Goyette v. City of Minneapolis

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Jared Goyette, Craig Lassig, The      Case No. 20-cv-1302 (WMW/DTS)      
Communications Workers of America,                                       
Tannen Maury, Katie Nelson, Stephen                                      
Maturen, Edward Ou, Timothy Evans, and                                   
Chris Tuite,                                                             

                   Plaintiffs,    ORDER GRANTING PLAINTIFFS’             
                                   MOTION FOR A PRELIMINARY              
     v.                                    INJUNCTION                    

City of Minneapolis, Medaria Arradondo,                                  
Robert Kroll, John Harrington, Matthew                                   
Langer, John Does 1–2, David Hutchinson,                                 
and Joseph Dwyer,                                                        

                   Defendants.                                           


    This matter is before the Court on Plaintiffs’ motion for a preliminary injunction.  
(Dkt. 118.)  The Court previously granted Plaintiffs’ motion for a temporary restraining 
order (TRO) on April 16, 2021.  Plaintiffs now seek an order converting the TRO into a 
preliminary  injunction.    For  the  reasons  addressed  below,  Plaintiffs’  motion  for  a 
preliminary injunction is granted.                                        
                         BACKGROUND                                      
    The individual Plaintiffs are journalists, photographers, and other members of the 
press  who  bring  this  lawsuit  on  behalf  of  themselves  and  other  similarly  situated 
individuals.  Plaintiff The Communications Workers of America is an international labor 
union that represents news media workers.  Defendant John Harrington is the Minnesota 
Commissioner of Public Safety who has supervisory responsibility over the Minnesota 
State Patrol and its commander, Defendant Minnesota State Patrol Colonel Matthew 
Langer (collectively, State Defendants).  Defendant Medaria Arradondo is the Chief of 
Police for Defendant City of Minneapolis (collectively, City Defendants).1   

    I.   Factual Background                                              
    On May 25, 2020, George Floyd died as a result of an encounter with four officers 
of the Minneapolis Police Department (MPD).  Video of the encounter captured by 
bystanders shows the MPD officers placing Floyd in handcuffs and pinning him to the 
ground face down, while then-officer Derek Chauvin knelt on Floyd’s neck.  Floyd and 

several bystanders pleaded with Officer Chauvin to change his position to allow Floyd to 
breathe.  Officer Chauvin refused and continued to kneel on Floyd’s neck for several 
minutes after Floyd became unresponsive.  Video of the encounter circulated rapidly, and 
hundreds of citizens began protesting in Minneapolis and Saint Paul, as well as nationally 
and around the world.                                                     

    Local, state, and federal law enforcement agencies created a Multi-Agency Com-
mand Center (MACC) to coordinate their “response to any unrest that develops following 
the death of George Floyd.”  Commissioner Harrington led the state of Minnesota’s law 
enforcement response to the protest.  The Minnesota State Patrol worked closely with the 
MPD in forming their plan for responding to the protests.  And, throughout the protests, 


1    Defendant Robert Kroll, a former Minneapolis Police Lieutenant and President of 
the Police Officers Federation of Minneapolis, is not subject to the TRO or the pending 
motion  for  a  preliminary  injunction.    Defendants  Hennepin  County  Sheriff  David 
Hutchinson and Minnesota State Patrol Major Joseph Dwyer were added to this lawsuit in 
a third amended complaint, which was filed after the pending motion for a preliminary 
injunction had been heard and briefed.                                    
the MPD and the Minnesota State Patrol worked side-by-side when deploying riot-control 
tactics to control the protests.                                          
    On May 26, 2020, despite mostly peaceful demonstrations, protesters at the MPD’s 

3rd Precinct building vandalized police vehicles with graffiti and targeted the precinct 
building where the officers involved in Floyd’s death were assigned.  Law enforcement 
officers used foam projectiles and tear gas to repel some of the protestors.  Again, on May 
27, 2020, hundreds of people protested in Minneapolis.  While covering the protests at the 
3rd Precinct, Plaintiff Jared Goyette witnessed a projectile fired by the MPD officers near 

the precinct building hit a young male protester in the head.  As Goyette documented 
bystanders assisting the injured protester, a projectile struck Goyette in the head.  A 
moment later, a canister of tear gas landed nearby, making it impossible for Goyette to see.  
Goyette maintains that he was clearly identifiable as a member of the news media as he 
carried a large camera, monopod, and notebook.  That same evening, an auto parts store 

near the 3rd Precinct building was set on fire, and other nearby stores were looted and 
vandalized.  In total, the Minneapolis Fire Department responded to approximately 30 fires 
related to the protests that evening, during which some fire trucks attempting to respond 
were hit with rocks and other projectiles.                                
    On May 28, 2020, the MPD officers abandoned the 3rd Precinct building, which 

was set on fire by protesters.  Because of safety concerns, the fire department was unable 
to respond to the 3rd Precinct building fire and other fires nearby.  The Saint Paul Police 
Department also reported dozens of fires and more than 170 damaged or looted businesses 
in Saint Paul.                                                            
    On May 29, 2020, Minnesota Governor Tim Walz announced that the state would 
restore order, calling on the resources of the Minnesota State Patrol, other state agencies, 
and the Minnesota National Guard.  Governor Walz implemented an emergency executive 

order imposing a nighttime curfew in Minneapolis and Saint Paul.  See Minn. Exec. Order 
No. 20-65 (May 29, 2020).  All “members of the news media” were exempted from the 
curfew.  Id.  The curfew was disregarded by many, and individuals hiding among otherwise 
peaceful protesters continued to commit acts of looting, vandalism and arson.  
    The largest deployment of the Minnesota National Guard in state history was 

mobilized the following day to restore order, along with the Minnesota State Patrol and 
local law enforcement officers.  They moved aggressively to disperse protesters who 
remained out after the curfew.  On May 31, 2020, law enforcement officers arrested 
approximately 150 people near downtown Minneapolis for violating the curfew. 
    Additional protests occurred in Minnesota in connection with the trial of Derek 

Chauvin in March and April 2021.  On April 11, 2021, a Brooklyn Center police officer 
shot and killed Daunte Wright, which led to additional protests.  Plaintiffs alleged that the 
State Defendants continued to violate the constitutional rights of the members of the press 
who were covering these protests.  Plaintiffs alleged several examples, including the police 
firing rubber bullets at a videographer who was a safe distance from other protestors, orders 

directing the press to disperse despite the curfew orders expressly exempting the press, and 
various other acts impeding the press’s ability to observe and report about the protests and 
law enforcement’s interactions with protestors.                           
    II.  Procedural Background                                           
    Plaintiffs commenced this lawsuit in June 2020 alleging that the State Defendants 
engaged in a pattern and practice of infringing the constitutional rights of members of the 

press who were documenting the protests that followed George Floyd’s death.  According 
to Plaintiffs, the State Defendants threatened, harassed, assaulted and arrested members of 
the press in multiple incidents over several days after the death of George Floyd.  On June 2, 
2020, Goyette moved for a TRO to prevent the State Defendants from further violating the 
constitutional rights of the press.  The Court denied the motion without prejudice because 

the protests had ceased and Goyette failed to demonstrate an imminent threat of harm.   
    Plaintiffs filed a second motion for a TRO on April 14, 2021, when protests in 
Minnesota resumed in connection with the criminal prosecution of Chauvin and the death 
of Daunte Wright.  Plaintiffs sought an order enjoining the State Defendants from taking 
certain actions against “any person whom [the State Defendants] know or reasonably 

should know is a Journalist.”  In particular, Plaintiffs sought to enjoin the State Defendants 
from taking the following actions against such individuals: (1) the use of any physical force, 
including but not limited to non-lethal projectiles; (2) the use of chemical agents, including 
but not limited to mace, pepper spray, and tear gas; and (3) seizing any photographic 
equipment, audio- or videorecording equipment, or press passes from such individuals.   

    The Court granted Plaintiffs’ second motion for a TRO, concluding that Plaintiffs 
had  demonstrated  a  likelihood  of  success  on  the  merits  of  their  claims,  a  threat  of 
irreparable harm absent a TRO, and that the balance of harms and public interest weighed 
in favor granting a TRO.  Subsequently, the parties agreed to extend the duration of the 
TRO until the date of the Court’s ruling on Plaintiffs’ pending motion for a preliminary 
injunction.  The TRO, which remains in effect, does not apply to circumstances in which 
members of the press present an imminent threat of violence or bodily harm to persons or 

damage to property; unintentional violations involving an individual who does not carry or 
wear press credentials or distinctive clothing that identifies the individual as a member of 
the press; or instances when a member of the press is incidentally exposed to crowd-control 
devices after remaining in the area subject to an otherwise lawful dispersal order. 
    Plaintiffs now move to convert the TRO into a preliminary injunction.  The Court 

held an evidentiary hearing as to Plaintiffs’ motion for a preliminary injunction on July 28, 
2021, and the parties filed supplemental briefing thereafter.  Four witnesses testified at the 
evidentiary hearing: Plaintiff Edward Ou, a Canadian photojournalist who resides in New 
York; Plaintiff Christopher Tuite, a freelance photojournalist who resides in California; 
Defendant Minnesota Department of Public Safety Commissioner John Harrington; and 

Defendant Minnesota State Patrol Major Joseph Dwyer.                      
                           ANALYSIS                                      
    Federal Rule of Civil Procedure 65 authorizes a district court to grant injunctive 
relief in the form of a preliminary injunction.  When determining whether preliminary 
injunctive relief is warranted, a district court considers the four Dataphase factors: (1) the 

probability that the movant will succeed on the merits, (2) the threat of irreparable harm to 
the movant, (3) the balance between this harm and the injury that an injunction would 
inflict on other parties, and (4) the public interest.  Dataphase Sys., Inc. v. C L Sys., Inc., 

 (8th Cir. 1981).  “A preliminary injunction is an extraordinary remedy,” 
and the party seeking injunctive relief bears the burden of establishing that each factor 
favors granting such relief.  Roudachevski v. All-Am. Care Ctrs., Inc., 

 
(8th Cir. 2011).  The core question in this analysis “is whether the balance of equities so 

favors the movant that justice requires the court to intervene to preserve the status quo until 
the merits are determined.”  Dataphase, 

.                  
    I.   Likelihood of Success on the Merits2                            
    Plaintiffs contend that they are likely to succeed on the merits of their claims 
alleging violations of the First Amendment and Fourth Amendment to the United States 

Constitution.  When deciding whether to grant a preliminary injunction, the “likelihood of 
success on the merits is most significant.”  S & M Constructors, Inc. v. Foley Co., 

 (8th Cir. 1992).  The moving party need not “prove a greater than fifty per cent 
likelihood that [it] will prevail on the merits.”  Dataphase, 

.  Rather, the 
moving party must demonstrate a “fair chance of prevailing.”  Planned Parenthood Minn., 

N.D., S.D. v. Rounds, 

 (8th Cir. 2008).  Here, Plaintiffs’ likelihood of 



2    As this Court previously observed when granting Plaintiffs’ second motion for a 
TRO,  the  Court  is  mindful  of  certain  underlying  principles  implicated  by  this  case:  
“demonstrators have a right to protest the actions of the police and other members of the 
government without fear of government retaliation; police officers, especially in their duty 
to protect person[s] and property, have difficult and often dangerous jobs that require them 
to make split-second decisions; and just as not all protestors seek destruction, not all 
officers seek violence.”  Breathe v. City of Detroit, 

, 516 (E.D. Mich. 
2020).  As such, the Court must “balance the need to protect the sacred rights of speech 
and assembly from interference and retaliation with that of police to respond appropriately 
when the safety of the officers and . . . citizens [is] threatened.”  

 
success on the merits as to their First Amendment and Fourth Amendment claims are 
addressed in turn.3                                                       
    A.   First Amendment                                                 

    Plaintiffs  argue  that  they  are  likely  to  succeed  on  the  merits  of  their  First 
Amendment retaliation claim.                                              
    “[T]he  First  Amendment  prohibits  government  officials  from  subjecting  an 
individual to retaliatory actions.”  Peterson v. Kopp, 

 (8th Cir. 2014) 
(quoting Hartman v. Moore, 

 (2006)).  To succeed, a plaintiff alleging a 

First  Amendment  retaliation  claim  must  prove  that  “(1)  [the  plaintiff]  engaged  in  a 
protected activity, (2) the government official took adverse action against [the plaintiff] 
that would chill a person of ordinary firmness from continuing in the activity, and (3) the 
adverse action was motivated at least in part by the exercise of the protected activity.”  

 
(internal quotation marks omitted); accord Quraishi v. St. Charles County, 

 (8th Cir. 2021).  When this Court granted Plaintiffs’ second motion for a TRO in April 
2021, the Court concluded that Plaintiffs had demonstrated a likelihood of success on the 
merits as to each of these elements.  As addressed below, the record evidence that has been 
developed since April 2021 does not warrant a different result now.       




3    The State Defendants also assert that Plaintiffs’ claims fail for lack of standing.  The 
Court rejected these arguments when the Court ruled on the State Defendants’ motion to 
dismiss, and the State Defendants have not presented an argument that warrants revisiting 
this issue now.                                                           
      1.   Protected Activity                                            
    Any law “abridging the freedom of speech, or of the press” is prohibited under the 
First Amendment.  U.S. Const., amend. I.  The Supreme Court of the United States has 

recognized that “without some protection for seeking out the news, freedom of the press 
could be eviscerated.”  Branzburg v. Hayes, 

 (1972).  Moreover, “the 
First Amendment goes beyond protection of the press and self-expression of individuals to 
prohibit government from limiting the stock of information from which members of the 
public may draw.”  Am. Civ. Liberties Union of Ill. v. Alvarez, 

 (7th Cir. 

