Court Dismisses Claims Over Alleged "Doxing" and Criticism of Homelessness / Needle Exchange Activists

From Stabbin Wagon v. City of Medford, decided Sept. 30 by Judge Mustafa Kasubhai (D. Ore.):

The Court assumes the following alleged facts are true. Stabbin' Wagon is a Medford non-profit that provides clean needles, food and aid, and outreach services to unhoused people, particularly those suffering from drug addiction and mental illnesses. Plaintiff Jones was the founder and executive director of Stabbin' Wagon and Plaintiff Strong was an employee. Plaintiffs frequently criticized the City's arrests of unhoused individuals and its failure to provide outreach services to those individuals.

Defendants Brian Sjothun, Randy Sparacino, Justin Ivens, Darrel Graham, Geoff Kirkpatrick, Trevor Arnold, Arturo Vega, and John and Jane Does (collectively, "City Defendants") are current and former Medford city officials and police officers. City Defendants have criticized Plaintiffs and their needle exchange program. Starting around 2021, Defendants Graham, Kirkpatrick, and Sparacino monitored the Plaintiffs' social media activities, protest attendance, and interviews with newspapers. City Defendants removed Plaintiffs from police communications which alerted local outreach services when the police swept an encampment of unhoused individuals. Medford police have also stopped, arrested, and cited Stabbin' Wagon employees on several occasions from 2020 to 2023.

In 2023, Plaintiffs received a $1.5 million grant from the Oregon Health Authority ("OHA") to open a 'respite center' to provide more outreach services to unhoused people. Defendants Sjothun, Ivens, Arnold, and Kirkpatrick attempted to persuade OHA to rescind the grant. Plaintiffs allege that these Defendants "disseminated inflammatory, false, and disparaging information about Plaintiffs to other providers, state officials, and community leaders" in their attempt to reverse the grant.

Defendant Ryan Mallory is "a law-enforcement-adjacent figure in Southern Oregon" who operates social media platforms and companies that investigate, report, and consult on matters related to law enforcement, including the Medford Police Department. Defendant Mallory supported City Defendants' attempt to rescind the grant. He expressed his opposition to Plaintiffs' OHA grant on his Facebook group which has over 100,000 followers. His followers commented in support, and on September 13, 2023, one approached Plaintiffs while they were working and threatened to call the police. On August 4, 2023, Defendant Mallory posted Plaintiffs' personal information, including their home addresses and birthdays, in a graphic with Plaintiffs' likenesses resembling "law enforcement booking records." On September 7, 2023, Defendant Mallory posted a video and a comment that urged the public to oppose the OHA grant, stating in part:

Unqualified people that fill our Parks in greenways with needles, keep people addicted by promoting drug use, and misappropriate grant money by using it for public protest of the police rather than helping people are about to get a massive paycheck …. Ask for an audit of the stabbin wagon organization…. These folks are intending on renting a building to perpetuate drug use …. Melissa Jones and her marketing director [Sam Strong] have openly stated that they get grant money and use it to protest police and others.

Defendant Mallory and his followers continued making posts that "fomented animosity and disinformation regarding Plaintiffs and their services." On May 21, 2024, Defendant Mallory posted an article that discussed Plaintiff Jones's sentencing in municipal court and commented that she "[d]efinitely hasn't learned her lesson based on that. Guess we'll see how probation goes." In March 2025, Defendant Mallory posted a video that showed needles on the ground in downtown Medford and commented that Stabbin' Wagon "shouldn't be in business at all, it worsens the problem."

OHA delayed Plaintiffs' grant but ultimately awarded the funds. "[M]unicipal and zoning barriers and Defendants' subversion campaign" forced Plaintiffs to end their attempt to open the respite center. Plaintiffs Jones and Strong resigned from Stabbin' Wagon due to the Defendants' "harassment, surveillance, doxing, and retaliatory pressure." …

The court dismissed plaintiffs' claims (which related to doxing, criticism, surveillance, and retaliation) on various grounds, including that they were filed too late, but also added this:

Plaintiffs also allege that Defendants retaliated against Plaintiffs advocacy by opposing their grant from OHA and publicly and privately disparaging them. Plaintiffs allege that immediately after OHA awarded Stabbin' Wagon the grant, the City and Medford police, including Defendants Sjothun, Ivens, Arnold, and Kirkpatrick disseminated false and misleading information to state officials, community leaders, and other organizations. Plaintiffs allege the City sought to portray Stabbin' Wagon as extreme and unqualified, lobbied OHA, and coordinated with other nonprofits hostile to Stabbin' Wagon like OnTrack Rogue Valley and the Addictions Recovery Center.

Courts take a cautious approach with retaliation claims involving government speech like those here.

Restricting the ability of government decisionmakers to engage in speech risks interfering with their ability to effectively perform their duties. It also ignores the competing First Amendment rights of the officials themselves. The First Amendment is intended to "preserve an uninhibited marketplace of ideas in which truth will ultimately prevail." That marketplace of ideas is undermined if public officials are prevented from responding to speech of citizens with speech of their own.

