Monday, May 13, 2013


What is a preliminary injunction?

by Larry Geller

See: Breaking: City to be enjoined by federal court on (de)Occupy raids, (5/10/2013).

It would be foolish to speculate on what might happen in the May 17 hearing in federal court in the case that (de)Occupy Honolulu has brought against the city. We know that the plaintiffs have been asking for an order to stop the city from seizing and destroying their property, but we don’t know what was agreed in Judge Seabright’s chambers on Friday. We do know that the attorneys are to work together before the hearing on the wording of a stipulated preliminary injunction.

We don’t know what the scope of a potential injunction might be. It could be very narrowly limited to “stop throwing things into the garbage trucks!” as a guess. Or the injunction might simply prevent the City from enforcing its newer ordinance, which denies the victim of the raids the opportunity of due process.

Instead of veering off into speculation, I’d just like to explore what is involved when a federal judge in the 9th Circuit issues a preliminary injunction.

I’m not an attorney, but my understanding is that the court will apply a four-prong test that goes something like this:  (1) Plaintiffs have to show that they will likely succeed on the merits, (2) that they will suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that the public interest would not be adversely affected by an injunction (alternatively, that an injunction would be in the public interest).

Although district judges have great discretion in determining whether to issue a preliminary injunction or not, there are standards of review that apply within each circuit.

First, injunctive relief is not routine. It is an extraordinary remedy granted only when the plaintiff has made a clear showing that such relief is necessary. This requires not only evidence convincing to a judge but expert presentation on the part of the attorney. But again: the merits of the case have not been tried at this point. Injunctive relief, if it is granted, is only the first step in a longer process. In our system of justice, with overloaded courts, a trial on the merits of a case could stretch out for years.

Looking at the (de)Occupy case against the city, Judge Seabright has had a chance to review as many of the videos and depositions filed so far as he feels necessary, so he can likely form an idea of whether the plaintiffs might prevail ultimately.

That’s only the first of the four prongs, and it doesn’t imply that plaintiffs actually will succeed at trial. 

The “harm” can’t be theoretical, it has to be concrete.

As to the balance of equities (or balance of hardships, perhaps), I’m very interested to see how the judge might weigh the harm to the plaintiffs vs. the harm to the city. The judge must weigh the damage to all parties and balance their individual interests. As an observer, I’ve thought that decisions on the balance of equities are something of an art, but when the orders are published, they often bristle with enough citations to demonstrate that they are based on solid precedent.

As to the public interest, it could be instructive to see what the court has to say about that, and what the judge might say about the public consequences of the injunction.

The hearing that could determine if an injunction is issued will be held at 9 a.m. on Friday, May 17, in federal court in Honolulu. There are plenty of seats available for observers—just leave time to get through security.


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