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United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:20-cv-04319

Black Lives Matter Chicago et al v. Wolf et al Assigned to: Honorable Rebecca R. Pallmeyer Cause: 28:1331 Federal Question

Date Filed: 07/23/2020 Date Terminated: 01/22/2021 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff Black Lives Matter Chicago

represented by Jonathan I. Loevy Loevy & Loevy 311 N. Aberdeen 3rd FL Chicago, IL 60607 (312)243-5900 Email: jon@loevy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brad Thomson People's Law Office 1180 N. Milwaukee Chicago, IL 60642 (773) 235-0070 Email: brad@peopleslawoffice.com ATTORNEY TO BE NOTICED

Brendan Shiller Shiller Preyar Law Offices 601 S. California Avenue Chicago, IL 60612 (312) 226-4590 Email: brendan@shillerlaw.com ATTORNEY TO BE NOTICED

Elizabeth C. Wang Loevy & Loevy

Plaintiff Black Abolitionist Network

2060 Broadway Suite 460 Boulder, CO 80302 720-328-5642 Email: elizabethw@loevy.com ATTORNEY TO BE NOTICED
Heather Lewis Donnell Loevy & Loevy 311 N. Aberdeen St. 3rd FL Chicago, IL 60607 312 243 5900 Email: heather@loevy.com ATTORNEY TO BE NOTICED
Sheila A Bedi Roderick Macarthur Justice Center 375 E. Chicago Avenue Chicago, IL 60611 (312) 503-2492 Email: sheila.bedi@law.northwestern.edu ATTORNEY TO BE NOTICED
Steven Edwards Art Loevy & Loevy 311 N. Aberdeen St. 3rd Floor Chicago, IL 60607 312 243 5900 Email: steve@loevy.com ATTORNEY TO BE NOTICED
Theresa H. Kleinhaus Loevy & Loevy 311 North Aberdeen 3rd Floor Chicago, IL 60607 (312) 243-5900 Email: tess@loevy.com ATTORNEY TO BE NOTICED
represented by Jonathan I. Loevy (See above for address)

Plaintiff
Chicago Democratic Socialists of America

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Thomson (See above for address) ATTORNEY TO BE NOTICED
Brendan Shiller (See above for address) ATTORNEY TO BE NOTICED
Elizabeth C. Wang (See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) ATTORNEY TO BE NOTICED
Steven Edwards Art (See above for address) ATTORNEY TO BE NOTICED
Theresa H. Kleinhaus (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan I. Loevy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Thomson (See above for address) ATTORNEY TO BE NOTICED
Brendan Shiller (See above for address) ATTORNEY TO BE NOTICED
Elizabeth C. Wang

Plaintiff Good Kids/Mad City

(See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) ATTORNEY TO BE NOTICED
Steven Edwards Art (See above for address) ATTORNEY TO BE NOTICED
Theresa H. Kleinhaus (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan I. Loevy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Thomson (See above for address) ATTORNEY TO BE NOTICED
Brendan Shiller (See above for address) ATTORNEY TO BE NOTICED
Elizabeth C. Wang (See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) ATTORNEY TO BE NOTICED
Steven Edwards Art

Plaintiff #LetUsBreathe Collective
Plaintiff South Siders Organized for Unity and Liberation

(See above for address) ATTORNEY TO BE NOTICED
Theresa H. Kleinhaus (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan I. Loevy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Thomson (See above for address) ATTORNEY TO BE NOTICED
Brendan Shiller (See above for address) ATTORNEY TO BE NOTICED
Elizabeth C. Wang (See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) ATTORNEY TO BE NOTICED
Steven Edwards Art (See above for address) ATTORNEY TO BE NOTICED
Theresa H. Kleinhaus (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan I. Loevy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff National Lawyers Guild Chicago

Brad Thomson (See above for address) ATTORNEY TO BE NOTICED
Brendan Shiller (See above for address) ATTORNEY TO BE NOTICED
Elizabeth C. Wang (See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) ATTORNEY TO BE NOTICED
Steven Edwards Art (See above for address) ATTORNEY TO BE NOTICED
Theresa H. Kleinhaus (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan I. Loevy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Thomson (See above for address) ATTORNEY TO BE NOTICED
Brendan Shiller (See above for address) ATTORNEY TO BE NOTICED
Elizabeth C. Wang (See above for address) ATTORNEY TO BE NOTICED

Plaintiff First Defense Legal Aid

Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) ATTORNEY TO BE NOTICED
Steven Edwards Art (See above for address) ATTORNEY TO BE NOTICED
Theresa H. Kleinhaus (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan I. Loevy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Thomson (See above for address) ATTORNEY TO BE NOTICED
Brendan Shiller (See above for address) ATTORNEY TO BE NOTICED
Elizabeth C. Wang (See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) ATTORNEY TO BE NOTICED
Steven Edwards Art (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Washington Baltimore News Guild, CWA Local 32035, In These Times Unit

Theresa H. Kleinhaus (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan I. Loevy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Thomson (See above for address) ATTORNEY TO BE NOTICED
Brendan Shiller (See above for address) ATTORNEY TO BE NOTICED
Elizabeth C. Wang (See above for address) ATTORNEY TO BE NOTICED
Heather Lewis Donnell (See above for address) ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) ATTORNEY TO BE NOTICED
Steven Edwards Art (See above for address) ATTORNEY TO BE NOTICED
Theresa H. Kleinhaus (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Chad Wolf

represented by Patrick Walter Johnson United States Attorney's Office (NDIL - Chicago) 219 South Dearborn Street

Defendant Alysa Erichs

Chicago, IL 60604 (312) 353-5300 Email: patrick.johnson2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago United States Attorney's Office (NDIL - Chicago) 219 South Dearborn Street Chicago, IL 60604 Email: USAILN.ECFAUSA@usdoj.gov ATTORNEY TO BE NOTICED
Kathleen Marie Flannery U.S. Attorney's Office- N.D.Ill. 219 S. Dearborn Suite 500 Chicago, IL 60661 3123537223 Email: Kathleen.Flannery@usdoj.gov ATTORNEY TO BE NOTICED
Nigel B Cooney United States Attorney's Office (NDIL - Chicago) 219 South Dearborn Street Chicago, IL 60604 (312) 353-1996 Email: nigel.cooney@usdoj.gov ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Kathleen Marie Flannery (See above for address)

Defendant Matthew T. Albence
Defendant Mark A. Morgan
Defendant Attorney General William Barr

ATTORNEY TO BE NOTICED
Nigel B Cooney (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Kathleen Marie Flannery (See above for address) ATTORNEY TO BE NOTICED
Nigel B Cooney (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Kathleen Marie Flannery (See above for address) ATTORNEY TO BE NOTICED
Nigel B Cooney (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant L. Eric Patterson
Defendant Richard K. Cline

AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Kathleen Marie Flannery (See above for address) ATTORNEY TO BE NOTICED
Nigel B Cooney (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Kathleen Marie Flannery (See above for address) ATTORNEY TO BE NOTICED
Nigel B Cooney (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Kathleen Marie Flannery (See above for address) ATTORNEY TO BE NOTICED
Nigel B Cooney

Defendant Donald W. Washington
Defendant Timothy J. Shea
Defendant Regina Lombardo

(See above for address) ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Kathleen Marie Flannery (See above for address) ATTORNEY TO BE NOTICED
Nigel B Cooney (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Kathleen Marie Flannery (See above for address) ATTORNEY TO BE NOTICED
Nigel B Cooney (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address)

Defendant Unknown Agents and Officers of the United States 1-10
Defendant Christopher Wray

ATTORNEY TO BE NOTICED
Kathleen Marie Flannery (See above for address) ATTORNEY TO BE NOTICED
Nigel B Cooney (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nigel B Cooney (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick Walter Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Kathleen Marie Flannery (See above for address) ATTORNEY TO BE NOTICED
Nigel B Cooney (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/10/2020

# Docket Text
7 Fifth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on July 10, 2020. This Order does not extend or modify any deadlines set in civil cases. No motions may be noticed for in-person presentment; the presiding judge will notify parties of the need, if any, for a hearing by electronic means or in-court

07/23/2020
07/23/2020 07/23/2020
07/23/2020
07/23/2020
07/23/2020 07/23/2020

proceeding. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 7/10/2020. Mailed notice. (rp, ) (Entered: 07/23/2020)

COMPLAINT filed by National Lawyers Guild Chicago, Black

1

Abolitionist Network, Black Lives Matter Chicago, South Siders

Organized for Unity and Liberation, Chicago Democratic Socialists of

America, Washington Baltimore News Guild, CWA Local 32035, In

These Times Unit, First Defense Legal Aid, Good Kids/Mad City,

#LetUsBreathe Collective; Filing fee $ 400, receipt number 0752-

17244262.(Kleinhaus, Theresa) (Entered: 07/23/2020)

2 CIVIL Cover Sheet (Kleinhaus, Theresa) (Entered: 07/23/2020)

3 ATTORNEY Appearance for Plaintiffs #LetUsBreathe Collective, Black Abolitionist Network, Black Lives Matter Chicago, Chicago Democratic Socialists of America, First Defense Legal Aid, Good Kids/Mad City, National Lawyers Guild Chicago, South Siders Organized for Unity and Liberation, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit by Jonathan I. Loevy (Loevy, Jonathan) (Entered: 07/23/2020)

4 ATTORNEY Appearance for Plaintiffs #LetUsBreathe Collective, Black Abolitionist Network, Black Lives Matter Chicago, Chicago Democratic Socialists of America, First Defense Legal Aid, Good Kids/Mad City, National Lawyers Guild Chicago, South Siders Organized for Unity and Liberation, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit by Steven Edwards Art (Art, Steven) (Entered: 07/23/2020)

5 ATTORNEY Appearance for Plaintiffs #LetUsBreathe Collective, Black Abolitionist Network, Black Lives Matter Chicago, Chicago Democratic Socialists of America, First Defense Legal Aid, Good Kids/Mad City, National Lawyers Guild Chicago, South Siders Organized for Unity and Liberation, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit by Elizabeth C. Wang (Wang, Elizabeth) (Entered: 07/23/2020)

CASE ASSIGNED to the Honorable Rebecca R. Pallmeyer. Designated as Magistrate Judge the Honorable Heather K. McShain. Case assignment: Random assignment. (jn, ) (Entered: 07/23/2020)

6 ATTORNEY Appearance for Plaintiffs #LetUsBreathe Collective, Black Abolitionist Network, Black Lives Matter Chicago, Chicago Democratic Socialists of America, First Defense Legal Aid, Good Kids/Mad City, National Lawyers Guild Chicago, South Siders Organized for Unity and Liberation, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit by Heather Lewis Donnell (Donnell, Heather) (Entered: 07/23/2020)

07/26/2020 07/27/2020 07/31/2020 08/03/2020 08/04/2020 08/26/2020

8 ATTORNEY Appearance for Plaintiffs #LetUsBreathe Collective, Black Abolitionist Network, Black Lives Matter Chicago, Chicago Democratic Socialists of America, First Defense Legal Aid, Good Kids/Mad City, National Lawyers Guild Chicago, South Siders Organized for Unity and Liberation, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit by Brendan Shiller (Shiller, Brendan) (Entered: 07/26/2020)
SUMMONS Issued as to Matthew T. Albence, William Barr, Richard K. Cline, Alysa Erichs, Regina Lombardo, Mark A. Morgan, L. Eric Patterson, Timothy J. Shea, Donald W. Washington, Chad Wolf, Christopher Wray, U.S. Attorney, and U.S. Attorney General (dxb, ) (Entered: 07/27/2020)
9 AMENDED complaint by National Lawyers Guild Chicago, Black Abolitionist Network, Black Lives Matter Chicago, South Siders Organized for Unity and Liberation, Chicago Democratic Socialists of America, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit, First Defense Legal Aid, Good Kids/Mad City, #LetUsBreathe Collective against All Defendants (Kleinhaus, Theresa) (Entered: 07/31/2020)
10 ATTORNEY Appearance for Plaintiffs #LetUsBreathe Collective, Black Abolitionist Network, Black Lives Matter Chicago, Chicago Democratic Socialists of America, First Defense Legal Aid, Good Kids/Mad City, National Lawyers Guild Chicago, South Siders Organized for Unity and Liberation, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit by Brad Thomson (Thomson, Brad) (Entered: 08/03/2020)
11 ATTORNEY Appearance for Plaintiffs #LetUsBreathe Collective, Black Abolitionist Network, Black Lives Matter Chicago, Chicago Democratic Socialists of America, First Defense Legal Aid, Good Kids/Mad City, National Lawyers Guild Chicago, South Siders Organized for Unity and Liberation, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit by Sheila A Bedi (Bedi, Sheila) (Entered: 08/04/2020)
12 SUMMONS Returned Executed by National Lawyers Guild Chicago, Black Abolitionist Network, Black Lives Matter Chicago, South Siders Organized for Unity and Liberation, Chicago Democratic Socialists of America, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit, First Defense Legal Aid, Good Kids/Mad City, #LetUsBreathe Collective as to Matthew T. Albence served on 7/28/2020, answer due 9/28/2020; William Barr served on 7/28/2020, answer due 9/28/2020; Richard K. Cline served on 7/28/2020, answer due 9/28/2020; Alysa Erichs served on 7/28/2020, answer due 9/28/2020; Regina Lombardo served on 7/28/2020, answer due 9/28/2020; Mark A. Morgan served on 7/28/2020, answer

09/29/2020 10/01/2020 10/01/2020 10/02/2020 10/02/2020 10/02/2020 10/02/2020

due 9/28/2020; L. Eric Patterson served on 7/28/2020, answer due 9/28/2020; Timothy J. Shea served on 7/28/2020, answer due 9/28/2020; Donald W. Washington served on 7/28/2020, answer due 9/28/2020; Chad Wolf served on 7/28/2020, answer due 9/28/2020; Christopher Wray served on 7/28/2020, answer due 9/28/2020 (Art, Steven) (Entered: 08/26/2020)

13 DESIGNATION of Nigel B Cooney as U.S. Attorney for Defendants Matthew T. Albence, William Barr, Richard K. Cline, Alysa Erichs, Regina Lombardo, Mark A. Morgan, L. Eric Patterson, Timothy J. Shea, Unknown Agents and Officers of the United States 1-10, Donald W. Washington, Chad Wolf, Christopher Wray (Cooney, Nigel) (Entered: 09/29/2020)

14 DESIGNATION of Kathleen Marie Flannery as U.S. Attorney for Defendants Matthew T. Albence, William Barr, Richard K. Cline, Alysa Erichs, Regina Lombardo, Mark A. Morgan, L. Eric Patterson, Timothy J. Shea, Donald W. Washington, Chad Wolf, Christopher Wray (Flannery, Kathleen) (Entered: 10/01/2020)

15 MOTION by Defendants Matthew T. Albence, William Barr, Richard K. Cline, Alysa Erichs, Regina Lombardo, Mark A. Morgan, L. Eric Patterson, Timothy J. Shea, Donald W. Washington, Chad Wolf, Christopher Wray for leave to file excess pages (Unopposed) (Flannery, Kathleen) (Entered: 10/01/2020)

16 DESIGNATION of Patrick Walter Johnson as U.S. Attorney for Defendants Matthew T. Albence, William Barr, Richard K. Cline, Alysa Erichs, Regina Lombardo, Mark A. Morgan, L. Eric Patterson, Timothy J. Shea, Unknown Agents and Officers of the United States 1-10, Donald W. Washington, Chad Wolf, Christopher Wray (Johnson, Patrick) (Entered: 10/02/2020)

17 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Defendants' unopposed motion for leave to file brief in excess of 15 pages 15 is granted to 20 pages. Notice mailed by judge's staff (ntf, ) (Entered: 10/02/2020)

18 MOTION by Defendants Alysa Erichs, Christopher Wray, Donald W. Washington, Timothy J. Shea, Richard K. Cline, Mark A. Morgan, Matthew T. Albence, William Barr, L. Eric Patterson, Unknown Agents and Officers of the United States 1-10, Regina Lombardo, Chad Wolf to dismiss for lack of jurisdiction and failure to state a claim. (Flannery, Kathleen) (Entered: 10/02/2020)

MEMORANDUM by Matthew T. Albence, William Barr, Richard K.

