Gibson v. Schmidt

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOSEPH GIBSON and RUSSELL Case No. 3:20-cv-01580-IM

SCHULTZ,

OPINION AND ORDER

Plaintiffs,

v.

MIKE SCHMIDT, in his official capacity as

District Attorney of Multnomah County,

Oregon, MULTNOMAH COUNTY

DISTRICT ATTORNEY’S OFFICE, and

BRAD KALBAUGH, in his official capacity

as a Multnomah County Deputy District

Attorney,

Defendants.

Derek Angus Lee, Angus Lee Law Firm, PLLC, 9105a NE Hwy 99, Suite 200, Vancouver, WA

98665, and James L. Buchal, Murphy & Buchal, LLP, 3425 SE Yamhill Street, Suite 100,

Portland, OR 97214. Attorneys for Plaintiffs.

Jill Schneider and David Berryman, Oregon Department of Justice, 100 SW Market Street,

Portland, OR 97201. Attorneys for Defendants.

IMMERGUT, District Judge.

Before this Court is Plaintiffs’ Motion for Temporary Restraining Order and Preliminary

Injunction, ECF 5, pursuant to Rule 65 of the Federal Rules of Civil Procedure. Plaintiffs are two

individuals each charged in state court with a single count of riot under O.R.S. 166.015. ECF 35

at ¶¶ 2–3. Plaintiffs claim that District Attorney Mike Schmidt, Deputy District Attorney Brad

Kalbaugh, and the Multnomah County District Attorney’s Office (“Defendants”) are selectively

prosecuting the riot charges in bad faith for the purpose of retaliating against Plaintiffs for their

political beliefs and expression in violation of the First, Fifth, and Fourteenth Amendments. Id. at

¶¶ 2, 5. They seek an order from this Court enjoining Defendants from continuing to pursue the

state court criminal charges. ECF 5 at 7.

Plaintiffs initially filed the instant motion and an Emergency Motion for Expedited

Discovery on September 16, 2020. ECF 5; ECF 10. The following day, Plaintiffs filed an

Amended Motion for Expedited Discovery and this Court set a briefing schedule on the motions.

ECF 12; ECF 16. On September 30, 2020, this Court granted the Amended Motion for Expedited

Discovery in part, ECF 12, for the limited purpose of determining whether this Court must

abstain from interfering with the state criminal prosecution pursuant to the abstention doctrine

established in Younger v. Harris, 401 U.S. 37 (1971). This Court ordered supplemental briefing

on the abstention issue. ECF 32; ECF 33. On February 19, 2021, following the completion of the

limited discovery and supplemental briefing, this Court held a hearing to determine the threshold

question of whether Younger abstention applies to this case. After considering the pleadings,

briefings, declarations, exhibits, and arguments of counsel, this Court finds that Younger

abstention applies to this case and therefore this Court cannot exercise jurisdiction over this

matter. For the reasons that follow, this case is DISMISSED without prejudice and Plaintiffs’

Motion for Temporary Restraining Order and Preliminary Injunction, ECF 5, is DENIED as

moot.

BACKGROUND

Plaintiffs’ Political Activity

Plaintiffs are Joseph Gibson and Russell Schultz. ECF 35 at ¶¶ 10–11. Under the name

“Patriot Prayer,” Gibson often uses social media to organize public events “promot[ing]

patriotism, prayer, and living a God-fearing lifestyle.” Gibson Decl., ECF 8 at ¶ 1. Gibson

“view[s] Antifa as an anti-American terror group” and has publicly condemned what he sees as

“the local government’s indulgence and support of Antifa.” Id. at ¶¶ 8–9. Schultz is a supporter

of Gibson and often attends public demonstrations with him. Id. at ¶ 10.

The Events at Cider Riot

On May 1, 2019, the events giving rise to Plaintiffs’ criminal charges took place outside

Cider Riot, a Portland cider bar. Buchal Decl., ECF 6 at ¶ 29. Plaintiffs went to Cider Riot with a

group of Patriot Prayer supporters to participate in “a demonstration intended to call attention to

[Cider Riot’s] status as a well-known hangout for Antifa members in Portland.” Id.

Plaintiffs provided the Court with video recordings which document Gibson’s activity at

Cider Riot on May 1, 2019. Buchal Decl., ECF 6 at Exs. 2–3, 9–11. The videos show that as

soon as Gibson and his supporters arrive, a hostile confrontation immediately begins between

Gibson’s group and members of Antifa. Id. at Ex. 10 (DX10) at 00:00–01:00. Gibson films

members of Antifa while narrating commentary that Cider Riot is an “Antifa Bar,” and the

masked people in the bar’s patio are Antifa members. Id. at 01:13–01:40. Several masked Antifa

members respond by yelling at Gibson’s group as well as throwing projectiles and spraying

pepper spray at Gibson and his group. Id. at 01:30–04:00. One Antifa member spits on Gibson.

Lee Decl., ECF 7 at ¶ 19. While the videos show Gibson discouraging the use of weapons at

various points and generally avoiding physical altercations, it also shows him appearing to

encourage one-on-one fist fights between members of Patriot Prayer and Antifa. Buchal Decl.,

ECF 6 at Ex. 10 (DX10) at 17:17–25:17.

When Gibson notices a fist fight breaking out between two men, he immediately runs

over and instructs the crowd to put weapons away and “let them fight” because it is “mutual

combat.” Id. at 17:17–34. When someone near Gibson tells him that “mutual combat” is not legal

he responds, “[o]h, you’re for the law? . . . .I’m talking about morals . . . .No one jump in, no one

jump in . . . . Let the men handle it.” Id. at 17:42–18:32. Gibson helps form a circle around the

fight as he continues to narrate it, saying repeatedly, “[t]his is the way it’s supposed to be, two

men fighting.” Id. at 19:20–32. When one of the men appears to step back from the fight, Gibson

shouts at him, “[o]h, he’s out. He’s out. You out? You quitting or are you in? Let’s go. It’s you

two, let’s go.” Id. at 19:32–43.

