Court Grants TRO Barring "Threatening, Intimidating, and Retaliation Action … Without a Legitimate Law Enforcement Purpose" Against ICE Watcher

From Judge Michael Newman (S.D. Ohio) Friday in Moorman v. Doe No. 1; since this is a decision at the temporary restraining order stage, the factual assertions are preliminary conclusions by the judge, not final findings of fact:Plaintiff Sean Moorman … alleges Defendants—seven unidentified United States Immigration and Customs Enforcement ("ICE") officers, in their official capacities—have retaliated (and continue to retaliate) against him for engaging in activity protected by the First Amendment …. The motion for TRO was filed around 7 P.M. on Tuesday, September 1, 2026. The Court heard extensive oral argument the next day at 4 P.M., lasting more than one hour…. At the time of the phone conference, the AUSA [who represented the government -EV] failed to contradict the Moorman's factual assertions and requested a two-week extension to file a response brief. As detailed herein, based on the serious nature of the allegations involved, and the threat of ongoing constitutional violations, this extension would be inappropriate. See Elrod v. Burns (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.")…. Moorman volunteers as an "ICE watcher" in his spare time. As uncontradicted by the AUSA, Moorman "lawfully and peacefully" documents interactions between ICE officers and the Springfield community, noting potentially violent or unlawful action by ICE officers…. According to Moorman, by August 20, 2026, certain ICE officers had identified Moorman as an ICE watcher and began "lashing out" at him. Specifically, on August 20, 2026, Moorman recorded … [an] ICE vehicle driven by Defendant John Doe No. 2…. "John Doe No. 2 turned his Jeep around and accelerated dangerously towards [Moorman]'s vehicle as though to ram it, before veering away at the last moment and disappearing."The next morning, on August 21, 2026, Moorman stood on the side of a main road in Springfield alongside a reporter wearing a press badge, and recorded ICE officers conducting an arrest. An ICE officer wearing a yellow vest, identified as Defendant John Doe No. 1, approached Moorman and the reporter, put his phone in their faces as if to scan or take a picture, and then continued walking. Later that day, Moorman entered the parking lot of a Cracker Barrel restaurant in Springfield to observe and photograph ICE officers after identifying [other] known ICE vehicles…. Upon seeing Moorman enter the parking lot, the ICE officers, who had just exited their vehicles, immediately re-entered their vehicles. Moorman observed Defendant John Doe No. 1 looking at him with binoculars. The ICE officers then pulled out of their parking spots. As Moorman proceeded to exit the parking lot, the ICE officers "looped around and followed [him]." With the ICE officers following him, Moorman circled around the Cracker Barrel, another adjacent parking lot, and an adjacent dead-end road. After a few minutes, Moorman and the ICE officers returned to the Cracker Barrel parking lot. Each time Moorman pulled into a parking spot, the ICE officers would pull in front of and block Moorman's vehicle and prevent him from moving out of his spot. The ICE officers would each block Moorman's vehicle for ten seconds at a time, sometimes taking photos of his license plate, before allowing him to move to another location in the parking lot. This happened for the next ten to fifteen minutes. Throughout this encounter, Moorman put his vehicle into park each time the ICE officers were in front of him and kept his hands on the steering wheel so that the officers could see them. Moorman eventually was able to exit the Cracker Barrel parking lot but ended up on a dead-end road nearby. At that point, Moorman was approached by the Nissan Pathfinder driven by Defendant John Doe No. 3, who was masked and wearing large sunglasses. The officer waved at Moorman, apparently signaling Moorman to follow him; Moorman complied with the officer's direction. As Moorman followed the Nissan Pathfinder, a Hyundai Sante Fe driven by Defendant John Doe No. 1, followed behind Moorman. The ICE officers led Moorman toward a rural area on the outskirts of Springfield where Moorman and his wife live. During oral argument, the AUSA offered no explanation for the ICE officers' leading Moorman back to his residence. Upon realizing this, Moorman called other volunteer ICE watchers to warn them about the situation. He also called his wife, who was home alone with their pets, and told her that ICE officers were heading toward their home, and to lock the doors and stay inside. Moorman's wife cowered in the house holding a baseball bat out of fear. The Nissan Pathfinder then pulled up to the end of Moorman's driveway and slowed. Defendant John Doe No. 3 put his arm out of the vehicle's window and pointed at Moorman's house. He took pictures of Moorman and his wife's vehicles. After this encounter, Moorman and his wife installed a security camera at their home and now keep their doors locked at all times. ICE officers continued to engage with