19

Cline, Alysa Erichs, Regina Lombardo, Mark A. Morgan, L. Eric

Patterson, Timothy J. Shea, Unknown Agents and Officers of the

United States 1-10, Donald W. Washington, Chad Wolf, Christopher

Wray in support of motion to dismiss/lack of

10/06/2020 11/09/2020
11/10/2020 11/24/2020
11/25/2020 01/21/2021 01/22/2021

jurisdiction, 18 (Attachments: # 1 Exhibit 1-3)(Flannery, Kathleen) (Entered: 10/02/2020)

20 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Defendants' motion to dismiss 18 is taken under advisement. Plaintiffs' response shall be filed by 11/10/2020. Defendants' reply in support shall be filed by 12/1/2020. Notice mailed by judge's staff (ntf, ) (Entered: 10/06/2020)

21 MOTION by Plaintiffs #LetUsBreathe Collective, Black Abolitionist Network, Black Lives Matter Chicago, Chicago Democratic Socialists of America, First Defense Legal Aid, Good Kids/Mad City, National Lawyers Guild Chicago, South Siders Organized for Unity and Liberation, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit for extension of time to file response/reply as to motion to dismiss/lack of jurisdiction, 18 (Kleinhaus, Theresa) (Entered: 11/09/2020)

22 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Plaintiffs' unopposed motion for extension of time to respond 21 is granted. Date for Plaintiffs to respond to the motion to dismiss is extended to November 24, 2020. Reply date is extended to December 15, 2020. Notice mailed by judge's staff (ntf, ) (Entered: 11/10/2020)

23 MOTION by Plaintiffs #LetUsBreathe Collective, Black Abolitionist Network, Black Lives Matter Chicago, Chicago Democratic Socialists of America, First Defense Legal Aid, Good Kids/Mad City, National Lawyers Guild Chicago, South Siders Organized for Unity and Liberation, Washington Baltimore News Guild, CWA Local 32035, In These Times Unit for extension of time to file response/reply as to motion to dismiss/lack of jurisdiction, 18 (Art, Steven) (Entered: 11/24/2020)

24 MINUTE entry before the Honorable Rebecca R. Pallmeyer:Plaintiffs' unopposed motion for extension of time to respond to Defendants' pending motion to dismiss 23 is granted as follows: Plaintiffs' response shall be filed by 1/21/2021. Defendants' reply in support shall be filed by 2/18/2021. Notice mailed by judge's staff (ntf, ) (Entered: 11/25/2020)

STIPULATION of Dismissal (Kleinhaus, Theresa) (Entered:

25

01/21/2021)

26 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Pursuant

to the parties' stipulation of dismissal 25 , this case is dismissed with prejudice. Defendants' motion to dismiss 18 is terminated. Civil case terminated. Notice mailed by judge's staff (ntf, ) (Entered: 01/22/2021)

PACER Service Center Transaction Receipt

PACER Login:
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Billable Pages:

03/10/2021 23:28:49

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Docket Report

Search Criteria:

1:20-cv04319

18

Cost:

1.80

 
 Case: 1:20-cv-04319 Document #: 1 Filed: 07/23/20 Page 1 of 41 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BLACK LIVES MATTER CHICAGO; )

BLACK ABOLITIONIST NETWORK; )

CHICAGO DEMOCRATIC

) No. C

SOCIALISTS OF AMERICA; GOOD )

KIDS/MAD CITY;

)

#LETUSBREATHE COLLECTIVE; )

SOUTH SIDERS ORGANIZED FOR )

UNITY AND LIBERATION;

)

NATIONAL LAWYERS GUILD

)

CHICAGO; FIRST DEFENSE LEGAL )

AID; and WASHINGTON-

)

BALTIMORE NEWS GUILD, CWA )

LOCAL 32035, IN THESE TIMES

)

UNIT,

)

)

Plaintiffs,

)

)

v.

)

)

CHAD WOLF; ALYSA ERICHS;

)

MATTHEW T. ALBENCE; MARK A. )

MORGAN; WILLIAM BARR; L. ERIC )

PATTERSON; RICHARD K. CLINE; )

DONALD W. WASHINGTON;

)

CHRISTOPHER WRAY; TIMOTHY J. ) PLAINTIFFS’ COMPLAINT FOR

SHEA; REGINA LOMBARDO; and

) INJUNCTIVE AND

UNKNOWN AGENTS AND

) DECLARATORY RELIEF

OFFICERS OF THE UNITED

)

STATES 1-10,

)

)

Defendants.

)

COMPLAINT Plaintiffs BLACK LIVES MATTER CHICAGO; BLACK ABOLITIONIST NETWORK; CHICAGO DEMOCRATIC SOCIALISTS OF AMERICA; GOOD KIDS/MAD CITY; #LETUSBREATHE COLLECTIVE; SOUTH SIDERS

Case: 1:20-cv-04319 Document #: 1 Filed: 07/23/20 Page 2 of 41 PageID #:2
ORGANIZED FOR UNITY AND LIBERATION; NATIONAL LAWYERS GUILD CHICAGO; FIRST DEFENSE LEGAL AID; and WASHINGTON-BALTIMORE NEWS GUILD, CWA LOCAL 32035, IN THESE TIMES UNIT, by their undersigned attorneys, hereby complain against Defendants CHAD WOLF, Acting Secretary of the U.S. Department of Homeland Security; ALYSA ERICHS, Acting Executive Associate Director, U.S. Homeland Security Investigations; MATTHEW T. ALBENCE, Deputy Director of the U.S. Immigration and Customs Enforcement; MARK A. MORGAN, a senior official currently performing the duties of the Commissioner of the U.S. Customs and Border Protection; WILLIAM BARR, Attorney General of the United States; L. ERIC PATTERSON, Director of Federal Protective Services; RICHARD K. CLINE, Principal Deputy Director of the Federal Protective Services; DONALD W. WASHINGTON, Director of the U.S. Marshals Service; CHRISTOPHER WRAY, Director of the Federal Bureau of Investigation; TIMOTHY J. SHEA, Acting Administrator of the U.S. Drug Enforcement Agency; REGINA LOMBARDO, Acting Director of the U.S. Bureau of Alcohol, Tobacco, Firearms; and UNKNOWN AGENTS AND OFFICERS OF THE UNITED STATES 1-10, and state as follows:
INTRODUCTION 1. The President and his appointees are sending federal agents to the streets of Chicago in order to intimidate and falsely arrest civilians who are exercising their constitutional right to speak and to assemble.
2

Case: 1:20-cv-04319 Document #: 1 Filed: 07/23/20 Page 3 of 41 PageID #:3
2. Federal authorities have promised to deploy in Chicago the same secret police force that has terrorized the people of Portland, Oregon for more than a week, where civilians have been kidnapped, beaten, and tear gassed by anonymous federal agents.
3. Rarely in modern times has a President of the United States trampled on bedrock constitutional protections on this scale or so brazenly usurped states’ police power by directing federal agents to carry out an illegal mission against the people for his own personal political benefit.
4. Plaintiffs have been engaged intensively in peaceful protest in Chicago for the past eight weeks, and they and their members have additional peaceful protests planned for today and the immediate future.
5. Plaintiffs are entitled to this Court’s protection of their constitutional right to peacefully protest. This Court must check the unrestrained and unlawful actions of the executive branch.
JURISDICTION AND VENUE 6. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331, the First and Fourth Amendments to the United States Constitution, and 5 U.S.C. § 702, et seq. 7. The Court is authorized to award the requested declaratory and injunctive relief by the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202; the Administrative Procedures Act, 5 U.S.C. § 706; and the Court’s equitable powers.
3

Case: 1:20-cv-04319 Document #: 1 Filed: 07/23/20 Page 4 of 41 PageID #:4
8. Venue is proper under 28 U.S.C. § 1391(b). Defendants are United States agencies or officers sued in their official capacities. Plaintiffs are residents of the State of Illinois, and the events giving rise to this complaint occurred and are likely to continue occurring in the State of Illinois, within the City of Chicago.
9. Venue is also proper under 28 U.S.C. § 1391(e)(1) because Defendants are officers or employees of the United States acting in their official capacity, and at least one Plaintiff resides in this district or a substantial part of the events or omissions giving rise to the claims occurred in this district.
PARTIES 10. Plaintiff BLACK LIVES MATTER CHICAGO is an organization that fights for justice alongside the families most impacted by racially motivated violence and marginalization of Black communities, while working to create just and equitable systems. Black Lives Matter (BLM) Chicago works to end state violence and criminalization of Black communities by deconstructing the white supremacist, capitalist patriarchy. Individual members of BLM Chicago regularly plan and participate in protests and political actions, have participated in the recent protests in Chicago, and are likely to be subjected to constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. These constitutional violations would require BLM Chicago to spend additional time and resources providing support to its members, diverting resources away from BLM’s mission of creating just and equitable systems for all. BLM
4