The man returns to the fight and Gibson continues to narrate, instructing members of the

crowd to put away weapons and not intervene. Id. at 19:43–20:02. When one man falls and the

fight appears to end, Gibson approaches the man still standing and says, “[g]ood job. I like that.”

Id. at 20:02–46. He then turns the camera on himself and says, “[y]es, that’s how you do it. See,

two men . . . fighting like men instead of . . . running around punching people behind their back.

He fought like a man. Now we’re going to leave like real men.” Id. at 21:20–23. Gibson appears

to begin to leave the area with the man who fell at the end of the fight. Id. at 21:45–53.

Gibson then abruptly changes course and walks back toward Cider Riot after discovering

that another Patriot Prayer member wants to engage in a fight. Id. at 21:52–22:00. When Gibson

gets back to the crowd, he says, “[w]ait, someone else wants to fight? . . . Another one? We got

one more?” Id. at 22:00–15. He asks members of the Antifa side of the crowd if they want to

fight with the member of Patriot Prayer, saying “[h]e wants to fight, you don’t want to fight him?

You don’t want to fight? Hey, do you want to fight?” Id. at 22:17–23:44. Gibson then points to

one member of the crowd and says, “I know you want to.” Id.

When it appears that no one wants to engage in the fight, Gibson encourages members of

the Patriot Prayer group to leave. Id. at 23:44–24:46. But before Gibson’s group leaves, a female

member of the Antifa group appears to approach someone in Gibson’s group and is knocked to

the ground, apparently unconscious. Id. at 24:46–25:20; Kalbaugh Decl., ECF 54 at Ex. C.

Unlike Gibson, Schultz’s actions at Cider Riot are not fully documented on video

submitted to this Court. However, an affidavit submitted in support of Schultz’s arrest claims

detectives observed video of Schultz “taunting and physically threatening members of the Antifa

group in an effort clearly designed to provoke a physical altercation,” and helping to form a

circle around the men engaged in a fist fight. Kalbaugh Decl., ECF 54 at Ex. C.

Several police reports have also been made part of the record which provide a broader

perspective of what various witnesses told the police and what police personally observed about

the events on that day. Buchal Decl., ECF 52 at 151–178. Based on those reports, some members

of Gibson’s group acted aggressively toward the Antifa members by throwing projectiles and

spraying pepper spray at Antifa members, and wielding batons. Id.; Kalbaugh Decl., ECF 54 at

Ex. C.

State Court Prosecution

After reviewing police reports, viewing video evidence, and speaking with law

enforcement, Defendant Deputy District Attorney Kalbaugh decided to issue criminal charges

against Plaintiffs and four of their associates stemming from their conduct at Cider Riot on May

1, 2019. Kalbaugh Decl., ECF 54 at ¶ 4. To commence prosecution, Kalbaugh presented an

affidavit of probable cause, an arrest warrant, a charging instrument, and a motion to seal to a

judge pursuant to O.R.S. 133.110. Id. at ¶ 6. After reviewing the documents, the judge signed the

arrest warrant and granted the government’s motion to seal the affidavit and accompanying

charging document. Id. at ¶ 7. Next, Kalbaugh presented evidence to a grand jury, which

endorsed the indictments as true bills in accordance with O.R.S. 132.400. Id. at ¶¶ 8–9. Plaintiffs

were subsequently arraigned on the indictments in accordance with O.R.S. 135.010. Id. at ¶ 11.

After arraignment, Gibson filed a demurrer arguing that the facts set forth in his indictment were

insufficient to sustain the charge against him. Buchal Decl., ECF 28 at Ex. 9. The argument was

fully briefed and ultimately rejected by the state court. Id. at Ex. 43. Trial in the state court

prosecution is currently scheduled for March 8, 2021. None of the Antifa members at Cider Riot

on May 1, 2019 were charged with crimes. Lee Decl., ECF 7 at ¶ 23.

During an October 23, 2020 hearing on Plaintiff Gibson’s motion to compel discovery in

his state court criminal case, Plaintiffs’ counsel informed the presiding judge that he believed the

conduct underlying Gibson’s criminal charges was protected speech, and that the district

attorney’s office initiated the criminal charge “for the purpose of shutting [Gibson] up.” Buchal

Decl., ECF 52 at Ex. 2, p. 23. Plaintiffs’ counsel further argued that the Constitution required

that Gibson be afforded an opportunity to present this argument before having to stand trial on

the charge he faced. Id. at Ex. 2, p. 29–30. Plaintiffs’ counsel informed the judge that “the next

motion that you will see from us will say in substance . . . [that] the Constitution requires that

we engage in this exercise before putting [Gibson] to the [jury].” Id. at Ex. 2, p. 54. In response,

the judge said, “I will certainly hear that. I will hear whatever motion you wish . . . .” Id. The

hearing concluded with Plaintiffs’ counsel telling the judge that they would get this argument

“teed up in front of your Honor,” to which the judge responded, “[o]kay.” Id. at Ex. 2, p. 58. At

the hearing before this Court, Plaintiffs’ counsel conceded that they have not yet pursued such a

motion in state court.

The Non-Prosecution Policy

On August 11, 2020, newly elected District Attorney Mike Schmidt announced a new

policy which expressly applied to criminal cases arising from ongoing nightly protests in

response to the murder of George Floyd on May 25, 2020. Lee Decl., ECF 7 at Ex. F. The policy

stated that all cases “arising from the current protests in our community” would be presumptively

dismissed where a defendant was charged with only a single count of riot and their conduct did

not involve “property damage, theft, or the use or threat of force against another person.” Id.

