PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOSEPH WALSH,

Plaintiff,

v.

BRYANT ENGE, et al.,

Defendants.

Case No. 3:15-cv-1666-SI

OPINION AND ORDER

Joseph Walsh, 7348 SE Division Street, Portland, OR 97206, pro se.

Harry M. Auerbach, Chief Deputy City Attorney, David A. Landrum, Senior Deputy City 

Attorney, and Daniel A. Simon, Assistant Deputy City Attorney, OFFICE OF CITY ATTORNEY,

City of Portland, 1221 SW Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for 

Defendants.

Michael H. Simon, District Judge.

The Court previously granted injunctive and declaratory relief in favor of Plaintiff Joseph 

Walsh (“Walsh” or “Plaintiff”) against the City of Portland’s (“City”) then-existing exclusion 

ordinance, Portland City Code § 3.15.020B.5.b. That ordinance allowed Defendants 

prospectively to exclude persons from City Hall and City Council Chambers solely based on past 

incidents of disruption during City Council meetings. The Court held that on its face, this 
PAGE 2 – OPINION AND ORDER

ordinance violates the First Amendment to the U.S. Constitution. Walsh v. Enge, 154 F. Supp. 3d 

1113, 1118 (D. Or. 2015). Based on that finding, the Court permanently enjoined Defendants

from directing or enforcing any prospective exclusions pursuant to the ordinance. After the Court 

issued its ruling, the City enacted a new exclusion ordinance, Ordinance 188280 (identified by 

Plaintiff as Ordinance #255) (“New Exclusion Ordinance”). Walsh now requests that the Court 

“enforce” the Court’s previous injunction against the New Exclusion Ordinance. Walsh argues 

that by enacting the New Exclusion Ordinance, the Portland City Council violated the Court’s 

injunction. For the following reasons, the Court denies Walsh’s motion.

BACKGROUND

A. The Court’s Injunction 

The Court’s injunction in this case, entered on December 31, 2015, states:

Defendants, each of them and their agents and employees, and all 

those in active concert or participation with them, shall not direct 

or enforce any prospective exclusions pursuant to Portland City 

Code § 3.15.020B.5.b and the City’s “Rules of Conduct for City of 

Portland Properties,” solely based on past incidents of disruption 

during City Council meetings.

ECF 30 at 1.

B. The New Exclusion Ordinance

On March 15, 2017, the Portland City Council adopted the New Exclusion Ordinance, 

which, among other things, establishes rules of conduct and ejection and exclusion procedures 

for City Council meetings and City property. The New Exclusion Ordinance became effective 30 

days after its passage, on April 14, 2017. ECF 41 at 2, ¶ 4. The New Exclusion Ordinance 

amends certain sections of the City Code relating to duties of the presiding officer, conduct at 

meetings and on City property, and ejection and exclusion. See ECF 41-1 at 1-3.
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The New Exclusion Ordinance adds Section 3.02.060 “Rules of Conduct at City Council 

Meetings, Ejection and Exclusion,” which allows the presiding officer or his or her designee to 

warn a person engaging in disruptive behavior and then to eject that person if the behavior 

continues. If a person has previously been ejected for dangerous or threatening behavior or for 

disruptive behavior on three or more occasions, that person “shall” be excluded from future City 

Council meetings for 30 days. If the person has been excluded from City Council meetings on 

one or more occasions within one year, that person “shall” be excluded from future City Council 

meetings for 60 days. A person excluded may appeal the exclusion to the Code Hearings Officer. 

The appeal must be in writing and made within five days of the issuance of the exclusion notice. 

This code of conduct also applies to any public meeting of a City board or commission. See

ECF 41-1 at 6-8.