2012) (quoting First Nat’l Bank of Bos. v. Bellotti, 

 (1978)).  “Reporting 
is a First Amendment activity.”  Quraishi, 

 (citing Branzburg, 

).  Indeed, when reporting on government conduct, the press serves as “surrogates for 
the public.”  Richmond Newspapers, Inc. v. Virginia, 

 (1980).   
    Here, Plaintiffs’ declarations and the testimony presented at the evidentiary hearing 

detail the treatment that members of the press have experienced while photographing, 
filming or otherwise documenting government activity at protest scenes.  These undisputed 
facts demonstrate that Plaintiffs were engaged in constitutionally protected news-gathering 
activities.  See Alvarez, 

 (“The act of making an audio or audiovisual 
recording is necessarily included within the First Amendment’s guarantee of speech and 

press rights as a corollary of the right to disseminate the resulting recording” because these 
news-gathering methods “enable speech.”).                                 
    The State Defendants argue that First Amendment activity ceases to be protected 
activity when members of the press fail to comply with lawful dispersal orders.  It is true 
that First Amendment activity “loses its protection when it violates the law.”  Lund v. City 
of Rockford, 

 (7th Cir. 2020) (citing Brandenburg v. Ohio, 

 (1969)).  But the State Defendants’ argument does not prevail for several reasons. 

    First, at least some of the Plaintiffs’ protected First Amendment activities occurred 
outside the scope of any dispersal-order violations.  For example, Ou testified that he 
observed and filmed protests in Brooklyn Center in April 2021 from inside a private 
residence that overlooked the protest area.  Even though Ou was inside a private residence, 
law enforcement officers pointed objects at Ou and told him to “go away” and “back off.”  

Plaintiffs’ evidence also reflects that law enforcement officers repeatedly threatened and 
assaulted members of the press as they attempted to comply with dispersal orders.  In May 
2020, for example, Minnesota State Patrol officers arrested a CNN correspondent on live 
television even after the correspondent told the officers “we can move back to where you’d 
like” and “we’re getting out of your way.”  Similar conduct continued during the April 

2021 protests, including after this Court issued the TRO in this case.  Tuite testified that, 
even after he had complied with a dispersal order on April 16, 2021, state troopers detained 
members of the press, forced them into a line, photographed their faces and identification, 
and forbid them from documenting what was occurring.  As such, the record reflects that 
on multiple occasions members of the press were engaged in protected activity that did not 

fall within the scope of any dispersal order.                             
    Second, the record reflects that at least some of the dispersal orders did not lawfully 
apply to members of the press.  For example, the sole basis for some of the dispersal orders 
was to enforce curfews, and it is undisputed that members of the press were expressly 
exempt from those curfews.  In addition, under Minnesota law, an individual is guilty of 
unlawful assembly only if the individual is a “participant” in the unlawful assembly.  

.  An individual’s refusal to leave an unlawful assembly when directed by 

law enforcement to do so is a violation of the law only if the individual remains present 
“without lawful purpose.”  

.  Plaintiffs present evidence that members 
of the press clearly were engaged in news-gathering activities, such as observing and 
recording  protests  and  law  enforcement  activities,  as  opposed  to  participating  in  an 
unlawful assembly.4  Moreover, when individual members of the press refused to disperse, 

they did not do so “without lawful purpose.”  The record reflects that members of the press 
continued to lawfully engage in protected activity after the issuance of dispersal orders that 
did not apply to them.                                                    
    Third,  the  government  cannot  restrict  the  press  from  places  that  have  been 
historically open to the press and the general public without demonstrating “an overriding 

interest based on findings that closure is essential to preserve higher values and is narrowly 
tailored to serve that interest.”  Index Newspapers LLC v. City of Portland, 

, 1147 (D. Or. 2020) (quoting Press-Enter. Co. v. Superior Court of Cal., 

 (1986)); see also Index Newspapers LLC v. U.S. Marshals Serv., 

, 834 


4    This is not an instance in which law enforcement officers had grounds to reasonably 
believe that “all arrested persons were part of the unit observed violating the law,” as the 
State Defendants argue.  Bernini v. City of St. Paul, 

 (8th Cir. 2012) 
(internal quotation marks omitted).  Notably, the record includes numerous examples of 
law enforcement officers specifically and intentionally targeting identifiable members of 
the press, both verbally and physically, which belies any suggestion that members of the 
press were somehow indistinguishable from the crowd.                      
(9th Cir. 2020) (finding that the law enforcement defendants failed to establish that general 
dispersal  orders  were  essential  or  narrowly  tailored  and  observing  that  “[t]he  many 
peaceful protesters, journalists, and members of the general public cannot be punished for 

the violent acts of others”).5  As this Court previously observed, the recent protests in 
Minnesota have occurred primarily on public streets and sidewalks, giving the press a 
qualified right of access.  See U.S. Marshals Serv., 977 F.3d at 829–30 (recognizing that 
streets and sidewalks historically have been open to the public).  For general dispersal 
orders to lawfully apply to members of the press, therefore, the State Defendants, must 

demonstrate that the dispersal orders are “essential to preserve higher values and [are] 
narrowly tailored to serve that interest.”  Id. at 831.  The State Defendants have failed to 
do so.6  As this Court previously observed, the curfew orders exempt the press, which 
demonstrates that the state and local governments have concluded that press access to these 
events is both important and feasible.  Cf. Index Newspapers, 480 F. Supp. 3d at 1147–48 

(rejecting federal law enforcement defendants’ “blanket assertion that federal officers must 

5    The State Defendants contend that Index Newspapers is inapplicable here because 
Plaintiffs have not asserted a right-of-access claim.  This argument is misplaced.  The 
Court’s reliance on Index Newspapers is not intended to suggest whether Plaintiffs would 
have a viable right-of-access claim.  Rather, the Index Newspapers analysis is relevant to 
whether Defendants’ general dispersal orders were lawful as applied to members of the 
press.                                                                    

6    The State Defendants argue, in conclusory fashion, that their general dispersal 
orders were “essential to the preservation of public safety” and “as narrowly tailored as 
they could be in light of the rapidly changing circumstances.”  But the State Defendants 
make no attempt to demonstrate why it is “essential” to public safety to repeatedly threaten, 
shout profanities at, assault, detain, and photograph individuals who are clearly identifiable 
as members of the press and are neither violating the law nor engaging in dangerous or 
hostile activity.                                                         
disperse everyone”). Moreover, other courts have issued preliminary injunctions in similar 
circumstances on terms akin to those imposed by this Court’s TRO.  See, e.g., id. at 1148; 
see also U.S. Marshals Serv., 

 (denying stay of district court’s preliminary 

injunction pending appeal).  Similar narrow tailoring is possible here, and the State 
Defendants offer no persuasive factual or legal argument as to why such narrow tailoring 
would be unfeasible.                                                      
    For these reasons, Plaintiffs have demonstrated a likelihood of success on the merits 
as to the first element of their First Amendment retaliation claim.       

      2.   Chill                                                         
    Plaintiffs argue that the State Defendants’ actions toward members of the press 
would  chill  a  person  of  ordinary  firmness  from  documenting  protests  and  law 
enforcement’s conduct in response.  The State Defendants do not address this element of 
Plaintiffs’ First Amendment claim.                                        

    To succeed on a First Amendment retaliation claim, a plaintiff must prove that the 
adverse  action  against  the  plaintiff  would  chill  a  person  of  ordinary  firmness  from 
continuing in the protected First Amendment activity.  See Peterson, 

.  
Because there is no justification for harassing people for exercising their constitutional 
rights, the chilling effect on speech need not be great to be actionable.  Garcia v. City of 

Trenton, 

 (8th Cir. 2003).  Here, Plaintiffs’ declarations and the testimony 
at the evidentiary hearing detail the treatment that members of the press experienced while 
covering protests in May 2020 and April 2021.  The evidence reflects that members of the 
press were directed by law enforcement to vacate protest areas, verbally and physically 
assaulted, struck by less-lethal projectiles and rubber bullets, pepper sprayed, and detained.  
In some instances, law enforcement officers confiscated or prohibited the use of cameras 
and other press equipment.  A person of ordinary firmness would be chilled by such speech-

suppressive actions.  See Peterson, 

 (recognizing that “pepper spraying 
someone in the face would chill a person of ordinary firmness” (internal quotation marks 
omitted)); see also Index Newspapers, 480 F. Supp. 3d at 1142 (concluding that similar 
enforcement tactics to those alleged here would chill First Amendment activities).  The 
record also reflects that several members of the press have wanted or intended to continue 

covering the protests but either fear for their safety or have been rendered physically unable 
to continue reporting because of injuries sustained as a result of law enforcement officers’ 
tactics.                                                                  
    For these reasons, Plaintiffs have demonstrated a likelihood of success on the merits 
as to the second element of their First Amendment retaliation claim.      

      3.   Motivation                                                    
    Plaintiffs  argue  that  there  is  a  documented  pattern  of  hostility  by  the  State 
Defendants to members of the press.  According to Plaintiffs, this pattern demonstrates that 
the State Defendants were motivated, at least in part, by the press’s First Amendment 
activities, which is the third element of a First Amendment retaliation claim.  See Peterson, 

.  “Retaliatory motive . . . may be proved by circumstantial evidence giving 
rise to an inference of retaliatory intent.”  Williams v. City of Carl Junction, 

 (8th Cir. 2008).  Here, although the State Defendants argue that they “do not ‘target’ 
members of the media,” the record evidence suggests otherwise.            
    The  record  reflects  that,  although  many  members  of  the  press  were  clearly 
identifiable as such, the State Defendants singled them out in a variety of ways.  The State 
Defendants told the press specifically that they needed to vacate the protest areas, pepper 

sprayed them, and hit them with less-lethal projectiles.  Law enforcement officers targeted 
the press by threatening to “arrest anyone who does not disperse in 10 minutes including 
journalists,”  (emphasis  added),  and  repeatedly  ordering  the  press  to  leave,  shouting 
messages such as: “Media you need to disperse.  Leave the area.”  One photojournalist, 
who had a camera and press credentials in clear view, was pepper sprayed in the eye while 

photographing a scene.  According to another journalist, “[o]ne officer just shot our ground 
reporter in the leg with some kind of impact round – it appeared to be deliberate and not 
accidental.”  Plaintiff Timothy Evans, a freelance photojournalist, attests that on April 16, 
2021, he identified himself as a member of the press to law enforcement officers.  In 
response, one law enforcement officer said “I don’t care,” told Evans to “shut the f**k up,” 

assaulted Evans, confiscated and discarded Evans’s press credentials, and accused Evans 
of lying when Evans correctly asserted that the curfew did not apply to members of the 
press.  These facts are merely a few examples of Plaintiffs’ circumstantial evidence of a 
retaliatory motive.  See Index Newspapers, 480 F. Supp. 3d at 1144–45 (concluding that 
journalists were targeted when forced to disperse based on similar allegations).   

    At the evidentiary hearing, Plaintiffs presented additional circumstantial evidence 
suggesting retaliatory motive.  Ou testified that, in May 2020, state troopers “corralled” a 
group of people—all or mostly members of the press—into a dead end where they were 
“trapped” after the state troopers had peppered sprayed them.  The state troopers “kept on 
throwing concussion grenades at [them], telling [them] to leave, but there was nowhere for 
[them] to go.”  Ou also testified that, during the April 2021 protests, law enforcement 
officers threatened him while he was observing and filming their activities from inside a 

private residence.  Tuite testified that on April 16, 2021—after this Court had issued the 
TRO in this case—a state trooper told him: “Media, get the f**k out of here now.”  A short 
time later, when Tuite had left the area, “a line of state troopers . . . [was] obstructing [the 
press’s] view completely of what was happening.”  After Tuite complied with the state 
troopers’ directions to move to a location two blocks away, the state troopers continued to 

obstruct members of the press from engaging in news-gathering activity.  According to 
Tuite:                                                                    
         I was not even allowed to do my job.  They made us get into a   
         line here and they said we need to have our faces photographed, 
         our media credentials, as well as our IDs.  I tried to walk to the 
         right to take a photo of someone getting arrested.  He said, “Get 
         back in line. You are not allowed to document. Get back in      
         line,” the state trooper [said] to me.                          

