FILED FOR PUBLICATION OCT 9 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT INDEX NEWSPAPERS LLC, DBA No. 20-35739 Portland Mercury; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; D.C. No. 3:20-cv-01035-SI MATHIEU LEWIS-ROLLAND; KAT District of Oregon, MAHONEY; SERGIO OLMOS; JOHN Portland RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU, and those similarly situated, ORDER 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. Before: O’SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges. Order by Judges RAWLINSON and CHRISTEN, Dissent by Judge O’SCANNLAIN 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 2 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 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 ...
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