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Chicago brings this action on its own behalf and as an organizational representative for its members.
11. Plaintiff BLACK ABOLITIONIST NETWORK (BAN) is a network of organizers, strategists, and activists who provide strategic support to the movement. BAN members conduct mass trainings, teach-ins and town halls for community members. Individual members of BAN regularly plan and participate in protests and political actions, have participated in the recent protests in Chicago, and are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. These constitutional violations would require BAN to spend additional time and resources providing support to its members, diverting resources away from BAN’s mission of providing support to movements and increasing the capacity of community members involved in movement work. BAN brings this action on its own behalf and as an organizational representative for its members.
12. Plaintiff CHICAGO DEMOCRATIC SOCIALISTS OF AMERICA (CDSA) is an organization of over 2,500 members in Cook County, Illinois and an Illinois corporation. As part of pursuing its political mission, it engages in peaceful mass protest against violent police repression of the working class. Through its online magazine, newsletter, podcast, and other media channels, CDSA and its individual members are also engaged in journalism on the subject of the recent uprisings responding to police violence against the working class. Individual
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members of DSA regularly plan and participate in protests and political actions, have participated in the recent protests in Chicago, and are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. These constitutional violations would require CDSA to spend additional time and resources providing support to its members, diverting resources away from CDSA’s mission of creating a more equitable world by establishing socialism as a political force. DSA brings this action on its own behalf and as an organizational representative for its members.
13. Plaintiff GOOD KIDS/MAD CITY (GKMC) are young Black and Brown people united in fighting to end violence in their cities. They work to achieve more resources for underserved communities on the South Side and West Side of Chicago and provide support to young people affected by violence. Individual GKMC members regularly plan and participate in protests, have participated in the recent protests in Chicago, and also have launched “love marches” to encourage communities to resolve conflicts peacefully. They are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. When these constitutional violations occur, GKMC must divert time and resources from its mission of reducing violence and improving equality in underserved neighborhoods.
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14. Plaintiff #LETUSBREATHE COLLECTIVE is a collaborative of artists and activists that serves communities directly impacted by mass criminalization, police violence, and systemic injustice by centering marginalized voices and dismantling oppressive systems. Through direct action and cultural events, #LETUSBREATHE COLLECTIVE aims to organize artists to love and transform themselves and their communities through radical imagination and creative healing work. Individual members of #LETUSBREATHE COLLECTIVE regularly plan and participate in protests and political actions, have participated in the recent protests in Chicago, and are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. When these constitutional violations occur, #LETUSBREATHE COLLECTIVE must divert time and resources from its mission of promoting radical healing work in underserved communities.
15. Plaintiff SOUTH SIDERS ORGANIZED FOR UNITY AND LIBERATION (“SOUL”) is a membership organization that consists of more than two dozen faith based organizations and community organizations on the Southside of Chicago, that organizes the communities in which its member organizations operate to fight for low-income people of color in the Chicago southland to build power and leverage that power to fight for their own interest and liberation. SOUL partners with their membership organizations and trains them and other community activists and leaders in organizing strategies specifically designed to
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build leadership and impact public policy and legislation on multiple issues including housing, health care, education, economic development, employment, youth services and public safety policy. For the last two months, SOUL has focused its organizing on public safety policy and has activated many of the members and congregants of its membership organizations and congregations to participate in protests to encourage smarter public safety strategies that involve less policing and more resources in disinvested communities. Individual staff and members of SOUL regularly plan and participate in protests and political actions, have participated in the recent protests in Chicago, and are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. When these constitutional violations occur, SOUL must divert time and resources from its mission of promoting radical healing work in underserved communities.
16. Plaintiff NATIONAL LAWYERS GUILD CHICAGO (NLG Chicago) is an organization of lawyers, law students, legal workers, and jailhouse lawyers who operate as a political and social force, working to build a world where human rights are regarded as more sacred than property interests. Individual members of NLG Chicago have been subject to aggressive policing and incommunicado detention by virtue of their advocacy in support of First Amendment-protected protest activity. NLG Chicago provides “Legal Observers” who document police behavior during protests, including the most recent ones opposing police violence. It
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also provides legal representation to protesters who are arrested. Individual members of NLG Chicago regularly attend protests as Legal Observers, have participated in the recent protests in Chicago, and are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. When these constitutional violations occur, NLG Chicago is forced to divert time and resources away from their mission of protecting members’ and clients’ civil rights and liberties during protests. Furthermore, when Legal Observers are arrested during protests, NLG Chicago loses the ability to provide oversight of police activities and treatment of protesters. NLG Chicago is further forced to divert resources to find other Legal Observers to cover the duties of arrested members.
17. Plaintiff FIRST DEFENSE LEGAL AID (FDLA) was originally a pro bono nonprofit that provided free representation at police stations in Chicago. This was its purpose for nearly a quarter century until it organized its mission out of existence by fighting for and achieving a Cook County-wide policy that calls for the Cook County Public Defender to represent arrestees at police stations in Chicago and throughout Cook County. FDLA still maintains a hotline that sends callers looking for police station representation to the Public Defender, and therefore uses resources when those calls are made. But the primary two functions of FDLA are now different. First, FDLA continues to employ attorneys that represent pro bono individuals that have low-damage civil rights cases against the City of Chicago
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when no private firm will take that case. Second, FDLA operates a hotline that provides non-police alternatives for community members that do not want to call police to deal with issues such as mental health disturbances, suicidal relatives, domestic disturbances, homeless people, minor trespassing, etc. This hotline is the model of what local jurisdictions including Chicago should be doing to de-escalate violent interactions between police and citizens. Lastly, FDLA has some community navigators that work with community activists and leaders to organize for community power and say so in public policy including public safety public policy. Every aspect of FDLA’s operations will see its resources stressed by the presence of federal law enforcement in Chicago. This includes its navigators’ desires to engage in public policy action being tempered.
18. Plaintiff WASHINGTON-BALTIMORE NEWS GUILD (WBNG), COMMUNICATION WORKERS OF AMERICA (CWA) LOCAL 32035, IN THESE TIMES UNIT, is a bargaining unit representing journalists and communication workers. This unit of the WBNG is also referred to as the “In These Times Union,” and is comprised of journalists and other workers employed by the publication, In These Times. In These Times is an independent, nonprofit magazine which is dedicated to advancing democracy and economic justice, informing movements for a more humane world, and providing an accessible forum for debate about the policies that shape the future. In These Times is based in Chicago and covers topics of social and political interest, with a focus on movements for social change, including the Black Lives Matter movement and other movements calling to defund police
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departments. In order to effectively report on these movements, members of the In These Times Union have attended protests against police violence in Chicago and intend to continue to do so. Individual members of the In These Times Union are likely to be subjected to constitutional violations by Defendants, including but not limited to violations of their First Amendment rights.
19. Plaintiffs bring this action on their own behalf and on behalf of their members.
20. Defendant CHAD WOLF is acting secretary of the U.S. Department of Homeland Security (DHS). DHS is a Cabinet-level Department of the U.S. government. Its stated missions involve anti-terrorism, border security, immigration, and customs. It was created in 2002, combining 22 different federal departments and agencies into a single Cabinet agency.
21. Defendant ALYSA ERICHS is Acting Executive Associate Director, U.S. Homeland Security Investigations (HSI). HSI is an investigative arm of DHS which states as its goal: “[C]ombating criminal organizations illegally exploiting America’s travel, trade, financial and immigration systems.” HSI’s legal authority allows it to investigate only cross-border criminal activity relating to “financial crimes, money laundering and bulk cash smuggling; commercial fraud and intellectual property theft; cybercrimes; human rights violations; human smuggling and trafficking; immigration, document and benefit fraud; narcotics and weapons smuggling/trafficking; transnational gang activity; export enforcement; and, international art and antiquity theft.”
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22. Defendant MATTHEW T. ALBENCE is Deputy Director and the senior official currently performing the duties of the Director of the U.S. Immigration and Customs Enforcement (ICE), an agency housed within DHS. Its stated mission is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.”
23. Defendant MARK A. MORGAN is the senior official currently performing the duties of the Commissioner of the U.S. Customs and Border Protection (CBP). CBP is an agency within DHS. Its stated mission is “[t]o safeguard America’s borders thereby protecting the public from dangerous people and materials while enhancing the Nation’s global economic competitiveness by enabling legitimate trade and travel.”
24. Defendant WILLIAM BARR is Attorney General of the United States, and in that position oversees the U.S. Department of Justice.
25. Defendant L. ERIC PATTERSON is Director of Federal Protective Services. Federal Protective Services (FPS) is a division of DHS. Its mission is “[t]o prevent, protect, respond to and recover from terrorism, criminal acts, and other hazards threatening the U.S. Government’s critical infrastructure, services, and the people who provide or receive them.” According to its website, it is responsible for guarding 9,000 federal facilities and employs more than 1,300 officers, agents, and support staff who are responsible for overseeing another 13,000 private contractors.
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26. Defendant RICHARD K. CLINE is the Principal Deputy Director of the FPS. According to his official DHS biography, he “serves as an extension of the Director and operates with full authority to execute the mission of the FPS.”
27. Defendant DONALD W. WASHINGTON is Director of the U.S. Marshals Service. The U.S. Marshals Service is an agency within and under the control of the U.S. Department of Justice. According to a Fact Sheet on its website, “it is the enforcement arm of the federal courts, involved in virtually every federal law enforcement initiative.” The U.S. Marshals Service’s Special Operations Group says it is “deployed in high-risk and sensitive law enforcement situations, national emergencies, civil disorder and natural disasters.”
28. Defendant CHRISTOPHER WRAY is Director of the Federal Bureau of Investigation (FBI). The Federal Bureau of Investigation is an agency within the U.S. Department of Justice.
29. Defendant TIMOTHY J. SHEA is the Acting Administrator of the U.S. Drug Enforcement Agency (DEA). The DEA is a federal law enforcement agency under the U.S. Department of Justice. According to its website, the mission of the DEA is to enforce the controlled substances laws and regulations of the United States and bring to the criminal and civil justice system of the United States, or any other competent jurisdiction, those organizations and principal members of organizations, involved in the growing, manufacture, or distribution of controlled substances appearing in or destined for illicit traffic in the United States; and to recommend and support non-enforcement programs aimed at reducing the
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availability of illicit controlled substances on the domestic and international markets.
30. Defendant REGINA LOMBARDO is Acting Director of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). According to the ATF’s website, “ATF is a law enforcement agency in the United States’ Department of Justice that protects our communities from violent criminals, criminal organizations, the illegal use and trafficking of firearms, the illegal use and storage of explosives, acts of arson and bombings, acts of terrorism, and the illegal diversion of alcohol and tobacco products. We partner with communities, industries, law enforcement, and public safety agencies to safeguard the public we serve through information sharing, training, research, and use of technology.”
31. UNKNOWN AGENTS AND OFFICERS OF THE UNITED STATES 1–10 are unidentified agents and officers of the federal agencies listed in this complaint, acting under color of federal law and within the scope of their employment and duties with the respective agencies by which they are employed or for which they are agents.
FACTS I. PLAINTIFFS ARE ENGAGED IN PEACEFUL PROTESTS
A. Peaceful Protests in Chicago in 2020 32. On May 25, 2020, Minneapolis police officers murdered George Floyd, who was handcuffed and lying face down on the ground, by suffocating him to death in broad daylight on the street.
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33. Floyd’s murder and the police murder of Breonna Taylor in Louisville, Kentucky, in addition to recent police murders of other Black people in the United States sparked the largest movement for social and racial justice in history and has included peaceful protests around the world against anti-Black police violence, systemic racism, and inequality.
34. In Chicago, Plaintiffs are the leaders of this movement against antiBlack racism and for human rights and social justice.
35. Since the end of May 2020, there have been nearly daily protests and actions throughout the city of Chicago, ranging in size from a few dozen people to thousands. These protests have occurred throughout Chicago, in the Loop, and the South, West and North sides.
36. Plaintiffs have been part of the largest global movement for human rights in recent memory. The Plaintiffs Black Lives Matter Chicago, Black Abolitionist Network, Chicago Democratic Socialists of America, Good Kids/Mad City, #LetUsBreathe Collective, South Siders Organized for Unity and Liberation, and their membership have been in the streets protesting police brutality as part of the movement for Black lives.
37. Legal observers associated with the Plaintiffs National Lawyers Guild Chicago and First Defense Legal Aid have been attending the protests to document police activity and police constitutional violations.
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38. Members of Plaintiff Washington-Baltimore News Guild, CWA Local 32035, In These Times Unit have been present at protests to report on the historic protests as well as on the police response.
B. Violence by the Chicago Police During Peaceful Protests 39. The Chicago Police Department (CPD) has responded—and continues to respond—to these protests with brutal, violent, unconstitutional tactics that are clearly intended to silence protestors. 40. CPD officers consistently target protesters with unlawful, retaliatory and lethal force. Officers’ animus against protesters is unmistakable—they regularly refer to protestors with terms that are vile, misogynistic, and anti-gay. CPD also targets protester’s property—destroying cameras, phones, eyeglasses and confiscating bikes, backpacks, and other belongings. 41. Protesters often report that CPD officers intentionally strike them on their head with batons with enough force to leave people bloodied and in some instances with serious concussions. 42. On June 23, 2020, the Chicago Reader published an in-depth examination of the CPD’s use of lethal force during the May 2020 protests. The reporter documented “83 baton strikes on at least 32 different people by officers, most captured on video. Nearly all appear to violate [CPD] policy with more than half of the strikes on video involving police beating people who were already on the ground. Multiple videos also show officers hitting protesters in the head with batons despite rules limiting these strikes to situations requiring deadly force.” The Reader
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article notes that these unlawful uses of force often occurred in full view of supervisors who failed to intervene and that most officers failed to report their uses of force.
43. CPD’s brutal response has also included police officers tackling protesters to the ground, kneeing protesters in the neck and back, kicking protesters in the legs to cause them to fall, trapping protesters on bridges, pushing protesters stranded on bridges, pinning protesters against hard surfaces, using tear gas and pepper spray, dragging protesters through the streets, punching protesters in the face, stomping on protesters on the ground, and beating protesters severely.
44. Protesters widely report that CPD targets those it has identified as protest marshals or leaders with the most brutal violence apparently as part of a strategy to quell the protesters’ free expression. CPD also was particularly violent with protesters who expressed concern that CPD was harming other people. Protestors repeatedly reported that CPD officers pushed, shoved, battered, and harassed people who were filming acts of police brutality during the uprisings. Often this resulted in confiscated or damaged camera and physical injury to protesters exercising their First Amendment right to record the police.
45. People of all races who interact with CPD officers during protests report that officers are aggressive, rude, disrespectful, and often affirmatively escalate encounters through taunts, shoves, pushes and other inappropriate behavior. CPD officers used particularly hostile language towards women and members of the LGBTQ community.
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46. CPD’s response to the protests also reflects a pattern and practice of breaking, stealing, or otherwise disposing of protestors’ belongings, including bikes, cameras, glasses, goggles and, in some instances, canes used to assist with mobility.
47. CPD has also engaged in a systemic practice of illegal searches of protesters, seizure of protesters, and false arrest of protesters.
48. Throughout these events, Mayor Lori Lightfoot has praised the police for their “restraint.”
C. Chicago’s History of Illegal Force, Arrest, Detention, and Surveillance of Protestors
49. CPD has long used excessive force and false arrest at protests, including in recent years, at the Black Lives Matters protests and the protests against the NATO Summit in 2012.
50. CPD has a long history of surveillance of protesters. This has included sending law enforcement infiltrators to surveil protest groups and using technology to surveil the communications of protesters and organizers.
51. CPD has long operated an unconstitutional detention center at the intersection of South Homan Street and West Filmore Avenue (hereinafter “Homan Square”). CPD has brought thousands of people—predominately and disproportionately Black and Latinx people—to Homan Square and interrogated them using unconstitutional tactics including: physical threats and assaults, denial of food, water, bathrooms, and sleep, placing individuals in cells with the overwhelming stench of human feces and urine, psychological coercion, threats of false charges, and racial slurs. CPD has used these interrogations to try to obtain
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information from individuals. CPD holds these individuals for long periods of time, without allowing them access to legal counsel or taking them before a judge, and without revealing their whereabouts to concerned friends, family members, or counsel. In other words, the activities of CPD at Homan Square proceed under a shroud of secrecy without any judicial or public oversight. II. THE PRESIDENT HAS DEPLOYED A SECRET POLICE FORCE
A. President Trump’s Threats to Use Force Against Civilians 52. President Donald Trump has long fancied himself a strongman leader better suited for a dictatorship than a democracy. 53. He has maligned the nation’s cities, including Chicago, Portland, and New York, saying they are “run” by “Radical Left Democrats” who, in his view, will “destroy our Country as we know it.” 54. The President has continually spoken out against peaceful protestors, even directing his agents to clear peaceful protestors from public grounds outside of the White House through the use of physical force and chemical weapons. 55. On June 1st, 2020, some 350 CBP officers were deployed to Washington, D.C. to patrol the protests. CBP’s Acting Commissioner Mark Morgan defended this deployment in a tweet stating that: “These ‘protests’ have devolved into chaos & acts of domestic terrorism by groups of radicals & agitators. @CBP is answering the call and will work to keep DC safe.” 56. Repeatedly, the President has warned the nation’s cities that he will use similar force against their civilians to end peaceful protest.
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57. To this end, on June 26, 2020, the President signed an Executive Order on “Protecting American Monuments, Memorials, and Statues, and Combating Recent Criminal Violence,” in which he fulminated against the protests in American cities and gave federal law enforcement and military leave to “assist” in protecting federal property for the next six months.
58. On July 1, 2020, CBP circulated a memorandum to CBP officers detailing their mission in Portland as a response to the President’s recent Executive Order.
59. The July 1st CBP Memo explained that the Acting Secretary of DHS, Chad Wolf, created the DHS Protecting American Communities Task Force, which would “provide an ongoing assessment of potential civil unrest and property destruction and to address resource allocation and potential surge activity to ensure the continuing protection of people and property.”
60. The July 1st CBP Memo further explained that DHS has decided along with other departments and agencies that it is “in the public interest and fiscally sound for the Federal Protective Services . . . to partner with other federal law enforcement to execute the directive of the President. To that end, DHS began coordination with the Department of Justice (DOJ) and Department of the Interior (DOI) to establish information/intelligence sharing[.]”
61. The July 1st CBP Memo goes on to explain that CBP officers were to be deployed to cities across the country for the July 4th weekend.
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62. Defendant Wolf announced on July 3, 2020 that DHS was “following [President Trump’s] lead in deploying special units to defend our national treasures from rioters.” He also stated, “We won’t stand idly by while violent anarchists and rioters seek not only to vandalize and destroy the symbols of our nation, but to disrupt law and order and sow chaos in our communities,” and “civil unrest will not be tolerated.”
63. CBP officers, and upon information and belief, other federal agents, have been deployed in undisclosed cities throughout the country in response to the nationwide protests, or what DHS calls “civil unrest” or “disruptive activity.” One of these locations was Portland, Oregon.
B. The Secret Police Terrorize Portland 64. Starting on or about July 1, 2020, President Trump gave life to his authoritarian vision for our cities, sending unidentified federal agents to the streets of Portland, Oregon. 65. For several weeks, a paramilitary force of agents of the DHS, as well as other federal agents known and unknown to Plaintiffs, have been deployed on Portland streets. 66. It has been reported in the media that the camouflaged federal troops sent to Portland were officers from several federal agencies, including not only CBP, but also the U.S. Marshals Service.
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67. These federal agents dressed in camouflage, fatigues, and tactical gear, without any insignia or information identifying them. They have used batons, tear gas, rubber bullets, and munitions on protesters, journalists, and legal observers.
68. They have used such force and intimidation despite the fact that protestors, journalists, and legal observers were not committing any federal crimes, and were not doing anything threatening whatsoever.
69. For example, federal agents shot unarmed protester Donavan LaBella in the head with a munition, reportedly fracturing his skull.
70. On July 12, 2020, while journalist Mathieu Lewis-Rolland was documenting protests in Portland, federal agents shot him in the side and back ten times with hard plastic bullets that tore holes into his “PRESS” t-shirt, despite his clear identification as press, and despite that he was carrying bulky camera equipment, staying in well-lit areas, and posing no threat to anyone.
71. Journalist Garrison Davis was also covering protests in Portland on the night of July 11, 2020 and the early morning of July 12, wearing a helmet that said “PRESS” on it in big block letters, holding his press pass, and not participating in protests. Though he posed no threat to anyone, a federal agent shot him in the back with a tear gas canister, pepper bullets, and other munitions.
72. Egregiously, federal agents beat and pepper-sprayed a Navy veteran, Christopher David, who went to the protests to ask the federal agents whether they thought they were upholding the U.S. Constitution with their actions. In response,