In announcing the policy, District Attorney Schmidt released the following statement

explaining its rationale:

Members of our community have taken to the streets every night since the murder of

George Floyd to express their collective grief, anger, and frustration over not just that

senseless act of violence, but the countless other abuses People of Color have endured

in our country throughout history. The demands for change go beyond calling for an end

to police violence and encompass the need for all of us to acknowledge and address

centuries of racism and oppression that are manifested in mass incarceration, economic

inequality, educational disadvantages, and disparities in health care that have allowed

COVID-19 to ravage our communities of color.

As prosecutors, we acknowledge the depth of emotion that motivates these

demonstrations and support those who are civically engaged through peaceful protesting.

We recognize that we will undermine public safety, not promote it, if we leverage the

force of our criminal justice system against peaceful protestors who are demanding to be

heard.

The Multnomah County District Attorney’s Office will always strive to advance the

safety of our community and its members. We recognize the need to broaden our vision

of what a safe community means and our role in promoting that vision. To advance

public safety we must not only prevent crime, but must also promote economic and

housing stability, educational opportunities, strong family and community relationships,

and the mental and physical health of all those who live in our county.

Seen through that lens, the prosecution of cases relating solely to protest activities, most

of which have a weak nexus to further criminality and which are unlikely to be deterred

by prosecution, draws away from crucially needed resources. As stewards of public

resources, we must devote our efforts to prosecuting crimes that allow us to protect our

most vulnerable victims to have the greatest impact on promoting a safer community for

everyone in Multnomah County.

Lee Decl., ECF 7 at Ex. F.

Believing that Gibson’s charge warranted presumptive dismissal under the new policy,

Plaintiffs’ counsel sent Deputy District Attorney Kalbaugh a letter on August 11, 2020, asking

that Gibson’s charges be dropped. Id. at Ex. G. After conferring with District Attorney Schmidt,

Kalbaugh informed Plaintiffs’ counsel that because the “new policy pertaining to riot trials is not

retroactive,” the charges against Plaintiffs would not be dropped. Id. at Ex. I.

In an email sent on August 14, 2020, Plaintiffs’ counsel wrote to Kalbaugh to ask why

the policy would not be applied retroactively to Plaintiffs. Id. at Ex. J. Counsel wrote, “I don’t

see anything in the policy regarding retroactivity . . . However, it does say that the policy will

apply to ‘all referred cases arising from the current protests.’ So, just so I understand, it does

apply to cases from the protests that began around the end of May of 2020 through current, but

does not apply back further to Mr. Gibson’s case?” Id. Kalbaugh responded “[t]hat’s my

understanding.” Id. Plaintiffs have not presented any evidence that the District Attorney’s Office

has applied the non-prosecution policy to any protesters charged with riot outside of the George

Floyd protests.

Plaintiffs’ Federal Court Claim

Plaintiffs initiated this federal court action on September 11, 2020. ECF 1. They claim

“Defendants are engaged in a bad faith, selective, and retaliatory prosecut[ion] of Plaintiffs” in

response to Plaintiffs’ “publicly expressed opinions with which Defendants disagree.” ECF 35 at

¶ 2. Plaintiffs assert that Defendants’ bad faith motives are evidenced by the political

environment in Portland and the circumstances surrounding their arrests and prosecutions.

With respect to the political environment, Plaintiffs allege that political leaders in

Portland, joined by the local media, have engaged in a longstanding, “continuous attack upon

Mr. Gibson for his political views” while displaying “an extraordinary failure to provide equal

protection of the laws where Antifa members were concerned.” Id. at ¶ 25; see also Buchal

Decl., ECF 6 at ¶ 3. Plaintiffs focus specifically on newly elected District Attorney Mike

Schmidt and Mayor Ted Wheeler as biased in favor of Antifa members and against Gibson. ECF

35 at ¶¶ 40, 47, 82–87, 140–46, 157–59; ECF 50 at 6. Plaintiffs allege a “political alliance

between defendants and the Antifa/BLM movement,” based on, among other things, the District

Attorney’s Office’s failure to prosecute riot charges against individuals involved in unlawful

conduct during the George Floyd protests and the fact that 43 prosecutors from the District

Attorney’s Office formally requested that the office issue “a public and unequivocal statement in

support of Black Lives Matter.” ECF 50 at 6; Buchal Decl., ECF 52 at ¶ 9. As further evidence

of political bias against Plaintiffs, Plaintiff Schultz claims he was told by a law enforcement

officer during his arrest that Mayor Wheeler had “pressured” the District Attorney to charge

Plaintiffs. Schultz Decl., ECF 9 at ¶ 9.

With regard to the circumstances surrounding their prosecutions, Plaintiffs claim

Defendants’ bad faith is shown by Defendants excluding Plaintiffs from participating in the

grand jury process, the timing of Plaintiffs’ arrests, a lack of evidence supporting their riot

charges, and Defendants’ refusal to apply the new non-prosecution policy to dismiss their cases.

Buchal Decl., ECF 6 at ¶ 79. Plaintiffs also challenge the veracity of the affidavits used to

support their indictments. Id. at ¶¶ 86–87.

Defendants counter that the charges brought against Plaintiffs were supported by

probable cause and were based on information gathered by the police after reviewing videos and

interviewing witnesses. ECF 53 at 4–5. Defendants characterize Plaintiffs’ conduct on May 1,

2019 as “taunting and physically threatening members of the Antifa group in an effort clearly

designed to provoke a physical altercation,” and note that the “videos show Plaintiffs in a circle

surrounding two people engaged in a fist fight, Plaintiff Gibson physically push a woman, and

the Plaintiffs’ group throwing projectiles, including a rock.” Id. at 4. Defendants further argue

that the pending state prosecutions were presented to a grand jury and a judge and were

determined to be supported by probable cause. Id. at 3. They also assert that Plaintiffs have no

“standing” to challenge the non-prosecution policy because “it does not apply to them.” Id. at 8.