Moorman throughout the next several days. [Further details omitted for space reasons. -EV] … The Court takes notice that national incidents similar to those described herein have devolved into circumstances leading to serious injury or loss of life to officers and members of the community alike…. Moorman seeks a TRO enjoining Defendants, and those acting in concert with them, from "taking further threatening, intimidating, and retaliatory action against [him] in response to his exercise of his First Amendment rights … without a legitimate law enforcement purpose." According to Moorman, such actions include, but are not limited to, pursuing his vehicle, attempting to box in his vehicle, approaching him, traveling to his home, or shouting at him to intimidate him, without a legitimate law enforcement purpose. While these events considered seriatim would be less concerning, when considering the allegations together, they amount to a substantial and troubling violation of Moorman's First Amendment rights…. First, Moorman engaged, and continues to engage, in protected conduct. Eight circuits have expressly held that filming government agents performing official duties in public is protected under the First Amendment. Other courts in this district have also recognized this right…. While some courts have imposed reasonable time, place, and manner restrictions on an individual's right to record law enforcement, the record shows that Moorman conducts his ICE watching activities in a safe and lawful manner; he records ICE activity only while in public spaces, takes precautions to make sure he is not threatening officers' safety such as keeping his hands visible, follows applicable traffic laws, and does not interfere with ICE's enforcement operations. Moorman has also participated in specific training for individuals who wish to monitor law enforcement activity in a safe, lawful, and peaceful manner. Second, Moorman has suffered adverse action(s). An adverse action is one that "would deter a person of ordinary firmness from continuing to engage in" protected conduct under the First Amendment…. While some retaliatory acts are so de minimis that "they do not rise to the level of being constitutional violations," Defendants' actions in this case surpass that threshold…. Moorman asserts that Defendants, over the course of several days, nearly swerved into his vehicle; scouted Moorman's home for no legitimate purpose (on multiple occasions) causing Moorman's wife to fear for her safety; continuously stalked Moorman around Springfield; and cut off and trapped Moorman's vehicle in a parking lot. At minimum, ICE officers seized Moorman in the Cracker Barrel parking lot on August 21, 2026, see U.S. v. See (6th Cir. 2009) (noting that blocking a person's car with a patrol car was a warrantless seizure), thus constituting adverse action. See Wood v. Eubanks (6th Cir. 2022) (holding that a Fourth Amendment seizure amounts to an adverse action for the purpose of a First Amendment retaliation claim). Finally, Moorman has demonstrated a causal connection between his protected conduct and the adverse actions allegedly perpetrated by Defendants…. Defendants remain free at a later stage to show that they would have taken the same action regardless of Moorman's protected conduct. However, at this time, nothing in the record supports that showing, and Moorman need only demonstrate a likelihood of success, not a certainty. Here, Defendants cannot identify a single, legitimate basis for continuing to harass and intimidate Moorman for exercising his First Amendment rights. Defendants, and others acting in concert with them, including all other ICE officers stationed in Springfield, Ohio, will suffer no cognizable harm from a TRO that does no more than require them to comply with the Constitution they are already bound, and have sworn, to follow. Moreover, it is always in the public interest to enjoin unconstitutional conduct. Moorman's proposed TRO is limited in scope; it requests that Defendants refrain from harassing and committing retaliatory acts—including pursuing his vehicle, approaching him, photographing him in a threatening manner, traveling to his home, or shouting at him for the purposes of intimidation—without a legitimate law enforcement purpose. To that end, two items merit mention. First, the Court is not telling ICE— part of the executive branch—how to do its job. Second, the Court is not entering into the political fray to suggest whether or not ICE should be engaging in deportation activities in Springfield, Ohio. What the Court is holding is that, when government actors engage in such conduct, the Constitution requires that it be undertaken without hazing, retaliation, or harassment, particularly with regard to an individual who does not interfere with ICE's enforcement function or police power. As Justice [Gorsuch] aptly said, the "Government is not free to disregard the First Amendment in times of crisis." Roman Catholic v. Diocese of Brooklyn v. Cuomo (2020) (Gorsuch, J.) (concurring) ….David J. Carey, Freda J. Levenson, and Carlen Zhang-D'Souza (ACLU of Ohio) represent plaintiff.