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the agents beat him (breaking his hand) and pepper sprayed him in the face, despite the fact that David posed no threat.
73. Indeed, even when a “wall of mothers”—women, some of whom were pregnant—stood in front of the protestors peacefully, arm-and-arm, and chanted things like “leave our kids alone,” the federal agents terrorized them with chemical weapons and other acts of violence.
74. On July 16, 2020, another Memorandum was sent to Chad Wolf as Acting Secretary of DHS (July 16th DHS Memo).
75. This July 16th DHS Memo stated that acting in response to President Trump’s Executive Order CBP and ICE had “mobilized tactical teams to provide support to [FPS] in protecting federal buildings and assets within the greater Portland, Oregon area.”
76. Further, the July 16th DHS Memo explains how the U.S. Marshals Service “deployed their Special Operations Group (USMS/SOG) to further assist FPS in the protection of the Mark O. Hartfield Federal Courthouse in Portland,” and that the “U.S. Secret Service, . . . ICE/HSI, and the . . . FBI have also provided investigative support to FPS.”
77. While in Portland, these CBP officers reportedly entered sections of the city where residents were peacefully protesting racial and social injustice.
78. CBP officers in Portland were wearing generic green law enforcement uniforms with no identifying insignias. These CBP officers then approached
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protesters in unmarked vehicles, in some instances far from any federal property, buildings, or monuments they were deployed to protect.
79. On July 15, 2020, armed federal agents dressed in camouflage pulled Mark Pettibone into an unmarked van without identifying themselves, drove him to what is believed to have been a federal courthouse, and detained him in a cell before releasing him without any paperwork, citation, or record of his arrest.
80. Another protester in Portland reported that she and others were standing and talking to one another when they heard a fellow protester yell that a “snatch van” was approaching. She described these officers, later determined to be CBP agents, as “putting bags over [protesters’] heads, and putting them in out-ofstate plated vans.” The CBP issued a statement confirming that its agents were responsible for this lawless kidnapping of a civilian from the streets of Portland.
81. The July 1st CBP Memo and the July 16th DHS Memo each outline the coordination between subagency officers and agents of DHS, DOJ, and DOI which has been ongoing throughout the summer since in response to nationwide protests.
82. According to Ken Cuccinelli, the Acting Deputy Secretary of Homeland Security, the Hatfield courthouse in Portland is protected by the FPS. The Acting Deputy Secretary explained that CBP and ICE officers were called in to support FPS and, thus, that FPS was directing the involvement by CBP, ICE, and other DHS officers.
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83. Defendant Wolf has publicly stated that 43 arrests have been made in relation to operations in Portland since the weekend of July 4th, including by teams of FPS and CBP officers working together. It is unknown how many instances have resulted in unauthorized searches, questioning, or seizure and temporary detention. It is also unknown which agencies have carried out exactly which arrests, searches, detainments, or custodial interrogations.
84. The President and his appointees and officers have tried to characterize these incidents of detainment and arrests as a response to individuals destroying federal property. For example, DHS Acting Deputy Secretary Ken Cuccinelli stated in an interview with NPR that “We’re talking only about violent rioters. We’re not talking about actual protesters. We’re not seeking to interfere at all with anyone peacefully expressing themselves—period, full stop.”
85. However, incidents like what happened to Mark Pettibone show otherwise—that protesters could do nothing more than walk down the street and still be subject to search, arrest, and hours of detainment.
86. Oregon Governor Kate Brown has called the federal agents’ conduct in Portland “a blatant abuse of power,” and has criticized the Trump Administration for intentionally “provok[ing] confrontation for political purposes.”
87. In a letter co-signed by the mayors of five other cities, including Chicago’s Mayor, Portland Mayor Ted Wheeler criticized the federal agents for using “tactics we expect from authoritarian regimes—not our democracy” and
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confirmed that “the irresponsible actions of [the federal] agencies threaten community safety.”
88. Oregon’s Attorney General has filed a federal lawsuit seeking to enjoin the federal agents from continuing to engage in their unlawful tactics.
89. Oregon’s Governor has requested the removal of federal agents from Portland’s streets, as has Mayor Wheeler, but Defendant Wolf has refused.
90. The modus operandi of the paramilitary force of federal agents in Portland includes: (1) anonymous federal agents dressed in camouflage who bear no known designation and refuse to identify themselves; (2) the use of unmarked vehicles used to illegally arrest and detain and round up protestors, journalists, and observers; (3) kidnapping of innocent civilians without probable cause; (4) uses of excessive, inexcusable force against people exercising their right to speak and to assemble as well as people reporting on peaceful protests; and (5) “preemptive arrests” of people without probable cause to believe they committed any federal crime.
C. The Federal Policy of Conducting Illegal Arrests 91. On July 15, 2020, a video emerged showing camouflaged federal agents grabbing an individual off the street in Portland and placing him in an unmarked van. 92. NLG Legal Observers who were recording the video objected to this kidnapping.
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93. On July 17, 2020, an official U.S. Customs and Border Patrol statement confirmed that the camouflaged officers were CBP agents.
94. In a press conference on July 21, 2020, Defendant Wolf called on Defendant Cline to explain the “standard of probable cause” justifying these arrests.
95. Defendant Cline specifically addressed the July 15th unmarked officer arrests explaining that the CBP agents had identified a man “in a crowd and in an area” where someone was aiming a laser at officers, and they followed him to a calmer location to talk to him. After doing so, they removed him from the area where other protesters and observers were nearby and took him to another location in a van. They held him for approximately 20 minutes and then released him “because they did not have what they needed” to hold him.
96. In attempting to justify the constitutionality of this act, Cline characterized it as a “simple engagement” and “not a custodial arrest.”
97. These Defendants’ statements established a policy of allowing officers to make arrests without probable cause in violation of the Fourth Amendment.
98. Later the same day, Defendant Wolf stated that DHS was “having to go out and proactively arrest individuals . . . to hold them accountable.”
99. Defendant Wolf’s statement explaining DHS’s authority to “proactively arrest” individuals further confirmed a federal policy that is being implemented by federal agents on city streets that contravenes the protections of the Fourth Amendment by sanctioning arrests without probable cause.
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100. President Trump has approved of the actions of the federal agents in Portland, thereby ratifying the federal agents’ policy of arresting individuals without probable cause and justifying the continued and expanded use of unlawful arrests that agents employed in Chicago and other cities.
101. For example, on June 20, 2020, President Trump stated “we’ve done a great job in Portland. . . . I guess we have many people in jail right now. We very much quelled it, and if it starts again, we’ll quell it again very easily. It’s not hard to do, if you know what you’re doing.”
102. When the President and Defendants Wolf and Barr announced at their July 22, 2020 press conference that they would deploy a “surge” of federal agents to other cities, including Chicago, at no point did any of them or anyone else state that the policy of conducting unlawful or preemptive arrests like those conducted in Portland would not continue during the “surge” of officers being imminently deployed to Chicago.
D. The Secret Police Have Been Deployed to Chicago 103. Despite public outcry against these flagrant constitutional violations, the President has vowed to continue to use federal agents to mount a hostile takeover of U.S. cities. 104. The President has said that his efforts in Portland were designed to “help” that city and that Chicago, among other cities, is next. 105. These developments are unsurprising, given that on May 28, 2020, the President said that he would send the military to confront protesters and invoked
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the racist phrase of a segregationist used to quell prior cries for racial equality: “When the looting starts, the shooting starts.”
106. The President again made threats about deploying the National Guard to “dominate the streets” and using “thousands of heavily armed soldiers” against civilians.
107. On June 1, 2020, amid the protests in Washington, D.C., the President ordered police and National Guard troops to clear peaceful protestors from Lafayette Square and surrounding streets using tear gas and other weapons. This was done solely so that the President could walk from the White House to St. John’s Episcopal Church, so that he could hold a Bible for a photo-op.
108. Other federal appointees and officers have also made clear the Administration’s intention to replicate what is taking place in Portland elsewhere, including in Chicago.
109. Defendant Wolf announced that DHS was going to deploy agents to Chicago and would “do that whether they like us there or not.”
110. In an interview on July 19, 2020, the President called Chicago “stupidly run” and pledged to have “more federal law enforcement” in Chicago and other cities “all run by liberal Democrats.”
111. On July 22, 2020, the President held a news conference from the East Room of the White House confirming that there would be a “surge” of federal agents arriving imminently in Chicago.
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112. During those remarks, the President was explicit that the federal law enforcement response is needed to address problems purportedly caused by the activities and demands of protestors, and that federal agents would help to restore order in Chicago.
113. In addition, neither the President, Defendant Barr, nor Defendant Wolf gave any assurance that the “hundreds” of federal agents flooding Chicago would leave protestors alone. At no time did they acknowledge that the federal government had overstepped in Portland. At no time did they agree that the federal law enforcement activities currently taking place in Portland would be limited to Portland.
114. On the contrary, the President and Defendants made clear that there would soon be an unchecked federal presence on the streets of Chicago, with the President describing federal authority as “as wide as it can be.”
115. The President and Defendants repeatedly tied the decision to send federal law enforcement officers to Chicago to the actions of protesters, blaming protesters for violence in Chicago.
116. The President cited “a radical movement to defund, dismantle and dissolve our police departments” that “has led to a shocking explosion of shootings, killings, murders, and heinous crimes of violence.” He complained that local “politicians have now embraced the far-left movement to break up our police departments causing violent crime in their cities to spiral . . . seriously out of control.” He demanded that Americans ”insist that community officials
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fully support, fully back and fully fund their local police departments” and said federal law enforcement would remain until then. He repeated “[w]e will never defund the police, we will hire more great police” and “[w]hile others want to defund, defame and abolish the police, I want to support and honor our great police.”
117. Defendant Barr announced, ”[W]e’re going to continue to confront mob violence,” and he claimed that “a significant increase in violent crime” is the “direct result of the attack on the police forces” and calls “for the defunding of police departments.”
118. All of this is consistent with the President’s numerous statements since the beginning of the nationwide protests that he intends to use federal agents to stop protestors.
119. For instance, the President tweeted: “Get tough Democrat Mayors and Governors. These people are ANARCHISTS. Call in our National Guard NOW. The World is watching and laughing at you and Sleepy Joe. Is this what America wants? NO!!!” This early suggestion that the National Guard was needed to quell actions of particular political groups or protesters with political leanings, such as “anarchists,” makes clear that the aim in calling in federal officers is to quell protests—not just those committing crimes against property.
120. The President has expressed his disdain for the viewpoints of the protestors: “Our great National Guard Troops who took care of the area around the White House could hardly believe how easy it was. “A walk in the park”, one said.
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The protesters, agitators, anarchists (ANTIFA), and others, were handled VERY easily by the Guard, D.C. Police, & S.S. GREAT JOB!”
121. The President has indicated his intention to “dominate” protestors: “D.C. had no problems last night. Many arrests. Great job done by all. Overwhelming force. Domination. Likewise, Minneapolis was great (thank you President Trump!)”
122. The President has expressed satisfaction when protestors self-censor by staying home: “I have just given an order for our National Guard to start the process of withdrawing from Washington, D.C., now that everything is under perfect control. They will be going home, but can quickly return, if needed. Far fewer protesters showed up last night than anticipated!”
123. At President Trump’s rally at Mount Rushmore on July 4, 2020, he announced that he was “deploying federal law enforcement to protect our monuments, arrest the rioters, and prosecute offenders to the fullest extent of the law.”
124. Finally, in retweeting a thread which showed New York stores boarded up in anticipation of any violence following the continuation of nationwide protests, President Trump wrote, “The National Guard is ready!” III. CHICAGO IS UNABLE OR UNWILLING TO STOP UNLAWFUL
FEDERAL INTERVENTION 125. Chicago’s Mayor has publicly recognized the problems with the President’s secret police force, saying, “We don’t need federal agents without any insignia taking people off the streets and holding them, I think, unlawfully.”
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126. The Mayor has also recognized that an “influx” of federal agents to Chicago is on its way.
127. In a July 20, 2020 letter to the President, Chicago’s Mayor stated that federal agents deployed to Chicago “that would not be within our control or within the direct command of the Chicago Police would spell disaster.”
128. Chicago is already saturated with federal law enforcement agents who conduct duly authorized law enforcement activities in Chicago and the region on a daily basis.
129. A further influx of such agents in lieu of investment in the communities most affected by gun violence, police violence, and racism is counterproductive, destructive, and a potentially violent disaster.
130. Contrary to her stated position, on information and belief, Chicago’s Mayor has had discussions with federal authorities about the initial deployment of federal agents in Chicago, and on July 21, 2020, she confirmed that federal agents would be deployed to Chicago.
131. The assent of Chicago’s Mayor to the surge of federal forces means that when the President sends federal agents to Chicago, as he did to Portland, the CPD and the City will be unable and unwilling to protect protestors from unlawful use of excessive force and arrests without probable cause. IV. PLAINTIFFS FEAR CONTINUING THEIR LAWFUL ACTIVITIES
132. Given the City of Chicago’s history of violence against peaceful protestors, and its recent violence against protestors, the addition of federal forces
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to illegally intimidate, police, and falsely arrest peaceful protestors will ignite additional official violence against civilians and a serious constitutional crisis within the City of Chicago.
133. Indeed, recognizing these legitimate and imminent fears, State Representative Will Guzzardi, whose district overs the City of Chicago’s northwest side, reports that his constitutes are “terrified by the news” of impeding federal agents, and that some have been dissuaded from protesting.
134. Plaintiffs have planned frequent protests and political actions into the foreseeable future, including the weekend of July 24, 2020. Events are planned for July 24, 25, and 26, 2020, and additional events are expected during the following week. All of the Plaintiffs herein have made plans and put aside resources to participate in one or more activity this weekend, including: a) a #LetUsBreathe rally at Freedom Square on Friday, July 24, 2020, across the street from the Homan Square, a police station notorious for disappearing people (sometimes in conjunction with Federal DEA or ATF agents); b) a protest organized by multiple organizations including Plaintiffs BLM Chicago and CDSA on Saturday, July 25, 2020 in Grant Park to support Black Lives; c) another protest also in Grant Park on Saturday, July 25, 2020 to call for the abolition of ICE.
135. NLG Chicago Legal Observers have observed over 50 demonstrations since the end of May 2020, when nationwide protests against systemic racism, inequality, and police violence, sparked by the murders of George Floyd and Breonna Taylor, began.
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136. Plaintiff NLG Chicago seeks to protect the First Amendment rights of protestors by observing protests and obtaining information from protestors who are arrested so that they can be tracked and provided pro bono or low-cost representation.
137. Plaintiff FDLA seeks to protect the First Amendment rights of protesters by observing protests and obtaining information from protesters who are arrested so that they can be tracked and provided pro bono or low-cost representation.
138. Plaintiff In These Times Union, has documented and tracked hundreds of instances of violence, harassment and arrests directed toward journalists by members of law enforcement of local, state, and federal agencies throughout the country. Individual members of In These Times Union are aware of “less lethal” munitions being deployed by federal agents against journalists covering protests in Portland and instances where members of the Chicago Police Department have used physical force to prevent journalists from covering protests.
139. Plaintiffs are aware of the activities of federal law enforcement officers in Portland; specifically, they are aware that federal agents have kidnapped, falsely arrested, and brutalized protestors and NLG Legal Observers.
140. Plaintiffs are also aware that President Trump is deploying federal officers to Chicago immediately, and that the CPD intends to work with the federal agents.
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141. Plaintiffs would like to continue exercising their First Amendment rights of speech, assembly, observing, and newsgathering, but they fear that federal agents will kidnap, falsely arrest, or physically abuse them.
142. Specifically, Plaintiff BLM Chicago has members who are not going to attend the protests and rallies planned for this weekend because they fear federal agents will kidnap, falsely arrest, or physically abuse them, as they did to protestors in Portland.
LEGAL CLAIMS COUNT I
Interference with Speech, Peaceful Assembly, and the Press In Violation of the First Amendment
143. Plaintiffs incorporate by reference each of the paragraphs in this Complaint as if restated fully herein.
144. Individuals who peacefully gather on the streets of Chicago to protest have the right to gather, express themselves, and petition for redress of grievances under the First Amendment.
145. Members of the press and individuals have the right to gather, receive, record, and disseminate information and news under the First Amendment.
146. Defendants’ actions are undertaken with the intent of discouraging and suppressing lawful protest and therefore constitute an illegal prior restraint on individuals’ First Amendment right to peacefully protest racial inequality.
147. Many individuals who are reasonably afraid of being brutalized or picked up and shoved into unmarked vans by federal agents will feel compelled to
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stay away, for their own personal safety, and will therefore be unable to express themselves in the way that they have the right to do.
148. In the manner described more fully above, Plaintiffs’ First Amendment rights have been and are being infringed. Their exercise of their rights to speak, assemble, petition, and gather news is being chilled due to the well-founded fear that they will be brutalized or kidnapped by federal agents for no reason other than being a protestor, journalist, or legal observer on the streets and sidewalks of Chicago.
COUNT II Federal Policy of Conducting False Arrests
In Violation of the Fourth Amendment 149. Plaintiffs incorporate by reference each of the paragraphs of this Complaint as if restated fully herein. 150. The Fourth Amendment prohibits unreasonable seizures, and in particular prohibits federal officials from arresting a person without probable cause to believe that they have committed a federal crime. 151. In so doing, the Fourth Amendment also plainly prohibits “preemptive arrests” in anticipation of a possible violation of the law. 152. Defendants and the federal agents discussed in this complaint are operating pursuant to an official federal policy, approved by responsible federal agency heads with final policymaking authority, of conducting arrests of individuals without probable cause to believe they have committed federal crimes, including “preemptive arrests” of peaceful protestors and journalists.
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153. Federal agents’ conduct in other cities as described above, and in particular their false arrest of peaceful protestors and journalists, was caused by and pursuant to this unconstitutional federal policy.
154. No probable cause exists to believe that Plaintiffs, their members, or any other similarly situated protestors, legal observers, or journalists, has committed a federal crime. Plaintiffs’ anticipated participation in protests does not provide probable cause to believe that a person has committed a federal crime.
155. In the absence of an injunction, Defendants will arrest and seize individuals off the streets in Chicago without probable cause, in violation of the Fourth Amendment, pursuant to official federal policy.
COUNT III 28 U.S.C. § 2201 Declaration of Rights 156. Plaintiffs incorporate each of the paragraphs of the complaint as if restated fully herein. 157. In a case of actual controversy within its jurisdiction, any court of the United States may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought, under 28 U.S.C. § 2201. 158. There is an actual controversy within the jurisdiction of this court, inasmuch as one or more federal defendants have engaged in actions endangering Plaintiffs and others assembled on Chicago’s streets. No federal authority has agreed to stop this practice.
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159. Plaintiffs are entitled to a declaration that the acts at issue are unlawful, and an injunction precluding Defendants from continuing in them.
COUNT IV Conspiracy 160. Plaintiffs incorporate each of the paragraphs of this complaint as if restated fully herein. 161. Defendants, acting in concert with other co-conspirators, known and unknown, reached an agreement among themselves to deprive Plaintiffs of their constitutional rights, all as described in the various paragraphs of this Complaint. 162. In so doing, these co-conspirators conspired to accomplish an unlawful purpose by unlawful means. In addition, these co-conspirators agreed among themselves to protect one another from liability for depriving Plaintiffs of these rights. 163. In furtherance of their conspiracy, each of these co-conspirators committed overt acts and were otherwise willful participants in joint activity. 164. The misconduct described herein was undertaken intentionally, in total disregard of Plaintiffs’ constitutional rights. PRAYER FOR RELIEF Wherefore, Plaintiffs pray for a judgment and the following relief: 1. A declaration, pursuant to 28 U.S.C. § 2201, that the federal actions described in this complaint restrain Plaintiffs’ ability to assemble in peaceful protest, observing, and news gathering, in violation of the First Amendment;
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2. A declaration, pursuant to 28 U.S.C. § 2201, that the federal actions described in this complaint constitute a federal unlawful policy of committing arrests without probable cause, in violation of the Fourth Amendment;
3. A declaration, pursuant to 28 U.S.C. § 2201, that the federal actions described in this complaint present an imminent threat that Plaintiffs will be arrested without probable cause, by unidentified federal agents, in violation of the Fourth Amendment; and
4. An injunction, pursuant to 28 U.S.C. § 2202 and 5 U.S.C. § 702, permanently enjoining the Defendants from engaging in the federal actions described in this complaint, and specifically requiring that the Defendants and their officers and agents:
a. Refrain from interfering in or otherwise policing lawful and peaceful assemblies and protests in the City of Chicago;
b. Cease enforcement of their unlawful policy of conducting arrests without probable cause to believe a federal crime has been committed and conducting “preemptive arrests”;
c. Refrain from arresting individuals in the City of Chicago without probable cause to believe that a federal crime has been committed;
d. Identify themselves and their agency before detaining or arresting any person off the streets of Chicago;
e. Explain to any person detained or arrested that the person is being detained or arrested and explain the basis for that action; and
f. Any other relief this Court deems proper.
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Jon Loevy Heather Lewis Donnell Steve Art Theresa Kleinhaus Julia Rickert Lindsay Hagy Ruth Brown Sean Starr LOEVY & LOEVY 311 N. Aberdeen St. Chicago, IL 60607 (312) 243-5900
Brendan Shiller SHILLER PREYAR JARARD & SAMUELS @ THE WESTSIDE JUSTICE CENTER 601 S. California Ave. Chicago, IL 60612 (312) 226-4590
Sheila Bedi COMMUNITY JUSTICE AND
CIVIL RIGHTS CLINIC NORTHWESTERN PRITZKER
SCHOOL OF LAW 375 E. Chicago Ave. Chicago, IL 60611 (312) 503-8576