The New Exclusion Ordinance also adds Chapter 3.18 “Rules of Conduct for City 

Property.” This chapter grants the power to order persons to leave City Property to peace 

officers, reserve officers, persons providing security services under a contract with the City, City 

bureau property or facility managers or designees, the director or manager of a City bureau 

facility or office space or designee, certain specific designees, the Mayor, Commissioners, and 

Auditors, as “persons-in-charge.” These rules of conduct include numerous provisions regarding 

the type of materials that may be brought onto City property, how materials and technology that 

exist on City property may be handled, how persons must obey all reasonable directions of 

persons-in-charge, how persons may not interfere with free passage of City employees or 

authorized visitors, noise restrictions, alcohol and controlled substance restrictions, animal 

restrictions, restrictions on wheeled devices, camping restrictions, and general use restrictions. 

See ECF 41-1 at 11-14.
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If a person violates any of these rules, a person-in-charge may eject them for 24 hours. In 

addition, the director of the bureau assigned property management responsibility where the 

violation occurred, or his or her designee, may issue an exclusion from City Property for any 

period of time up to one year. The person excluded may appeal the exclusion to the Code 

Hearings Officer in writing within five days of the issuance of the exclusion notice. If, however, 

public meetings of City Council or boards or commissions are held on a City Property, then 

ejectment and exclusion from the public meeting must comply with the public meeting rules, 

Section 3.02.060. See ECF 41-1 at 14-15.

C. Declaration of Non-Enforcement of New Exclusion Ordinance

Current Portland Mayor Ted Wheeler publicly stated at the time of voting in favor of the 

New Exclusion Ordinance that neither he nor anyone else acting on behalf of the City will 

enforce the provisions of the New Exclusion Ordinance unless and until the Court’s injunction is

lifted or modified to permit the City to do so. Mayor Wheeler also filed a Declaration in this 

case, acknowledging that he is “aware that this Court has enjoined me and the City not to 

exclude disruptive individuals from City Council meetings for longer than the duration of the 

meeting that they have disrupted.” ECF 41 at 2, ¶ 6. In his Declaration, Mayor Wheeler states his 

belief that the Constitution of the United States does not prohibit excluding disruptive 

individuals from meetings but reiterates his earlier statement that the New Exclusion Ordinance 

will not be enforced until the Court’s injunction has been lifted or modified. Id.

DISCUSSION

Walsh argues that by simply passing the New Exclusion Ordinance, the City Council 

violated the Court’s injunction. The Court, however, enjoined the City from enforcing 

prospective exclusions pursuant to Portland City Code § 3.15.020B.5.b and the City’s “Rules of 

Conduct for City of Portland Properties,” solely based on past incidents of disruption during City 
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Council meetings. Thus, the mere act of passing, or enacting, the New Exclusion Ordinance, as 

distinct from enforcing it, does not violate the Court’s injunction. 

As a litigant proceeding pro se, the Court liberally construes Walsh’s filings. See Hebbe 

v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The Court construes Walsh’s filings to argue that the 

New Exclusion Ordinance is unconstitutional, suffering from the same or similar deficiencies as 

the previous exclusion ordinance the Court already found to violate the First Amendment. The 

problem with Walsh’s argument, however, is that the City has not yet enforced, or even 

threatened to enforce, the New Exclusion Ordinance against Walsh or anyone else. To the 

contrary, the City affirmatively has stated that it will not enforce the New Exclusion Ordinance 

unless and until the Court’s injunction has been lifted or modified. Thus, Walsh has not yet been 

harmed, or even threatened with harm, by the New Exclusion Ordinance. Because the City has at 

this time disavowed enforcing the New Exclusion Ordinance, Walsh currently does not have

standing to challenge the ordinance, and Walsh’s request that the Court invalidate the ordinance 

seeks an improper advisory opinion.

A. Standing

To have standing, a plaintiff must have a “personal interest . . . at the commencement of 

the litigation.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 170 

(2000). The personal interest must satisfy three elements throughout litigation: (1) an injury in 

fact, i.e., an invasion of a legally protected interest that is concrete and particularized, as well as 

actual or imminent; (2) a causal connection between the injury-in-fact and the defendant’s 

challenged behavior; and (3) likelihood that the injury-in-fact will be redressed by a favorable 

ruling. Id. at 180-81, 189; Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Declaratory and 

injunctive relief also require “a ‘substantial controversy . . . of sufficient immediacy and reality 

to warrant the issuance of a declaratory judgment.’” Culinary Workers Union, Local 226 v. Del 
PAGE 6 – OPINION AND ORDER

Papa, 200 F.3d 614, 617 (9th Cir. 1999) (alteration in original) (quoting Ross v. Alaska, 189 F.3d 

1107, 1114 (9th Cir. 1999)).

