts of
appeals have expanded the right-of-public-access doctrine
considerably beyond its initial, paradigmatic application to
criminal proceedings—including, in our court, to a variety of
non-criminal, non-adjudicative, governmental proceedings,
such as a horse gather on federal land, Leigh v. Salazar,
677 F.3d 892, 894 (9th Cir. 2012), and a referendum on a
regulatory order conducted by the U.S. Department of
Agriculture, Cal-Almond, Inc. v. U.S. Dept. of Agriculture,
960 F.2d 105, 109 (9th Cir. 1992)—but the doctrine is not
without limit. Rather, the Press-Enterprise II framework has
been confined to claims of access to specific governmental
proceedings and has never been applied to public spaces in
general or to private events therein. Cf. Leigh, 677 F.3d at
894 (evaluating access to horse gather, not to federal lands);
Whiteland Woods, L.P. v. Township of W. Whiteland,
193 F.3d 177, 181 (3d Cir. 1999) (evaluating access to town
planning commission meeting, not to town hall). Here,
protests in a public street are privately sponsored and
organized events, and when they degenerate into riots, the
crowd control measures taken by law enforcement are
spontaneous and temporary responses to ongoing criminal
activity. Protests and resulting riots are simply not

INDEX NEWSPAPERS V. U.S. MARSHALS55
governmental proceedings to which a right of public access
may be claimed.
6
Similarly, even where the Press-Enterprise II framework
applies, it requires a court to evaluate a claim of access by
first determining whether “the place and the process” have
historically been open to the public, and whether the public’s
presence plays a critical role in the specific proceeding at
issue. 478 U.S. at 8–9 (emphasis added). Here, the district
court noted that streets, sidewalks, and parks constitute
traditional public fora, which have been open to speech and
expression from “time out of mind,” Hague v. Comm. for
Indus. Org., 307 U.S. 496, 515 (1939), but it failed to
evaluate any history of public access to law enforcement
operations responding to ongoing criminal activity, including
violent civil unrest that threatens federal property and
personnel. In the absence of historical analysis regarding the
proceeding, as distinguished from the place, a presumptive
right of public access simply does not attach. Cf. Leigh,
677 F.3d at 894 (calling for inquiry into history of public
access to horse gathers, not to federal lands).
The district court’s reasoning here is reflective of an
emerging pattern of lower courts expanding the right-of-
public-access doctrine well beyond its original scope, with
little consideration of a limiting principle. Cf., e.g., N.Y. Civil
Liberties Union v. N.Y. City Transit Auth., 684 F.3d 286, 298
6
Curiously, the complaint might be better viewed as claiming a “right
of exclusion” from crowd dispersal actions by federal law enforcement.
Plaintiffs seek access to a putative proceeding, the necessary impact of
which they actually wish to avoid. This contradiction highlights the
discrepancy between plaintiffs’ claims and traditional right-of-public-
access case law.

INDEX NEWSPAPERS V. U.S. MARSHALS56
(2d Cir. 2012) (noting, with approval, that “there is no
principle that limits the First Amendment right of [public]
access to any one particular type of government process”).
When the Supreme Court first articulated the First
Amendment right of public access in Richmond Newspapers,
Inc. v. Virginia, it drew on an extensive historical record of
public access to criminal trials in the Anglo-American legal
tradition, dating back to “the days before the Norman
Conquest.” 448 U.S. at 580. After canvassing more than a
thousand years of “unbroken, uncontradicted” history, the
Court felt justified in concluding that the right to attend
criminal trials is “implicit in the guarantees of the First
Amendment.” Id. In Press-Enterprise II, the Court limited
its inquiry to post-Bill of Rights history, but nonetheless
identified a “near uniform” “tradition of accessibility” to
preliminary hearings in criminal cases dating back to the
“celebrated trial of Aaron Burr” in 1807. 478 U.S. at 10–11.
Lower courts, by contrast, including ours, have extended
the right of public access largely without extensive historical
backing and without further guidance from the Supreme
Court regarding the specific contours of the doctrine. If the
majority’s reasoning here is any indication, the doctrine is
growing haphazardly, like a weed in an untended garden,
presaging conflict with more established legal rights and
powers. This doctrinal disorder warrants further review.
2
Even if right-of-public-access analysis were appropriate
under these circumstances, any right to access the proceeding
in question must apply equally to the press and the public.
See Cal. First Amendment Coal. v. Woodford, 299 F.3d 868,
873 n.2 (9th Cir. 2002) (“As members of the press, plaintiffs’