Respectfully submitted,
BLACK LIVES MATTER CHICAGO, et al.
By: /s/ Theresa Kleinhaus One of Plaintiffs’ Attorneys
Elizabeth Wang LOEVY & LOEVY 2060 Broadway, Ste. 460 Boulder, CO 80302 (720) 328-5642
David B. Owens LOEVY & LOEVY 100 S. King St., Ste. 100 Seattle, WA 98104
Joey L. Mogul G. Flint Taylor Brad J. Thomson Christian Snow PEOPLE’S LAW OFFICE 1180 N. Milwaukee Ave. Chicago, IL 60642 (773) 235-0070
Craig B. Futterman MANDEL LEGAL AID CLINIC UNIVERSITY OF CHICAGO LAW
SCHOOL 6020 S. University Chicago, IL 60637 (773) 702-9611 futterman@uchicago.edu

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 Case: 1:20-cv-04319 Document #: 9 Filed: 07/31/20 Page 1 of 49 PageID #:56

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BLACK LIVES MATTER CHICAGO; )

BLACK ABOLITIONIST NETWORK; )

CHICAGO DEMOCRATIC

) No. 20 C 4319

SOCIALISTS OF AMERICA; GOOD )

KIDS/MAD CITY;

) Hon. Rebecca R. Pallmeyer,

#LETUSBREATHE COLLECTIVE; ) Chief Judge

SOUTH SIDERS ORGANIZED FOR )

UNITY AND LIBERATION;

) Hon. Heather K. McShain,

NATIONAL LAWYERS GUILD

) Magistrate Judge

CHICAGO; FIRST DEFENSE LEGAL )

AID; and IN THESE TIMES,

)

)

Plaintiffs,

)

)

v.