At the hearing before this Court on February 19, 2021, Defendants’ counsel argued for the very

first time in this litigation that the purpose of District Attorney Schmidt’s non-prosecution policy

was to effectively manage resources in the wake of hundreds of arrests that occurred during the

George Floyd protests. Defendants do not address why no Antifa members were charged in the

May 1, 2019 Cider Riot incident.

STANDARDS

A. Younger Abstention

Younger abstention is a “circumscribed exception to mandatory federal jurisdiction,”

which provides that federal courts sitting in equity cannot, absent exceptional circumstances,

enjoin pending state criminal proceedings. Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 617

(9th Cir. 2003) (internal quotation marks omitted); Younger, 401 U.S. at 42–54. “[R]ooted in

overlapping principles of equity, comity, and federalism,” San Jose Silicon Valley Chamber of

Com. Pol. Action Comm. v. City of San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008), Younger

abstention is a jurisprudential doctrine centrally concerned with the “threat to our federal system

posed by displacement of state courts by those of the National Government,” Moore v. Sims, 442

U.S. 415, 423 (1979). In light of these considerations, a federal court must determine whether

Younger abstention applies and requires dismissal before it can consider the merits of a claim

challenging ongoing state court proceedings. Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d

1048, 1058 (9th Cir. 2016).

Younger abstention applies where, “(1) a state-initiated proceeding is ongoing; (2) the

proceeding implicates important state interests; (3) the federal plaintiff is not barred from

litigating federal constitutional issues in the state proceeding; and (4) the federal court action

would enjoin the proceeding or have the practical effect of doing so, i.e., would interfere with the

state proceeding in a way that Younger disapproves.” San Jose, 546 F.3d at 1092. Where all four

elements are met, the district court is required to dismiss the action. Canatella v. California, 404

F.3d 1106, 1113 (9th Cir. 2005) (“Younger abstention imposes mandatory limits on the federal

courts’ ability to exercise jurisdiction.”).

The Supreme Court has recognized limited exceptions to mandatory abstention under

Younger where there is a “showing of bad faith, harassment, or some other extraordinary

circumstance that would make abstention inappropriate.” Middlesex Cty. Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 435 (1982). Such exceptions are “narrow.” Huffman v.

Pursue, Ltd., 420 U.S. 592, 602 (1975). They apply “[o]nly in cases of proven harassment or

prosecutions undertaken by state officials in bad faith without hope of obtaining a valid

conviction and perhaps in other extraordinary circumstances where irreparable injury can be

shown.” Perez v. Ledesma, 401 U.S. 82, 85 (1971); see also Juidice v. Vail, 430 U.S. 327, 338

(Younger exceptions “may not be utilized unless” a plaintiff can “allege[] and prove[]” bad faith

or harassment.).

DISCUSSION

B. Younger Abstention

1. State-initiated proceedings are ongoing

First, the Court must determine whether there are ongoing state judicial proceedings. San

Jose, 546 F.3d at 1092. As noted in the amended complaint, Plaintiffs seek an injunction barring

the “continued prosecution of Plaintiffs in State v. Gibson (19CR53042) and State v. Schultz

(19CR53035).” ECF 35 at ¶ 1. At the hearing before this Court on February 19, 2021, the parties

confirmed that the state criminal proceedings are ongoing and trial is set for March 8, 2021.

Accordingly, this element is satisfied.

2. The state proceedings implicate important state interests

Second, in order for Younger to apply, the state proceeding must implicate important

state interests. San Jose, 546 F.3d 1092. Whether a proceeding implicates important state

interests “is measured by considering its significance broadly, rather than by focusing on the

state’s interest in the resolution of an individual case.” Baffert, 332 F.3d at 618.

The state court proceedings here clearly implicate important state interests. Plaintiffs are

charged in Oregon state courts with violating an Oregon criminal statute. See Gilbertson v.

Albright, 381 F.3d 965, 977 (9th Cir. 2004) (en banc) (“[J]udicial proceedings or disciplinary

proceedings which are judicial in nature are the type of proceeding that does implicate an

important state interest.”).

Plaintiffs argue that Defendants’ adoption of the Policy shows that “the state has no

interest in prosecuting riot relating to protest activity.” ECF 55 at 5. This argument

misunderstands the relevant inquiry. Younger abstention is concerned with “federal court

interference with state court proceedings.” Younger, 401 U.S. at 43 (emphasis added). The

important state interest here is the state’s interest in adjudicating state criminal cases within its

own judicial system, not the district attorney’s office’s interest in pursuing the specific charges in

this case. Thus, this element is also satisfied.

3. Plaintiffs are not barred from litigating federal constitutional issues in the state

proceedings

Next, this Court must determine whether Plaintiffs have “an adequate opportunity in the

state proceedings to raise constitutional challenges.” Middlesex Cty., 457 U.S. at 432. “The

‘adequate opportunity’ prong of Younger . . . requires only the absence of ‘procedural bars’ to

raising a federal claim in the state proceedings.” Commc’ns Telesys. Int’l v. Cal. Pub. Util.

Comm’n, 196 F.3d 1011, 1020 (9th Cir. 1999) (citing Middlesex Cty., 457 U.S. at 432). “[A]

federal court should assume that state procedures will afford an adequate remedy, in the absence

of unambiguous authority to the contrary.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987).

“[T]he burden on this point rests on the federal plaintiff[s] to show that ‘state procedural law

barred presentation of [their] claims.’” Id. at 14 (quoting Moore, 442 U.S. at 432).

Plaintiffs have not met their burden. They argue that they do not have an adequate

opportunity to raise their constitutional challenges in state court because they are “limited to

[seeking] post-conviction relief.” ECF 55 at 5 (internal quotation marks omitted). Plaintiffs

further suggest that they cannot get fair and balanced consideration of their selective prosecution

and viewpoint discrimination claims in state court. ECF 50 at 3 n.1. However, these arguments

are not supported by the facts of this case or the law.