INDEX NEWSPAPERS V. U.S. MARSHALS57
First Amendment right of access to governmental
proceedings is coextensive with the general public’s right of
access.” (citing Houchins v. KQED, Inc., 438 U.S. 1, 15–16
(1978)). Indeed, it is a long-established and fundamental
principle of constitutional law that “the First Amendment
does not guarantee the press a constitutional right of special
access to information not available to the public generally.”
Branzburg v. Hayes, 408 U.S. 665, 684 (1972). Cf. Erwin
Chemerinsky, Protect the Press: A First Amendment
Standard for Safeguarding Aggressive Newsgathering, 33 U.
Rich. L. Rev. 1143, 1145 (2000) (“[The Supreme Court’s]
rulings, without exception, have failed to provide any First
Amendment protection for newsgathering. Indeed, the Court
has declared that there is no exemption for the press from
general laws. In other words, while engaged in
newsgathering, the press is not exempt from tort liability or
criminal laws, no matter how compelling the need for
reporting to protect the public’s health and safety.”).
But here, the district court’s injunction, by its own terms,
grants self-identified journalists and “legal observers” a
special privilege to disregard dispersal orders with which the
general public must comply, which has no legal basis. The
injunction is thus at odds with a core First Amendment
principle and a common-sense rule of thumb: the media have
the same rights as the rest of us.
7
7
Even if journalists had some special claim to enhanced
Constitutional protection when reporting on law enforcement activities,
grounded in the First Amendment’s “freedom of the press” clause, “legal
observers” have never been accorded any special recognition under our
law. Cf. Wise v. City of Portland, No. 3:20-CV-01193-IM, 2020 WL
5231486, at *7 (D. Or. Sept. 2, 2020) (declining to recognize special status
for “protest medics” in similar Portland protests) (“[T]his Court has found
no legal authority for affording protest medics, as defined by Plaintiffs,

INDEX NEWSPAPERS V. U.S. MARSHALS58
The majority opinion here rejects this characterization of
the injunction and insists that it creates no special rights.
According to the majority, the injunction merely prevents
federal agents from seeking to disperse the press from local
streets and sidewalks when the City’s current policy is that
press may remain there, even during riots, but does not seek
to regulate crowd dispersal on federal property. On this view,
the injunction is a wholesome exercise in federalism!
But the majority’s analysis is inconsistent with the plain
text of the district court’s order and misapplies principles of
constitutional structure. The injunction, by its own terms,
appears to extend to dispersal orders issued on federal
property, and is certainly not geographically limited in any
explicit way. The injunction thus allows the press, but not
others, to disregard dispersal orders that are clearly lawful.
That can only be understood as a special dispensation that is
not consistent with the First Amendment.
In any event, even if federal agents are located on City
property when they issue, or seek to enforce, an order to
disperse, principles of federalism do not justify carving out a
special exemption for the press from such orders simply
because City police would typically allow for one. The
unique recognition under the First Amendment beyond that afforded any
individual who attends a protest. . . . They simply have no unique status
under the First Amendment that allows them to disregard lawful
[dispersal] orders.”). That the district court’s injunction appears to
empower the ACLU and NLG to bestow immunity from lawful dispersal
orders is particularly dubious given the status of these organizations as
perennial litigation adversaries of law enforcement agencies. In sum, like
“protest medics,” there is no cognizable basis for “legal observers” to
receive “special dispensation” to disregard lawful dispersal orders. Wise,
2020 WL 5231486 at *2.

INDEX NEWSPAPERS V. U.S. MARSHALS59
Federal Government is indeed acknowledged by all to be one
of limited and enumerated powers, see Nat’l Fed’n of Indep.
Bus. v. Sebelius, 567 U.S. 519, 534 (2012), and it is not
entitled to exercise general or residual powers, see United
States v. Comstock, 560 U.S. 126, 153 (2010) (Kennedy, J.,
concurring) (“Residual power, sometimes referred to (perhaps
imperfectly) as the police power, belongs to the States and the
States alone”), such as the prevention and punishment of
crime and disorder on local streets, sidewalks, and parks, see
United States v. Morrison, 529 U.S. 598, 618 (2000) ([W]e
can think of no better example of the police power, which the
Founders denied the National Government and reposed in the
States, than the suppression of violent crime and vindication
of its victims.”).
It is an inversion of our constitutional structure, however,
to require federal officers to abide by municipal policies
regarding crowd dispersal when carrying out their statutory
prerogative to protect federal property and personnel. Federal
officials are prohibited, of course, from “commandeering”
state and local law enforcement officers to help secure federal
property and must instead rely on voluntary cooperation with
state and local officials for this purpose. See Printz v. United
States, 521 U.S. 898, 935 (1997). Where such cooperation is
inadequate, the federal government must deploy its own
agents. In these circumstances, the agency’s lawful directives
regarding crowd dispersal, i.e., those adopted pursuant to a
constitutionally enacted federal statute or rule, take
precedence over state and local ones, not the other way
around. Such an arrangement does not violate principles of
federalism or dual sovereignty but is rather required by them.
See, e.g., Alden v. Maine, 527 U.S. 706, 732 (1999) (federal
government sets the supreme law of the land when acting
within its enumerated powers).

INDEX NEWSPAPERS V. U.S. MARSHALS60
The majority opinion relies heavily on the district court’s
conclusion, with which it agrees, that it is, in fact, unlawful
for federal agents to issue orders to disperse if they are
situated beyond federal property. According to the majority,
DHS and USMS have never claimed to have such authority,
and the federal statute upon which they principally rely,
40 U.S.C. § 1315, does not provide for it.
The suggestion that the government has simply conceded
this question is overstated. Although this issue was not
adequately briefed by either party, the government has
consistently articulated the position, both before the district
court and on appeal, that federal law enforcement officers
may issue dispersal orders on federal property, and in several
circumstances, may effectuate those orders beyond federal
property, such as by establishing a secure perimeter. In
particular, the government has invoked § 1315(b)(1), which
provides that the Secretary of Homeland Security may
designate DHS agents to protect federal property, including
designating agents for duty in “areas outside the property to
the extent necessary to protect the property and persons on
the property.”
I am inclined to agree with the government’s general
understanding of its statutory authority. As the government
has pointed out, it would be unreasonable to require that
federal officers charged with securing federal buildings wait
until violent opportunists have breached the property line or
entered the building before taking any protective measures.
There is very likely a statutory basis for at least some crowd
dispersal activity adjacent to a federal courthouse faced with
violent unrest and the other challenging circumstances at
issue here.

INDEX NEWSPAPERS V. U.S. MARSHALS61
I also agree with the majority, however, that a
determination of the precise scope of DHS’s and USMS’s
statutory authority is not required for resolution of this
emergency motion. Indeed, the statutory question muddles
the First Amendment analysis upon which the district court’s
injunction is ultimately grounded. Presumably, if federal
officers have no statutory basis for dispersals beyond federal
property, then any such dispersals are ultra vires, and the
inquiry is at an end. There is no reason to proceed to an
evaluation of the constitutional rights of persons subject to
such purportedly unlawful measures, let alone to construct a
complex injunction that distinguishes the rights of press and
“legal observers” from the rights of other participants in a
protest. Ultimately, a lack of federal statutory authority for
off-property dispersals, as such, cannot serve as the sole, or
even primary, basis upon which this particular injunction is
upheld, given its reliance on a painstaking analysis of
purported constitutional violations with respect to specific
persons. Thus, even if I were to accept the majority’s view
that the injunction’s aim is simply to prohibit off-property
dispersals by federal officers, which I do not, the injunction’s
terms would be woefully underinclusive.
3
Even if a presumptive right of access for press and “legal
observers” to witness law enforcement’s response to a riot
could be said to exist, the inquiry does not end there. Under
Press-Enterprise II, a presumptive right of public access to
any particular proceeding may be overcome by an overriding
government interest based on findings that closure is essential
to preserve higher values and is narrowly tailored to serve
that interest. 478 U.S. at 8–9.

