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View Diary: How Shell is trying to send a chill through activist groups across the country (175 comments)

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  •  Injunctives are always pre-emptive ... (2+ / 0-)
    Recommended by:
    johnny wurster, samddobermann

    ... and the enjoined activities are not protected expressive activities, whether they're done by abortion protesters or environmental rights activists.

    "There is nothing impossible to him who will try." -Alexander the Great

    by The Octopus on Tue Jun 18, 2013 at 10:37:45 AM PDT

    [ Parent ]

    •  no injunctions are not always pre-emptive (4+ / 0-)

      generally there has to be something that has happened, note the discussion in the opinion itself as to whether there is really a case in controversy or if the actions are all speculative, can't even get jurisdiction without the controversy.

      But they frequently interrupt at an early stage of a plan or series of actions to restore or maintain the status quo.  So frequently someone has already blocked the disputed shared drive, claimed possession of some tangible or intangible property, or gone beyond speech to actual take control of or block legal access to a place.  And the court did address whether Greenpeace planned illegal activities, ie, something more than speech alone that would be an act that could be stopped, because speech alone would not provide a basis.  It then reached out to activities not done by the party in the suit, Greenpeace USA, and said  all Greenpeaces are alike and will do the same things these other groups did, even though it entered a sworn statement that all acts would be peaceful and trespass is in violation of the peace, so it should rule out trespass.  The majority split some mighty fine hairs.  I repeat, the dissent was better grounded in the facts and law.

      •  We'll have to agree to disagree (0+ / 0-)

        The point of an injunction is to prevent the harm from occurring in the first place.  As a remedy, iit's always forward-looking, though whether you get it depends, of course, on events that have already occurred and -- among other things -- the likelihood of the harm occurring but for the injunction.  But what you're enjoining is future conduct.  

        "There is nothing impossible to him who will try." -Alexander the Great

        by The Octopus on Tue Jun 18, 2013 at 11:03:08 AM PDT

        [ Parent ]

        •  there is a differnce between (2+ / 0-)
          Recommended by:
          Words In Action, burlydee

          enjoining future conduct and a pre-emptive act.

          All a court can do with an injunction is enjoin future action. Even the least able jurists tend to recognize a court order can not enjoin an action already taken, one can't unring a bell.  The court says, stop ringing the bell for now until we have a hearing on the merits.

          What courts usually don't do is say to someone, 'you've never actually been near a bell,  have not expressly stated you are going to ring the bell, but since you admired others that  have rung bells before, we are going to enjoin you from ringing the bell.'

          •  Dude, read the opinion (0+ / 0-)

            You're entitled to your own opinion about Shell and direct-action protesters and all the rest of it, but you're not entitled to your own facts.  That's just flat-out not true as far as what happened here.  GP USA got enjoined based on their own actions; no one else's.  The district court and the 9th Circuit made that totally clear.

            And of course it's preemptive.  Injunctions are preemptive.  That's the whole point of it.  Read some of the cases cited by the 9th Circuit in its opinion.  They're the "usual suspects" on injunctive relief and they'll help you understand what an injunction is and what it is that the petitioner has to show to get one.

            "There is nothing impossible to him who will try." -Alexander the Great

            by The Octopus on Tue Jun 18, 2013 at 11:53:03 AM PDT

            [ Parent ]

            •  I did read the opinion and the dissent (1+ / 0-)
              Recommended by:
              Words In Action

              and the acts attributed to the corporate person, were not its acts as standards of law in the past are applied.

              I know what an injunction is, I've gotten them before.  


              A prohibitive writ issued by a cout of equity, at the suit of a party compalinant, directed to a party defendant n the action or to a party made defendant for that purpose, forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is threatening or attempting to commit, or restraining him in the continuance thereof . . .

              IE, after a threat to commit an act, the attempt to commit (ie actions taken) or continuance, ie, injunctions issue against all three fact scenarios, only one of which is prior to any act, and that still follows a threat to commit the act.  In this case, no threat to act existed at the time suit was brought, the court speculated and inferred based on what other corporate persons did and some isolated participation by members in the corporate person but without authorization took.  Again,  I stand by what I said.  Always means in every case.  Not always was all I said.