First, Plaintiffs’ opportunity to raise their constitutional claims in state court is not limited

to post-conviction proceedings. Indeed, Plaintiffs’ counsel informed the state court during an

October 23, 2020 hearing that he intended to file a motion arguing that Gibson’s prosecution was

being pursued in bad faith for the purpose of chilling protected speech, and that the Constitution

required that the state court address this argument before Gibson stood trial on his riot charge.

ECF 52 at Ex. 2, p. 23, 29–30, 57–58. In response, the state court judge said “I will certainly hear

that. I will hear whatever motion you wish . . . .” Id. at Ex. 2, p. 54. Further, there is no evidence

in the record that any judge exhibited bias against Plaintiffs.

Criminal defendants in Oregon state court can and do raise federal constitutional

challenges based on claims of vindictive and selective prosecution at the trial court level, which

may then be reviewed by the Oregon Court of Appeals and the Oregon Supreme Court. See e.g.,

State v. Farrar, 309 Or. 132, 134–142 (1990) (reviewing state trial court’s denial of selective

prosecution claim which defendant was afforded the opportunity to develop at a pretrial hearing);

State v. Kadderly, 176 Or. App. 396 (2001) (reviewing state trial court’s denial of a motion to

dismiss a criminal indictment for selective and vindictive prosecution).

Second, even if Plaintiffs were unable to raise their claims until post-conviction

proceedings, the opportunity to raise federal constitutional challenges on judicial review satisfies

the third requirement of Younger. See Hirsh v. Justs. of Sup. Ct. of Cal., 67 F.3d 708, 713 (9th

Cir. 1995) (citing Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619,

629 (1986); Kenneally v. Lungren, 967 F.2d 329, 332 (9th Cir.1992)).

Therefore, Plaintiffs are not barred from litigating federal constitutional issues in their

state court proceedings and this requirement is met.

4. The instant federal action would enjoin the state court proceedings or have the

practical effect of doing so

Finally, the Court must determine whether the requested relief in the instant action would

“enjoin—or have the practical effect of enjoining—ongoing state proceedings.” ReadyLink

Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014). Here, Plaintiffs

seek “an order temporarily and then permanently enjoining Defendants from prosecution of

Plaintiffs in State v. Gibson (19CR53042) and State v. Schultz (19CR53035).” ECF 35 at ¶ 183.

Accordingly, the fourth requirement is met, and the Court must dismiss this case pursuant to the

Younger abstention doctrine unless an exception applies. See, e.g., Herrera v. City of Palmdale

918 F.3d 1037, 1042 (9th Cir. 2019) (“when a court abstains under Younger, claims for

injunctive and declaratory relief are typically dismissed”).

5. No exception to Younger abstention applies

a. Bad Faith

As noted above, the bad faith and harassment exceptions to Younger abstention are

“narrow.” Huffman, 420 U.S. at 602. These exceptions “may not be utilized unless” a plaintiff

can “allege[] and prove[]” bad faith or harassment. Juidice, 430 U.S. at 338; see also DeMartino

v. N.Y. State Dep’t of Labor, 167 F. Supp. 3d 342, 354 (E.D.N.Y 2016) (“A party seeking to

circumvent Younger abstention bears the burden of establishing the applicability of one of the[]

exceptions”). For Younger abstention purposes, bad faith “generally means that a prosecution has

been brought without a reasonable expectation of obtaining a valid conviction.” Kugler v.

Helfant, 421 U.S. 117, 126 n.6 (1975). The bad faith exception does not come into play simply

because the state might have brought a weak case against a defendant. Kihagi v. Francisco, No.

15-cv-01168-KAW, 2016 WL 5682575, at *4 (N.D. Cal. Oct. 3, 2016) (“Evidence of bad-faith

harassment . . . must be more than the prosecution of close cases.”).

Plaintiffs argue that the bad faith exception applies because (1) the state has no

reasonable expectation of obtaining valid convictions and (2) the prosecutions were undertaken

and continue for the purpose of retaliating against and deterring Plaintiffs’ political activity. ECF

50 at 22–32. The Court considers each argument in turn.

i. Reasonable expectation of obtaining a valid conviction

Plaintiffs are each charged with one count of riot pursuant to O.R.S. 166.015. ECF 35 at

¶ 3. The statute explains that “[a] person commits the crime of riot if while participating with

five or more other persons the person engages in tumultuous and violent conduct and thereby

intentionally or recklessly creates a grave risk of causing public alarm.” O.R.S. 166.015. Under

O.R.S. 166.015, “tumultuous and violent conduct” includes “interference with a victim’s escape

or obstruction of persons who might assist the victim.” State ex rel. Juvenile Dep’t of

Washington Cty. v. Saecho, 167 Or. App. 227, 236 (2000). In Saecho, the Oregon Court of

Appeals found that a youth engaged in “tumultuous” behavior under O.R.S. 166.015 by joining a

group of boys to threaten and surround a victim, preventing his escape while another boy

attacked him. Id. at 229–30, 236. The court noted that “[t]here is certainly nothing within the

meaning of [O.R.S. 166.015] that requires that a participant have physical contact with any other

person.” Id. at 236.

As noted above, video recordings from that day show Gibson encouraging one-on-one

fist fights between members of Patriot Prayer and Antifa. Buchal Decl., ECF 6, Ex. 10 (DX10),

at 17:17–25:17. Gibson is shown helping to form a circle around a fight, encouraging the

participants to continue fighting when they take a break, and instructing members of the crowd

not to intervene. Id. at 19:20–20:02.

At one point, Gibson begins soliciting members of the crowd to fight a member of Patriot

Prayer, saying “[h]e wants to fight, you don’t want to fight him? You don’t want to fight? Hey,

do you want to fight?” and pointing to one member of the Antifa crowd and saying, “I know you

want to.” Id. at 22:17–23:44.

While Schultz’s actions at Cider Riot are not fully documented on video submitted to this

Court, an affidavit submitted in support of his arrest claims detectives observed video of Schultz

“taunting and physically threatening members of the Antifa group in an effort clearly designed to

provoke a physical altercation,” and helping to form a circle around the men engaged in a fist

fight. Kalbaugh Decl., ECF 54 at Ex. C. The physical altercations between Plaintiffs’ group and

Antifa continued to escalate until one of Plaintiffs’ associates allegedly knocked a woman

unconscious. Id.1

Based on this Court’s review of the videos presented by Plaintiffs and the police reports

documenting police observations and witness statements, once Gibson and his group appeared at

Cider Riot on May 1, 2019, the scene degenerated into a chaotic melee of angry people both

from Antifa and from Gibson’s group throwing insults and projectiles at one another, as well as

pepper spraying each other, and then fighting each other. Buchal Decl., ECF 52 at 151–178;

Buchal Decl., ECF 6 at Ex. 10 (DX10). It is not appropriate for this Court to determine the

accuracy of all the statements and reports as long as the record shows that the prosecution

brought the charges with a reasonable expectation of conviction.

Plaintiffs’ charges have survived scrutiny under the state court system’s procedural

safeguards. Deputy District Attorney Kalbaugh presented an affidavit of probable cause, an

arrest warrant, a charging instrument, and a motion to seal to a judge who signed the arrest

warrant and granted the government’s motion to seal the affidavit and accompanying charging

document. Kalbaugh Decl., ECF 54 at ¶¶ 6–7. The facts in Deputy District Attorney Kalbaugh’s

affidavit were derived from police reports, video evidence, and conversations with law

enforcement investigators. Id. at Ex. C. A grand jury then endorsed the indictments as true bills

and Plaintiffs were arraigned. Id. at ¶¶ 8–9, 11. After arraignment, Plaintiff Gibson filed a

demurrer arguing that the facts set forth in his indictment were insufficient to sustain the charge

1 Although this Court had the opportunity to review video provided by Plaintiffs’ counsel, which

showed a limited view of the events, police officers apparently had access to additional video

recordings which were provided to the District Attorney’s Office. Kalbaugh Decl., ECF 54 at Ex.

C; Buchal Decl., ECF 52 at 151–178.

against him. Buchal Decl., ECF 28 at Ex. 9. The argument was fully briefed and ultimately

rejected by the state court. Id. at Ex. 43. This Court finds no evidence in the record suggesting

the presence of any procedural deficiencies in Plaintiffs’ state court proceedings. While evidence

that Plaintiffs’ charges have gone through the traditional state criminal process is not dispositive

on the issue of bad faith, it is powerful evidence tending to rebut the assertion that the charges

are a complete “sham,” as argued by Plaintiffs.

Based on this record, this Court finds that Plaintiffs have not proven that Defendants filed

the charges against them without a reasonable expectation of obtaining a valid conviction.

Although Plaintiffs make compelling arguments that their conduct does not rise to the level of

“tumultuous and violent” conduct under O.R.S. 166.015, they have not met their burden of

showing that the charges against them are facially meritless such that this Court should invoke

the narrow bad faith exception to Younger abstention. In so finding, this Court is not making any

determination about the strength of the prosecution’s case and whether ultimately the prosecution

can prove the charges against the Plaintiffs beyond a reasonable doubt. It is inappropriate for this

Court to weigh in on the strength of the evidence and Plaintiffs will have the opportunity to

litigate whether the evidence is sufficient to support the charge of riot in their state court

proceedings.

ii. Selective and Retaliatory Prosecution

Next, Plaintiffs argue that Younger’s bad faith exception applies here because their

criminal prosecutions were undertaken for the purpose of interfering with Plaintiffs’

constitutionally protected speech. ECF 50 at 24–32. Plaintiffs contend that where a prosecution

is shown to be motivated by a desire to chill First Amendment expression, Younger’s bad faith

exception applies even without proof that the state has no reasonable expectation of obtaining a

valid conviction. Id. at 24.

First, it is not clear that Younger’s bad faith exception may be applied without a showing

that the state has no reasonable expectation of obtaining a valid conviction. Some courts have

held that the bad faith exception applies only where plaintiffs prove that the state has initiated the

state court proceedings without any reasonable expectation of success. See Carbone v. Zollar,

845 F. Supp. 534, 538 (N.D. Ill. 1993); Gwynedd Props. v. Lower Gwynedd Twp., Civ. A. No.

91–6567, 1991 WL 270004, at *3 (E.D. Pa. Dec. 12, 1991) (aff’d in part, rev’d in part on other

grounds, 970 F.2d 1195 (1992)). Courts adhering to this interpretation have held that “allegations

of selective prosecution are insufficient in themselves to meet the bad faith exception.” Carbone,

845 F. Supp. at 538; see also Miller v. Sutton, No. 3:15-cv-1111 (MPS), 2016 WL 3976540, at

*17 (D. Conn. July 21, 2016) (“It is unclear that claims of selective prosecution—even when

adequately alleged—are sufficient to establish that the narrow bad faith exception to Younger

applies.”).

Second, even if this Court were to apply the broader interpretation of the bad faith

exception urged by Plaintiffs, this case would still not qualify. A closer look at the cases

Plaintiffs rely on to proffer this approach is illustrative. Plaintiffs cite two cases where federal

courts chose to apply Younger’s bad faith exception in the absence of proof that the challenged

state court proceedings had been initiated without a reasonable expectation of success, Fitzgerald

v. Peek, 636 F.2d 943 (5th Cir. 1981) and Lewellen v. Raff, 843 F.2d 1103 (8th Cir. 1988).2 ECF

2 Plaintiffs also cite Younger, 401 U.S. at 48, Elrod v. Burns, 427 U.S. 347 (1976), and United

States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992) to support their argument that under certain

circumstances Younger’s bad faith exception can apply even without a showing that the state has

no reasonable expectation of success. These cases do not support Plaintiffs’ argument. The cited

portion of Younger discusses Dombrowski v. Pfister, 380 U.S. 479 (1965), where a federal

injunction was granted based on threats of state prosecutors to enforce criminal statutes without

“any expectation of securing valid convictions.” Younger, 401 U.S. at 48 (quoting Dombrowski,

380 U.S. at 482). Neither Elrod nor P.H.E. involved Younger abstention at all.

50 at 24. In both Fitzgerald and Lewellen, federal plaintiffs sought injunctions of state criminal

prosecutions in part because of the bad faith actions of state court judges. In Fitzgerald, the

district court found that a state court “prosecution was brought for the purposes of harassment

and retaliation and would not have been brought but for the improper influence exerted on the

prosecutor by certain [] judges to seek the indictments.” 636 F.2d at 945. Similarly, in Lewellen,

the judge presiding over the plaintiff’s state criminal case was a named defendant in the

plaintiff’s federal action seeking an injunction of the state proceeding. 843 F.2d at 1108. The

district court found that the state court judge had aided prosecutors in a conspiracy to criminally

charge the plaintiff, who was a lawyer, “(1) because of his race; (2) because he had vigorously

attempted to defend his client . . . against [a] rape charge; and (3) because they wished to thwart

[plaintiff’s] campaign for state office against a political ally of [the local sheriff].” Id. at 1110.

Findings of bad faith on the part of the judges overseeing state proceedings undermine Younger’s

central rationale of comity and respect for state functions. It would be illogical for a federal court

to insist that a plaintiff air a claim in state court when the state court itself is source of the injury.

This case is not like Fitzgerald and Lewellen. Nothing in the record suggests any

impropriety on the part of the state court in Plaintiffs’ criminal proceedings. To the contrary, the

judge in Plaintiff Gibson’s case explicitly indicated a willingness to hear his selective

prosecution claim before trial. ECF 52 at 118. Here, where the record is devoid of any reason to

mistrust the state proceedings, Younger’s comity rationale is in full effect and the application of

the bad faith exception is unwarranted. See Hicks v. Miranda, 422 U.S. 332, 351 (1975).

As circumstantial evidence of bad faith, Plaintiffs point to the state’s refusal to extend the

non-prosecution policy retroactively to Plaintiffs’ cases, while incidents of allegedly more

extreme conduct from the George Floyd protests went uncharged pursuant to the non-prosecution

policy. ECF 50 at 26–27, 29–31. Plaintiffs also cite to the fact that Antifa participants in the

Cider Riot conflict were not criminally charged. Id.. They further speculate that their charges

were filed at a time designed to deter their participation in another anti-Antifa protest and that

their charges “would not have been brought but for the improper influence on the prosecutor by

Mayor Wheeler.”3 Id. at 26, 28. These allegations are not based on sufficient concrete evidence

to meet the heavy burden of proving that Younger’s bad faith exception applies. See Joseph v.

City of San Jose, Case No. 19-CV-01294-LHK, 2020 WL 1031899, at *16 (N.D. Cal Mar. 3,

2020) (“A plaintiff must provide something more than conclusory allegations that the state

proceeding is the product of bad faith or harassment.”); Kihagi, 2016 WL 5682575, at *4

(“Evidence of bad-faith harassment must be more than multiple prosecutions, must be more than

conclusory statements about motive, must be more than a weak claim of selective prosecution,

and must be more than the prosecution of close cases.”) (internal quotation marks and citation

omitted).

In the briefing, counsel for Defendants failed to provide any justification for the non-

prosecution policy or explain why it was not evidence of Defendants’ bias against Plaintiffs.

Instead, counsel mistakenly argued Plaintiffs have no “standing” to challenge the policy because

3 In a declaration prepared by their counsel, Plaintiffs claim that in March 2019, “it was publicly

reported that Mayor Wheeler was bringing pressure on the Multnomah County District

Attorney’s office to arrest right wing protesters.” Buchal Decl., ECF 6 at ¶ 28 & n.25 (citing AP,

Assault arrest made after Portland mayor complains (Mar. 13, 2019),

https://www.registerguard.com/news/20190312/assault-arrest-made-after-portland-mayor-

complains). However, the cited article does not support this assertion because it only reports that

Mayor Wheeler publicly complained that criminal charges were not being pursued in the wake of

a violent altercation between members of Patriot Prayer and Antifa. Although the article reports

that a member of the right-wing Proud Boys group was arrested on assault charges a day after the

Mayor’s comments, there is no indication in the reporting that the Mayor called for right wing

participants in the altercations to be arrested over members of Antifa. In fact, the article reports

that Mayor Wheeler vowed that “anyone fighting will not go unpunished.”

Plaintiffs’ charges occurred outside of the policy time period. ECF 53 at 8. At the hearing,

counsel for Defendants raised resource considerations for the very first time in this litigation as

the purpose of the policy, without offering any evidence to support her position, other than the

language of the policy itself. Inexplicably, counsel for Defendants also completely ignores

Plaintiffs’ argument that the fact that no Antifa members were charged in the Cider Riot incident

on May 1, 2019 shows Defendants’ animus toward Plaintiffs’ viewpoint. Despite defense

counsel’s deficient arguments, this Court finds that the record does not establish that the

prosecutions against Plaintiffs were brought in bad faith such that this Court should intervene in

the state court prosecution. Defendant Kalbaugh’s affidavit establishes that he relied on police

reports recounting the events at Cider Riot, as well as interviews with law enforcement and his

own review of the videos. Kalbaugh Decl., ECF 54 at ¶ 4. Based on his review, Kalbaugh

determined that there was probable cause to support the riot charges against Plaintiffs. That

determination was then supported by a state court judge who issued arrest warrants and by the

grand jury which returned indictments based on the evidence presented. Id. at ¶¶ 6–9. In this

Court’s view, the fact that others at the scene of Cider Riot could also have been charged with

criminal conduct is not sufficient to establish bad faith.

