Russell Hotchkiss v. Cedar Rapids Community School District

United States Court of Appeals
For the Eighth Circuit
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No. 23-2708
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Russell Hotchkiss
lllllllllllllllllllllPlaintiff - Appellant
v.
Cedar Rapids Community School District, et al.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: February 14, 2024
Filed: September 6, 2024
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Before LOKEN, COLLOTON,* and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
In this First Amendment retaliation case, plaintiff Russell Hotchkiss appeals
the denial of his motion for a preliminary injunction barring defendants from
enforcing a no-trespass notice issued by the Cedar Rapids Community School District
*Judge Colloton became chief judge of the Circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).

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(“the District”) “during the pendency of this litigation.” Agreeing with the district
court1 that Hotchkiss “will not suffer irreparable harm absent this preliminary
injunction,” we affirm.
I. Background
In September 2021, Hotchkiss, a resident of Linn County, Iowa with a young
child enrolled in a District school, began sending emails to District officials regarding
the District’s COVID-19 masking and vaccination policies. On November 8, 2021,
Hotchkiss sent an email titled “Meeting” to members of the District’s Board of
Education, then-Superintendent Noreen Bush, and the District’s human resources
department, with copies to many others including Iowa legislators and media figures.
The email “officially and formally warned” that the District’s masking requirements
were unlawful, criticized the mask and vaccination policy, and stated that individual
Board members “may have criminal charges brought against” them. Specifically
addressing “Miss Psychology,” defendant Jennifer Borcherding, a Board member
with a degree in psychology, the email stated, “I will make sure that you are
incarcerated.” On November 14, Hotchkiss sent another email to Board members and
dozens of others disparaging the District’s masking and vaccination policies.
On November 15, the District held a video-recorded Board meeting. Hotchkiss
attended and spoke during the public comment period, voicing his opposition to the
District’s policies. Referring to defendant Borcherding, he stated, “Miss Psychology
down there doesn’t seem to want to tell you people what’s going on with our kids.”
Borcherding filed an affidavit stating that in the fall and winter of 2021, Hotchkiss
sent her several “threatening” emails that made her feel “frightened.” Because of her
1The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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fear of Hotchkiss, she avoided attending a professional conference in November 2021
because she did not want to leave her children home without her.
On December 13, the District held another video-recorded Board meeting.
Hotchkiss again spoke during the public comment period, this time for thirty minutes
because others yielded their allotted times to him. Hotchkiss again objected to the
masking and vaccination policies, at times raising his voice and speaking in an
aggressive tone. He addressed remarks to specific Board members, again referring
to Borcherding as “Miss Psychology,” and asserted that Board members would be
subject to criminal and civil liability. He called on several members of the Board to
resign and concluded by saying, “take that vote [on the mask policy] tonight, Mr.
President. If you don’t, we’re comin.” Other attendees criticized the mask and
vaccination policy. At the end of the public comment period, Hotchkiss is heard on
the video recording yelling, “take a vote,” and other attendees are heard chanting the
same phrase. Several Board members aver that Hotchkiss tried to approach the Board
during the meeting to demand a vote, which Hotchkiss denies, and Superintendent
Bush approached him to de-escalate the situation. Hotchkiss submitted a local news
photograph showing Hotchkiss and Bush speaking, with a police officer standing
beside them.2
On December 22, Hotchkiss sent a certified letter to each Board member’s
home and office. The letter attached a copy of his speech at the December 13 meeting
and stated, “since you have not taken the vote strenuously requested upon you to
unmask our children and faculty and since you continue the assault on them on a daily
basis, we will be moving forward with criminal proceedings, impeachment, and
constitutional violations” you committed. “I strenuously urge you to reread your oath
of office, you have egregiously violated it and it is time for you to acknowledge it and
2Noreen Bush died of cancer in 2022. The defendants named in Hotchkiss’s
May 2023 Complaint include Russ Bush as successor in interest to Noreen Bush.
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receive just punishment.” When the District learned of this letter on January 3, 2022,
it determined that a no-trespass order would be issued.
On January 10, a Cedar Rapids police officer personally served a letter signed
by Superintendent Bush stating that it provided Hotchkiss “a notice of no trespass
which immediately excludes you from appearing on any Cedar Rapids Community
School District premises effective January 10 . . . includ[ing] any [CRCSD] property
or facilities or any property owned or controlled by the District, for any reason from
this date forward and until further notice. Failure to follow this notice will result in
your immediate removal and may include assistance from law enforcement.”
The notice explained it was “a result of your actions during the November 15,
2021 and December 13, 2021 Board of Education Meetings . . . which included
disruptive and threatening behavior towards CRCSD school board members and
staff.” These actions “interfere with our goal to maintain a safe, secure, and orderly
District environment and violate District Policy 1007 ‘Conduct on School District
Premises’ and Regulation 1002.2 ‘Visitors to District’ and Iowa Code Chapter 723
and § 716.7(2)(a).” (See the Appendix to this opinion.) The notice advised that
Hotchkiss could communicate in writing with School Board members and directly
with the principal of Hiawatha Elementary School. “Verbal threats and demeaning
behavior will not be tolerated.”
Hotchkiss read the notice and asked if he was permitted to drop off and pick
up his child from school. He was told he could. Less than two weeks later, Hotchkiss
sent each District Director a fee schedule demanding payments ranging from $10,000
for each child forced to wear a mask, to $500,000,000 for each child vaccinated on
school grounds, to $1 trillion for any retaliation against his child. Some time later,
Hotchkiss enrolled his child in a neighboring school district. The last communication
from Hotchkiss to the Board in the record is dated January 18, 2022. He has not
attended any of the thirty-eight Board meetings held since the notice issued.
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Hotchkiss filed this suit on May 17, 2023, some sixteen months after service
of the no-trespass notice, asserting a First Amendment retaliation claim under 42
U.S.C. § 1983 and a claim under the Iowa Open Meetings Act, Iowa Code § 21.1. On
June 8, Hotchkiss moved for a preliminary injunction against enforcement of the no-
trespass order pending completion of the lawsuit. After a hearing on June 30, the
district court issued a Memorandum Opinion and Order denying a preliminary
injunction. Hotchkiss appeals.
II. Discussion
We have jurisdiction to review an interlocutory order denying a preliminary
injunction. 28 U.S.C. § 1292(a)(1). “We review a district court’s denial of a
preliminary injunction for an abuse of discretion,” reviewing the court’s fact findings
for clear error. Powell v. Noble, 798 F.3d 690, 697 (8th Cir. 2015). Preliminary
injunctive relief is “an extraordinary remedy that may only be awarded upon a clear
showing the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, 555
U.S. 7, 22 (2008) (citation omitted). This is a heavy burden “where, as here, granting
the preliminary injunction will give [Hotchkiss] substantially the relief [he] would
obtain after a trial on the merits.” United Ind. Corp. v. Clorox Co., 140 F.3d 1175,
1179 (8th Cir. 1998) (quotation omitted).
District courts consider four factors in determining whether to grant a
preliminary injunction: “(1) the threat of irreparable harm to the movant; (2) the state
of balance between this harm and the injury that granting the injunction will inflict
on other parties litigant; (3) the probability that movant will succeed on the merits;
and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114
(8th Cir. 1981). Here, the district court made findings of fact that will not be binding
at a trial on the merits, see University of Texas v. Camenisch, 451 U.S. 390, 395
(1981), and concluded that all four Dataphase factors weigh against grant of the
requested preliminary injunction.
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The district court properly began its analysis with the irreparable harm factor
because “[t]he failure of a movant to show irreparable harm is an ‘independently
sufficient basis upon which to deny a preliminary injunction.’” Sessler v. City of
Davenport, 990 F.3d 1150, 1156 (8th Cir. 2021) (quotation omitted). “The basis of
injunctive relief in the federal courts has always been irreparable harm and
inadequacy of legal remedies.” Grasso Ents., LLC v. Express Scripts, Inc., 809 F.3d
1033, 1039 (8th Cir. 2016), quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500,
506-07 (1959). The party seeking a preliminary injunction must show “that
irreparable injury is likely in the absence of an injunction,” not merely “a possibility
of irreparable harm.” Winter, 555 U.S. at 22 (emphasis in original; citation omitted).
He must show a likelihood of irreparable harm in the future. Sessler, 990 F.3d at
1156; see Buckingham Corp. v. Karp, 762 F.2d 257, 262-63 (2d Cir. 1985) (past
injury alone insufficient).
The district court concluded that Hotchkiss had failed to make a showing that
irreparable harm was likely in the absence of a preliminary injunction:
[T]he record does not indicate plaintiff’s attempt or intent to return to
the District premises during the pendency of the litigation. Plaintiff’s
child is no longer attending school in the Cedar Rapids School District.
Plaintiff sued the District over a year and a half after receiving the no-
trespass notice. Thirty eight school board meetings have passed. The
record does not indicate plaintiff even communicating with defendants
after the no-trespass notice. . . . Thus, although the no trespass notice
could impair plaintiff’s First Amendment interests, he has failed to show
any effort in the last 16 months to exercise his First Amendment rights
and his asserted desire to do so in November [2023] is not supported by
the record and is speculative, at best, given he does not have a child in
the district. Thus, the Court finds plaintiff has failed to show irreparable
harm.
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On appeal, as in the district court, Hotchkiss relies primarily on a statement in
the plurality opinion in Elrod v. Burns: “The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.” 427
U.S. 347, 373-74 (1976). Therefore, he argues, if he establishes a likelihood of
success on the merits, the requested preliminary injunction must be granted. We
disagree. Elrod was a 5 to 3 decision declaring certain patronage employment
practices violated the First Amendment. One Justice did not participate. Two
Justices in the majority declined to join the plurality’s “wide-ranging opinion.” Id.
at 375 (Stewart, J., concurring in the judgment). Three Justices would not have held
a “long-prevailing practice” unconstitutional. Id. at 388 (Powell, J., dissenting).
Moreover, Hotchkiss ignores the preceding sentence in the plurality opinion: “It is
clear therefore that First Amendment interests were either threatened or in fact being
impaired at the time relief was sought.” Id. at 373 (emphasis added). Hotchkiss’s
interpretation of this sentence in Elrod is simply not the law:
As a matter of equitable discretion, a preliminary injunction does not
follow as a matter of course from a plaintiff’s showing of a likelihood
of success on the merits. Rather, a court must also consider whether the
movant has shown “that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.”
Benisek v. Lamone, 138 S. Ct. 1942, 1943-44 (2018), quoting Winter, 555 U.S. at 20.
We agree with the district court that Hotchkiss failed to make a clear showing
“that irreparable injury is likely in the absence of an injunction.” This lawsuit was
filed sixteen months after Hotchkiss was served with the no-trespass notice. “[A]
party requesting a preliminary injunction must generally show reasonable diligence.”
Benisek, 138 S. Ct. at 1944; see Ng v. Bd.of Regents of Univ. of Minn., 64 F.4th 992,
997 (8th Cir. 2023) (unreasonable delay “is a sufficient basis to deny” a preliminary
injunction). Hotchkiss had moved his child to another school district, missed thirty-
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eight Board meetings, and failed to express his views in writing, as the notice
permitted. On June 8, 2023, three weeks before the preliminary injunction hearing,
Hotchkiss filed a Declaration that “I would like to attend meetings of the Cedar
Rapids Community School District school board. I will comply with the district’s
reasonable rules for decorum at those meetings.” We agree with the district court that
this last-minute Declaration is unsupported and speculative. “Speculative harm does
not support a preliminary injunction.” S.J.W. ex rel. Wilson v. Lee’s Summit Sch.
Dist., 696 F.3d 771, 779 (8th Cir. 2012) (citation omitted).
For these reasons, we conclude the district court did not abuse its discretion
when it denied Hotchkiss’s motion for a preliminary injunction because he failed to
make an adequate showing of irreparable harm. As in Sessler, 990 F.3d at 1157:
[Hotchkiss] has asked the district court to determine whether
enforcement of the [District’s no trespass notice] violated his
constitutional rights . . . . Such a determination will eventually be made.
However, [Hotchkiss] has not demonstrated preliminary injunctive relief
is warranted in this case.
Because “failure of a movant to show irreparable harm is an independently
sufficient basis upon which to deny a preliminary injunction,” this conclusion ends
our analysis. Id. at 1156 (quotation omitted); see Morehouse Enters., LLC v. Bureau
of Alcohol, Tobacco, Firearms & Explosives, 78 F.4th 1011 (8th Cir. 2023). The
district court’s Memorandum Opinion and Order dated July 21, 2023 is affirmed.
APPENDIX
District Policy 1007, “Conduct on School District Premises,” provides:
Individuals are permitted to be present on school district premises only
as guests of the District, and, as a condition of such permission, they
must comply with the District’s policies, regulations, and procedures.
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Individuals will not be allowed to interfere with or disrupt the
educational environment, the educational program or District
activities. . . . Abusive, threatening, or inappropriate, verbal or physical
conduct of individuals directed at students, school officials, employees,
officials, activity sponsors or other individuals will not be tolerated.
Regulation 1002.2, “Visitors to District,” provides:
Visitors will conduct themselves with respect and consideration for the
rights of others while visiting District facilities and/or attending
District/school events. . . . Visitors failing to conduct themselves
accordingly may be removed from school district premises by the school
official, employee or individual in charge. . . . The
superintendent/designee may exclude an individual who violates this
regulation from being present on school district premises in the future
and/or attending future school district sponsored or approved activities.
Iowa Code Chapter 723 lists several crimes under the category of “Public Disorder.”
Section 716.7(2)(a) defines trespass.
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