)

)

CHAD WOLF; ALYSA ERICHS;

)

MATTHEW T. ALBENCE; MARK A. )

MORGAN; WILLIAM BARR; L. ERIC )

PATTERSON; RICHARD K. CLINE; )

DONALD W. WASHINGTON;

)

CHRISTOPHER WRAY; TIMOTHY J. )

SHEA; REGINA LOMBARDO; and

)

UNKNOWN AGENTS AND

)

OFFICERS OF THE UNITED

)

STATES 1-10,

) PLAINTIFFS’ COMPLAINT FOR

) INJUNCTIVE AND

Defendants.

) DECLARATORY RELIEF

FIRST AMENDED COMPLAINT Plaintiffs BLACK LIVES MATTER CHICAGO; BLACK ABOLITIONIST NETWORK; CHICAGO DEMOCRATIC SOCIALISTS OF AMERICA; GOOD KIDS/MAD CITY; #LETUSBREATHE COLLECTIVE; SOUTH SIDERS ORGANIZED FOR UNITY AND LIBERATION; NATIONAL LAWYERS GUILD

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CHICAGO; FIRST DEFENSE LEGAL AID; and IN THESE TIMES, by their undersigned attorneys, hereby complain against Defendants CHAD WOLF, Acting Secretary of the U.S. Department of Homeland Security; ALYSA ERICHS, Acting Executive Associate Director, U.S. Homeland Security Investigations; MATTHEW T. ALBENCE, Deputy Director of the U.S. Immigration and Customs Enforcement; MARK A. MORGAN, a senior official currently performing the duties of the Commissioner of the U.S. Customs and Border Protection; WILLIAM BARR, Attorney General of the United States; L. ERIC PATTERSON, Director of Federal Protective Services; RICHARD K. CLINE, Principal Deputy Director of the Federal Protective Services; DONALD W. WASHINGTON, Director of the U.S. Marshals Service; CHRISTOPHER WRAY, Director of the Federal Bureau of Investigation; TIMOTHY J. SHEA, Acting Administrator of the U.S. Drug Enforcement Agency; REGINA LOMBARDO, Acting Director of the U.S. Bureau of Alcohol, Tobacco, Firearms; and UNKNOWN AGENTS AND OFFICERS OF THE UNITED STATES 1-10, and state as follows:
INTRODUCTION 1. The President and his appointees are sending federal agents to the streets of Chicago in order to intimidate and falsely arrest civilians who are exercising their constitutional right to speak and to assemble. 2. Federal authorities have promised to deploy in Chicago the same secret police force that has terrorized the people of Portland, Oregon for more than
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two weeks, where civilians have been kidnapped, beaten, and tear gassed by anonymous federal agents.
3. Rarely in modern times has a President of the United States trampled on bedrock constitutional protections on this scale or so brazenly usurped states’ police power by directing federal agents to carry out an illegal mission against the people for his own personal political benefit.
4. Plaintiffs have been engaged intensively in and have reported on peaceful protest in Chicago for the past nine weeks, in the wake of the murder of George Floyd and other Black Americans who were murdered by police officers, and they and their members have additional peaceful protests planned for today and the immediate future.
5. Plaintiffs are entitled to this Court’s protection of their constitutional right to peacefully protest. This Court must check the unrestrained and unlawful actions of the executive branch.
JURISDICTION AND VENUE 6. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331, the First and Fourth Amendments to the United States Constitution, and 5 U.S.C. § 702, et seq. 7. The Court is authorized to award the requested declaratory and injunctive relief by the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202; the Administrative Procedures Act, 5 U.S.C. § 706; and the Court’s equitable powers.
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8. Venue is proper under 28 U.S.C. § 1391(b). Defendants are United States agencies or officers sued in their official capacities. Plaintiffs are residents of the State of Illinois, and the events giving rise to this complaint occurred and are likely to continue occurring in the State of Illinois, within the City of Chicago.
9. Venue is also proper under 28 U.S.C. § 1391(e)(1) because Defendants are officers or employees of the United States acting in their official capacity, and at least one Plaintiff resides in this district or a substantial part of the events or omissions giving rise to the claims occurred in this district.
PARTIES 10. Plaintiff BLACK LIVES MATTER CHICAGO is an organization that fights for justice alongside the families most impacted by racially motivated violence and marginalization of Black communities, while working to create just and equitable systems. Black Lives Matter (BLM) Chicago works to end state violence and criminalization of Black communities by deconstructing the white supremacist, capitalist patriarchy. Individual members of BLM Chicago regularly plan and participate in protests and political actions, have participated in the recent protests in Chicago, and are likely to be subjected to constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. These constitutional violations would require BLM Chicago to spend additional time and resources providing support to its members, diverting resources away from BLM’s mission of creating just and equitable systems for all. BLM
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Chicago brings this action on its own behalf and as an organizational representative for its members.
11. Plaintiff BLACK ABOLITIONIST NETWORK (BAN) is a network of organizers, strategists, and activists who provide strategic support to the movement. BAN members conduct mass trainings, teach-ins and town halls for community members. Individual members of BAN regularly plan and participate in protests and political actions, have participated in the recent protests in Chicago, and are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. These constitutional violations would require BAN to spend additional time and resources providing support to its members, diverting resources away from BAN’s mission of providing support to movements and increasing the capacity of community members involved in movement work. BAN brings this action on its own behalf and as an organizational representative for its members.
12. Plaintiff CHICAGO DEMOCRATIC SOCIALISTS OF AMERICA (CDSA) is an organization of over 2,500 members in Cook County, Illinois and an Illinois corporation. As part of pursuing its political mission, it engages in peaceful mass protest against violent police repression of the working class. Through its online magazine, newsletter, podcast, and other media channels, CDSA and its individual members are also engaged in journalism on the subject of the recent uprisings responding to police violence against the working class. Individual
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members of CDSA regularly plan and participate in protests and political actions, have participated in the recent protests in Chicago, and are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. These constitutional violations would require CDSA to spend additional time and resources providing support to its members, diverting resources away from CDSA’s mission of creating a more equitable world by establishing socialism as a political force. CDSA brings this action on its own behalf and as an organizational representative for its members.
13. Plaintiff GOOD KIDS/MAD CITY (GKMC) are young Black and Brown people united in fighting to end violence in their cities. They work to achieve more resources for underserved communities on the South Side and West Side of Chicago and provide support to young people affected by violence. Individual GKMC members regularly plan and participate in protests, have participated in the recent protests in Chicago, and also have launched “love marches” to encourage communities to resolve conflicts peacefully. They are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. When these constitutional violations occur, GKMC must divert time and resources from its mission of reducing violence and improving equality in underserved neighborhoods.
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14. Plaintiff #LETUSBREATHE COLLECTIVE is a collaborative of artists and activists that serves communities directly impacted by mass criminalization, police violence, and systemic injustice by centering marginalized voices and dismantling oppressive systems. Through direct action and cultural events, #LETUSBREATHE COLLECTIVE aims to organize artists to love and transform themselves and their communities through radical imagination and creative healing work. Individual members of #LETUSBREATHE COLLECTIVE regularly plan and participate in protests and political actions, have participated in the recent protests in Chicago, and are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. When these constitutional violations occur, #LETUSBREATHE COLLECTIVE must divert time and resources from its mission of promoting radical healing work in underserved communities.
15. Plaintiff SOUTH SIDERS ORGANIZED FOR UNITY AND LIBERATION (“SOUL”) is a membership organization that consists of more than two dozen faith based organizations and community organizations on the Southside of Chicago, that organizes the communities in which its member organizations operate to fight for low-income people of color in the Chicago southland to build power and leverage that power to fight for their own interest and liberation. SOUL partners with their membership organizations and trains them and other community activists and leaders in organizing strategies specifically designed to
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build leadership and impact public policy and legislation on multiple issues including housing, health care, education, economic development, employment, youth services and public safety policy. For the last two months, SOUL has focused its organizing on public safety policy and has activated many of the members and congregants of its membership organizations and congregations to participate in protests to encourage smarter public safety strategies that involve less policing and more resources in disinvested communities. Individual staff and members of SOUL regularly plan and participate in protests and political actions, have participated in the recent protests in Chicago, and are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. When these constitutional violations occur, SOUL must divert time and resources from its mission of promoting radical healing work in underserved communities.
16. Plaintiff NATIONAL LAWYERS GUILD CHICAGO (NLG Chicago) is an organization of lawyers, law students, legal workers, and jailhouse lawyers who operate as a political and social force, working to build a world where human rights are regarded as more sacred than property interests. Individual members of NLG Chicago have been subject to aggressive policing and incommunicado detention by virtue of their advocacy in support of First Amendment-protected protest activity. NLG Chicago provides “Legal Observers” who document police behavior during protests, including the most recent ones opposing police violence. It
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also provides legal representation to protesters who are arrested. Individual members of NLG Chicago regularly attend protests as Legal Observers, have participated in the recent protests in Chicago, and are likely to be subjected to the constitutional violations by the Defendants under the policies and practices described herein, including but not limited to violations of their First Amendment rights and false arrests and detentions. When these constitutional violations occur, NLG Chicago is forced to divert time and resources away from their mission of protecting members’ and clients’ civil rights and liberties during protests. Furthermore, when Legal Observers are arrested during protests, NLG Chicago loses the ability to provide oversight of police activities and treatment of protesters. NLG Chicago is further forced to divert resources to find other Legal Observers to cover the duties of arrested members.
17. Plaintiff FIRST DEFENSE LEGAL AID (FDLA) was originally a pro bono nonprofit that provided free representation at police stations in Chicago. This was its purpose for nearly a quarter century until it organized its mission out of existence by fighting for and achieving a Cook County-wide policy that calls for the Cook County Public Defender to represent arrestees at police stations in Chicago and throughout Cook County. FDLA still maintains a hotline that sends callers looking for police station representation to the Public Defender, and therefore uses resources when those calls are made. But the primary two functions of FDLA are now different. First, FDLA continues to employ attorneys that represent pro bono individuals that have low-damage civil rights cases against the City of Chicago
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when no private firm will take that case. Second, FDLA operates a hotline that provides non-police alternatives for community members that do not want to call police to deal with issues such as mental health disturbances, suicidal relatives, domestic disturbances, homeless people, minor trespassing, etc. This hotline is the model of what local jurisdictions including Chicago should be doing to de-escalate violent interactions between police and citizens. Lastly, FDLA has some community navigators that work with community activists and leaders to organize for community power and say so in public policy including public safety public policy. Every aspect of FDLA’s operations will see its resources stressed by the presence of federal law enforcement in Chicago. This includes its navigators’ desires to engage in public policy action being tempered.
18. Plaintiff IN THESE TIMES (ITT) is an independent, nonprofit magazine which is dedicated to advancing democracy and economic justice, informing movements for a more humane world, and providing an accessible forum for debate about the policies that shape the future. ITT is based in Chicago and covers topics of social and political interest, with a focus on movements for social change, including the Black Lives Matter movement and other movements calling to defund police departments. In order to effectively report on these movements, journalists employed full-time or in a freelance capacity by ITT have attended protests against police violence in Chicago and intend to continue to do so. Journalists employed by ITT are likely to be subjected to constitutional violations
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by Defendants—including but not limited to violations of their First Amendment rights.
19. Plaintiffs bring this action on their own behalf and on behalf of their members.
20. Defendant CHAD WOLF is the purported acting secretary of the U.S. Department of Homeland Security (DHS). DHS is a Cabinet-level Department of the U.S. government. Its stated missions involve anti-terrorism, border security, immigration, and customs. It was created in 2002, combining 22 different federal departments and agencies into a single Cabinet agency.
21. Defendant ALYSA ERICHS is Acting Executive Associate Director, U.S. Homeland Security Investigations (HSI). HSI is an investigative arm of DHS which states as its goal: “[C]ombating criminal organizations illegally exploiting America’s travel, trade, financial and immigration systems.” HSI’s legal authority allows it to investigate only cross-border criminal activity relating to “financial crimes, money laundering and bulk cash smuggling; commercial fraud and intellectual property theft; cybercrimes; human rights violations; human smuggling and trafficking; immigration, document and benefit fraud; narcotics and weapons smuggling/trafficking; transnational gang activity; export enforcement; and, international art and antiquity theft.”
22. Defendant MATTHEW T. ALBENCE is purported Deputy Director and Senior Official Currently Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement (ICE), an agency housed within DHS. Its
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stated mission is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.”
23. Defendant MARK A. MORGAN is the purported Senior Official Currently Performing the Duties of the Commissioner of the U.S. Customs and Border Protection (CBP). CBP is an agency within DHS. Its stated mission is “[t]o safeguard America’s borders thereby protecting the public from dangerous people and materials while enhancing the Nation’s global economic competitiveness by enabling legitimate trade and travel.”
24. Defendant WILLIAM BARR is Attorney General of the United States, and in that position oversees the U.S. Department of Justice.
25. Defendant L. ERIC PATTERSON is Director of Federal Protective Services. Federal Protective Services (FPS) is a division of DHS. Its mission is “[t]o prevent, protect, respond to and recover from terrorism, criminal acts, and other hazards threatening the U.S. Government’s critical infrastructure, services, and the people who provide or receive them.” According to its website, it is responsible for guarding 9,000 federal facilities and employs more than 1,300 officers, agents, and support staff who are responsible for overseeing another 13,000 private contractors.
26. Defendant RICHARD K. CLINE is the Principal Deputy Director of the FPS. According to his official DHS biography, he “serves as an extension of the Director and operates with full authority to execute the mission of the FPS.”
27. Defendant DONALD W. WASHINGTON is Director of the U.S. Marshals Service. The U.S. Marshals Service is an agency within and under the
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control of the U.S. Department of Justice. According to a Fact Sheet on its website, “it is the enforcement arm of the federal courts, involved in virtually every federal law enforcement initiative.” The U.S. Marshals Service’s Special Operations Group says it is “deployed in high-risk and sensitive law enforcement situations, national emergencies, civil disorder and natural disasters.”
28. Defendant CHRISTOPHER WRAY is Director of the Federal Bureau of Investigation (FBI). The Federal Bureau of Investigation is an agency within the U.S. Department of Justice.
29. Defendant TIMOTHY J. SHEA is the Acting Administrator of the U.S. Drug Enforcement Agency (DEA). The DEA is a federal law enforcement agency under the U.S. Department of Justice. According to its website, the mission of the DEA is to enforce the controlled substances laws and regulations of the United States and bring to the criminal and civil justice system of the United States, or any other competent jurisdiction, those organizations and principal members of organizations, involved in the growing, manufacture, or distribution of controlled substances appearing in or destined for illicit traffic in the United States; and to recommend and support non-enforcement programs aimed at reducing the availability of illicit controlled substances on the domestic and international markets.
30. Defendant REGINA LOMBARDO is Acting Director of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). According to the ATF’s website, “ATF is a law enforcement agency in the United States’ Department of
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Justice that protects our communities from violent criminals, criminal organizations, the illegal use and trafficking of firearms, the illegal use and storage of explosives, acts of arson and bombings, acts of terrorism, and the illegal diversion of alcohol and tobacco products. We partner with communities, industries, law enforcement, and public safety agencies to safeguard the public we serve through information sharing, training, research, and use of technology.”
31. UNKNOWN AGENTS AND OFFICERS OF THE UNITED STATES 1–10 are unidentified agents and officers of the federal agencies listed in this complaint, acting under color of federal law and within the scope of their employment and duties with the respective agencies by which they are employed or for which they are agents.
FACTS I. PLAINTIFFS ARE ENGAGED IN PEACEFUL PROTESTS
A. Peaceful Protests in Chicago in 2020 32. On May 25, 2020, Minneapolis police officers murdered George Floyd, who was handcuffed and lying face down on the ground, by suffocating him to death in broad daylight on the street. 33. Floyd’s murder and the police murder of Breonna Taylor in Louisville, Kentucky, in addition to recent police murders of other Black people in the United States sparked the largest movement for social and racial justice in history and has included peaceful protests around the world against anti-Black police violence, systemic racism, and inequality.
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34. In Chicago, Plaintiffs are the leaders of this movement against antiBlack racism and for human rights and social justice.
35. Since the end of May 2020, there have been nearly daily protests and actions throughout the city of Chicago, ranging in size from a few dozen people to thousands. These protests have occurred throughout Chicago, in the Loop, and the South, West, and North sides.
36. Plaintiffs have been part of the largest global movement for human rights in recent memory. The Plaintiffs Black Lives Matter Chicago, Black Abolitionist Network, Chicago Democratic Socialists of America, Good Kids/Mad City, #LetUsBreathe Collective, South Siders Organized for Unity and Liberation, OCAD, and their membership have been in the streets protesting police brutality as part of the movement for Black lives.
37. Legal observers associated with the Plaintiffs National Lawyers Guild Chicago and First Defense Legal Aid have been attending the protests to document police activity and police constitutional violations.
38. Journalists and employees of Plaintiff In These Times have been present at protests to report on the historic protests as well as on the police response.
B. Violence by the Chicago Police During Peaceful Protests 39. The Chicago Police Department (CPD) has responded—and continues to respond—to these protests with brutal, violent, unconstitutional tactics that are clearly intended to silence protestors.
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40. CPD officers consistently target protesters with unlawful, retaliatory, and lethal force. Officers’ animus against protesters is unmistakable—they regularly refer to protestors with terms that are vile, misogynistic, and anti-gay. CPD also targets protester’s property—destroying cameras, phones, eyeglasses and confiscating bikes, backpacks, and other belongings.
41. Protesters often report that CPD officers intentionally strike them on their head with batons with enough force to leave people bloodied and in some instances with serious concussions.
42. On June 23, 2020, the Chicago Reader published an in-depth examination of the CPD’s use of lethal force during the May 2020 protests. The reporter documented “83 baton strikes on at least 32 different people by officers, most captured on video. Nearly all appear to violate [CPD] policy with more than half of the strikes on video involving police beating people who were already on the ground. Multiple videos also show officers hitting protesters in the head with batons despite rules limiting these strikes to situations requiring deadly force.” The Reader article notes that these unlawful uses of force often occurred in full view of supervisors who failed to intervene and that most officers failed to report their uses of force.
43. CPD’s brutal response has also included police officers tackling protesters to the ground, kneeing protesters in the neck and back, kicking protesters in the legs to cause them to fall, trapping protesters on bridges, pushing protesters stranded on bridges, pinning protesters against hard surfaces, using tear
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gas and pepper spray, dragging protesters through the streets, punching protesters in the face, stomping on protesters on the ground, and beating protesters severely.
44. Protesters widely report that CPD targets those it has identified as protest marshals or leaders with the most brutal violence apparently as part of a strategy to quell the protesters’ free expression. CPD also was particularly violent with protesters who expressed concern that CPD was harming other people. Protestors repeatedly reported that CPD officers pushed, shoved, battered, and harassed people who were filming acts of police brutality during the uprisings. Often this resulted in confiscated or damaged camera and physical injury to protesters exercising their First Amendment right to record the police.
45. People of all races who interact with CPD officers during protests report that officers are aggressive, rude, disrespectful, and often affirmatively escalate encounters through taunts, shoves, pushes and other inappropriate behavior. CPD officers used particularly hostile language towards women and members of the LGBTQ community.
46. CPD’s response to the protests also reflects a pattern and practice of breaking, stealing, or otherwise disposing of protestors’ belongings, including bikes, cameras, glasses, goggles and, in some instances, canes used to assist with mobility.
47. CPD has also engaged in a systemic practice of illegal searches of protesters, seizure of protesters, and false arrest of protesters.
48. Throughout these events, Mayor Lori Lightfoot has praised the police for their “restraint.”
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C. Chicago’s History of Illegal Force, Arrest, Detention, and Surveillance of Protestors
49. CPD has long used excessive force and false arrest at protests, including in recent years, at the Black Lives Matters protests and the protests against the NATO Summit in 2012.
50. CPD has a long history of surveillance of protesters. This has included sending law enforcement infiltrators to surveil protest groups and using technology to surveil the communications of protesters and organizers.
51. CPD has long operated an unconstitutional detention center at the intersection of South Homan Street and West Filmore Avenue (hereinafter “Homan Square”). CPD has brought thousands of people—predominately and disproportionately Black and Latinx people—to Homan Square and interrogated them using unconstitutional tactics including: physical threats and assaults, denial of food, water, bathrooms, and sleep, placing individuals in cells with the overwhelming stench of human feces and urine, psychological coercion, threats of false charges, and racial slurs. CPD has used these interrogations to try to obtain information from individuals. CPD holds these individuals for long periods of time, without allowing them access to legal counsel or taking them before a judge, and without revealing their whereabouts to concerned friends, family members, or counsel. In other words, the activities of CPD at Homan Square proceed under a shroud of secrecy without any judicial or public oversight.
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II. THE PRESIDENT HAS DEPLOYED A SECRET POLICE FORCE A. President Trump’s Threats to Use Force Against Civilians 52. President Donald Trump has long fancied himself a strongman leader
better suited for a dictatorship than a democracy. 53. He has maligned the nation’s cities, including Chicago, Portland, and
New York, saying they are “run” by “Radical Left Democrats” who, in his view, will “destroy our Country as we know it.”
54. The President has continually spoken out against peaceful protestors, even directing his agents to clear peaceful protestors from public grounds outside of the White House through the use of physical force and chemical weapons.
55. The President and members of his administration, including Defendants, have repeatedly referred to protestors as “violent anarchists,” “agitators,” and “violent” or “lawless” “mobs.”
56. On June 1st, 2020, some 350 CBP officers were deployed to Washington, D.C. to patrol the protests. CBP’s purported Acting Commissioner Mark Morgan defended this deployment in a tweet stating that: “These ‘protests’ have devolved into chaos & acts of domestic terrorism by groups of radicals & agitators. @CBP is answering the call and will work to keep DC safe.”
57. Repeatedly, the President has warned the nation’s cities that he will use similar force against their civilians to end peaceful protest.
58. On June 1, 2020, the President warned that he would militarize the streets of American cities, stating, “Mayor and governors must establish an
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overwhelming law enforcement presence until the violence has been quelled . . . . If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States Military and quickly solve the problem for them.”
59. To this end, on June 26, 2020, the President signed an Executive Order on “Protecting American Monuments, Memorials, and Statues, and Combating Recent Criminal Violence,” in which he fulminated against the protests in American cities and gave federal law enforcement and military leave to “assist” in protecting federal property for the next six months.
60. On July 1, 2020, CBP circulated a memorandum to CBP officers detailing their mission in Portland as a response to the President’s recent Executive Order.
61. The July 1st CBP Memo explained that the purported Acting Secretary of DHS, Chad Wolf, created the DHS Protecting American Communities Task Force, which would “provide an ongoing assessment of potential civil unrest and property destruction and to address resource allocation and potential surge activity to ensure the continuing protection of people and property.”
62. The July 1st CBP Memo further explained that DHS has decided along with other departments and agencies that it is “in the public interest and fiscally sound for the Federal Protective Services . . . to partner with other federal law enforcement to execute the directive of the President. To that end, DHS began
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coordination with the Department of Justice (DOJ) and Department of the Interior (DOI) to establish information/intelligence sharing[.]”
63. The July 1st CBP Memo goes on to explain that CBP officers were to be deployed to cities across the country for the July 4th weekend.
64. Defendant Wolf announced on July 3, 2020 that DHS was “following [President Trump’s] lead in deploying special units to defend our national treasures from rioters.” He also stated, “We won’t stand idly by while violent anarchists and rioters seek not only to vandalize and destroy the symbols of our nation, but to disrupt law and order and sow chaos in our communities,” and “civil unrest will not be tolerated.”
65. CBP officers, and upon information and belief, other federal agents, have been deployed in undisclosed cities throughout the country in response to the nationwide protests, or what DHS calls “civil unrest” or “disruptive activity.” One of these locations was Portland, Oregon.
B. The Secret Police Terrorize Portland 66. Starting on or about July 1, 2020, President Trump gave life to his authoritarian vision for our cities, sending unidentified federal agents to the streets of Portland, Oregon. 67. For several weeks, a paramilitary force of agents of the DHS, as well as other federal agents known and unknown to Plaintiffs, have been deployed on Portland streets.
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68. It has been reported in the media that the camouflaged federal troops sent to Portland were officers from several federal agencies, including not only CBP, but also the U.S. Marshals Service.
69. These federal agents dressed in camouflage, fatigues, and tactical gear, without any insignia or information identifying them. They have used batons, tear gas, rubber bullets, and munitions on protesters, journalists, and legal observers.
70. They have used such force and intimidation despite the fact that protestors, journalists, and legal observers were not committing any federal crimes, and were not doing anything threatening whatsoever.
71. For example, federal agents shot unarmed protester Donavan LaBella in the head with a munition, reportedly fracturing his skull.
72. On July 12, 2020, while journalist Mathieu Lewis-Rolland was documenting protests in Portland, federal agents shot him in the side and back ten times with hard plastic bullets that tore holes into his “PRESS” t-shirt, despite his clear identification as press, and despite that he was carrying bulky camera equipment, staying in well-lit areas, and posing no threat to anyone.
73. Journalist Garrison Davis was also covering protests in Portland on the night of July 11, 2020 and the early morning of July 12, wearing a helmet that said “PRESS” on it in big block letters, holding his press pass, and not participating in protests. Though he posed no threat to anyone, a federal agent shot him in the back with a tear gas canister, pepper bullets, and other munitions.
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74. Egregiously, federal agents beat and pepper-sprayed a Navy veteran, Christopher David, who went to the protests to ask the federal agents whether they thought they were upholding the U.S. Constitution with their actions. In response, the agents beat him, breaking his hand, and pepper sprayed him in the face, despite the fact that David posed no threat.
75. Indeed, even when a “wall of mothers”—women, some of whom were pregnant—stood in front of the protestors peacefully, arm-and-arm, and chanted things like “leave our kids alone,” the federal agents terrorized them with chemical weapons and other acts of violence.
76. When the Mayor of Portland, Ted Wheeler, joined the protests in Portland last week, federal agents tear gassed him, too.
77. On July 16, 2020, another Memorandum was sent to Chad Wolf as Acting Secretary of DHS (July 16th DHS Memo).
78. This July 16th DHS Memo stated that acting in response to President Trump’s Executive Order CBP and ICE had “mobilized tactical teams to provide support to [FPS] in protecting federal buildings and assets within the greater Portland, Oregon area.”
79. Further, the July 16th DHS Memo explains how the U.S. Marshals Service “deployed their Special Operations Group (USMS/SOG) to further assist FPS in the protection of the Mark O. Hartfield Federal Courthouse in Portland,” and that the “U.S. Secret Service, . . . ICE/HSI, and the . . . FBI have also provided investigative support to FPS.”
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80. While in Portland, these CBP officers reportedly entered sections of the city where residents were peacefully protesting racial and social injustice. CBP officers have roamed far from any federal property, buildings, or monuments that they were purportedly deployed to protect.
81. CBP officers in Portland were wearing generic green law enforcement uniforms with no identifying insignias. These CBP officers then approached protesters in unmarked vehicles.
82. The July 1st CBP Memo and the July 16th DHS Memo each outline the coordination between subagency officers and agents of DHS, DOJ, and DOI which has been ongoing throughout the summer since in response to nationwide protests.
83. According to Ken Cuccinelli, the purported Acting Deputy Secretary of Homeland Security, the Hatfield courthouse in Portland is protected by the FPS. The Acting Deputy Secretary explained that CBP and ICE officers were called in to support FPS and, thus, that FPS was directing the involvement by CBP, ICE, and other DHS officers.
84. Defendant Wolf has publicly stated that 43 arrests have been made in relation to operations in Portland since the weekend of July 4th, including by teams of FPS and CBP officers working together. It is unknown how many instances have resulted in unauthorized searches, questioning, or seizure and temporary detention. It is also unknown which agencies have carried out exactly which arrests, searches, detainments, or custodial interrogations.