Similarly, this Court does not find that Defendants’ failure to apply District Attorney

Schmidt’s non-prosecution policy retroactively to Plaintiffs is sufficient to support their claim of

bad faith. There is no evidence that the non-prosecution policy has been applied retroactively to

any cases from before the George Floyd protests, nor has any evidence been presented indicating

the political ideologies of those who have benefitted from the new non-prosecution policy. To

the extent that the policy was indeed an effort to address the resource constraints brought about

by hundreds of arrests during the summer protests, the policy is poorly written and should have

clearly stated that. The District Attorney certainly has broad discretion to manage his resources,

and to set new policies that are not to be applied retroactively. He does not have discretion to

prosecute people based on viewpoints with which he does not agree. But this Court does not find

on the record presented that the failure to apply the policy to Plaintiffs is sufficient to show that

Plaintiffs are being prosecuted based on viewpoint.

Plaintiffs also point to the two-month delay between the May 1, 2019 altercation and

Gibson’s arrest, which they claim “was designed to suppress plaintiff’s participation in a well-

publicized future conservative event.” ECF 50 at 35. But this Court does not find that a two-

month delay between the May 1, 2019 incident and Mr. Gibson’s arrest was suspiciously timed

based on the amount of evidence the prosecution had to examine. See Kalbaugh Decl., ECF 54 at

¶ 4. Furthermore, Gibson was not detained on these charges, so he was free to engage in any

protests. Accordingly, there is no evidence to support the theory proffered by Plaintiffs.

Plaintiffs also assert that the prosecutor’s decision not to invite Mr. Gibson to testify

before the grand jury shows bad faith. This assertion is without merit. The prosecution has

complete discretion to determine which witnesses to present to a grand jury and, for several

reasons, it is highly unusual for a defendant to testify at that early stage in a criminal prosecution.

In finding that Plaintiffs have not shown that this case fits into the narrow bad faith

exception to Younger abstention, this Court is not opining on the ultimate validity of their

selective prosecution claim. Plaintiffs can raise the same claim in their state criminal proceedings

where it can be fully and fairly litigated. See Middlesex Cty., 457 U.S. at 431 (“Minimal respect

for the state processes . . . precludes any presumption that the state courts will not safeguard

federal constitutional rights.”) (emphasis omitted).

b. Irreparable Injury

Finally, Plaintiffs argue Younger abstention should not apply because this case presents

“extraordinary circumstances” where there is both “great and immediate” danger that Plaintiffs

will suffer irreparable injury unless this Court enjoins their state proceedings.” ECF 50 at 32–37

(citing Younger, 401 U.S. at 46). Plaintiffs claim they face danger of great and immediate

irreparable injury because (1) their prosecutions were brought in bad faith, (2) their First

Amendment rights have been blatantly infringed by public officials, (3) there is a reasonable

possibility “that they will face prosecution again if they engage in advocacy of the same genre as

that which brought on the initial prosecution,” and (4) they have suffered reputational and

economic injury which “far exceeds the normal costs and anxiety associated with defending

against [] criminal prosecution.” Id.

First, as explained above, Plaintiffs have not met their burden of proving that their state

court prosecutions were brought in bad faith sufficient to fall within a narrow exception Younger

abstention. Second, even assuming Plaintiffs can show that their First Amendment rights have

been violated, any threat of injury would not be “great and immediate” because Plaintiffs can

raise this claim in state court. Plaintiffs’ third argument only presents a danger of irreparable

injury if the conduct underlying their criminal charges is constitutionally protected, which has

not been established.

Finally, Plaintiffs have not shown economic injury and reputational damage far

exceeding the normal costs associated with defending against a single prosecution. The cost,

anxiety, and inconvenience of defending against a single prosecution brought in good faith is not

enough to establish the great and immediate threat of irreparable injury necessary to justify

enjoining a pending state proceeding. Younger, 401 U.S. at 46. Plaintiffs’ attempt to analogize

their economic and reputational damage to Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972),

fails. ECF 50 at 36. In Krahm, the Ninth Circuit found that a group of owners and clerks of

newsstands and bookstores facing more than 90 pending prosecutions under a state’s anti-

obscenity law despite having already secured 11 acquittals in similar cases would suffer

irreparable injury absent federal intervention. Id. at 707–08. In addition to the facially obvious

difference in scale between the harm faced by Plaintiffs and the plaintiffs in Krahm, Plaintiff

Gibson’s own words betray his claim of exceptional economic and reputational harm. In a

November 2019 interview, while Gibson was facing his current riot charge in addition to

unrelated civil lawsuits, he said, “I haven’t seen things get harder for me. I have seen more

support from people seeing how serious this is . . . . I’ll get like 3,000 extra subscribers the day

that I get charged.” ECF 53 at 7 (citing Jonathan Levinson, Patriot Prayer, Proud Boys Continue

Violence Even As Legal Consequences Mount, Or. Pub. Broadcasting (Nov. 14, 2019),

https://www.opb.org/news/article/patriot-prayer-proud-boys-political-violence-law-

enforcement/).

Thus, Plaintiffs have not shown that this case presents extraordinary circumstances

where they face great and immediate danger of irreparable injury absent federal intervention.

CONCLUSION

This Court finds that Younger abstention applies to this case. Accordingly, this case is

DISMISSED without prejudice and Plaintiffs’ Motion for Temporary Restraining Order and

Preliminary Injunction, ECF 5, is DENIED as moot.

IT IS SO ORDERED.

DATED this 26th day of February, 2021.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge