Summary
The Ninth Circuit granted the federal government’s motions to stay a district court preliminary injunction and to stay district court proceedings pending appeal. The preliminary injunction had restricted federal law enforcement’s use of chemical crowd-control devices near an apartment complex in Portland, Oregon. The majority held that neighboring residents have no substantive-due-process right to be free from incidental exposure to such chemicals and concluded that the government satisfied the stay factors; Judge de Alba dissented.
Topics
Practice areas
Questions Presented
- Whether the government satisfied the requirements for a stay of the district court's preliminary injunction pending appeal.
- Whether the plaintiffs had a substantive-due-process right to bodily integrity that includes a right, possessed by neighboring residents, to be free from incidental exposure to tear-gas chemicals deployed by law enforcement for crowd control.
- Whether the preliminary injunction was impermissibly broad and vague because it prohibited chemical-munitions use when chemicals were likely to reach Gray's Landing.
- Whether the Ninth Circuit should stay district court proceedings and discovery pending resolution of the appeal.
Holdings
- No such substantive-due-process right exists. A claimed unenumerated right must be carefully described and shown to be deeply rooted in the Nation's history and tradition and implicit in ordered liberty; the plaintiffs identified no such historical basis for a neighboring resident's asserted right to be free from incidental exposure to law-enforcement crowd-control chemicals.
- The government was entitled to a stay pending appeal because it made a strong showing of likely success on the merits and satisfied the remaining stay factors.
- The injunction was sufficiently broad and vague to be unworkable and independently supported a stay.
- The district court proceedings were stayed pending appeal.
Key quotations
“The established rule set forth in Glucksberg, and reaffirmed in Dobbs, requires that any claimed “right” not mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”” (5–6)
“One must first carefully describe the right, and then determine whether that right is historically rooted.” (8)
“That is emphatically not the law, and we reject such an analysis.” (8)
“Such uncertainty produced by the injunction—the violation of which would subject federal law enforcement officers to contempt—is intolerable.” (10)
“We see no bar to exercising our discretion to grant a stay here: given that Plaintiffs’ claim to a substantive-due-process right is meritless (and given that the district court did not find that Plaintiffs had a likelihood of success with respect to their remaining Fourth Amendment claim), there is no need for discovery to continue in the district court pending appeal.” (16–17)
Factual background
Demonstrators repeatedly gathered outside an ICE facility in Portland, Oregon, and some demonstrations involved trespass, property destruction, threats, assaults, obstruction, and other lawbreaking. Federal officers used non-lethal crowd-control devices, including tear gas, and chemicals reached Gray's Landing, a neighboring apartment complex owned and operated by entities that were plaintiffs and occupied by several individual plaintiffs. The plaintiffs alleged respiratory distress and burning of the skin, eyes, and throat, and sought to enjoin further deployment of the devices.
Procedural history
The district court preliminarily enjoined federal law-enforcement officers from using chemical munitions in quantities likely to cause aerosolized chemicals to reach Gray's Landing, except when necessary to address an imminent threat to life. The district court found a likelihood of success on the plaintiffs' Fifth Amendment substantive-due-process bodily-integrity claim but rejected their Fourth Amendment claim. The Ninth Circuit granted an immediate administrative stay, then granted the stay pending appeal and stayed the district court proceedings.