These facts suggest that the State Defendants’ actions were motivated, at least in part, by 
the engagement of the press in constitutionally protected activity.  See Index Newspapers, 
480 F. Supp. 3d at 1144–45.                                               
    Plaintiffs have demonstrated a likelihood of success on the merits as to the third 
element of their First Amendment retaliation claim.  Accordingly, Plaintiffs have a fair 
chance of prevailing on the merits of their First Amendment claim and, as such, have 
demonstrated a likelihood of success on the merits.  See Dataphase, 

.   
    B.   Fourth Amendment                                                
    Plaintiffs maintain that they are likely to succeed on the merits of their Fourth 
Amendment claim, arguing that the State Defendants have restrained them from moving 

freely throughout the areas where protests are occurring.                 
    The  Fourth  Amendment  protects  individuals  from  seizure  through  the  use  of 
excessive force by a law enforcement officer.  See Graham v. Connor, 

, 394–
95 (1989).  “A Fourth Amendment seizure occurs when an officer restrains the liberty of 
an individual through physical force or show of authority.”  Quraishi, 

 

(internal quotation marks omitted).  The reasonableness of law enforcement officers’ 
actions is determined objectively based on the facts and circumstances confronting the 
officers, including “the severity of the crime at issue, whether  the suspect poses an 
immediate threat to the safety of the officers or others, and whether [the suspect] is actively 
resisting arrest or attempting to evade arrest by flight.”  Brown v. City of Golden Valley, 

 (8th Cir. 2009) (quoting Graham, 

).      
    Plaintiffs contend, and the record reflects, that Plaintiffs were neither participating 
in nor suspected of participating in any crime.  Nor does the record reflect that Plaintiffs 
presented a threat to the safety of law enforcement officers or others.  Law enforcement 
officers nonetheless ordered members of the press to disperse, threatened them, arrested 

them, and subjected them to injury-inflicting force.  Significantly, on April 16, 2021, after 
this Court issued the TRO in this case, these tactics continued.  For example, after members 
of the press had moved away from the protest area as directed by state troopers, the state 
troopers  detained  those  individuals;  photographed  their  faces,  press  credentials,  and 
identification; and prohibited them from engaging in news-gathering activities.  These facts 
demonstrate repeated unreasonable restraints on the movement of the press during the 
protests through intimidation tactics that included the use of projectiles, pepper spray, tear 

gas, batons, and verbal commands and threats.  The use of these tactics persisted even after 
members of the press had identified themselves and complied with dispersal orders.   
    The State Defendants reiterate their argument that members of the press are not 
exempt from generally applicable dispersal orders.  But, as addressed by the Court, the 
record reflects that law enforcement officers repeatedly used intimidation and restraint 

tactics against individuals who either were not subject to a lawful dispersal order or had 
not violated a lawful dispersal order.  And law enforcement officers, in some instances, did 
so even after members of the press had complied or attempted to comply with law 
enforcement officers’ orders.  The State Defendants also argue that the Fourth Amendment 
is not violated when law enforcement officers have grounds to reasonably believe that “all 

arrested persons were part of the unit observed violating the law.”  Bernini v. City of St. 
Paul, 

 (8th Cir. 2012) (internal quotation marks omitted).  But the record 
in this case includes numerous examples of law enforcement officers specifically and 
intentionally targeting identifiable members of the press, both verbally and physically.  As 
such,  the  record  belies  any  suggestion  that  members  of  the  press  were  somehow 

indistinguishable from others.                                            
    For these reasons, Plaintiffs have demonstrated a likelihood of success on the merits 
as to their Fourth Amendment claim.                                       
    II.  Threat of Irreparable Harm                                      
    Plaintiffs contend that the State Defendants’ violation of Plaintiffs’ constitutional 
rights are immediate and ongoing.  The State Defendants counter that they present no threat 

of future harm.                                                           
    Irreparable harm occurs when a party has no adequate remedy at law, typically 
because its injuries cannot be fully compensated through an award of damages.  Gen. 
Motors Corp. v. Harry Brown’s, LLC, 

 (8th Cir. 2009).  “The loss of 
First Amendment freedoms, for even minimal periods of time, unquestionably constitutes 

irreparable injury.”  Elrod v. Burns, 

 (1976).  But to establish the need 
for injunctive relief to avoid irreparable harm, the movant “must show that the harm is 
certain and great and of such imminence that there is a clear and present need for equitable 
relief.”  Novus Franchising, Inc. v. Dawson, 

 (8th Cir. 2013) (internal 
quotation marks omitted).  A mere “possibility of harm” is insufficient.  Roudachevski, 

.  In cases alleging constitutional harm, demonstrating a likelihood of success 
“ordinarily warrants a finding of irreparable harm.”  A.H. ex rel. Hester v. French, 

 (2d Cir. 2021).                                                  
    As this Court observed when granting Plaintiffs’ second motion for a TRO, several 
factors demonstrate the clear and present need for injunctive relief in this case: (1) the State 

Defendants’ repeated conduct in contravention of Plaintiffs’ constitutional rights; (2) the 
ongoing, albeit intermittent, protests in Minnesota pertaining to law enforcement officers’ 
use of force; and (3) Plaintiffs’ intention to continue their press coverage of the protests.  
The harm to Plaintiffs is no longer speculative or a mere possibility.  Rather, the protests 
continued, and the harm inflicted by the State Defendants did not abate until the Court 
issued the TRO in this case.  Moreover, the record reflects that little if any investigation or 
discipline  has  been  carried  out  by  the  State  Defendants  in  response  to  the  alleged 

misconduct in this case, which suggests that similar misconduct could recur if the TRO is 
not converted into a preliminary injunction.                              
    Although  the  State  Defendants  argue  that  no  large-scale  unrest  situations  are 
imminent, the threat of imminent future interactions between the State Defendants and 
members of the press persists.7  In light of the events that have occurred over the last year 

and a half, the likelihood of demonstrations and protests persists.  The criminal trial of the 
law enforcement officer who killed Daunte Wright is scheduled to begin in November 2021.  
The criminal trial of Chauvin’s co-defendants is scheduled to begin in March 2022.  And 
federal criminal charges against Chauvin and his co-defendants are pending in this District.  
If  the  press  cannot  document  these  events  of  public  importance,  Plaintiffs’  First 

Amendment rights will be irreparably harmed.  See Elrod, 

.  Because of the 
likelihood that this harm could recur before a decision on the merits of this case can occur, 
the threat of irreparable harm to Plaintiffs is sufficiently immediate to warrant injunctive 
relief.  See Boardman v. Pac. Seafood Grp., 

 (9th Cir. 2016).   
    Accordingly, the threat of irreparable harm to Plaintiffs continues to exist.  



7    The State Defendants suggest that a preliminary injunction is unwarranted because 
the alleged harm has abated.  But this argument fails to account for the fact that the harm 
abated only after the Court issued a TRO.  And this fact suggests that injunctive relief is 
necessary to prevent ongoing harm.                                        
    III.  Balance of Harms                                               
    The parties dispute whether the balance of harms weighs in favor of granting a 
preliminary injunction.                                                   

    When, as here, a plaintiff raises a legitimate constitutional question, the balance of 
hardships tips sharply in the plaintiff’s favor.  See Cmty. House, Inc. v. City of Boise, 

, 1059 (9th Cir. 2007).  As this Court has observed, a well-tailored injunction 
that balances the freedom of the press with the government’s ability to exercise its police 
power does not irreparably harm the government.  See, e.g., Index Newspapers, 

.  Here, the record contains specific allegations and evidence particularized to the 
State Defendants.  And, as addressed above, Plaintiffs have demonstrated both irreparable 
harm and a likelihood of success on the merits of their First Amendment and Fourth 
Amendment claims.  For these reasons, the balance of harms weighs heavily in Plaintiffs’ 
favor.  See, e.g., Cmty. House, 490 F.3d at 1059; see also Kersten v. City of Mandan, 

 (D.N.D. 2019) (finding that the balance of harms “generally favors 
the constitutionally-protected freedom of expression” (internal quotation marks omitted)).   
    The State Defendants correctly counter that they have a substantial interest in 
maintaining order and ensuring public safety.  But the State Defendants do not present any 
evidence  or  persuasive  argument  that  these  important  interests  have  been  materially 

impeded by the TRO.  The State Defendants argue that it is difficult to distinguish members 
of the press from other individuals during situations of chaotic unrest, and the State 
Defendants presented testimony to this effect from Commissioner Harrington and Major 
Dwyer.  But as detailed throughout this Order, many of the alleged instances of misconduct 
involved law enforcement officers willfully disregarding indicia that a person was a 
member of the press and targeting individuals who were clearly identifiable as members of 
the press or who were attempting to display their press credentials.  The tactics used against 

these individuals included harassing, threatening, intimidating, assaulting, or detaining 
individuals who were complying with or attempting to comply with dispersal orders or who 
were merely observing protests from private property.  The State Defendants’ suggestion 
that these tactics are somehow necessary to maintaining order and ensuring public safety 
is unpersuasive.                                                          

    The terms of the TRO are carefully tailored to preserve law enforcement officers’ 
ability to maintain order and ensure public safety.  For example, members of the press must 
obey the law, and the TRO permits law enforcement officers to arrest a member of the 
press or seize his or her property if there is probable cause to believe that the individual 
committed a crime.  Members of the press do not have a “free pass” to obstruct justice by 

actively impeding law enforcement.  Law enforcement officers also remain authorized to 
use crowd-control tools and tactics, including against members of the press who present an 
imminent threat of violence or bodily harm to persons or damage to property.  The State 
Defendants are not precluded from issuing otherwise lawful crowd-dispersal orders, and 
the State Defendants are not liable for violating the TRO if a member of the press is 

incidentally exposed to crowd-control tactics.  The State Defendants have not identified 
any specific evidence that the carefully tailored terms of the injunction are unworkable or 
have impeded the State Defendants’ ability to maintain order and ensure public safety.  
Indeed, although the TRO has been in place for more than six months, the State Defendants 
have not identified any specific instance in which the injunction has materially obstructed 
their legitimate law-enforcement functions.                               
    The State Defendants correctly observe that it can be inefficient and difficult to 

differentiate members of the press during situations involving chaotic unrest.  For example, 
Colonel Langer attests that, “since the TRO issued, the State Patrol has encountered 
significant difficulty in implementing the TRO as it pertains to dispersal.”  Colonel Langer 
describes examples of these difficulties, but has not identified a single incident that 
involved any demonstrable threat or harm to public safety:                

              For  example,  during  recent  protests  at  both  the     
         Governor’s  residence  and  the  Capitol  complex,  several     
         troopers  encountered  difficulty  with  several  individuals   
         locating themselves to record events in areas which caused a    
         safety concern at worst, and a distraction at best. Given the   
         TRO's limitations on dispersal, many troopers have not asked    
         these  individuals  to  relocate,  even  when  their  position  is 
         exceedingly close to law enforcement activity, directly at the  
         back of troopers or in-between their legs, or even directly     
         within the sphere of law enforcement activity.                  

              Further, during the recent protests at the Governor’s      
         residence  and  the  Capitol  complex,  troopers  observed      
         individuals who were recording events working directly with     
         the protesters.  This made it difficult to ascertain whether these 
         individuals were protesters or members of the media or both.    

Colonel Langer concedes that “no critical incidents have yet occurred as a result” of the 
TRO, which has been in effect for more than six months.  The Court is mindful that the 
TRO may cause some inefficiencies, inconveniences, and other challenges for the State 
Defendants.  But the United States Constitution requires inefficiency, sometimes by design, 
to limit abuses of power.  Cf. NLRB v. Noel Canning, 

, 601 (2014) (Scalia, J., 
concurring) (observing that the “Constitution is not a road map for maximally efficient 
government, but a system of carefully crafted restraints designed to protect the people from 
the improvident exercise of power” (internal quotation marks omitted)).  The fact that the 

State Defendants’ compliance with the injunction may be inefficient or difficult does not, 
without more, establish that the balance of harms weighs in their favor.  
    Accordingly,  the  balance  of  harms  weighs  in  favor  of  granting  Plaintiffs  a 
preliminary injunction.                                                   
    IV.  Public Interest                                                 

    The  parties  dispute  whether  the  public  interest  weighs  in  favor  of  granting  a 
preliminary injunction.                                                   
    “[I]t  is  always  in  the  public  interest  to  prevent  the  violation  of  a  party’s 
constitutional rights.”  Connection Distrib. Co. v. Reno, 

 (6th Cir. 1998) 
(internal quotation marks omitted).  “Abridgment of freedom of speech and of the press . . . 

impairs those opportunities for public education that are essential to effective exercise of 
the power of correcting error through the processes of popular government.”  Thornhill v. 
State of Alabama, 

 (1940).  “By reporting about the government, the media 
are ‘surrogates for the public.’ ”  Index Newspapers, 480 F. Supp. 3d at 1146 (quoting 
Richmond Newspapers, 

).  Because the American public has limited time 

and resources to devote to first-hand observation of government operations, the press is an 
indispensable resource in our constitutional democracy.  See 

 (citing Cox Broad. Corp. 
v. Cohn, 

 (1975)).                                       
    At stake here are Plaintiffs’ First Amendment and Fourth Amendment rights, as well 
as the public’s ability to learn about ongoing events of public importance.  The potential 
harm arising from suppressing press coverage of the protests is great and the public interest 

favors protecting these First Amendment principles.  See Reno, 

.  The State 
Defendants correctly observe that it also is in the public’s interest to control unrest, 
violence, and other chaotic situations.  But constitutional rights are not diminished during 
a period of “chaotic unrest.”  See Ex parte Milligan, 

, 120–21 (1866) (“The 
Constitution of the United States is a law for rulers and people, equally in war and in peace, 

and covers with the shield of its protection all classes . . . ., at all times, and under all 
circumstances.”).  “Democracies die behind closed doors.”  Detroit Free Press v. Ashcroft, 

 (6th Cir. 2002).                                        
    For these reasons, the public interest supports granting Plaintiffs a preliminary 
injunction.  Because all four Dataphase factors weigh in favor of converting the TRO into 

a preliminary injunction, Plaintiffs’ motion for a preliminary injunction is granted.8 
    V.   Scope of the Preliminary Injunction                             
    Plaintiffs contend that the TRO should be converted into a preliminary injunction 
with  two  modifications:  (1)  broadening  the  injunction’s  geographic  scope  beyond 
Brooklyn Center, and (2) broadening the injunction’s applicability to include those who 

are “in active concert” with the State Defendants.  The State Defendants contend that, if 

8    Plaintiffs also seek an adverse-inference sanction against the State Defendants for 
the alleged spoliation of evidence.  Because the Court has not relied on any adverse 
inferences in granting Plaintiffs’ motion for a preliminary injunction, the Court declines to 
address the spoliation issue at this time.                                
the Court grants Plaintiffs’ motion for a preliminary injunction, the injunction should be 
modified to provide that members of the press are not fully exempt from general dispersal 
orders and to require members of the press to identify themselves clearly, visibly, and 

consistently.                                                             
    A.   Geographic Scope                                                
    Plaintiffs first argue that the injunction should be broadened to apply outside 
Brooklyn Center.  The State Defendants do not object to this modification.   
    An injunction binds only those “who receive actual notice of it by personal service 

or otherwise.”  Fed. R. Civ. P. 65(d)(2).  Although the TRO did not contain an express 
geographic limitation, the TRO required the State Defendants to provide copies of the TRO 
only to “employees, officers, and agents of the State Defendants currently deployed in 
Brooklyn  Center,  Minnesota.”    Because  it  is  undisputed  that  the  State  Defendants’ 
personnel can be deployed anywhere in the state, this requested modification is granted.   