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85. The President and his appointees and officers have tried to characterize these incidents of detainment and arrests as a response to individuals destroying federal property. For example, DHS Acting Deputy Secretary Ken Cuccinelli stated in an interview with NPR that “We’re talking only about violent rioters. We’re not talking about actual protesters. We’re not seeking to interfere at all with anyone peacefully expressing themselves—period, full stop.”
86. However, incidents like what happened to Mark Pettibone show otherwise—that protesters could do nothing more than walk down the street and still be subject to search, arrest, and hours of detainment.
87. Oregon Governor Kate Brown has called the federal agents’ conduct in Portland “a blatant abuse of power,” and has criticized the Trump Administration for intentionally “provok[ing] confrontation for political purposes.”
88. In a letter co-signed by the mayors of five other cities, including Chicago’s Mayor, Portland Mayor Ted Wheeler criticized the federal agents for using “tactics we expect from authoritarian regimes—not our democracy” and confirmed that “the irresponsible actions of [the federal] agencies threaten community safety.”
89. Oregon’s Attorney General has filed a federal lawsuit seeking to enjoin the federal agents from continuing to engage in their unlawful tactics.
90. Oregon’s Governor has requested the removal of federal agents from Portland’s streets, as has Mayor Wheeler, but Defendant Wolf has refused.
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91. The modus operandi of the paramilitary force of federal agents in Portland includes: (1) anonymous federal agents dressed in camouflage who bear no known designation and refuse to identify themselves; (2) the use of unmarked vehicles used to illegally arrest and detain and round up protestors, journalists, and observers; (3) kidnapping of innocent civilians without probable cause; (4) uses of excessive, inexcusable force against people exercising their right to speak and to assemble as well as people reporting on peaceful protests; (5) “preemptive arrests” of people without probable cause to believe they committed any federal crime; (6) extending the “perimeter” of what is considered federal property to engage with protestors; and (7) investigating and questioning protestors about their associational activities.
C. Illegal Federal Policies of Conducting False Arrests, Unlawful Domestic Surveillance, and Silencing Protestors
92. Defendants have established official federal policies of conducting false arrests without probable cause, performing unlawful domestic surveillance, and silencing protestors, all with the purpose of intimidating and quashing speech because of its viewpoints.
93. Beginning on or about July 2020, Defendants established a federal policy of conducting arrests without probable cause to believe that any crime, let alone a federal crime, had been committed.
94. On July 15, 2020, armed federal agents dressed in camouflage pulled Mark Pettibone into an unmarked van without identifying themselves, drove him to
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what is believed to have been a federal courthouse, and detained him in a cell before releasing him without any paperwork, citation, or record of his arrest.
95. There was no probable cause for Pettibone’s arrest. 96. On July 15, 2020, a video emerged showing camouflaged federal agents grabbing an individual with his hands up standing on a sidewalk in Portland, placing him in an unmarked van, and driving away. 97. The NLG Legal Observers who was recording the video objected to this kidnapping. 98. These abductions occurred outside the jurisdiction of federal law enforcement. 99. Those abducted were not attacking federal property or personnel. 100. Those abducted had not committed any crime and there was no probable cause to suspect them of committing any crime. 101. On July 17, 2020, an official U.S. Customs and Border Patrol statement confirmed that the camouflaged officers were CBP agents. 102. In a press conference on July 21, 2020, Defendant Wolf called on Defendant Cline to explain the “standard of probable cause” justifying these arrests. 103. Defendant Cline specifically addressed the July 15th unmarked officer arrests explaining that the CBP agents had identified a man “in a crowd and in an area” where someone was aiming a laser at officers, and they followed him to a calmer location to talk to him. After doing so, they removed him from the area
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where other protesters and observers were nearby and took him to another location in a van.
104. According to Defendant Cline, the CBP agents held the protestor for approximately 20 minutes of interrogation and then released him “because they did not have what they needed”—namely, probable cause—to hold him.
105. In attempting to justify the constitutionality of this act, Cline characterized it as a “simple engagement” and “not a custodial arrest.”
106. Later the same day, Defendant Wolf stated that DHS was “having to go out and proactively arrest individuals . . . to hold them accountable.”
107. Defendant Wolf’s statement explaining DHS’s authority to “proactively arrest” individuals further confirmed a federal policy that is being implemented by federal agents on city streets that contravenes the protections of the Fourth Amendment by sanctioning arrests without probable cause.
108. Defendants’ unlawful policy has been directed by Defendant Wolf, who purports to be Acting Secretary of Homeland Security but is not legally serving in this role. He has not received Senate confirmation, and indeed, the President has not even nominated him, reflecting his preference for “acting” officials and avoiding the oversight and accountability that the confirmation process ensures.
109. During Defendant Barr’s testimony before the House Judiciary Committee on July 28, 2020, he reaffirmed Defendants’ belief that they and their agents can carry out arrests without probable cause to believe that federal crimes have been committed.
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110. Specifically, Congressman Ted Lieu asked Defendant Barr to acknowledge that the Portland van arrests are inconsistent with Dunaway v. New York, 442 U.S. 200 (1979), in which the Supreme Court held that police violate the Fourth Amendment when they pick someone up off the street and take them for questioning without probable cause.
111. Defendant Barr testified that his understanding is that the “modus operandi” of DHS agents is to take individuals into custody and question them based on their previous proximity to criminal activities.
112. Defendants’ statements have established a federal policy of allowing officers to make arrests without probable cause in violation of the Fourth Amendment.
113. President Trump has approved of the actions of the federal agents in Portland, thereby ratifying the federal agents’ policy of arresting individuals without probable cause and justifying the continued and expanded use of unlawful arrests that agents employed in Chicago and other cities.
114. For example, on June 20, 2020, President Trump stated “we’ve done a great job in Portland. . . . I guess we have many people in jail right now. We very much quelled it, and if it starts again, we’ll quell it again very easily. It’s not hard to do, if you know what you’re doing.”
115. Moreover, Defendants have established a federal policy of illegal domestic surveillance based on political viewpoint.
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116. In connection with the President’s June 26 Executive Order, DHS launched an expansive program of domestic surveillance. Pursuant to an internal unclassified DHS policy document, the DHS Office of Intelligence & Analysis has authorized its intelligence officers to surveil protestors if the agency determines that they pose “[t]hreats to damage or destroy any public monument, memorial, or statue,” “regardless of whether such structures are situated on Federal property”.
117. The DHS intelligence directive further indicates that DHS analysts can collect information about “individuals or groups” whom they “reasonabl[y] belie[ve]” threaten to damage or destroy any public monument, including “their tactics, techniques, or procedures,” and “information that otherwise informs an overall assessment that threats to [monuments] will materialize.”
118. In other words, Defendants are operating under a directive that minor property damage to a non-federal monument or statue—a “threat” the agency for the first time characterizes as a matter of homeland security—justifies as significant expansion of the sweep of the federal government’s authority to collect intelligence about civilians.
119. Defendants have also enacted a federal policy of unlawfully monitoring, intimidating, and silencing protestors because of their message.
120. Defendants’ statements, an internal DHS memorandum, and the conduct of federal officers on the ground are evidence of this policy.
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121. In addition, the brutality that protestors in Portland have faced at the hands of federal agents is the result of an unlawful policy that Defendants have established to quell lawful protest and intimidate protestors.
122. Confirming this policy, Defendant Barr testified on July 28, 2020 that he believes chemical irritants are very important tools and that their use is warranted even if it harms peaceful protestors.
123. In fact, Defendants have used a number of means to intimidate and deter protestors because of their views and beliefs, including surveillance, the use of militarized and excessive force by unidentified agents, the deployment of tear gas, pepper balls, and lethal munitions into civilian crowds, and warrantless arrests and custodial detentions without probable cause.
124. In addition, protestors who have been arrested by federal agents in Portland have been asked to name their associates and fellow protestors and identify what associations with which they are affiliated.
125. Statements from the President, the White House, and other officials also reveal that the purpose of these federal policies is to quell speech and lawful assembly based on its viewpoint.
126. At a White House event on July 13, 2020, the President claimed that “[f]ar-left mayors are escalating the anti-cop crusade, and violent crime is spiraling in their cities.” He reiterated his plan to be “very strong on law enforcement” by sending federal officers to “liberally run” jurisdictions—“even if we have to go in and take over cities.”
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127. In a Fox News interview on July 17, 2020, Kenneth Cuccinelli, who is the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security, asserted that the President is determined “to help restore peace to these beleaguered cities.”
128. On July 20, 2020, Cuccinelli told CNN, “We will maintain our presence,” and admitted, “When that violence recedes and those threats recede, that is when we would ratchet back down to what I would call normal presence defending and protecting federal facilities.”
129. When the President and Defendants Wolf and Barr announced at their July 22, 2020 press conference that they would deploy a “surge” of federal agents to other cities, including Chicago, at no point did any of them or anyone else state that the federal policies discussed in this section would cease during the “surge” of officers being imminently deployed to Chicago.
D. The Secret Police Have Been Deployed to Chicago 130. Despite public outcry against these flagrant constitutional violations, the President has vowed to continue to use federal agents to mount a hostile takeover of U.S. cities. 131. The President has said that his efforts in Portland were designed to “help” that city and that Chicago, among other cities, is next. 132. These developments are unsurprising, given that on May 28, 2020, the President said that he would send the military to confront protesters and invoked
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the racist phrase of a segregationist used to quell prior cries for racial equality: “When the looting starts, the shooting starts.”
133. The President again made threats about deploying the National Guard to “dominate the streets” and using “thousands of heavily armed soldiers” against civilians.
134. On June 1, 2020, amid the protests in Washington, D.C., the President ordered police and National Guard troops to clear peaceful protestors from Lafayette Square and surrounding streets using tear gas and other weapons. This was done solely so that the President could walk from the White House to St. John’s Episcopal Church, so that he could hold a Bible for a photo-op.
135. Other federal appointees and officers have also made clear the Administration’s intention to replicate what is taking place in Portland elsewhere, including in Chicago.
136. Defendant Wolf announced that DHS was going to deploy agents to Chicago and would “do that whether they like us there or not.”
137. In an interview on July 19, 2020, the President called Chicago “stupidly run” and pledged to have “more federal law enforcement” in Chicago and other cities “all run by liberal Democrats.”
138. On July 22, 2020, the President held a news conference from the East Room of the White House confirming that there would be a “surge” of federal agents arriving imminently in Chicago.
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139. During those remarks, the President was explicit that the federal law enforcement response is needed to address problems purportedly caused by the activities and demands of protestors, and that federal agents would help to restore order in Chicago.
140. In addition, neither the President, Defendant Barr, nor Defendant Wolf gave any assurance that the “hundreds” of federal agents flooding Chicago would leave protestors alone. At no time did they acknowledge that the federal government had overstepped in Portland. At no time did they agree that the federal law enforcement activities currently taking place in Portland would be limited to Portland.
141. On the contrary, the President and Defendants made clear that there would soon be an unchecked federal presence on the streets of Chicago, with the President describing federal authority “as wide as it can be.”
142. The President and Defendants repeatedly tied the decision to send federal law enforcement officers to Chicago to the actions of protesters, blaming protesters for violence in Chicago.
143. The President cited “a radical movement to defund, dismantle and dissolve our police departments” that “has led to a shocking explosion of shootings, killings, murders, and heinous crimes of violence.” He complained that local “politicians have now embraced the far-left movement to break up our police departments causing violent crime in their cities to spiral . . . seriously out of control.” He demanded that Americans “insist that community officials
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fully support, fully back and fully fund their local police departments” and said federal law enforcement would remain until then. He repeated “[w]e will never defund the police, we will hire more great police” and “[w]hile others want to defund, defame and abolish the police, I want to support and honor our great police.”
144. Defendant Barr announced: “[W]e’re going to continue to confront mob violence,” and he claimed that “a significant increase in violent crime” is the “direct result of the attack on the police forces” and calls “for the defunding of police departments.”
145. All of this is consistent with the President’s numerous statements since the beginning of the nationwide protests that he intends to use federal agents to stop protestors.
146. For instance, the President tweeted: “Get tough Democrat Mayors and Governors. These people are ANARCHISTS. Call in our National Guard NOW. The World is watching and laughing at you and Sleepy Joe. Is this what America wants? NO!!!” This early suggestion that the National Guard was needed to quell actions of particular political groups or protesters with political leanings, such as “anarchists,” makes clear that the aim in calling in federal officers is to quell protests—not just those committing crimes against property.
147. The President has expressed his disdain for the viewpoints of the protestors: “Our great National Guard Troops who took care of the area around the White House could hardly believe how easy it was. “A walk in the park,” one said.
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The protesters, agitators, anarchists (ANTIFA), and others, were handled VERY easily by the Guard, D.C. Police, & S.S. GREAT JOB!”
148. In addition, he repeatedly has expressed his view that Black Lives Matter is a hateful sentiment.
149. The President has indicated his intention to “dominate” protestors: “D.C. had no problems last night. Many arrests. Great job done by all. Overwhelming force. Domination. Likewise, Minneapolis was great (thank you President Trump!)”
150. The President has expressed satisfaction when protestors self-censor by staying home: “I have just given an order for our National Guard to start the process of withdrawing from Washington, D.C., now that everything is under perfect control. They will be going home, but can quickly return, if needed. Far fewer protesters showed up last night than anticipated!”
151. At President Trump’s rally at Mount Rushmore on July 4, 2020, he announced that he was “deploying federal law enforcement to protect our monuments, arrest the rioters, and prosecute offenders to the fullest extent of the law.”
152. In retweeting a thread which showed New York stores boarded up in anticipation of any violence following the continuation of nationwide protests, President Trump wrote: “The National Guard is ready!”
153. On July 27, 2020, the President referred to the protestors in Portland as “sick and deranged Anarchists & Agitators who our great men & women of Law
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Enforcement easily control, but who would destroy our American cities, and worse, if Sleepy Joe Biden, the puppet of the Left, ever won. Markets would crash and cities would burn.”
154. In addition, he informed the governor of Oregon that “[s]he must clear out, and in some cases arrest, the Anarchists & Agitators in Portland,” or else “the Federal Government will do it for her. We will not be leaving until there is safety!”
155. The President’s response to the Black Lives Matter protests, and specifically his insistence that they be shut down, stands in sharp contrast to his response to anti-quarantine protestors earlier his year. When armed protestors objecting to COVID-19 quarantine measures rallied in the Michigan state house, the President called them “very good people” and urged Michigan Governor Gretchen Whitmer to “give a little” in response to the protestors’ objections. III. CHICAGO IS UNABLE OR UNWILLING TO STOP UNLAWFUL
FEDERAL INTERVENTION 156. Chicago’s Mayor has publicly recognized the problems with the President’s secret police force, saying, “We don’t need federal agents without any insignia taking people off the streets and holding them, I think, unlawfully.” 157. The Mayor has also recognized that an “influx” of federal agents to Chicago is on its way. 158. In a July 20, 2020 letter to the President, Chicago’s Mayor stated that federal agents deployed to Chicago “that would not be within our control or within the direct command of the Chicago Police would spell disaster.”
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159. Chicago is already saturated with federal law enforcement agents who conduct duly authorized law enforcement activities in Chicago and the region on a daily basis.
160. A further influx of such agents in lieu of investment in the communities most affected by gun violence, police violence, and racism is counterproductive, destructive, and a potentially violent disaster.
161. Contrary to her stated position, Chicago’s Mayor has had discussions with federal authorities about the initial deployment of federal agents in Chicago, and on July 21, 2020, she confirmed that federal agents would be deployed to Chicago.
162. On or about July 22, 2020, Chicago’s Mayor confirmed that she had spoken with the President about the deployment of federal agents to Chicago and reported “I think we have an understanding,” without an indication of the extent to which Chicago has assented to the federal illegal policies set out above.
163. The assent of Chicago’s Mayor to the surge of federal forces means that when the President sends federal agents to Chicago, as he did to Portland, the CPD and the City will be unable and unwilling to protect protestors from unlawful use of excessive force and arrests without probable cause. IV. PLAINTIFFS FEAR CONTINUING THEIR LAWFUL ACTIVITIES
164. Given the City of Chicago’s history of violence against peaceful protestors, and its recent violence against protestors, the addition of federal forces to illegally intimidate, police, and falsely arrest peaceful protestors will ignite
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additional official violence against civilians and a serious constitutional crisis within the City of Chicago.
165. Indeed, recognizing these legitimate and imminent fears, State Representative Will Guzzardi, whose district overs the City of Chicago’s northwest side, reports that his constitutes are “terrified by the news” of impeding federal agents, and that some have been dissuaded from protesting.
166. Plaintiffs have planned frequent protests and political actions into the foreseeable future, including next week. Examples of their recent activities on July 24, 25, and 26, 2020, include: a) a #LetUsBreathe rally at Freedom Square on Friday, July 24, 2020, across the street from the Homan Square, a police station notorious for disappearing people (sometimes in conjunction with Federal DEA or ATF agents); b) a protest organized by multiple organizations including Plaintiffs BLM Chicago and CDSA on Saturday, July 25, 2020 in Grant Park to support Black Lives; c) another protest also in Grant Park on Saturday, July 25, 2020 to call for the abolition of ICE.
167. NLG Chicago Legal Observers have observed over 50 demonstrations since the end of May 2020, when nationwide protests—sparked by the murders of George Floyd and Breonna Taylor—against systemic racism, inequality, and police violence began.
168. Plaintiff NLG Chicago seeks to protect the First Amendment rights of protestors by observing protests and obtaining information from protestors who are
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arrested so that they can be tracked and provided pro bono or low-cost representation.
169. Plaintiff FDLA seeks to protect the First Amendment rights of protesters by observing protests and obtaining information from protesters who are arrested so that they can be tracked and provided pro bono or low-cost representation.
170. Plaintiff In These Times has documented and tracked hundreds of instances of violence, harassment and arrests directed toward journalists by members of law enforcement of local, state, and federal agencies throughout the country. Individual journalists employed by In These Times are aware of “less lethal” munitions being deployed by federal agents against journalists covering protests in Portland and instances where members of the Chicago Police Department have used physical force to prevent journalists from covering protests.
171. Plaintiffs are aware of the activities of federal law enforcement officers in Portland; specifically, they are aware that federal agents have kidnapped, falsely arrested, and brutalized protestors and NLG Legal Observers.
172. Plaintiffs are also aware that President Trump has deployed federal officers to Chicago imminently, and that the CPD intends to work with the federal agents.
173. Plaintiffs would like to continue exercising their First Amendment rights of speech, assembly, observing, and newsgathering, but they fear that federal agents will kidnap, falsely arrest, or physically abuse them.
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174. Plaintiffs would also like to continue to engage in exercising their First Amendment rights without fear that federal agents will unlawfully surveil their activities or infringe on their right to associate with political, activist groups.
175. Plaintiffs would also like to continue to engage in exercising their First Amendment rights without fear that federal agents will unlawfully suppress or interfere with their protests.
176. Specifically, Plaintiff BLM Chicago has members who are not going to attend the protests and rallies planned for this weekend because they fear federal agents will kidnap, falsely arrest, or physically abuse them, as they did to protestors in Portland.
177. In addition, Plaintiffs have had to divert their financial resources and their time to address members’ concerns that federal agents will be present at the planned protests.
178. For example, since the President’s announcement on July 22, that federal agents would be sent to Chicago, OCAD has had to redirect their staff and financial resources from organizing for participation in peaceful protests in solidarity with BLM and dismantling systematic racism to preparing “Know Your Rights” flyers and information for distribution to respond to their members’ concerns that they may encounter federal agents at the protests.
179. Similarly, NLG has had to redirect its resources from organizing legal observers for the protests to preparing and distributing “Know Your Rights”
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information related to inquiries from protestors about possible encounters with federal agents present at protests.
180. Plaintiffs also fear that their speech and message is being hijacked and drowned out by a new focus on protesting the presence of federal agents in Chicago.
181. Plaintiffs are aware of the nightly clashes with federal agents and protestors in Portland at the Mark O. Hatfield Courthouse and how other groups have shifted the focus of the peaceful protests from the Black Lives Matter and antiracist campaign to protesting simply the presence of federal agents in the City.
182. Plaintiffs’ speech that has not been prevented or chilled, has been diluted and drowned out by Defendants’ illegal policies outline in this complaint and their deployment of agents to Chicago.
183. Indeed, Defendants’ actions to further the President’s political agenda to demonstrate that he is strong on “law and order” and denigrate “liberal cities” in furtherance of his re-election campaign has resulted in not only interference with Plaintiffs’ anti-racist message, but it has diluted and drowned out the speech that has persisted despite Defendants’ efforts to stop it.
LEGAL CLAIMS COUNT I
Interference with Speech, Peaceful Assembly, and the Press In Violation of the First Amendment
184. Plaintiffs incorporate by reference each of the paragraphs in this Complaint as if restated fully herein.
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185. Individuals who peacefully gather on the streets of Chicago to protest have the right to gather, express themselves, and petition for redress of grievances under the First Amendment.
186. Members of the press and individuals have the right to gather, receive, record, and disseminate information and news under the First Amendment.
187. Defendants’ actions are undertaken with the intent of discouraging and suppressing lawful protest and therefore constitute an illegal prior restraint on individuals’ First Amendment right to peacefully protest racial inequality.
188. Many individuals who are reasonably afraid of being brutalized or picked up and shoved into unmarked vans by federal agents will feel compelled to stay away, for their own personal safety, and will therefore be unable to express themselves in the way that they have the right to do.
189. Many individuals also fear that they will be unlawfully surveilled by federal agents simply for participating in these peaceful protests.
190. Plaintiff has also had to redirect and divert their resources to addressing their members’ concerns about the presence of federal agents at the protests.
191. Relatedly, since President Trump’s July 22nd announcement of sending federal agents to Chicago, the purpose, message and participation of the protests in Chicago shifted from a unified focus on dismantling systemic racism to protestors speaking out against the deployment of federal agents in Chicago.
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192. Prior to July 22, the protests had a sustained anti-racist, Black Lives Matter message and focus over the course of several months since the protests began in May.
193. In the manner described more fully above, Plaintiffs’ First Amendment rights have been and are being infringed. Their exercise of their rights to speak, assemble, petition, and gather news is being chilled due to the well-founded fear that they will be brutalized or kidnapped by federal agents for no reason other than being a protestor, journalist, or legal observer on the streets and sidewalks of Chicago.
COUNT II Federal Policy of Conducting False Arrests
In Violation of the Fourth Amendment 194. Plaintiffs incorporate by reference each of the paragraphs of this Complaint as if restated fully herein. 195. The Fourth Amendment prohibits unreasonable seizures, and in particular prohibits federal officials from arresting a person without probable cause to believe that they have committed a federal crime. 196. In so doing, the Fourth Amendment also plainly prohibits “preemptive arrests” in anticipation of a possible violation of the law. 197. Defendants and the federal agents discussed in this complaint are operating pursuant to an official federal policy, approved by responsible federal agency heads with final policymaking authority, of conducting arrests of individuals
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without probable cause to believe they have committed federal crimes, including “preemptive arrests” of peaceful protestors, journalists, and legal observers.
198. Federal agents’ conduct in other cities as described above, and in particular their false arrest of peaceful protestors and journalists, was caused by and pursuant to this unconstitutional federal policy.
199. No probable cause exists to believe that Plaintiffs, their members, or any other similarly situated protestors, legal observers, or journalists, has committed a federal crime. Plaintiffs’ anticipated participation in protests does not provide probable cause to believe that a person has committed a federal crime.
200. In the absence of an injunction, Defendants will arrest and seize individuals off the streets in Chicago without probable cause, in violation of the Fourth Amendment, pursuant to official federal policy.
COUNT III 28 U.S.C. § 2201 Declaration of Rights 201. Plaintiffs incorporate each of the paragraphs of the complaint as if restated fully herein. 202. In a case of actual controversy within its jurisdiction, any court of the United States may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought, under 28 U.S.C. § 2201. 203. There is an actual controversy within the jurisdiction of this court, inasmuch as one or more federal defendants have engaged in actions endangering
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Plaintiffs and others assembled on Chicago’s streets. No federal authority has agreed to stop this practice.
204. Plaintiffs are entitled to a declaration that the acts at issue are unlawful, and an injunction precluding Defendants from continuing in them.
COUNT IV Conspiracy 205. Plaintiffs incorporate each of the paragraphs of this complaint as if restated fully herein. 206. Defendants, acting in concert with other co-conspirators, known and unknown, reached an agreement among themselves to deprive Plaintiffs of their constitutional rights, all as described in the various paragraphs of this Complaint. 207. In so doing, these co-conspirators conspired to accomplish an unlawful purpose by unlawful means. In addition, these co-conspirators agreed among themselves to protect one another from liability for depriving Plaintiffs of these rights. 208. In furtherance of their conspiracy, each of these co-conspirators committed overt acts and were otherwise willful participants in joint activity. 209. The misconduct described herein was undertaken intentionally, in total disregard of Plaintiffs’ constitutional rights.
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COUNT V Tenth Amendment 210. Plaintiffs incorporate each of the paragraphs of this complaint as if restated fully herein. 211. By conducting traditional law enforcement activities on the streets and sidewalks of Chicago, Defendants are encroaching upon powers explicitly reserved to the State of Illinois, and to Illinois’s citizens, pursuant to the Tenth Amendment. 212. Defendants conduct such law enforcement activities under color of federal law. 213. Each Plaintiff has standing to bring this claim because each has suffered cognizable injuries that are redressable through injunctive relief, and the Tenth Amendment confers a substantive, personal right. 214. There is no adequate remedy under state law. PRAYER FOR RELIEF Wherefore, Plaintiffs pray for a judgment and the following relief: 1. A declaration, pursuant to 28 U.S.C. § 2201, that the federal actions described in this complaint restrain Plaintiffs’ ability to assemble in peaceful protest, observing, and news gathering, in violation of the First Amendment; 2. A declaration, pursuant to 28 U.S.C. § 2201, that the federal actions described in this complaint constitute a federal unlawful policy of committing arrests without probable cause, in violation of the Fourth Amendment;
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3. A declaration, pursuant to 28 U.S.C. § 2201, that the federal actions
described in this complaint present an imminent threat that Plaintiffs will be
arrested without probable cause, by unidentified federal agents, in violation of the
Fourth Amendment; and
4. An injunction, pursuant to 28 U.S.C. § 2202 and 5 U.S.C. § 702,
permanently enjoining the Defendants from engaging in the federal actions
described in this complaint, and specifically requiring that the Defendants and their
officers and agents:
a. Refrain from interfering in or otherwise policing lawful and peaceful assemblies and protests in the City of Chicago;
b. Cease enforcement of their unlawful policy of conducting arrests without probable cause to believe a federal crime has been committed and conducting “preemptive arrests”;
c. Refrain from arresting individuals in the City of Chicago without probable cause to believe that a federal crime has been committed;
d. Identify themselves and their agency before detaining or arresting any person off the streets of Chicago;
e. Explain to any person detained or arrested that the person is being detained or arrested and explain the basis for that action; and
f. Any other relief this Court deems proper. Respectfully submitted,
BLACK LIVES MATTER CHICAGO, et al.
By: /s/ Theresa Kleinhaus One of Plaintiffs’ Attorneys
Jon Loevy Heather Lewis Donnell Steve Art
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Theresa Kleinhaus Julia Rickert Lindsay Hagy Ruth Brown Sean Starr LOEVY & LOEVY 311 N. Aberdeen St. Chicago, IL 60607 (312) 243-5900
Brendan Shiller SHILLER PREYAR JARARD & SAMUELS @ THE WESTSIDE JUSTICE CENTER 601 S. California Ave. Chicago, IL 60612 (312) 226-4590
Sheila Bedi COMMUNITY JUSTICE AND
CIVIL RIGHTS CLINIC NORTHWESTERN PRITZKER
SCHOOL OF LAW 375 E. Chicago Ave. Chicago, IL 60611 (312) 503-8576