              Pre-emptive in the law is narrow in one sense, a right to acquire land or goodsbefore anyone else, or more generally by common definition, to take a right in  advance.  It is not based on an act by another being stopped in advance, it is taking a right in advance.  Hence issues of pre-emption of the right of speech, or federal pre-emption of areas of law to be legislated upon by the state legislatures.

              Injunctions are always prospective, but not always pre-emptive.  

              •  Prohibited from acting is preempted (0+ / 0-)

                I don't know how it could be more clear.

                There's no body of "preemption" case law in TRO/injunction/emergency litigation practice.  If there is, please show me, 'cause somehow I managed to miss it after practicing in this are for 15 years.

                "There is nothing impossible to him who will try." -Alexander the Great

                by The Octopus on Tue Jun 18, 2013 at 12:17:04 PM PDT

                [ Parent ]

                •  so you have now insisted (1+ / 0-)
                  Recommended by:
                  Words In Action

                  over several posts that all injunctions are pre-emptive, then go back and demand I prove to you that there is a body of preemption case law because you've never seen it.  

                  So what is your real position on injunctions, are they pre-emptive or not?

                  •  You mentioned preemption doctrine, ... (0+ / 0-)

                    ... where is it?  Where is this doctrine discussed in the contect of emergency litigation?  It's not.  It's not a term of art that's recognized -- at least, I've never come across it -- in the context of obtaining or defending against emergency, equitable relief.  

                    It's preemptive in the sense that it -- the ripening of the petitioner's right to the injunction -- occurs before the conduct that one wants to enjoin.  You're the one talking about prior restraints on speech and preemption doctrine, above.  The speech issue in this case is just silly.  There isn't protected expressive activity taking place here.  Period.  Nor is there some doctrine of preemption that applies in the context of injunctive relief.  

                    I don't have to wait for my abuser to hit me in the face or rape me before I can go into court and get an order that says he can't do those things and that he needs to stay 100 yards away from me, my car, my home, and my place of business.  It's exactly the same damn deal here.  There isn't anything new or novel or unique in the injunction that Shell got in this case, from a legal perspetive.  What's relatively new about it is that companies have finally caught on that this is a very powerful tool.  You'll find plenty of folks who want to chain themselves to fence or sit down with their buddies in a sleeping dragon if all they're going to get is some obstruction/resisting-wthout and trespass charges.  You're not going to find too many people who are going to want to get hammered with a civil contempt deal.  That's all that's new here.

                    "There is nothing impossible to him who will try." -Alexander the Great

                    by The Octopus on Tue Jun 18, 2013 at 12:35:48 PM PDT

                    [ Parent ]

                    •  and I just quoted Blacks Law Dictionary (3+ / 0-)
                      Recommended by:
                      Words In Action, burlydee, KenBee

                      and I am pretty sure that definition comports with the variety of fact patterns, the pre-emption in the sense I used it and you are now using , ie, no action taken is only one potentional fact pattern.

                      I have repeatedly pointed out that there are other patterns in which actions have been taken, and then stopped by injunction. THis all started with a question  you never answered over whether any abortion clinic case was an injuntion entered before protesters had actually interfered with a woman approaching the building.    And again,  the actions for which an injunction can be entered, can't be purely speculative.  Even in a family violence tro, jargon may differ where you are, some showing has to be made of a threat to get the order.   Here they may be entered ex parte and a fairly small showing, but there has to be something.

                      I believe that the dissenting judge, who found the majority's reliance on acts by others,  no current threat, too tenuous to meet the standards for the injunction.

                      I kept my comments to the fact pattern, I have no desire to try to prove my credentials to someone who can't admit the obvious, that all injunctions do not occur before any acts are taken.  Or based on lack of a credible or plausible threat.  It is hard to get an injunction against someone who never threatened you, never punched you, never raped you, because some other person once did those things to you.

                      And I find the ease with which protest may be chilled through the use of speculative fact patterns to claim a threat, bootstrapping as it were to add more words to nit pik over, a problem and still continue to find the well reasoned, well supported dissent to have the better of the legal argument.

    •  or even those guilty of it (2+ / 0-)
      Recommended by:
      jfromga, Words In Action

      if the corp thinks it might happen, you're good with it

      Growth for the sake of growth is the ideology of the cancer cell. --Edward Abbey

      by greenbastard on Tue Jun 18, 2013 at 10:51:03 AM PDT

      [ Parent ]

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