INDEX NEWSPAPERS V. U.S. MARSHALS62
The district court’s narrow tailoring analysis failed to take
proper account of the government’s interests in defense of
federal personnel and property, which justify use of general
dispersal orders during riot control situations that threaten
federal resources, even in a public forum.
8
Here, considering
the chaotic and dynamic situation during Portland’s recent
protest events, which have frequently devolved into riots,
along with the nefarious actions by certain individuals falsely
purporting to be press or “legal observers,” closure of the
forum through general dispersal orders is essential to the
defense of federal personnel and property. Indeed, the
closure of governmental proceedings has been deemed proper
in several instances where the government’s interest was
arguably less immediate and the restriction on access was
equally broad. Cf., e.g., Dhiab v. Trump, 852 F.3d 1087,
1095 (D.C. Cir. 2017) (government’s interest in preventing
future threats to military operations would justify closure of
habeas proceedings); U.S. v. Index Newspapers LLC,
766 F.3d 1072, 1087 (9th Cir. 2014) (government’s interest
in secrecy justified closure of certain grand jury proceedings);
ACLU v. Holder, 673 F.3d 245, 252 (4th Cir. 2011)
8
In addition, the district court’s narrow tailoring analysis was
conceptually flawed because the closure evaluated in the Press-Enterprise
II framework should be that of a specific governmental proceeding, not of
a public forum generally. Utilizing “right-of-public-access” analysis to
evaluate the closure of a “traditional public forum,” such as a public street,
is unsettling because government restrictions on First Amendment activity
in such locations are usually evaluated under “public forum analysis,”
which has been more extensively developed in the case law and provides
more guidance regarding the policing of protest events. See, e.g., Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); Int’l
Action Ctr. v. City of New York, 587 F.3d 521, 527 (2d Cir. 2009); Coal.
to Protest Democratic Nat’l Convention v. City of Boston, 327 F. Supp. 2d
61, 69–70 (D. Mass.), aff’d sub nom. Bl(a)ck Tea Soc’y v. City of Boston,
378 F.3d 8 (1st Cir. 2004).

INDEX NEWSPAPERS V. U.S. MARSHALS63
(government’s interest in integrity of ongoing fraud
investigation justified sealing of complaints filed in False
Claims Act actions).
Moreover, if the categories of “journalist” and “legal
observer” in fact include all members of the public engaged
in observation, as distinguished from speech or protest—as
the majority seems to suggest—then the government’s
interests in full closure of the “proceeding” are even more
compelling. Otherwise, in the event of a riot in a public
forum that threatens federal property, federal officers could
disperse only members of the public that are speaking,
assembling, and protesting, but not members of the public
that are observing or documenting. Peaceful protesters
caught up in the riot would have to obey the dispersal order,
but peaceful observers would not. This differential treatment
is groundless and, in any event, would render federal
dispersal orders a dead letter, even in the face of an
undeniable threat to federal property and personnel. Federal
law enforcement agents simply would not be allowed to clear
the street. Such a prohibition is not only inconsistent with the
government’s overriding interest in security in cases of
violent unrest that threatens federal property and personnel,
it is also contrary to established law in other First
Amendment settings, which permits general dispersal orders
in similar circumstances. Cf., e.g., Bible Believers v. Wayne
Cty., Mich., 805 F.3d 228, 252 (6th Cir. 2015) (“The police
may go against the hecklers, cordon off the speakers, or
attempt to disperse the entire crowd if that becomes
necessary.”). Carr v. D.C., 587 F.3d 401, 409–10 (D.C. Cir.
2009) (“[W]hen police face an unruly crowd they may give a
dispersal order and then arrest those who, after reasonable
opportunity to comply, fail to do so. We continue to
acknowledge that this tactic will be invaluable to police in

INDEX NEWSPAPERS V. U.S. MARSHALS64
certain circumstances. A dispersal order might well be
necessary in a situation in which a crowd is substantially
infected with violence or otherwise threatening public
safety.” (internal citations and quotation marks omitted));
Wise, 2020 WL 5231486 at *2 (recognizing propriety of
general dispersal orders in response to Portland riots).
The only way the majority arrives at a different
conclusion is by according deference to the district court’s
factual findings, which placed heavy emphasis on the City of
Portland’s consent to abide by an injunction with nearly
identical terms and a declaration submitted by former DHS
official Gil Kerlikowske stating that law enforcement officers
may respond effectively to riots without dispersing journalists
and “legal observers.” Evaluating whether a government
measure is narrowly tailored is not simply a matter of
ordinary fact-finding, however. Narrow tailoring is viewed
as a mixed question of fact and law that requires a delicate
balancing of legal principles as applied to specific
circumstances. See Gilbrook v. City of Westminster, 177 F.3d
839, 861 (9th Cir. 1999); Gerritsen v. City of Los Angeles,
994 F.2d 570, 575 (9th Cir. 1993) (“[W]e review First
Amendment questions de novo since they present mixed
questions of law and fact, requiring us to apply principles of
First Amendment jurisprudence to the specific facts of this
case.” (internal quotation marks omitted)); see also
Mastrovincenzo v. City of New York, 435 F.3d 78, 100 (2d
Cir. 2006) (“Our narrow-tailoring inquiry requires us to apply
principles of First Amendment jurisprudence to the specific
facts of this case, and therefore we treat this issue as a mixed
question of law and fact that we may resolve on appeal.”
(internal quotations marks omitted)); Casey v. City of
Newport, R.I., 308 F.3d 106, 116 (1st Cir. 2002)
(“Inescapably, the application of the narrow tailoring test

INDEX NEWSPAPERS V. U.S. MARSHALS65
entails a delicate balancing judgment.” (citations omitted)).
Accordingly, I would revisit the district court’s narrow
tailoring inquiry, which I believe did not correctly balance the
interests at stake.
The City’s stipulation does not have the import that the
district court, and the majority, ascribe to it. That the City
ultimately agreed to the terms of the injunction does not show
that it complied with them, let alone that it did so and
managed to protect property and personnel. In any event, the
City’s agreeableness should not be overstated here. The PPB
is still alleged to have followed until recently a policy of
dispersing press and “legal observers,” the TRO was entered
without the City’s consent, and, after the City agreed to a
preliminary injunction, it suggested that modifications would
be required.
9
Moreover, as already discussed, holding DHS and USMS
to the City’s policies and practices reflects a
misunderstanding of the relationship between federal and
local law enforcement, each of which operates under a
separate command structure and is typically entitled to set
different enforcement priorities and to follow different
directives regarding lawful crowd control tactics, including
general dispersal orders. In this case, the City not only
sought to distinguish the PPB from federal law enforcement,
it has been explicitly adverse to the presence of federal
9
The City also resisted a very similar request for injunctive relief
brought by so-called “protest medics.” Wise, 2020 WL 5231486 at *2.
The City apparently argued, and the district court agreed, that an
injunction exempting “protest medics” from dispersal orders would be
unworkable for the PPB. Why the City expects the PPB to identify and to
exempt “legal observers,” but not “protest medics,” is difficult to
understand. Cf. fn. 7, supra.

INDEX NEWSPAPERS V. U.S. MARSHALS66
officers in Portland, leveling serious allegations of unlawful
conduct against them, and even going so far as to prohibit the
PPB from cooperating with federal agents to provide security
for the Hatfield Courthouse. The City’s actions, and its
filings in the district court, suggest that it has a divergent
assessment of the severity of the threat posed to federal
personnel and property by protest events that degenerate into
riots, and of the proper manner of dealing with that threat.
The City is entitled, of course, to utilize different crowd
control tactics, but the City’s choices obviously do not bind
federal law enforcement agencies.
Similarly, Kerlikowske’s testimony does not adequately
address crowd control under the specific circumstances faced
by federal officers in Portland. For example, he deals in a
conclusory manner with the evidence placed in the record
regarding the involvement of putative journalists and “legal
observers” in criminal acts, stating that federal officers “were
not fooled” by the “press” labels and that trained officers are
capable of dealing with such incidents on an individualized
basis. But effectuating an arrest may not be feasible or safe
in the chaotic and dynamic environment of a riot that
threatens federal property and personnel, which is why
dispersal orders—and related crowd control tactics, such as
deployment of tear gas—are understood to be legitimate law
enforcement tools in the first place. Cf. Wise, 2020 WL
5231486 at *2 (recognizing propriety of general dispersal
orders in responding to Portland riots); Don’t Shoot Portland
v. City of Portland, No. 3:20-CV-00917-HZ, 2020 WL
3078329, at *4 (D. Or. June 9, 2020) (allowing use of tear gas
in situations where safety of public or police is at risk).
Given the conclusory nature of Kerlikowske’s testimony on
this point, it is hardly definitive.

INDEX NEWSPAPERS V. U.S. MARSHALS67
Accordingly, the government has made a strong showing
that it is likely to succeed in demonstrating that the First
Amendment-based right of public access does not support the
district court’s injunction.
B
With respect to the “retaliation” claim, the district court
also concluded that plaintiffs were likely to succeed, largely
based on its detailed factual findings indicating a disturbing
pattern of unwarranted force by federal agents. The majority
opinion here discusses the “retaliation” claim extensively and
ultimately defers to these factual findings.
Even if plaintiffs’ retaliation claim were viable, however,
that claim alone cannot justify this injunction. The district
court’s factual findings regarding retaliation, while apparently
based on a meticulous examination of the record, bear no
relation to the injunctive relief actually entered. General
dispersal orders were not among the acts alleged to be
retaliatory, nor did the district court make any findings to
support such a conclusion. An injunction that exempts
plaintiffs—not to mention, journalists and “legal observers”
more generally—from dispersal orders is thus far broader
than necessary to provide relief for the injuries alleged, and
documented, as a result of retaliation.
10
Indeed, Judge
Immergut, of the very same district court, relied on such
reasoning in denying a similar request for injunctive relief
based on First Amendment “retaliation” just two weeks after
10
Remarkably, some of the allegations in the complaint regarding
“retaliation” may well support Bivens actions and claims of excessive
force against individual officers, but that is not what is before us today.
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 395 (1971).

INDEX NEWSPAPERS V. U.S. MARSHALS68
the instant preliminary injunction was entered. Wise, 2020
WL 5231486 at *8 (injunction not warranted where instances
of alleged targeting appeared to occur when “protest medics”
refused to follow dispersal orders).
Accordingly, I would hold that, regardless of whether
plaintiffs’ have stated a valid First Amendment “retaliation”
claim, an injunction that exempts them from non-retaliatory
dispersal orders is overbroad and an abuse of discretion. See
Cal. v. Azar, 911 F.3d 558, 584 (9th Cir. 2018) (“The scope
of the remedy must be no broader and no narrower than
necessary to redress the injury shown by the [plaintiff].”).
I conclude that DHS and USMS have made a strong
showing that they are likely to succeed in demonstrating that
the district court’s extraordinary injunction was issued
without an adequate legal basis. This critical Nken factor
favors grant of the government’s emergency motion for stay
pending appeal.
III
The remaining Nken factors also favor a stay pending
appeal here. First, while a closer question, the government
has shown that it is likely to suffer irreparable harm during
the pendency of the appeal if the injunction is not stayed,
because it is unworkable for federal officers to distinguish
journalists and “legal observers” in the midst of a riot that
threatens federal property and personnel based on the
nebulous criteria established by the district court, particularly
in light of the incidents of press and “legal observer”
involvement in violent unrest.

INDEX NEWSPAPERS V. U.S. MARSHALS69
The majority rejects the government’s showing on this
factor, stating that the injunction is carefully drawn to avoid
undue interference with DHS’s and USMS’s defense of
federal resources, that the PPB has been operating safely and
effectively under nearly identical terms, and that
Kerlikowske’s declaration indicates that general dispersal
orders are unnecessary for crowd control. The majority’s
characterization of the order as carefully drawn is misleading
because the order merely restates existing legal rules, such as
an officer’s power to make an arrest based on probable cause.
And the order does not explain how effectuating arrest of
individual suspects is as feasible or safe as utilizing general
crowd control tactics during a riot that threatens federal
property and personnel. Similarly, the City’s stipulation and
Kerlikowske’s declaration do not warrant the treatment they
receive, for the reasons discussed above.
Second, the harms to the government are serious because
the injunction’s curtailment of general dispersal orders will
compromise the security of federal personnel and property,
whereas, if there is no right of public access, as I have argued,
then any harm to plaintiffs from a stay is minimal because
they do not have a right to remain in the street after they have
been ordered to disperse, and the injunction does not protect
them from retaliation. Third, for similar reasons, the public
interest in maintenance of order and public safety also favors
stay of an overbroad injunction that unduly interferes with
law enforcement operations, while offering little, if any,
protection for plaintiffs’ actual constitutional rights. This
combination of showings justifies a stay pending appeal. See
Leiva-Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011)
(stay warranted where irreparable harm is probable, there is
a strong likelihood of success on the merits, and the public
interest does not weigh heavily against a stay).

INDEX NEWSPAPERS V. U.S. MARSHALS70
IV
Because the government has made a strong showing that
it is likely to succeed in demonstrating that the injunction
lacks an adequate legal basis, and the other Nken factors also
weigh in favor of a stay, I respectfully dissent and would
grant the emergency motion for stay pending appeal.