    The preliminary injunction is modified to require the State Defendants to provide 
copies of this Order to all of the State Defendants’ employees, officers, and agents.       
    B.   Active Concert                                                  
    Plaintiffs next argue that the injunction should be broadened to bind those who are 
“in  active  concert”  with  the  State  Defendants.    The  State  Defendants  oppose  this 

modification.                                                             
    A preliminary injunction can bind “other persons who are in active concert or 
participation  with”  the  parties  or  their  employees,  officers,  or  agents.    Fed.  R.  Civ. 
P. 65(d)(2)(C).  “Under Rule 65(d), a nonparty with actual notice may be held in contempt 
[when] the nonparty aids or abets a named party in a concerted violation of a court order.”  
Indep. Fed’n of Flight Attendants v. Cooper, 

, 920 (8th Cir. 1998).  “The 
‘essence’ of this rule ‘is that defendants may not nullify a decree by carrying out prohibited 

acts through aiders and abettors, although they were not parties to the original proceeding.’ ”  
Id. (quoting Regal Knitwear Co. v. NLRB, 

 (1945)).          
    The State Defendants do not dispute that Rule 65(d) authorizes the Court to enjoin 
those who are “in active concert or participation with” the State Defendants.  But the State 
Defendants maintain that they are not in “active concert” with other law enforcement 

agencies or liable for the conduct of other law enforcement agencies.  The City Defendants, 
against whom Plaintiffs have not sought a preliminary injunction, also argue that they are 
not in “active concert” with the State Defendants and should not be bound by the injunction.   
    The  Court  need  not  attempt  to  predict,  however,  whether  any  particular  law 
enforcement agency might violate this injunction in the future while “in active concert or 

participation with” the State Defendants.  Whether a person or entity is in active concert or 
participation with an enjoined party “ordinarily presents a question of fact requiring 
examination of the circumstances of each case as it arises.”  Crane Boom Life Guard Co. 
v. Saf-T-Boom Corp., 

 (8th Cir. 1966).  As such, the Court will include 
in the preliminary injunction the language authorized by Rule 65(d)(2)(C), but in doing so 

the Court expresses no opinion as to whether any particular entity or individual other than 
the State Defendants is bound by the injunction pursuant to Rule 65(d)(2)(C).  If Plaintiffs 
later move for a contempt order based on an alleged violation of the injunction, the Court 
will  evaluate  the  relevant  facts  and  circumstances  to  determine  whether  the  alleged 
contemnor was bound by the injunction.  Attempting to make such a determination now 
would be advisory, speculative and, therefore, premature.9                
    Accordingly, the preliminary injunction is modified to include “other persons who 

are in active concert or participation with” the State Defendants or their employees, officers, 
or agents, and who have received actual notice of this Order.  Fed. R. Civ. P. 65(d)(2)(C).   
    C.   The State Defendants’ Proposed Modifications                    
    The State Defendants also propose modifications to the injunction.  The State 
Defendants first argue that the injunction should be modified to provide that members of 

the press are not fully exempt from general dispersal orders.  But as addressed above, the 
State Defendants’ dispersal orders are inapplicable to members of the press for several 
reasons.  First, dispersal orders based solely on curfews from which members of the press 
are exempt cannot apply to members of the press.                          
    Second, under Minnesota law, an individual is guilty of unlawful assembly only if 

the individual is a “participant” in the unlawful assembly.  

.  And an 
individual’s  refusal  to  leave  an  unlawful  assembly  when  directed  to  do  so  by  law 
enforcement is a violation of the law only if the individual remains present “without lawful 
purpose.”  

.  Generally, members of the press are in proximity to a 
protest to observe, record, and report about the protest, not to participate in the assembly.  

In addition, when a member of the press refuses to leave an unlawful assembly for 


9    For this reason, the Court will not require the State Defendants to provide copies of 
this Order to a nonparty unless the State Defendants have reason to believe that the 
nonparty is in active concert or participation with the State Defendants.   
newsgathering purposes, he or she is not acting “without lawful purpose.”10  As such, when 
a member of the press is engaged in newsgathering in a location subject to a general 
dispersal order and is not otherwise violating the law, that individual’s mere presence—

without more—is not criminal conduct under Minnesota law.                 
    Third, the government cannot lawfully restrict members of the press from places 
that have been historically open to the press and the public without demonstrating “an 
overriding interest based on findings that closure is essential to preserve higher values and 
is narrowly tailored to serve that interest.”  Index Newspapers, 480 F. Supp. 3d at 1147 

(quoting Press-Enter. Co., 

).  The State Defendants undoubtedly have an 
interest in maintaining order and ensuring public safety.  But they have not demonstrated 
that their methods of issuing and enforcing general dispersal orders against members of the 
press, as described throughout this Order, are narrowly tailored to serve that interest. 
    The scope of this Court’s injunction is consistent with these relevant legal principles.  

And the injunction preserves law enforcement officers’ ability to arrest members of the 
press who violate the law; use crowd-control tactics against members of the press who 
present an imminent threat of violence, bodily harm, or property damage; and use crowd-

10   The distinction between being present for a lawful purpose versus an unlawful 
purpose is significant for at least two reasons.  First, under Minnesota law, it is presumed 
that “the legislature intends the entire statute to be effective and certain” and that “the 
legislature does not intend to violate the Constitution of the United States.”  

(2), (3).  The phrase “without lawful purpose” in Section 609.715 would be 
meaningless if refusing to leave an unlawful assembly was always a criminal act regardless 
of purpose.  Second, criminal laws may raise due-process concerns if they draw “no 
distinction between innocent conduct and conduct calculated to cause harm.”  City of 
Chicago v. Morales, 

, 50–51 (1999).  Here, the record does not reflect that 
Plaintiffs’ refusal to disperse was “without lawful purpose.”             
control tactics that unintentionally or incidentally impact members of the press.  Narrowing 
the injunction in the manner suggested by the State Defendants would not address the 
irreparable harms identified throughout this Order.                       

    The State Defendants also argue that the injunction should be modified to require 
members of the press to identify themselves more clearly, visibly, and consistently than 
currently required by the TRO.  The Court’s TRO includes a non-exclusive list of relevant 
indicia that an individual is a member of the press, such as displaying press credentials or 
wearing distinctive clothing.  The TRO also provides that the State Defendants will not be 

liable for unintentional violations of the injunction involving individuals who do not carry 
or wear press credentials or distinctive clothing.  Notably, many of the alleged incidents of 
misconduct in this case involved law enforcement officers actively disregarding clearly 
displayed press credentials, distinctive clothing, and other indicia that individuals were 
members of the press.  Rather than an inability to identify members of the press, the record 

reflects many instances of law enforcement officers willfully disregarding the relevant 
identifiers.  This demonstrates a problem of compliance, not a problem of clarity.  As such, 
the State Defendants have not demonstrated why any modification or clarification of these 
aspects of the injunction is necessary.                                   
    For these reasons, the State Defendants’ proposed modifications to the injunction 

are denied.                                                               
    VI.  Rule 65 Bond Requirement                                        
    Having  concluded  that  a  preliminary  injunction  is  warranted,  the  Court  next 
considers whether to require Plaintiffs to post a bond as security for the effects of the 

preliminary injunction on the State Defendants.                           
    A district court must expressly consider whether to require a bond, but a district 
court is not required to impose one.  See Rathmann Grp. v. Tanenbaum, 

 
(8th Cir. 1989).  The bond requirement to secure injunctive relief “is a security device, not 
a limit on the damages the . . . defendants may obtain against [the plaintiff] if the facts 

warrant such an award.”  Minn. Mining & Mfg. Co. v. Rauh Rubber, Inc., 

, 
1309 (8th Cir. 1997).  Rule 65(c) of the Federal Rules of Civil Procedure provides, in 
pertinent part:                                                           
         The court may issue a preliminary injunction or a temporary     
         restraining order only if the movant gives security in an amount 
         that the court considers proper to pay the costs and damages    
         sustained by any party found to have been wrongfully enjoined   
         or restrained.                                                  

Fed. R. Civ. P. 65(c).  While a district court has broad discretion in setting a bond, that 
discretion is abused if the district court acts with an improper purpose, fails to require an 
adequate bond, or fails to make the necessary findings in support of its decision.  See Hill 
v. Xyquad, Inc., 

 (8th Cir. 1991).  Courts have concluded that a bond is 
not required to obtain preliminary injunctive relief when a plaintiff is seeking to prevent a 
government entity from violating the First Amendment.  See, e.g., Bukaka, Inc. v. County 
of Benton, 

 (D. Minn. 1993).                         
    The Court waived the bond requirement when it issued the TRO as requested by 
Plaintiffs, and the parties have not addressed this issue in connection with Plaintiffs’ 
motion  for  a  preliminary  injunction.    In  these  circumstances,  a  waiver  of  the  bond 

requirement is appropriate.  See, e.g., Fantasysrus 2, L.L.C. v. City of E. Grand Forks, 

 (D. Minn. 2012) (waiving the security requirement when the 
government did not object to the movant’s request for waiver); Northshor Experience, Inc. 
v. Duluth, 

 (D. Minn. 2006) (granting a waiver when the defendant 
had not objected or otherwise “addressed this issue or attempted to quantify any dollar 

amount of harm that it may face from a wrongly issued injunction”).       
    Accordingly, the Court waives the bond requirement in this case.     

    Based on the foregoing analysis and all the files, records and proceedings herein, IT 
IS HEREBY ORDERED:                                                        

    1.   Plaintiffs’ motion for a preliminary injunction, (Dkt. 118), is GRANTED. 
    2.   Defendants Minnesota Department of Public Safety Commissioner John 
Harrington, in his individual and official capacity; Minnesota State Patrol Colonel Matthew 
Langer, in his individual and official capacity; their agents, servants, employees and 
representatives (collectively, the State Defendants); and all other persons who are in active 

concert or participation with the State Defendants, are hereby enjoined from: 
         a.    arresting, threatening to arrest, or using physical force—including 
         through use of flash bang grenades, non-lethal projectiles, riot batons, or any 
         other means—directed against any person whom they know or reasonably 
should know is a Journalist (as defined in Paragraph 4 below), unless the 
State 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;                                                     
b.   using chemical agents directed against any person whom they know 

or reasonably should know is a Journalist, including but not limited to 
mace/oleoresin capsicum spray or mist/pepper spray/pepper gas, tear gas, 
skunk, inert smoke, pepper pellets, xylyl bromide, and similar substances, 
unless such Journalist presents an imminent threat of violence or bodily harm 
to persons or damage to property; and                           

c.   seizing  or  intentionally  damaging  any  photographic  equipment, 
audio-recording  or  video-recording  equipment,  or  press  passes  in  the 
possession of any person whom the State Defendants know or reasonably 
should know is a Journalist, or ordering such person to stop photographing, 
recording, or observing a protest, unless the State Defendants are lawfully 

seizing that person consistent with this Order.  Except as expressly provided 
in Paragraph 3 below, the State Defendants must return any seized equipment 
or press passes immediately upon release of a person from custody. 
    3.   If any State Defendant, agent or employee of the State Defendants, or any 
person acting under the State Defendants’ direction seizes property from a Journalist who 
is  lawfully  arrested  consistent  with  this  Order,  such  State  Defendant  shall,  as  soon 

thereafter as is reasonably possible, make a written list of seized property and shall provide 
a copy of that list to the Journalist.  If property seized in connection with the lawful arrest 
of a Journalist is needed for evidentiary purposes, the State Defendants shall promptly seek 
a search warrant, subpoena, or other court order to authorize the continued seizure of such 
property.  If such a search warrant, subpoena, or other court order is denied, or if property 

seized in connection with an arrest is not needed for evidentiary purposes, the State 
Defendants shall immediately return the seized property to its rightful possessor. 
    4.   To facilitate the State 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 press, such as by carrying a professional or authorized 

press pass 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.  These 
indicia are not exclusive, and a person need not exhibit every indicium to be considered a 
Journalist under this Order.  The State 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 or distinctive clothing that identifies the wearer as 
a member of the press.                                                    
    5.   The State Defendants are not precluded by this Order from issuing otherwise 
lawful crowd-dispersal orders.  The State Defendants shall not be liable for violating this 
injunction if a Journalist is incidentally exposed to crowd-control devices after remaining 
in the area where such devices were deployed in conjunction with the enforcement of an 
otherwise lawful dispersal order.                                         

    6.   To promote compliance with this Order, the State Defendants shall provide 
copies of this Order, in either electronic or paper form, within 48 hours, to: (a) all 
employees, officers, and agents of the State Defendants with any supervisory or command 
authority over any person who is engaged in the law enforcement response to civil unrest 
or protests covered by Journalists; and (b) all other persons who the State Defendants have 

reason to believe are in active concert or participation with the State Defendants in the law 
enforcement response to civil unrest or protests covered by Journalists.  
    7.   Plaintiffs need not provide any security pursuant to Rule 65(c) of the Federal 
Rules of Civil Procedure.                                                 
    8.   This Order shall expire upon the entry of final judgment resolving all of 

Plaintiffs’ claims on the merits, unless otherwise provided by further order of the Court.  
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 


Dated:  October 28, 2021                s/Wilhelmina M. Wright            
                                       Wilhelmina M. Wright              
                                       United States District Judge      