The Ninth Circuit has accordingly set a high bar for when government speech gives rise to a First Amendment retaliation claim. For example, an act of defamation does not give rise to a retaliation claim if it does not affect the plaintiff's rights, benefits, or status with the state. Government speech that results in reputational harm and ultimately a loss in employment also does not meet the high bar for adverse action….

False accusations may give rise to a retaliation claim in certain contexts, however. In Mendocino Env't Ctr. v. Mendocino County (9th Cir. 1999), police officers falsely accused members of an environmental organization of criminal activity in connection with a criminal investigation. The officers made false accusations to secure arrest and search warrants. The Ninth Circuit held that plaintiffs sufficiently alleged a First Amendment retaliation claim because the inclusion of the accusations in warrant affidavits permitted the inference that the acts would chill a person of ordinary firmness from future first amendment activities.

At the outset, some of Plaintiffs' allegations fail because they seek to hold Defendants accountable for protected speech. For example, Plaintiffs allege that Defendants Ivens and Arnold "expressed outrage over the award and attempted to mobilize public opposition and influence OHA to rescind the grant." They also allege that the City portrayed "Stabbin' Wagon as untrustworthy, unqualified, and politically extreme." These allegations are insufficient to give rise to Plaintiffs' retaliation claim because the government must be allowed to express its own views, even when it is critical of some of its citizens….

Plaintiffs [also] allege that OHA delayed Stabbin' Wagon's grant in response to Defendants' conduct but ultimately awarded it. Plaintiffs Jones and Strong resigned from Stabbin' Wagon and Plaintiffs had to close their peer respite program. Plaintiffs, however, do not allege that Defendants had any control over the grant process and conceded that point at oral argument. This is fatal to Plaintiffs' allegations that Defendants "disseminated inflammatory, false, and disparaging information about Plaintiffs." Cf. Gini v. Las Vegas Metro. Police Dep't (9th Cir. 1994) (holding defamatory statements did not give rise to a First Amendment violation where the officials "could not, and did not, make any decision or take any state action affecting [the plaintiff's] rights, benefits, relationship or status with the state")….

And the court had this to say about plaintiffs' civil rights conspiracy claim:

A plaintiff bringing a Section 1985 claim to vindicate rights secured by the First Amendment must "prove that the state was somehow involved in or affected by the conspiracy" because the First Amendment "restrains only official conduct." Plaintiffs remaining allegations are that unspecified Defendants coordinated "with anti-activist social media groups that published private information and incited public backlash" and disseminated "Plaintiffs' private identifying information, obtained through law enforcement channels, to more than 100,000 followers in order to incite harassment and vigilantism against Plaintiffs."

Plaintiffs make numerous allegations attributing this conduct to Defendant Mallory who is not a City official. Much of Plaintiffs' allegations center on Defendant Mallory's speech via social media and other outlets. Digital communications like these generally fall within the First Amendment's protections. Speech is generally protected unless it falls into a category of unprotected speech [such as the category of "true threats"]. Some of these allegations seek to impose liability for protected speech and therefore fail. E.g., SAC [Second Amended Comalaint] ¶ 121 (alleging Defendant Mallory criticized Plaintiffs' qualifications). Plaintiffs summarily allege categories of potentially unprotected speech by Defendant Mallory. E.g., SAC ¶¶ 129, 131 (alleging Plaintiffs experienced harassment); SAC (alleging defamatory statements); SAC ¶ 203.e (incitement). To the extent Plaintiffs seek to hold Defendant Mallory liable for these acts, Plaintiffs must identify the alleged unprotected speech with more specificity and without relying on broad legal conclusions.

Plaintiffs also allege Defendant Mallory published Plaintiffs' names and home addresses in a "[b]usted" graphic, mimicking booking log services. A party generally cannot maintain a claim for disclosure of publicly available information that is lawfully obtained. Florida Star v. B.J.F. (1989). Plaintiffs do not allege their names and home addresses were not publicly available or unlawfully obtained. Plaintiffs therefore have not alleged an overt act by Defendant Mallory.

With respect to the City Defendants, Plaintiffs allege that the "City Defendants, in particular the members of the Medford Police Department, were aware of Defendant Mallory's pro-law enforcement social media influence." Plaintiffs further allege that Defendants Kirkpatrick and Sparacino appeared on Defendant Mallory's podcast. Plaintiff makes the general allegation that "Defendants … reached a tacit understanding that Defendant Mallory would" amplify the City Defendants' retaliation against Plaintiffs.

Viewed in light of the Court's rulings above, these allegations are insufficient to allege the participation of the City Defendants in the alleged disclosure of Plaintiffs' personal information. A plaintiff must allege a conspiracy with facts that rise above allegations of parallel conduct and sympathetic viewpoints. Plaintiffs' general allegation of tacit agreement is insufficient. The Court has found that Plaintiffs have not adequately alleged the City Defendants retaliated against them, so Defendant Mallory cannot be said to have amplified it at this time. Plaintiffs' Section 1985(3) claim is dismissed because they must allege that "two or more persons conspire[d]" and that a state actor is "at least one of the wrongdoers." …

Stephanie C. Kucera and Zachariah H. Allen (Hart Wagner LLP) and Casey S. Murdock (Frohnmayer Deatherage Law Firm) represent defendants.