Powelson v. City of Sausalito

Background

The court considered Robbie Powelson’s second motion for a temporary restraining order (TRO). A TRO is an emergency order intended to preserve the situation temporarily while a court considers whether broader preliminary relief is warranted. Powelson asked the court to prohibit the City of Sausalito and others acting with the City, including City police, from harassing or threatening him at the Marinship Park encampment.

Powelson said the City was retaliating against him because he had participated in litigation against the City and engaged in expressive activity criticizing it. Although he was no longer a resident of the encampment, he said he continued going there to help residents who had filed, or intended to file, lawsuits against the City and to record or photograph conduct at the encampment, particularly by City police and Urban Alchemy employees. He said he acted as a journalist or at least provided recordings and photographs to media outlets.

Court’s analysis

The court applied the same standards used for a preliminary injunction. Those standards require consideration of the likelihood of success on the merits, likely irreparable harm without an injunction, the balance of hardships, and the public interest. The court also recognized a sliding-scale approach under which a strong showing on some factors may affect the showing required on others.

The court first addressed irreparable harm and concluded that Powelson had not made a sufficient showing. It characterized the underlying access issue as whether Powelson was entitled to enter the tennis-court area where the tents and platforms were located. The City had a Code of Conduct for that area that prohibited guests from entering the encampment. The court reasoned that Powelson could assist residents from the area immediately outside the tennis courts, where the City had essentially confirmed he would not be asked to leave.

The court also found that Powelson had not shown he could not record or photograph activities inside the camp from immediately outside the tennis-court area. Residents inside the camp could also record or photograph those activities. The court stated that even if Powelson considered himself a journalist, that status did not necessarily give him access to an area from which the general public was excluded.

The court further concluded that the balance of hardships did not sharply favor Powelson. The no-guest policy had been adopted when the City established the Code of Conduct in December 2021, after the camp moved from a grassy area to the tennis courts. The court found a facially reasonable basis for the policy in the COVID protocols cited in the Code of Conduct and noted additional evidence that residents’ belongings were left unattended when residents left the camp. The court also noted conflicting evidence about whether residents supported Powelson’s presence.

The public-interest factor likewise weighed against the requested TRO. Although the court said the preceding factors were enough to deny the motion, it also considered the likelihood of success on the merits. The court found that the record provided little support for Powelson’s retaliation claim. It noted that the no-guest policy predated the lawsuit and that police were at the camp on April 5, 2022, to clear a tent that was no longer being used because its resident had found alternative housing. According to the evidence cited by the court, the police did not know Powelson and another camper were using the tent until they arrived and asked them to leave so the police could carry out that task.

Disposition

The court denied Powelson’s request for a temporary restraining order and stated that the order disposed of Docket No. 22. Judge Edward M. Chen signed the order on April 15, 2022. The order addressed emergency preliminary relief; it did not state that it finally resolved the underlying retaliation allegations.