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Jared Goyette, Craig Lassig, The      Case No. 20-cv-1302 (WMW/DTS)      
Communications Workers of America,                                       
Tannen Maury, Katie Nelson, Stephen                                      
Maturen, Edward Ou, Timothy Evans, and                                   
Chris Tuite,                                                             

                   Plaintiffs,    ORDER GRANTING PLAINTIFFS’             
                                   MOTION FOR A PRELIMINARY              
     v.                                    INJUNCTION                    

City of Minneapolis, Medaria Arradondo,                                  
Robert Kroll, John Harrington, Matthew                                   
Langer, John Does 1–2, David Hutchinson,                                 
and Joseph Dwyer,                                                        

                   Defendants.                                           


    This matter is before the Court on Plaintiffs’ motion for a preliminary injunction.  
(Dkt. 118.)  The Court previously granted Plaintiffs’ motion for a temporary restraining 
order (TRO) on April 16, 2021.  Plaintiffs now seek an order converting the TRO into a 
preliminary  injunction.    For  the  reasons  addressed  below,  Plaintiffs’  motion  for  a 
preliminary injunction is granted.                                        
                         BACKGROUND                                      
    The individual Plaintiffs are journalists, photographers, and other members of the 
press  who  bring  this  lawsuit  on  behalf  of  themselves  and  other  similarly  situated 
individuals.  Plaintiff The Communications Workers of America is an international labor 
union that represents news media workers.  Defendant John Harrington is the Minnesota 
Commissioner of Public Safety who has supervisory responsibility over the Minnesota 
State Patrol and its commander, Defendant Minnesota State Patrol Colonel Matthew 
Langer (collectively, State Defendants).  Defendant Medaria Arradondo is the Chief of 
Police for Defendant City of Minneapolis (collectively, City Defendants).1   

    I.   Factual Background                                              
    On May 25, 2020, George Floyd died as a result of an encounter with four officers 
of the Minneapolis Police Department (MPD).  Video of the encounter captured by 
bystanders shows the MPD officers placing Floyd in handcuffs and pinning him to the 
ground face down, while then-officer Derek Chauvin knelt on Floyd’s neck.  Floyd and 

several bystanders pleaded with Officer Chauvin to change his position to allow Floyd to 
breathe.  Officer Chauvin refused and continued to kneel on Floyd’s neck for several 
minutes after Floyd became unresponsive.  Video of the encounter circulated rapidly, and 
hundreds of citizens began protesting in Minneapolis and Saint Paul, as well as nationally 
and around the world.                                                     

    Local, state, and federal law enforcement agencies created a Multi-Agency Com-
mand Center (MACC) to coordinate their “response to any unrest that develops following 
the death of George Floyd.”  Commissioner Harrington led the state of Minnesota’s law 
enforcement response to the protest.  The Minnesota State Patrol worked closely with the 
MPD in forming their plan for responding to the protests.  And, throughout the protests, 


1    Defendant Robert Kroll, a former Minneapolis Police Lieutenant and President of 
the Police Officers Federation of Minneapolis, is not subject to the TRO or the pending 
motion  for  a  preliminary  injunction.    Defendants  Hennepin  County  Sheriff  David 
Hutchinson and Minnesota State Patrol Major Joseph Dwyer were added to this lawsuit in 
a third amended complaint, which was filed after the pending motion for a preliminary 
injunction had been heard and briefed.                                    
the MPD and the Minnesota State Patrol worked side-by-side when deploying riot-control 
tactics to control the protests.                                          
    On May 26, 2020, despite mostly peaceful demonstrations, protesters at the MPD’s 

3rd Precinct building vandalized police vehicles with graffiti and targeted the precinct 
building where the officers involved in Floyd’s death were assigned.  Law enforcement 
officers used foam projectiles and tear gas to repel some of the protestors.  Again, on May 
27, 2020, hundreds of people protested in Minneapolis.  While covering the protests at the 
3rd Precinct, Plaintiff Jared Goyette witnessed a projectile fired by the MPD officers near 

the precinct building hit a young male protester in the head.  As Goyette documented 
bystanders assisting the injured protester, a projectile struck Goyette in the head.  A 
moment later, a canister of tear gas landed nearby, making it impossible for Goyette to see.  
Goyette maintains that he was clearly identifiable as a member of the news media as he 
carried a large camera, monopod, and notebook.  That same evening, an auto parts store 

near the 3rd Precinct building was set on fire, and other nearby stores were looted and 
vandalized.  In total, the Minneapolis Fire Department responded to approximately 30 fires 
related to the protests that evening, during which some fire trucks attempting to respond 
were hit with rocks and other projectiles.                                
    On May 28, 2020, the MPD officers abandoned the 3rd Precinct building, which 

was set on fire by protesters.  Because of safety concerns, the fire department was unable 
to respond to the 3rd Precinct building fire and other fires nearby.  The Saint Paul Police 
Department also reported dozens of fires and more than 170 damaged or looted businesses 
in Saint Paul.                                                            
    On May 29, 2020, Minnesota Governor Tim Walz announced that the state would 
restore order, calling on the resources of the Minnesota State Patrol, other state agencies, 
and the Minnesota National Guard.  Governor Walz implemented an emergency executive 

order imposing a nighttime curfew in Minneapolis and Saint Paul.  See Minn. Exec. Order 
No. 20-65 (May 29, 2020).  All “members of the news media” were exempted from the 
curfew.  Id.  The curfew was disregarded by many, and individuals hiding among otherwise 
peaceful protesters continued to commit acts of looting, vandalism and arson.  
    The largest deployment of the Minnesota National Guard in state history was 

mobilized the following day to restore order, along with the Minnesota State Patrol and 
local law enforcement officers.  They moved aggressively to disperse protesters who 
remained out after the curfew.  On May 31, 2020, law enforcement officers arrested 
approximately 150 people near downtown Minneapolis for violating the curfew. 
    Additional protests occurred in Minnesota in connection with the trial of Derek 

Chauvin in March and April 2021.  On April 11, 2021, a Brooklyn Center police officer 
shot and killed Daunte Wright, which led to additional protests.  Plaintiffs alleged that the 
State Defendants continued to violate the constitutional rights of the members of the press 
who were covering these protests.  Plaintiffs alleged several examples, including the police 
firing rubber bullets at a videographer who was a safe distance from other protestors, orders 

directing the press to disperse despite the curfew orders expressly exempting the press, and 
various other acts impeding the press’s ability to observe and report about the protests and 
law enforcement’s interactions with protestors.                           
    II.  Procedural Background                                           
    Plaintiffs commenced this lawsuit in June 2020 alleging that the State Defendants 
engaged in a pattern and practice of infringing the constitutional rights of members of the 

press who were documenting the protests that followed George Floyd’s death.  According 
to Plaintiffs, the State Defendants threatened, harassed, assaulted and arrested members of 
the press in multiple incidents over several days after the death of George Floyd.  On June 2, 
2020, Goyette moved for a TRO to prevent the State Defendants from further violating the 
constitutional rights of the press.  The Court denied the motion without prejudice because 

the protests had ceased and Goyette failed to demonstrate an imminent threat of harm.   
    Plaintiffs filed a second motion for a TRO on April 14, 2021, when protests in 
Minnesota resumed in connection with the criminal prosecution of Chauvin and the death 
of Daunte Wright.  Plaintiffs sought an order enjoining the State Defendants from taking 
certain actions against “any person whom [the State Defendants] know or reasonably 

should know is a Journalist.”  In particular, Plaintiffs sought to enjoin the State Defendants 
from taking the following actions against such individuals: (1) the use of any physical force, 
including but not limited to non-lethal projectiles; (2) the use of chemical agents, including 
but not limited to mace, pepper spray, and tear gas; and (3) seizing any photographic 
equipment, audio- or videorecording equipment, or press passes from such individuals.   

    The Court granted Plaintiffs’ second motion for a TRO, concluding that Plaintiffs 
had  demonstrated  a  likelihood  of  success  on  the  merits  of  their  claims,  a  threat  of 
irreparable harm absent a TRO, and that the balance of harms and public interest weighed 
in favor granting a TRO.  Subsequently, the parties agreed to extend the duration of the 
TRO until the date of the Court’s ruling on Plaintiffs’ pending motion for a preliminary 
injunction.  The TRO, which remains in effect, does not apply to circumstances in which 
members of the press present an imminent threat of violence or bodily harm to persons or 

damage to property; unintentional violations involving an individual who does not carry or 
wear press credentials or distinctive clothing that identifies the individual as a member of 
the press; or instances when a member of the press is incidentally exposed to crowd-control 
devices after remaining in the area subject to an otherwise lawful dispersal order. 
    Plaintiffs now move to convert the TRO into a preliminary injunction.  The Court 

held an evidentiary hearing as to Plaintiffs’ motion for a preliminary injunction on July 28, 
2021, and the parties filed supplemental briefing thereafter.  Four witnesses testified at the 
evidentiary hearing: Plaintiff Edward Ou, a Canadian photojournalist who resides in New 
York; Plaintiff Christopher Tuite, a freelance photojournalist who resides in California; 
Defendant Minnesota Department of Public Safety Commissioner John Harrington; and 

Defendant Minnesota State Patrol Major Joseph Dwyer.                      
                           ANALYSIS                                      
    Federal Rule of Civil Procedure 65 authorizes a district court to grant injunctive 
relief in the form of a preliminary injunction.  When determining whether preliminary 
injunctive relief is warranted, a district court considers the four Dataphase factors: (1) the 

probability that the movant will succeed on the merits, (2) the threat of irreparable harm to 
the movant, (3) the balance between this harm and the injury that an injunction would 
inflict on other parties, and (4) the public interest.  Dataphase Sys., Inc. v. C L Sys., Inc., 

 (8th Cir. 1981).  “A preliminary injunction is an extraordinary remedy,” 
and the party seeking injunctive relief bears the burden of establishing that each factor 
favors granting such relief.  Roudachevski v. All-Am. Care Ctrs., Inc., 

 
(8th Cir. 2011).  The core question in this analysis “is whether the balance of equities so 

favors the movant that justice requires the court to intervene to preserve the status quo until 
the merits are determined.”  Dataphase, 

.                  
    I.   Likelihood of Success on the Merits2                            
    Plaintiffs contend that they are likely to succeed on the merits of their claims 
alleging violations of the First Amendment and Fourth Amendment to the United States 

Constitution.  When deciding whether to grant a preliminary injunction, the “likelihood of 
success on the merits is most significant.”  S & M Constructors, Inc. v. Foley Co., 

 (8th Cir. 1992).  The moving party need not “prove a greater than fifty per cent 
likelihood that [it] will prevail on the merits.”  Dataphase, 

.  Rather, the 
moving party must demonstrate a “fair chance of prevailing.”  Planned Parenthood Minn., 

N.D., S.D. v. Rounds, 

 (8th Cir. 2008).  Here, Plaintiffs’ likelihood of 



2    As this Court previously observed when granting Plaintiffs’ second motion for a 
TRO,  the  Court  is  mindful  of  certain  underlying  principles  implicated  by  this  case:  
“demonstrators have a right to protest the actions of the police and other members of the 
government without fear of government retaliation; police officers, especially in their duty 
to protect person[s] and property, have difficult and often dangerous jobs that require them 
to make split-second decisions; and just as not all protestors seek destruction, not all 
officers seek violence.”  Breathe v. City of Detroit, 

, 516 (E.D. Mich. 
2020).  As such, the Court must “balance the need to protect the sacred rights of speech 
and assembly from interference and retaliation with that of police to respond appropriately 
when the safety of the officers and . . . citizens [is] threatened.”  

 
success on the merits as to their First Amendment and Fourth Amendment claims are 
addressed in turn.3                                                       
    A.   First Amendment                                                 

    Plaintiffs  argue  that  they  are  likely  to  succeed  on  the  merits  of  their  First 
Amendment retaliation claim.                                              
    “[T]he  First  Amendment  prohibits  government  officials  from  subjecting  an 
individual to retaliatory actions.”  Peterson v. Kopp, 

 (8th Cir. 2014) 
(quoting Hartman v. Moore, 

 (2006)).  To succeed, a plaintiff alleging a 

First  Amendment  retaliation  claim  must  prove  that  “(1)  [the  plaintiff]  engaged  in  a 
protected activity, (2) the government official took adverse action against [the plaintiff] 
that would chill a person of ordinary firmness from continuing in the activity, and (3) the 
adverse action was motivated at least in part by the exercise of the protected activity.”  

 
(internal quotation marks omitted); accord Quraishi v. St. Charles County, 

 (8th Cir. 2021).  When this Court granted Plaintiffs’ second motion for a TRO in April 
2021, the Court concluded that Plaintiffs had demonstrated a likelihood of success on the 
merits as to each of these elements.  As addressed below, the record evidence that has been 
developed since April 2021 does not warrant a different result now.       




3    The State Defendants also assert that Plaintiffs’ claims fail for lack of standing.  The 
Court rejected these arguments when the Court ruled on the State Defendants’ motion to 
dismiss, and the State Defendants have not presented an argument that warrants revisiting 
this issue now.                                                           
      1.   Protected Activity                                            
    Any law “abridging the freedom of speech, or of the press” is prohibited under the 
First Amendment.  U.S. Const., amend. I.  The Supreme Court of the United States has 

recognized that “without some protection for seeking out the news, freedom of the press 
could be eviscerated.”  Branzburg v. Hayes, 

 (1972).  Moreover, “the 
First Amendment goes beyond protection of the press and self-expression of individuals to 
prohibit government from limiting the stock of information from which members of the 
public may draw.”  Am. Civ. Liberties Union of Ill. v. Alvarez, 

 (7th Cir. 

