Case: 20-35739, 08/27/2020, ID: 11805415, DktEntry: 14, Page 1 of 3

FILED

UNITED STATES COURT OF APPEALS

AUG 27 2020

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

INDEX NEWSPAPERS LLC, DBA
Portland Mercury; et al.,
Plaintiffs-Appellees,

No.

20-35739

D.C. No. 3:20-cv-01035-SI
District of Oregon,
Portland

v.
ORDER
UNITED STATES MARSHALS SERVICE;
U.S. DEPARTMENT OF HOMELAND
SECURITY,
Defendants-Appellants,
and
CITY OF PORTLAND, a municipal
corporation; et al.,
Defendants.
Before: McKEOWN, MILLER, and BRESS, Circuit Judges.
Order by Judges MILLER and BRESS, Dissent by Judge McKEOWN
We have received appellants’ emergency motion at Docket Entry No. 7
seeking to stay the district court’s August 20, 2020 order pending resolution of this
appeal. Appellants’ request for an immediate administrative stay of the district
court’s August 20, 2020 order pending resolution of the emergency motion is
granted. See Nken v. Holder, 556 U.S. 418, 426 (2009). Based on our preliminary
review, appellants have made a strong showing of likely success on the merits that
LAB/MOATT

 Case: 20-35739, 08/27/2020, ID: 11805415, DktEntry: 14, Page 2 of 3

the district court’s injunction exempting “Journalists” and “Legal Observers” from
generally applicable dispersal orders is without adequate legal basis. Given the
order’s breadth and lack of clarity, particularly in its non-exclusive indicia of who
qualifies as “Journalists” and “Legal Observers,” appellants have also
demonstrated that, in the absence of a stay, the order will cause irreparable harm to
law enforcement efforts and personnel. The August 20, 2020 order is stayed,
temporarily, pending resolution of the emergency motion. This administrative stay
preserves the status quo as it existed before the district court’s preliminary
injunction and temporary restraining order.
This order does not disturb the portion of the district court’s August 20,
2020 order directing the parties to confer regarding identifying markings and
directing that the parties submit proposals to the district court within 14 days if the
parties cannot reach an agreement. However, the district court shall not issue a
final order regarding identifying markings pending this court’s resolution of the
emergency motion.
Appellees’ response to the emergency motion is due by 9:00 a.m. PDT
September 2, 2020. Appellants’ optional reply is due by 5:00 p.m. PDT September
3, 2020.

LAB/MOATT

2

 Case: 20-35739, 08/27/2020, ID: 11805415, DktEntry: 14, Page 3 of 3

McKEOWN, Circuit Judge, dissenting:
I respectfully dissent and would deny the Federal Defendants’ request for an
administrative stay. The factual conclusions underlying the entry of a preliminary
injunction are reviewed for clear error. See Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In light of the deferential review
accorded to the district court’s factual finding at this stage, the district court’s
extensive factual findings with respect to journalists and legal observers, including
the finding that the injunction would not impair law enforcement operations to
protect federal property and personnel, and the fact that a temporary restraining
order has been in place since July 23, 2020, the government has failed to meet its
burden to demonstrate either an emergency or irreparable harm to support an
immediate administrative stay. I concur in the order with respect to the markings.

LAB/MOATT

3