“A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a 

direct injury as a result of the statute’s operation or enforcement. But [o]ne does not have to 

await the consummation of threatened injury to obtain preventive relief. If the injury is certainly 

impending, that is enough.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 

(1979) (alteration in original) (quotation marks and citations omitted). It is sufficient to show that 

“a credible threat of prosecution” exists “[w]hen the plaintiff has alleged an intention to engage 

in a course of conduct arguably affected with a constitutional interest, but proscribed by [the 

challenged] statute.” Id. The bar for such a showing is low. The Supreme Court has found a 

credible threat of prosecution even when the government has never enforced the statute but “has 

not disavowed any intention of invoking” the statute’s penalties. Id. at 302. 

When First Amendment rights are at stake, the Supreme Court has altered its traditional 

rules of standing with the “overbreadth doctrine” to allow persons who are themselves unharmed 

by a statute to challenge it facially on the ground that it may be applied unconstitutionally to 

others, in situations not before the Court. See Bd. of Trs. v. Fox, 492 U.S. 469, 484 (1989).

Further, in the First Amendment context, “an actual injury can exist when the plaintiff is chilled 

from exercising her right to free expression or forgoes expression in order to avoid enforcement 

consequences.” N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir.

1996).

Walsh can show that Defendants have a written policy (the New Exclusion Ordinance)

that may form the basis of a realistic threat of repeated harm. See Nordstrom v. Ryan, 762 

F.3d 903, 911 (9th Cir. 2014) (noting that a plaintiff can show a realistic threat of repeated future 
PAGE 7 – OPINION AND ORDER

harm by showing that the defendant had, at the time of injury, a written policy and that the injury 

stems from that written policy). Because Defendants have expressly disavowed enforcing that 

policy, however, Walsh does not at this time have a credible threat of being harmed by the New 

Exclusion Ordinance. Accordingly, Walsh currently does not have standing to challenge it. See 

City of L.A. v. Lyons, 461 U.S. 95, 105 (1983) (holding that the plaintiff “failed to demonstrate a 

case or controversy” because he had not established “a real and immediate threat” of future 

prosecution); O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (noting that the threat of repeated 

future injury may not be “conjectural or hypothetical”); Magee v. United States, 93 F. Supp. 2d 

161, 164 (D.R.I. 2000) (finding the plaintiff had no standing to challenge a statute on First 

Amendment grounds where the Attorney General stated she would not defend or enforce the 

statute and where the plaintiff could not cite a single instance where any person had been 

prosecuted under the statute); cf. Babbitt, 442 U.S. at 302 (holding that there may be a credible 

threat of future prosecution when the government has not expressly disavowed enforcement).

B. Advisory Opinion

“The exercise of judicial power under Art. III of the Constitution depends on the 

existence of a case or controversy. . . . [A] federal court has neither the power to render advisory 

opinions nor ‘to decide questions that cannot affect the rights of litigants in the case before 

them.’” Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quoting North Carolina v. Rice, 404 U.S. 

244, 246 (1971)). Accordingly, the request by Walsh for the Court to rule on the validity of the 

New Exclusion Ordinance, which is not currently being enforced by the City against Walsh or 

anyone else, calls for an improper advisory opinion by the Court. See id.; Ashwander v. Tenn.

Valley Auth., 297 U.S. 288, 347 (1936) (identifying types of cases that call for improper advisory 

opinions, including when a court is being asked to “pass upon the validity of a statute upon 

complaint of one who fails to show that he is injured by its operation”). 
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CONCLUSION

Walsh’s Motion for Enforcement of Judge’s Order (ECF 38) is DENIED.

IT IS SO ORDERED.

DATED this 5th day of May, 2017.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge