Case 4:14-cv-00264-JEG-HCA Document 74 Filed 02/26/16 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
PAUL GERLICH and ERIN FURLEIGH,
Plaintiffs,
No. 4:14-cv-00264 – JEG

vs.
STEVEN LEATH, WARREN MADDEN,
THOMAS HILL, and LEESHA ZIMMERMAN,

ORDER

Defendants.
This matter comes before the Court on a Motion to Stay filed by Defendants Steven
Leath, Warren Madden, Thomas Hill, and Leesha Zimmerman, which Plaintiffs Paul Gerlich and
Erin Furleigh resist. Neither party requested a hearing on the Motion, and the Court finds a
hearing is unnecessary. The Motion is fully submitted and ready for disposition.
I. BACKGROUND
On January 22, 2016, this Court entered an order on the merits of the parties’ crossmotions for summary judgment on all claims, ECF No. 60, in which the Court held that
Defendants had discriminated against Plaintiffs on the basis of viewpoint in violation of the First
Amendment. An entry of partial judgment followed on January 25, 2016, ECF No. 61, leaving
for further resolution only the issue of money damages and Plaintiffs’ claims for fees, costs and
expenses in accordance with 42 U.S.C. § 1988 and other applicable law. On February 4, 2016,
Defendants filed a notice of appeal, ECF No. 70, appealing as a matter of right the Court’s
determination in its January 22, 2016, order that Defendants were not entitled to qualified
immunity. On February 19, 2016, Defendants filed the present Motion to Stay, ECF No. 72,
pursuant to Federal Rule of Civil Procedure 62.

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II. DISCUSSION
Because Defendants have appealed on the issue of qualified immunity, proceedings on
the issue of money damages are already effectively stayed because the Court lacks jurisdiction to
conduct further proceedings as to damages until the appeal is resolved. “Generally, ‘[t]he filing
of a notice of appeal . . . confers jurisdiction on the court of appeals and divests the district court
of its control over those aspects of the case involved in the appeal.’” Ahlberg v. Chrysler Corp.,
481 F.3d 630, 638 (8th Cir. 2007) (quoting Liddell v. Bd. of Educ. of St. Louis, 73 F.3d 819, 822
(8th Cir.1996)); see also Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). The
Court has thus already been divested of authority to hold additional proceedings as to the issue of
money damages and Plaintiffs’ claims for fees, costs, and expenses pending resolution of
Defendants’ appeal. Therefore, the only matter relevant to Defendants’ motion to stay is the
permanent injunction barring Defendants from engaging in further viewpoint discrimination.
Federal Rule of Civil Procedure 62(c) and Federal Rule of Appellate Procedure 8(a)
empower the federal district courts and courts of appeals, respectively, to stay an order pending
an appeal. Under both rules,
the factors regulating the issuance of a stay are generally the same: (1) whether the
stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant 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.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987); accord Brady v. Nat’l Football League, 640 F.3d
785, 789 (8th Cir. 2011) (quoting Hilton, 481 U.S. at 776). “The most important factor is the
appellant’s likelihood of success on the merits.” Brady, 640 F.3d at 789. “The movant must
show that it will suffer irreparable injury unless a stay is granted.” Id. “Ultimately, we must

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consider the relative strength of the four factors,” balancing all of them. Id. (quoting Fargo
Women’s Health Org. v. Schafer, 18 F.3d 526, 538 (8th Cir. 1994)).
Defendants have not made a requisite showing that a stay is warranted here. For the
reasons stated in the Court’s order issued January 22, 2016, Defendants have not made a strong
showing they are likely to succeed in demonstrating their conduct was government speech.
Gerlich v. Leath, No. 4:14-CV-00264-JEG, 2016 WL 360673, at *14-16 (S.D. Iowa Jan. 22,
2016). Furthermore, even if Defendants can demonstrate on appeal that Plaintiffs’ First
Amendment rights were not “clearly established” at the time of the violation, Jones v. McNeese,
675 F.3d 1158, 1161 (8th Cir.2012), such a conclusion would have no bearing on the injunction
Defendants seek to stay. Qualified immunity does not shield public officials from equitable
relief. See Curtiss v. Benson, 583 F. App’x 598, 599 (8th Cir. 2014) (per curiam) (noting that
qualified immunity did not apply to the plaintiff’s claims for declaratory and injunctive relief);
Burnham v. Ianni, 119 F.3d 668, 673 n. 7 (8th Cir.1997) (en banc) (explaining that an appeal
from the denial of qualified immunity implicated only liability for money damages and that
qualified immunity would not protect the defendant from claims for injunctive or other equitable
relief); Grantham v. Trickey, 21 F.3d 289, 295 (8th Cir.1994) (stating that “qualified immunity
does not apply to claims for equitable relief”).
Defendants contend Iowa State University’s trademarks will suffer irreparable harm
absent a stay of the injunction. However, in support of this assertion Defendants have offered no
more than speculation and conclusory statements that university trademarks will be harmed by
NORML ISU’s use of the marks alongside images of cannabis leaves similar to those previously
included in designs approved by Defendants. Conversely, Plaintiffs would be irreparably

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harmed by a stay, because “loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Johnson v. Minneapolis Park & Recreation Bd.,
729 F.3d 1094, 1101-02 (8th Cir. 2013) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)
(plurality opinion)).
Because of the nature of the rights at issue in this case, the Court must conclude that the
public interest would not be promoted by a stay of the injunction. For all the foregoing reasons,
the Court must deny Defendants’ Motion.
III. CONCLUSION
For the reasons stated, Defendants’ Motion to Stay, ECF No. 72, must be dismissed as
moot as to proceedings for money damages, fees, costs, and expenses, and denied in all other
respects.
IT IS SO ORDERED.
Dated this 26th day of February, 2016.

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