2012) (quoting First Nat’l Bank of Bos. v. Bellotti, 

 (1978)).  “Reporting 
is a First Amendment activity.”  Quraishi, 

 (citing Branzburg, 

).  Indeed, when reporting on government conduct, the press serves as “surrogates for 
the public.”  Richmond Newspapers, Inc. v. Virginia, 

 (1980).   
    Here, Plaintiffs’ declarations and the testimony presented at the evidentiary hearing 

detail the treatment that members of the press have experienced while photographing, 
filming or otherwise documenting government activity at protest scenes.  These undisputed 
facts demonstrate that Plaintiffs were engaged in constitutionally protected news-gathering 
activities.  See Alvarez, 

 (“The act of making an audio or audiovisual 
recording is necessarily included within the First Amendment’s guarantee of speech and 

press rights as a corollary of the right to disseminate the resulting recording” because these 
news-gathering methods “enable speech.”).                                 
    The State Defendants argue that First Amendment activity ceases to be protected 
activity when members of the press fail to comply with lawful dispersal orders.  It is true 
that First Amendment activity “loses its protection when it violates the law.”  Lund v. City 
of Rockford, 

 (7th Cir. 2020) (citing Brandenburg v. Ohio, 

 (1969)).  But the State Defendants’ argument does not prevail for several reasons. 

    First, at least some of the Plaintiffs’ protected First Amendment activities occurred 
outside the scope of any dispersal-order violations.  For example, Ou testified that he 
observed and filmed protests in Brooklyn Center in April 2021 from inside a private 
residence that overlooked the protest area.  Even though Ou was inside a private residence, 
law enforcement officers pointed objects at Ou and told him to “go away” and “back off.”  

Plaintiffs’ evidence also reflects that law enforcement officers repeatedly threatened and 
assaulted members of the press as they attempted to comply with dispersal orders.  In May 
2020, for example, Minnesota State Patrol officers arrested a CNN correspondent on live 
television even after the correspondent told the officers “we can move back to where you’d 
like” and “we’re getting out of your way.”  Similar conduct continued during the April 

2021 protests, including after this Court issued the TRO in this case.  Tuite testified that, 
even after he had complied with a dispersal order on April 16, 2021, state troopers detained 
members of the press, forced them into a line, photographed their faces and identification, 
and forbid them from documenting what was occurring.  As such, the record reflects that 
on multiple occasions members of the press were engaged in protected activity that did not 

fall within the scope of any dispersal order.                             
    Second, the record reflects that at least some of the dispersal orders did not lawfully 
apply to members of the press.  For example, the sole basis for some of the dispersal orders 
was to enforce curfews, and it is undisputed that members of the press were expressly 
exempt from those curfews.  In addition, under Minnesota law, an individual is guilty of 
unlawful assembly only if the individual is a “participant” in the unlawful assembly.  

.  An individual’s refusal to leave an unlawful assembly when directed by 

law enforcement to do so is a violation of the law only if the individual remains present 
“without lawful purpose.”  

.  Plaintiffs present evidence that members 
of the press clearly were engaged in news-gathering activities, such as observing and 
recording  protests  and  law  enforcement  activities,  as  opposed  to  participating  in  an 
unlawful assembly.4  Moreover, when individual members of the press refused to disperse, 

they did not do so “without lawful purpose.”  The record reflects that members of the press 
continued to lawfully engage in protected activity after the issuance of dispersal orders that 
did not apply to them.                                                    
    Third,  the  government  cannot  restrict  the  press  from  places  that  have  been 
historically open to the press and the general public without demonstrating “an overriding 

interest based on findings that closure is essential to preserve higher values and is narrowly 
tailored to serve that interest.”  Index Newspapers LLC v. City of Portland, 

, 1147 (D. Or. 2020) (quoting Press-Enter. Co. v. Superior Court of Cal., 

 (1986)); see also Index Newspapers LLC v. U.S. Marshals Serv., 

, 834 


4    This is not an instance in which law enforcement officers had grounds to reasonably 
believe that “all arrested persons were part of the unit observed violating the law,” as the 
State Defendants argue.  Bernini v. City of St. Paul, 

 (8th Cir. 2012) 
(internal quotation marks omitted).  Notably, the record includes numerous examples of 
law enforcement officers specifically and intentionally targeting identifiable members of 
the press, both verbally and physically, which belies any suggestion that members of the 
press were somehow indistinguishable from the crowd.                      
(9th Cir. 2020) (finding that the law enforcement defendants failed to establish that general 
dispersal  orders  were  essential  or  narrowly  tailored  and  observing  that  “[t]he  many 
peaceful protesters, journalists, and members of the general public cannot be punished for 

the violent acts of others”).5  As this Court previously observed, the recent protests in 
Minnesota have occurred primarily on public streets and sidewalks, giving the press a 
qualified right of access.  See U.S. Marshals Serv., 977 F.3d at 829–30 (recognizing that 
streets and sidewalks historically have been open to the public).  For general dispersal 
orders to lawfully apply to members of the press, therefore, the State Defendants, must 

demonstrate that the dispersal orders are “essential to preserve higher values and [are] 
narrowly tailored to serve that interest.”  Id. at 831.  The State Defendants have failed to 
do so.6  As this Court previously observed, the curfew orders exempt the press, which 
demonstrates that the state and local governments have concluded that press access to these 
events is both important and feasible.  Cf. Index Newspapers, 480 F. Supp. 3d at 1147–48 

(rejecting federal law enforcement defendants’ “blanket assertion that federal officers must 

5    The State Defendants contend that Index Newspapers is inapplicable here because 
Plaintiffs have not asserted a right-of-access claim.  This argument is misplaced.  The 
Court’s reliance on Index Newspapers is not intended to suggest whether Plaintiffs would 
have a viable right-of-access claim.  Rather, the Index Newspapers analysis is relevant to 
whether Defendants’ general dispersal orders were lawful as applied to members of the 
press.                                                                    

6    The State Defendants argue, in conclusory fashion, that their general dispersal 
orders were “essential to the preservation of public safety” and “as narrowly tailored as 
they could be in light of the rapidly changing circumstances.”  But the State Defendants 
make no attempt to demonstrate why it is “essential” to public safety to repeatedly threaten, 
shout profanities at, assault, detain, and photograph individuals who are clearly identifiable 
as members of the press and are neither violating the law nor engaging in dangerous or 
hostile activity.                                                         
disperse everyone”). Moreover, other courts have issued preliminary injunctions in similar 
circumstances on terms akin to those imposed by this Court’s TRO.  See, e.g., id. at 1148; 
see also U.S. Marshals Serv., 

 (denying stay of district court’s preliminary 

injunction pending appeal).  Similar narrow tailoring is possible here, and the State 
Defendants offer no persuasive factual or legal argument as to why such narrow tailoring 
would be unfeasible.                                                      
    For these reasons, Plaintiffs have demonstrated a likelihood of success on the merits 
as to the first element of their First Amendment retaliation claim.       

      2.   Chill                                                         
    Plaintiffs argue that the State Defendants’ actions toward members of the press 
would  chill  a  person  of  ordinary  firmness  from  documenting  protests  and  law 
enforcement’s conduct in response.  The State Defendants do not address this element of 
Plaintiffs’ First Amendment claim.                                        

    To succeed on a First Amendment retaliation claim, a plaintiff must prove that the 
adverse  action  against  the  plaintiff  would  chill  a  person  of  ordinary  firmness  from 
continuing in the protected First Amendment activity.  See Peterson, 

.  
Because there is no justification for harassing people for exercising their constitutional 
rights, the chilling effect on speech need not be great to be actionable.  Garcia v. City of 

Trenton, 

 (8th Cir. 2003).  Here, Plaintiffs’ declarations and the testimony 
at the evidentiary hearing detail the treatment that members of the press experienced while 
covering protests in May 2020 and April 2021.  The evidence reflects that members of the 
press were directed by law enforcement to vacate protest areas, verbally and physically 
assaulted, struck by less-lethal projectiles and rubber bullets, pepper sprayed, and detained.  
In some instances, law enforcement officers confiscated or prohibited the use of cameras 
and other press equipment.  A person of ordinary firmness would be chilled by such speech-

suppressive actions.  See Peterson, 

 (recognizing that “pepper spraying 
someone in the face would chill a person of ordinary firmness” (internal quotation marks 
omitted)); see also Index Newspapers, 480 F. Supp. 3d at 1142 (concluding that similar 
enforcement tactics to those alleged here would chill First Amendment activities).  The 
record also reflects that several members of the press have wanted or intended to continue 

covering the protests but either fear for their safety or have been rendered physically unable 
to continue reporting because of injuries sustained as a result of law enforcement officers’ 
tactics.                                                                  
    For these reasons, Plaintiffs have demonstrated a likelihood of success on the merits 
as to the second element of their First Amendment retaliation claim.      

      3.   Motivation                                                    
    Plaintiffs  argue  that  there  is  a  documented  pattern  of  hostility  by  the  State 
Defendants to members of the press.  According to Plaintiffs, this pattern demonstrates that 
the State Defendants were motivated, at least in part, by the press’s First Amendment 
activities, which is the third element of a First Amendment retaliation claim.  See Peterson, 

.  “Retaliatory motive . . . may be proved by circumstantial evidence giving 
rise to an inference of retaliatory intent.”  Williams v. City of Carl Junction, 

 (8th Cir. 2008).  Here, although the State Defendants argue that they “do not ‘target’ 
members of the media,” the record evidence suggests otherwise.            
    The  record  reflects  that,  although  many  members  of  the  press  were  clearly 
identifiable as such, the State Defendants singled them out in a variety of ways.  The State 
Defendants told the press specifically that they needed to vacate the protest areas, pepper 

sprayed them, and hit them with less-lethal projectiles.  Law enforcement officers targeted 
the press by threatening to “arrest anyone who does not disperse in 10 minutes including 
journalists,”  (emphasis  added),  and  repeatedly  ordering  the  press  to  leave,  shouting 
messages such as: “Media you need to disperse.  Leave the area.”  One photojournalist, 
who had a camera and press credentials in clear view, was pepper sprayed in the eye while 

photographing a scene.  According to another journalist, “[o]ne officer just shot our ground 
reporter in the leg with some kind of impact round – it appeared to be deliberate and not 
accidental.”  Plaintiff Timothy Evans, a freelance photojournalist, attests that on April 16, 
2021, he identified himself as a member of the press to law enforcement officers.  In 
response, one law enforcement officer said “I don’t care,” told Evans to “shut the f**k up,” 

assaulted Evans, confiscated and discarded Evans’s press credentials, and accused Evans 
of lying when Evans correctly asserted that the curfew did not apply to members of the 
press.  These facts are merely a few examples of Plaintiffs’ circumstantial evidence of a 
retaliatory motive.  See Index Newspapers, 480 F. Supp. 3d at 1144–45 (concluding that 
journalists were targeted when forced to disperse based on similar allegations).   

    At the evidentiary hearing, Plaintiffs presented additional circumstantial evidence 
suggesting retaliatory motive.  Ou testified that, in May 2020, state troopers “corralled” a 
group of people—all or mostly members of the press—into a dead end where they were 
“trapped” after the state troopers had peppered sprayed them.  The state troopers “kept on 
throwing concussion grenades at [them], telling [them] to leave, but there was nowhere for 
[them] to go.”  Ou also testified that, during the April 2021 protests, law enforcement 
officers threatened him while he was observing and filming their activities from inside a 

private residence.  Tuite testified that on April 16, 2021—after this Court had issued the 
TRO in this case—a state trooper told him: “Media, get the f**k out of here now.”  A short 
time later, when Tuite had left the area, “a line of state troopers . . . [was] obstructing [the 
press’s] view completely of what was happening.”  After Tuite complied with the state 
troopers’ directions to move to a location two blocks away, the state troopers continued to 

obstruct members of the press from engaging in news-gathering activity.  According to 
Tuite:                                                                    
         I was not even allowed to do my job.  They made us get into a   
         line here and they said we need to have our faces photographed, 
         our media credentials, as well as our IDs.  I tried to walk to the 
         right to take a photo of someone getting arrested.  He said, “Get 
         back in line. You are not allowed to document. Get back in      
         line,” the state trooper [said] to me.                          

These facts suggest that the State Defendants’ actions were motivated, at least in part, by 
the engagement of the press in constitutionally protected activity.  See Index Newspapers, 
480 F. Supp. 3d at 1144–45.                                               
    Plaintiffs have demonstrated a likelihood of success on the merits as to the third 
element of their First Amendment retaliation claim.  Accordingly, Plaintiffs have a fair 
chance of prevailing on the merits of their First Amendment claim and, as such, have 
demonstrated a likelihood of success on the merits.  See Dataphase, 

.   
    B.   Fourth Amendment                                                
    Plaintiffs maintain that they are likely to succeed on the merits of their Fourth 
Amendment claim, arguing that the State Defendants have restrained them from moving 

freely throughout the areas where protests are occurring.                 
    The  Fourth  Amendment  protects  individuals  from  seizure  through  the  use  of 
excessive force by a law enforcement officer.  See Graham v. Connor, 

, 394–
95 (1989).  “A Fourth Amendment seizure occurs when an officer restrains the liberty of 
an individual through physical force or show of authority.”  Quraishi, 

 

(internal quotation marks omitted).  The reasonableness of law enforcement officers’ 
actions is determined objectively based on the facts and circumstances confronting the 
officers, including “the severity of the crime at issue, whether  the suspect poses an 
immediate threat to the safety of the officers or others, and whether [the suspect] is actively 
resisting arrest or attempting to evade arrest by flight.”  Brown v. City of Golden Valley, 

 (8th Cir. 2009) (quoting Graham, 

).      
    Plaintiffs contend, and the record reflects, that Plaintiffs were neither participating 
in nor suspected of participating in any crime.  Nor does the record reflect that Plaintiffs 
presented a threat to the safety of law enforcement officers or others.  Law enforcement 
officers nonetheless ordered members of the press to disperse, threatened them, arrested 

them, and subjected them to injury-inflicting force.  Significantly, on April 16, 2021, after 
this Court issued the TRO in this case, these tactics continued.  For example, after members 
of the press had moved away from the protest area as directed by state troopers, the state 
troopers  detained  those  individuals;  photographed  their  faces,  press  credentials,  and 
identification; and prohibited them from engaging in news-gathering activities.  These facts 
demonstrate repeated unreasonable restraints on the movement of the press during the 
protests through intimidation tactics that included the use of projectiles, pepper spray, tear 

gas, batons, and verbal commands and threats.  The use of these tactics persisted even after 
members of the press had identified themselves and complied with dispersal orders.   
    The State Defendants reiterate their argument that members of the press are not 
exempt from generally applicable dispersal orders.  But, as addressed by the Court, the 
record reflects that law enforcement officers repeatedly used intimidation and restraint 

tactics against individuals who either were not subject to a lawful dispersal order or had 
not violated a lawful dispersal order.  And law enforcement officers, in some instances, did 
so even after members of the press had complied or attempted to comply with law 
enforcement officers’ orders.  The State Defendants also argue that the Fourth Amendment 
is not violated when law enforcement officers have grounds to reasonably believe that “all 

arrested persons were part of the unit observed violating the law.”  Bernini v. City of St. 
Paul, 

 (8th Cir. 2012) (internal quotation marks omitted).  But the record 
in this case includes numerous examples of law enforcement officers specifically and 
intentionally targeting identifiable members of the press, both verbally and physically.  As 
such,  the  record  belies  any  suggestion  that  members  of  the  press  were  somehow 

indistinguishable from others.                                            
    For these reasons, Plaintiffs have demonstrated a likelihood of success on the merits 
as to their Fourth Amendment claim.                                       
    II.  Threat of Irreparable Harm                                      
    Plaintiffs contend that the State Defendants’ violation of Plaintiffs’ constitutional 
rights are immediate and ongoing.  The State Defendants counter that they present no threat 

of future harm.                                                           
    Irreparable harm occurs when a party has no adequate remedy at law, typically 
because its injuries cannot be fully compensated through an award of damages.  Gen. 
Motors Corp. v. Harry Brown’s, LLC, 

 (8th Cir. 2009).  “The loss of 
First Amendment freedoms, for even minimal periods of time, unquestionably constitutes 

irreparable injury.”  Elrod v. Burns, 

 (1976).  But to establish the need 
for injunctive relief to avoid irreparable harm, the movant “must show that the harm is 
certain and great and of such imminence that there is a clear and present need for equitable 
relief.”  Novus Franchising, Inc. v. Dawson, 

 (8th Cir. 2013) (internal 
quotation marks omitted).  A mere “possibility of harm” is insufficient.  Roudachevski, 

.  In cases alleging constitutional harm, demonstrating a likelihood of success 
“ordinarily warrants a finding of irreparable harm.”  A.H. ex rel. Hester v. French, 

 (2d Cir. 2021).                                                  
    As this Court observed when granting Plaintiffs’ second motion for a TRO, several 
factors demonstrate the clear and present need for injunctive relief in this case: (1) the State 

Defendants’ repeated conduct in contravention of Plaintiffs’ constitutional rights; (2) the 
ongoing, albeit intermittent, protests in Minnesota pertaining to law enforcement officers’ 
use of force; and (3) Plaintiffs’ intention to continue their press coverage of the protests.  
The harm to Plaintiffs is no longer speculative or a mere possibility.  Rather, the protests 
continued, and the harm inflicted by the State Defendants did not abate until the Court 
issued the TRO in this case.  Moreover, the record reflects that little if any investigation or 
discipline  has  been  carried  out  by  the  State  Defendants  in  response  to  the  alleged 

misconduct in this case, which suggests that similar misconduct could recur if the TRO is 
not converted into a preliminary injunction.                              
    Although  the  State  Defendants  argue  that  no  large-scale  unrest  situations  are 
imminent, the threat of imminent future interactions between the State Defendants and 
members of the press persists.7  In light of the events that have occurred over the last year 

and a half, the likelihood of demonstrations and protests persists.  The criminal trial of the 
law enforcement officer who killed Daunte Wright is scheduled to begin in November 2021.  
The criminal trial of Chauvin’s co-defendants is scheduled to begin in March 2022.  And 
federal criminal charges against Chauvin and his co-defendants are pending in this District.  
If  the  press  cannot  document  these  events  of  public  importance,  Plaintiffs’  First 

Amendment rights will be irreparably harmed.  See Elrod, 

.  Because of the 
likelihood that this harm could recur before a decision on the merits of this case can occur, 
the threat of irreparable harm to Plaintiffs is sufficiently immediate to warrant injunctive 
relief.  See Boardman v. Pac. Seafood Grp., 

 (9th Cir. 2016).   
    Accordingly, the threat of irreparable harm to Plaintiffs continues to exist.  



7    The State Defendants suggest that a preliminary injunction is unwarranted because 
the alleged harm has abated.  But this argument fails to account for the fact that the harm 
abated only after the Court issued a TRO.  And this fact suggests that injunctive relief is 
necessary to prevent ongoing harm.                                        
    III.  Balance of Harms                                               
    The parties dispute whether the balance of harms weighs in favor of granting a 
preliminary injunction.                                                   

    When, as here, a plaintiff raises a legitimate constitutional question, the balance of 
hardships tips sharply in the plaintiff’s favor.  See Cmty. House, Inc. v. City of Boise, 

, 1059 (9th Cir. 2007).  As this Court has observed, a well-tailored injunction 
that balances the freedom of the press with the government’s ability to exercise its police 
power does not irreparably harm the government.  See, e.g., Index Newspapers, 

.  Here, the record contains specific allegations and evidence particularized to the 
State Defendants.  And, as addressed above, Plaintiffs have demonstrated both irreparable 
harm and a likelihood of success on the merits of their First Amendment and Fourth 
Amendment claims.  For these reasons, the balance of harms weighs heavily in Plaintiffs’ 
favor.  See, e.g., Cmty. House, 490 F.3d at 1059; see also Kersten v. City of Mandan, 

 (D.N.D. 2019) (finding that the balance of harms “generally favors 
the constitutionally-protected freedom of expression” (internal quotation marks omitted)).   
    The State Defendants correctly counter that they have a substantial interest in 
maintaining order and ensuring public safety.  But the State Defendants do not present any 
evidence  or  persuasive  argument  that  these  important  interests  have  been  materially 

impeded by the TRO.  The State Defendants argue that it is difficult to distinguish members 
of the press from other individuals during situations of chaotic unrest, and the State 
Defendants presented testimony to this effect from Commissioner Harrington and Major 
Dwyer.  But as detailed throughout this Order, many of the alleged instances of misconduct 
involved law enforcement officers willfully disregarding indicia that a person was a 
member of the press and targeting individuals who were clearly identifiable as members of 
the press or who were attempting to display their press credentials.  The tactics used against 

these individuals included harassing, threatening, intimidating, assaulting, or detaining 
individuals who were complying with or attempting to comply with dispersal orders or who 
were merely observing protests from private property.  The State Defendants’ suggestion 
that these tactics are somehow necessary to maintaining order and ensuring public safety 
is unpersuasive.                                                          

    The terms of the TRO are carefully tailored to preserve law enforcement officers’ 
ability to maintain order and ensure public safety.  For example, members of the press must 
obey the law, and the TRO permits law enforcement officers to arrest a member of the 
press or seize his or her property if there is probable cause to believe that the individual 
committed a crime.  Members of the press do not have a “free pass” to obstruct justice by 

actively impeding law enforcement.  Law enforcement officers also remain authorized to 
use crowd-control tools and tactics, including against members of the press who present an 
imminent threat of violence or bodily harm to persons or damage to property.  The State 
Defendants are not precluded from issuing otherwise lawful crowd-dispersal orders, and 
the State Defendants are not liable for violating the TRO if a member of the press is 

incidentally exposed to crowd-control tactics.  The State Defendants have not identified 
any specific evidence that the carefully tailored terms of the injunction are unworkable or 
have impeded the State Defendants’ ability to maintain order and ensure public safety.  
Indeed, although the TRO has been in place for more than six months, the State Defendants 
have not identified any specific instance in which the injunction has materially obstructed 
their legitimate law-enforcement functions.                               
    The State Defendants correctly observe that it can be inefficient and difficult to 

differentiate members of the press during situations involving chaotic unrest.  For example, 
Colonel Langer attests that, “since the TRO issued, the State Patrol has encountered 
significant difficulty in implementing the TRO as it pertains to dispersal.”  Colonel Langer 
describes examples of these difficulties, but has not identified a single incident that 
involved any demonstrable threat or harm to public safety:                

              For  example,  during  recent  protests  at  both  the     
         Governor’s  residence  and  the  Capitol  complex,  several     
         troopers  encountered  difficulty  with  several  individuals   
         locating themselves to record events in areas which caused a    
         safety concern at worst, and a distraction at best. Given the   
         TRO's limitations on dispersal, many troopers have not asked    
         these  individuals  to  relocate,  even  when  their  position  is 
         exceedingly close to law enforcement activity, directly at the  
         back of troopers or in-between their legs, or even directly     
         within the sphere of law enforcement activity.                  

              Further, during the recent protests at the Governor’s      
         residence  and  the  Capitol  complex,  troopers  observed      
         individuals who were recording events working directly with     
         the protesters.  This made it difficult to ascertain whether these 
         individuals were protesters or members of the media or both.    

Colonel Langer concedes that “no critical incidents have yet occurred as a result” of the 
TRO, which has been in effect for more than six months.  The Court is mindful that the 
TRO may cause some inefficiencies, inconveniences, and other challenges for the State 
Defendants.  But the United States Constitution requires inefficiency, sometimes by design, 
to limit abuses of power.  Cf. NLRB v. Noel Canning, 

, 601 (2014) (Scalia, J., 
concurring) (observing that the “Constitution is not a road map for maximally efficient 
government, but a system of carefully crafted restraints designed to protect the people from 
the improvident exercise of power” (internal quotation marks omitted)).  The fact that the 

State Defendants’ compliance with the injunction may be inefficient or difficult does not, 
without more, establish that the balance of harms weighs in their favor.  
    Accordingly,  the  balance  of  harms  weighs  in  favor  of  granting  Plaintiffs  a 
preliminary injunction.                                                   
    IV.  Public Interest                                                 

    The  parties  dispute  whether  the  public  interest  weighs  in  favor  of  granting  a 
preliminary injunction.                                                   
    “[I]t  is  always  in  the  public  interest  to  prevent  the  violation  of  a  party’s 
constitutional rights.”  Connection Distrib. Co. v. Reno, 

 (6th Cir. 1998) 
(internal quotation marks omitted).  “Abridgment of freedom of speech and of the press . . . 

impairs those opportunities for public education that are essential to effective exercise of 
the power of correcting error through the processes of popular government.”  Thornhill v. 
State of Alabama, 

 (1940).  “By reporting about the government, the media 
are ‘surrogates for the public.’ ”  Index Newspapers, 480 F. Supp. 3d at 1146 (quoting 
Richmond Newspapers, 

).  Because the American public has limited time 

and resources to devote to first-hand observation of government operations, the press is an 
indispensable resource in our constitutional democracy.  See 

 (citing Cox Broad. Corp. 
v. Cohn, 

 (1975)).                                       
    At stake here are Plaintiffs’ First Amendment and Fourth Amendment rights, as well 
as the public’s ability to learn about ongoing events of public importance.  The potential 
harm arising from suppressing press coverage of the protests is great and the public interest 

favors protecting these First Amendment principles.  See Reno, 

.  The State 
Defendants correctly observe that it also is in the public’s interest to control unrest, 
violence, and other chaotic situations.  But constitutional rights are not diminished during 
a period of “chaotic unrest.”  See Ex parte Milligan, 

, 120–21 (1866) (“The 
Constitution of the United States is a law for rulers and people, equally in war and in peace, 

and covers with the shield of its protection all classes . . . ., at all times, and under all 
circumstances.”).  “Democracies die behind closed doors.”  Detroit Free Press v. Ashcroft, 

 (6th Cir. 2002).                                        
    For these reasons, the public interest supports granting Plaintiffs a preliminary 
injunction.  Because all four Dataphase factors weigh in favor of converting the TRO into 

a preliminary injunction, Plaintiffs’ motion for a preliminary injunction is granted.8 
    V.   Scope of the Preliminary Injunction                             
    Plaintiffs contend that the TRO should be converted into a preliminary injunction 
with  two  modifications:  (1)  broadening  the  injunction’s  geographic  scope  beyond 
Brooklyn Center, and (2) broadening the injunction’s applicability to include those who 

are “in active concert” with the State Defendants.  The State Defendants contend that, if 

8    Plaintiffs also seek an adverse-inference sanction against the State Defendants for 
the alleged spoliation of evidence.  Because the Court has not relied on any adverse 
inferences in granting Plaintiffs’ motion for a preliminary injunction, the Court declines to 
address the spoliation issue at this time.                                
the Court grants Plaintiffs’ motion for a preliminary injunction, the injunction should be 
modified to provide that members of the press are not fully exempt from general dispersal 
orders and to require members of the press to identify themselves clearly, visibly, and 

consistently.                                                             
    A.   Geographic Scope                                                
    Plaintiffs first argue that the injunction should be broadened to apply outside 
Brooklyn Center.  The State Defendants do not object to this modification.   
    An injunction binds only those “who receive actual notice of it by personal service 

or otherwise.”  Fed. R. Civ. P. 65(d)(2).  Although the TRO did not contain an express 
geographic limitation, the TRO required the State Defendants to provide copies of the TRO 
only to “employees, officers, and agents of the State Defendants currently deployed in 
Brooklyn  Center,  Minnesota.”    Because  it  is  undisputed  that  the  State  Defendants’ 
personnel can be deployed anywhere in the state, this requested modification is granted.   

    The preliminary injunction is modified to require the State Defendants to provide 
copies of this Order to all of the State Defendants’ employees, officers, and agents.       
    B.   Active Concert                                                  
    Plaintiffs next argue that the injunction should be broadened to bind those who are 
“in  active  concert”  with  the  State  Defendants.    The  State  Defendants  oppose  this 

modification.                                                             
    A preliminary injunction can bind “other persons who are in active concert or 
participation  with”  the  parties  or  their  employees,  officers,  or  agents.    Fed.  R.  Civ. 
P. 65(d)(2)(C).  “Under Rule 65(d), a nonparty with actual notice may be held in contempt 
[when] the nonparty aids or abets a named party in a concerted violation of a court order.”  
Indep. Fed’n of Flight Attendants v. Cooper, 

, 920 (8th Cir. 1998).  “The 
‘essence’ of this rule ‘is that defendants may not nullify a decree by carrying out prohibited 

acts through aiders and abettors, although they were not parties to the original proceeding.’ ”  
Id. (quoting Regal Knitwear Co. v. NLRB, 

 (1945)).          
    The State Defendants do not dispute that Rule 65(d) authorizes the Court to enjoin 
those who are “in active concert or participation with” the State Defendants.  But the State 
Defendants maintain that they are not in “active concert” with other law enforcement 

agencies or liable for the conduct of other law enforcement agencies.  The City Defendants, 
against whom Plaintiffs have not sought a preliminary injunction, also argue that they are 
not in “active concert” with the State Defendants and should not be bound by the injunction.   
    The  Court  need  not  attempt  to  predict,  however,  whether  any  particular  law 
enforcement agency might violate this injunction in the future while “in active concert or 

participation with” the State Defendants.  Whether a person or entity is in active concert or 
participation with an enjoined party “ordinarily presents a question of fact requiring 
examination of the circumstances of each case as it arises.”  Crane Boom Life Guard Co. 
v. Saf-T-Boom Corp., 

 (8th Cir. 1966).  As such, the Court will include 
in the preliminary injunction the language authorized by Rule 65(d)(2)(C), but in doing so 

the Court expresses no opinion as to whether any particular entity or individual other than 
the State Defendants is bound by the injunction pursuant to Rule 65(d)(2)(C).  If Plaintiffs 
later move for a contempt order based on an alleged violation of the injunction, the Court 
will  evaluate  the  relevant  facts  and  circumstances  to  determine  whether  the  alleged 
contemnor was bound by the injunction.  Attempting to make such a determination now 
would be advisory, speculative and, therefore, premature.9                
    Accordingly, the preliminary injunction is modified to include “other persons who 

are in active concert or participation with” the State Defendants or their employees, officers, 
or agents, and who have received actual notice of this Order.  Fed. R. Civ. P. 65(d)(2)(C).   
    C.   The State Defendants’ Proposed Modifications                    
    The State Defendants also propose modifications to the injunction.  The State 
Defendants first argue that the injunction should be modified to provide that members of 

the press are not fully exempt from general dispersal orders.  But as addressed above, the 
State Defendants’ dispersal orders are inapplicable to members of the press for several 
reasons.  First, dispersal orders based solely on curfews from which members of the press 
are exempt cannot apply to members of the press.                          
    Second, under Minnesota law, an individual is guilty of unlawful assembly only if 

the individual is a “participant” in the unlawful assembly.  

.  And an 
individual’s  refusal  to  leave  an  unlawful  assembly  when  directed  to  do  so  by  law 
enforcement is a violation of the law only if the individual remains present “without lawful 
purpose.”  

.  Generally, members of the press are in proximity to a 
protest to observe, record, and report about the protest, not to participate in the assembly.  

In addition, when a member of the press refuses to leave an unlawful assembly for 


9    For this reason, the Court will not require the State Defendants to provide copies of 
this Order to a nonparty unless the State Defendants have reason to believe that the 
nonparty is in active concert or participation with the State Defendants.   
newsgathering purposes, he or she is not acting “without lawful purpose.”10  As such, when 
a member of the press is engaged in newsgathering in a location subject to a general 
dispersal order and is not otherwise violating the law, that individual’s mere presence—

without more—is not criminal conduct under Minnesota law.                 
    Third, the government cannot lawfully restrict members of the press from places 
that have been historically open to the press and the public without demonstrating “an 
overriding interest based on findings that closure is essential to preserve higher values and 
is narrowly tailored to serve that interest.”  Index Newspapers, 480 F. Supp. 3d at 1147 

(quoting Press-Enter. Co., 

).  The State Defendants undoubtedly have an 
interest in maintaining order and ensuring public safety.  But they have not demonstrated 
that their methods of issuing and enforcing general dispersal orders against members of the 
press, as described throughout this Order, are narrowly tailored to serve that interest. 
    The scope of this Court’s injunction is consistent with these relevant legal principles.  

And the injunction preserves law enforcement officers’ ability to arrest members of the 
press who violate the law; use crowd-control tactics against members of the press who 
present an imminent threat of violence, bodily harm, or property damage; and use crowd-

10   The distinction between being present for a lawful purpose versus an unlawful 
purpose is significant for at least two reasons.  First, under Minnesota law, it is presumed 
that “the legislature intends the entire statute to be effective and certain” and that “the 
legislature does not intend to violate the Constitution of the United States.”  

(2), (3).  The phrase “without lawful purpose” in Section 609.715 would be 
meaningless if refusing to leave an unlawful assembly was always a criminal act regardless 
of purpose.  Second, criminal laws may raise due-process concerns if they draw “no 
distinction between innocent conduct and conduct calculated to cause harm.”  City of 
Chicago v. Morales, 

, 50–51 (1999).  Here, the record does not reflect that 
Plaintiffs’ refusal to disperse was “without lawful purpose.”             
control tactics that unintentionally or incidentally impact members of the press.  Narrowing 
the injunction in the manner suggested by the State Defendants would not address the 
irreparable harms identified throughout this Order.                       

    The State Defendants also argue that the injunction should be modified to require 
members of the press to identify themselves more clearly, visibly, and consistently than 
currently required by the TRO.  The Court’s TRO includes a non-exclusive list of relevant 
indicia that an individual is a member of the press, such as displaying press credentials or 
wearing distinctive clothing.  The TRO also provides that the State Defendants will not be 

liable for unintentional violations of the injunction involving individuals who do not carry 
or wear press credentials or distinctive clothing.  Notably, many of the alleged incidents of 
misconduct in this case involved law enforcement officers actively disregarding clearly 
displayed press credentials, distinctive clothing, and other indicia that individuals were 
members of the press.  Rather than an inability to identify members of the press, the record 

reflects many instances of law enforcement officers willfully disregarding the relevant 
identifiers.  This demonstrates a problem of compliance, not a problem of clarity.  As such, 
the State Defendants have not demonstrated why any modification or clarification of these 
aspects of the injunction is necessary.                                   
    For these reasons, the State Defendants’ proposed modifications to the injunction 

are denied.                                                               
    VI.  Rule 65 Bond Requirement                                        
    Having  concluded  that  a  preliminary  injunction  is  warranted,  the  Court  next 
considers whether to require Plaintiffs to post a bond as security for the effects of the 

preliminary injunction on the State Defendants.                           
    A district court must expressly consider whether to require a bond, but a district 
court is not required to impose one.  See Rathmann Grp. v. Tanenbaum, 

 
(8th Cir. 1989).  The bond requirement to secure injunctive relief “is a security device, not 
a limit on the damages the . . . defendants may obtain against [the plaintiff] if the facts 

warrant such an award.”  Minn. Mining & Mfg. Co. v. Rauh Rubber, Inc., 

, 
1309 (8th Cir. 1997).  Rule 65(c) of the Federal Rules of Civil Procedure provides, in 
pertinent part:                                                           
         The court may issue a preliminary injunction or a temporary     
         restraining order only if the movant gives security in an amount 
         that the court considers proper to pay the costs and damages    
         sustained by any party found to have been wrongfully enjoined   
         or restrained.                                                  

Fed. R. Civ. P. 65(c).  While a district court has broad discretion in setting a bond, that 
discretion is abused if the district court acts with an improper purpose, fails to require an 
adequate bond, or fails to make the necessary findings in support of its decision.  See Hill 
v. Xyquad, Inc., 

 (8th Cir. 1991).  Courts have concluded that a bond is 
not required to obtain preliminary injunctive relief when a plaintiff is seeking to prevent a 
government entity from violating the First Amendment.  See, e.g., Bukaka, Inc. v. County 
of Benton, 

 (D. Minn. 1993).                         
    The Court waived the bond requirement when it issued the TRO as requested by 
Plaintiffs, and the parties have not addressed this issue in connection with Plaintiffs’ 
motion  for  a  preliminary  injunction.    In  these  circumstances,  a  waiver  of  the  bond 

requirement is appropriate.  See, e.g., Fantasysrus 2, L.L.C. v. City of E. Grand Forks, 

 (D. Minn. 2012) (waiving the security requirement when the 
government did not object to the movant’s request for waiver); Northshor Experience, Inc. 
v. Duluth, 

 (D. Minn. 2006) (granting a waiver when the defendant 
had not objected or otherwise “addressed this issue or attempted to quantify any dollar 

amount of harm that it may face from a wrongly issued injunction”).       
    Accordingly, the Court waives the bond requirement in this case.     

    Based on the foregoing analysis and all the files, records and proceedings herein, IT 
IS HEREBY ORDERED:                                                        

    1.   Plaintiffs’ motion for a preliminary injunction, (Dkt. 118), is GRANTED. 
    2.   Defendants Minnesota Department of Public Safety Commissioner John 
Harrington, in his individual and official capacity; Minnesota State Patrol Colonel Matthew 
Langer, in his individual and official capacity; their agents, servants, employees and 
representatives (collectively, the State Defendants); and all other persons who are in active 

concert or participation with the State Defendants, are hereby enjoined from: 
         a.    arresting, threatening to arrest, or using physical force—including 
         through use of flash bang grenades, non-lethal projectiles, riot batons, or any 
         other means—directed against any person whom they know or reasonably 
should know is a Journalist (as defined in Paragraph 4 below), unless the 
State 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;                                                     
b.   using chemical agents directed against any person whom they know 

or reasonably should know is a Journalist, including but not limited to 
mace/oleoresin capsicum spray or mist/pepper spray/pepper gas, tear gas, 
skunk, inert smoke, pepper pellets, xylyl bromide, and similar substances, 
unless such Journalist presents an imminent threat of violence or bodily harm 
to persons or damage to property; and                           

c.   seizing  or  intentionally  damaging  any  photographic  equipment, 
audio-recording  or  video-recording  equipment,  or  press  passes  in  the 
possession of any person whom the State Defendants know or reasonably 
should know is a Journalist, or ordering such person to stop photographing, 
recording, or observing a protest, unless the State Defendants are lawfully 

seizing that person consistent with this Order.  Except as expressly provided 
in Paragraph 3 below, the State Defendants must return any seized equipment 
or press passes immediately upon release of a person from custody. 
    3.   If any State Defendant, agent or employee of the State Defendants, or any 
person acting under the State Defendants’ direction seizes property from a Journalist who 
is  lawfully  arrested  consistent  with  this  Order,  such  State  Defendant  shall,  as  soon 

thereafter as is reasonably possible, make a written list of seized property and shall provide 
a copy of that list to the Journalist.  If property seized in connection with the lawful arrest 
of a Journalist is needed for evidentiary purposes, the State Defendants shall promptly seek 
a search warrant, subpoena, or other court order to authorize the continued seizure of such 
property.  If such a search warrant, subpoena, or other court order is denied, or if property 

seized in connection with an arrest is not needed for evidentiary purposes, the State 
Defendants shall immediately return the seized property to its rightful possessor. 
    4.   To facilitate the State 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 press, such as by carrying a professional or authorized 

press pass 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.  These 
indicia are not exclusive, and a person need not exhibit every indicium to be considered a 
Journalist under this Order.  The State 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 or distinctive clothing that identifies the wearer as 
a member of the press.                                                    
    5.   The State Defendants are not precluded by this Order from issuing otherwise 
lawful crowd-dispersal orders.  The State Defendants shall not be liable for violating this 
injunction if a Journalist is incidentally exposed to crowd-control devices after remaining 
in the area where such devices were deployed in conjunction with the enforcement of an 
otherwise lawful dispersal order.                                         

    6.   To promote compliance with this Order, the State Defendants shall provide 
copies of this Order, in either electronic or paper form, within 48 hours, to: (a) all 
employees, officers, and agents of the State Defendants with any supervisory or command 
authority over any person who is engaged in the law enforcement response to civil unrest 
or protests covered by Journalists; and (b) all other persons who the State Defendants have 

reason to believe are in active concert or participation with the State Defendants in the law 
enforcement response to civil unrest or protests covered by Journalists.  
    7.   Plaintiffs need not provide any security pursuant to Rule 65(c) of the Federal 
Rules of Civil Procedure.                                                 
    8.   This Order shall expire upon the entry of final judgment resolving all of 

Plaintiffs’ claims on the merits, unless otherwise provided by further order of the Court.  
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 


Dated:  October 28, 2021                s/Wilhelmina M. Wright            
                                       Wilhelmina M. Wright              
                                       United States District Judge