Elizabeth Wang LOEVY & LOEVY 2060 Broadway, Ste. 460 Boulder, CO 80302 (720) 328-5642
David B. Owens LOEVY & LOEVY 100 S. King St., Ste. 100 Seattle, WA 98104
Joey L. Mogul G. Flint Taylor Brad J. Thomson Christian Snow PEOPLE’S LAW OFFICE 1180 N. Milwaukee Ave. Chicago, IL 60642 (773) 235-0070
Craig B. Futterman MANDEL LEGAL AID CLINIC UNIVERSITY OF CHICAGO LAW
SCHOOL 6020 S. University Chicago, IL 60637 (773) 702-9611 futterman@uchicago.edu

49

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BLACK LIVES MATTER CHICAGO, et al.,
Plaintiffs, v. CHAD WOLF, et al.,
Defendants.

)

)

)

) )

No. 20 C 4319

) )

Judge Pallmeyer

)

)

)

DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Table of Contents Table of Authorities Introduction ......................................................................................................................................1 Background ......................................................................................................................................2
I. The Situation in Portland .........................................................................................2 II. The Situation in Chicago .........................................................................................4 III. Federal Law Enforcement Agencies ........................................................................6 IV. Amended Complaint ................................................................................................7 Argument .......................................................................................................................................10 I. Plaintiff’s Lack Article III Standing ......................................................................10
A. Plaintiffs’ Complaint Fails to Allege an Injury in Fact..............................10 B. Plaintiffs’ Allegations Regarding Division of Resources and Chilling of
Speech Do Not Establish Standing ............................................................14 C. Plaintiffs Cannot Establish Standing Merely By Citing to Events That Took
Place in Portland ........................................................................................16 II. Plaintiffs Fail to State a Claim under the Tenth Amendment ................................17 Conclusion .....................................................................................................................................20
i

Table of Authorities Cases Aurora Loan Serv., Inc. v. Craddieth, 442 F.3d 1018 (7th Cir. 2006) ......................................... 16 Bell v. Keating, 697 F.3d 445 (7th Cir. 2012)............................................................................... 14 Citadel Group Ltd. V. Washington Reg’l Med. Ctr., 692 F.3d 580 (7th Cir. 2012) ....................... 2 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .................................................................. 12, 13 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .............................................................. 11, 16 Common Cause Indiana v. Lawson, 937 F.3d 944 (7th Cir. 2019) .............................................. 15 Doe v. County of Montgomery, Ill., 41 F.3d 1156 (7th Cir. 1994) ................................... 11, 12, 16 EEOC v. Wyoming, 460 U.S. 226 (1983) ..................................................................................... 18 Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999) ................................................... 19 H.O.P.E., Inc. v. Alden Gardens of Bloomingdale, Inc., 2017 WL 4339823 (N.D. Ill. Sept. 29,
2017) ......................................................................................................................................... 15 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ............................................................... 15 Index Newspapers LLC, et al. v. U.S. Marshals Service, 2020 WL 4883017 (D. Or., Aug. 20,
2020) ....................................................................................................................................... 2, 5 Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490 (7th Cir.
2005) ................................................................................................................................... 10, 11 Laird v. Tatum, 408 U.S. 1 (1972) ................................................................................................ 14 Lopez-Aguilar v. Marion Cty. Sheriff’s Dept., 924 F.3d 375 (7th Cir. 2019)............................... 11 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................. 10, 11 Mainstreet Org. of Realtors v. Calumet City, Ill., 505 F.3d 742 (7th Cir. 2007) ................... 16, 17 Nat’l League of Cities v. Usery, 426 U.S. 833 (1976) .................................................................. 18 New York v. United States, 505 U.S. 144 (1992) .......................................................................... 18 O’Shea v. Littleton, 414 U.S. 488 (1974) ..................................................................................... 12
ii

Robinson v. City of Chicago, 868 F.2d 959 (7th Cir. 1989) ......................................................... 13 Rosenblum v. Does 1-10, 2020 WL 4253209 (D. Or. July 24, 2020)......................................... 3, 4 Speech First, Inc. v. Kileen, 968 F.3d 628 (7th Cir. 2020) ..................................................... 11, 14 Tex. Indep. Prod. And Royalty Owners Assoc. v. Env’l Prot. Agency, 410 F.3d 964 (7th Cir.
2005) ......................................................................................................................................... 11 Travis v. Reno, 12 F. Supp. 2d 921 (W.D. Wis. 1998) ................................................................. 19 Valley Forge Christian College v. Americans United for Sep. of Church & State, Inc., 454 U.S.
464 (1982) ................................................................................................................................. 17 Warth v. Seldin, 422 U.S. 490 (1975) ........................................................................................... 10 Statutes 8 U.S.C. § 1357............................................................................................................................... 7 19 U.S.C. § 1589a ........................................................................................................................... 7 21 U.S.C. § 13................................................................................................................................. 7 28 U.S.C. § 533............................................................................................................................... 6 28 U.S.C. § 566......................................................................................................................... 7, 19 31 U.S.C. § 41503........................................................................................................................... 7 40 U.S.C. § 1315(a) .................................................................................................................. 6, 19 40 U.S.C. § 1315(b)(1) ................................................................................................................... 6 40 U.S.C. § 1315(b)(2) ............................................................................................................. 6, 19 Regulations 28 C.F.R. § 0.111(f) ...................................................................................................................... 19
iii

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BLACK LIVES MATTER CHICAGO, et al.,
Plaintiffs, v. CHAD WOLF, et al.,
Defendants.

)

)

)

) )

No. 20 C 4319

) )

Judge Pallmeyer

)

)

)

DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Introduction

Plaintiffs are organizations involved in protests in Chicago who fear that federal agents

deployed to Chicago will interfere with plaintiffs’ peaceful protests and unlawfully arrest their

members. (Or at least that is what they feared when this case was filed two months ago.) This

fear was not based on events in Chicago, but rather on events in Portland, where plaintiffs allege

federal agents deployed to protect federal property violated the constitutional rights of other

protestors in Portland. Plaintiffs’ fears have not been realized; not only have plaintiffs here not

suffered any injury, but they cite nothing to suggest injury is likely. Plaintiffs’ own allegations

and referenced documents show that the federal agents most recently deployed to Chicago were

sent to work with local law enforcement to fight the rise in violent gun and gang crime pursuant to

a federal law enforcement initiative called Operation LeGend, which by design is not directed at

policing protesters or protecting federal property. Because plaintiffs’ fear of future injury is at

best speculative, they have no standing to pursue their claims in this case. Even if they had

standing, plaintiffs’ Tenth Amendment claim should still be dismissed for failure to state a claim.

1

Background I. The Situation in Portland
Protests against racial injustice and police brutality have occurred in cities across the United States after George Floyd’s tragic death on May 25, 2020. Am. Complt. ¶¶ 32-33. In Portland, Oregon, riots associated with these protests resulted in vandalism, property destruction, attacks on law enforcement officers, attempted arson, and related acts of violence in connection with federal buildings and property. See Index Newspapers LLC, et al. v. U.S. Marshals Service, et al, 2020 WL 4883017, *14 (D. Or. Aug. 20, 2020); July 16, 2020 Memo to DHS Acting Secretary Chad Wolf at 1 (“7/16/20 DHS Memo”).1 In early July 2020, for example, some of the rioters in Portland broke the glass doors at the entryway of the Hatfield Federal Courthouse in Portland. Id. On other nights in July, rocks and other objects were thrown at federal agents protecting the courthouse, and on one occasion certain rioters attempted to start a fire inside the Hatfield Federal Courthouse. Id.
In response to this damage to federal property and these assaults on federal officers, the U.S. Department of Homeland Security (DHS) as well as the U.S. Marshals Service (USMS) deployed specialized tactical teams to provide support in protecting the federal courthouse and other federal property in Portland. Am. Complt. ¶¶ 78-79, 83; 7/16/20 DHS Memo at 1. According to plaintiffs’ amended complaint, these federal agents approached protesters in Portland by using unmarked vehicles and dressed in camouflage uniforms that failed to identify themselves
1 This document, 7/16/20 DHS Memo, is cited in the amended complaint at ¶ 78, and attached hereto as Exhibit 1. See Citadel Group Ltd. V. Washington Reg’l Med. Ctr., 692 F.3d 580, 591-92 (7th Cir. 2012) (“In deciding a motion to dismiss for failure to state a claim [courts] may consider documents attached to or referenced in the pleading if they are central to the claim.”).
2

as federal agents. Am. Complt. ¶¶ 68, 81. Plaintiffs further allege that federal agents (again, in Portland) engaged in unlawful police tactics against protesters, journalists, and legal observers based on their viewpoint, including (1) unlawfully arresting them without probable cause, (2) conducting unlawful domestic surveillance against them, and (3) trying to silence and interfere with protesters through intimidation and force. Id., ¶¶ 70-74, 91- 128.
Oregon’s governor and Portland’s mayor requested the removal of federal agents from Portland. Am. Complt. ¶ 90. Oregon’s Attorney General filed a federal lawsuit on July 17, 2020, seeking to enjoin federal agents from engaging in this alleged unlawful conduct. Am. Complt. ¶ 89; Rosenblum v. Does 1-10, 2020 WL 4253209 (D. Or. July 24, 2020).2 Several other lawsuits were filed in Portland, challenging conduct by federal agents surrounding the protests. Protesters in Wise v. City of Portland, No. 3:20-cv-1193 (D. Or.), sued DHS, alleging their treatment of plaintiffs during protests in Portland was unlawful. Anti-police organizations in Western States Center, Inc. v. DHS, No. 3:20-cv-1175 (D. Or.), sued DHS and USMS, alleging that federal law enforcement in Portland violated the First, Fourth, and Tenth Amendments. Members of the press and legal observers in Index Newspapers LLC v. City of Portland, et al., No. 3:20-cv-1035-SI (D. Or.), sued the City of Portland, DHS, and USMS, challenging their treatment of plaintiffs during protests as unlawful.
2 The district court in Portland denied the Oregon Attorney General’s motion for a temporary restraining order on standing grounds, Rosenblum, 2020 WL 4253209, and plaintiff subsequently dismissed the case.
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II. The Situation in Chicago Meanwhile, on July 20, 2020, Chicago Mayor Lori Lightfoot sent a letter to President
Trump regarding federal resources needed to reduce gun violence in Chicago. Am. Complt. ¶¶ 156, 158; Lightfoot July 20, 2020 Letter to President Trump, at p. 1 (“7/20/20 Lightfoot Letter”).3 Regarding law enforcement assistance, Mayor Lightfoot stated that Chicago does not want any deployment of secret federal agents who arrest without cause, as had allegedly occurred in Portland. Id. at 2. Instead, Mayor Lightfoot requested more federal “investigatory resources to augment existing federal violent crime suppression efforts, under the leadership and control of the U.S. Attorney” and explained that “[g]iven the urgency of the gun violence,” Chicago needs federal violent crime and particularly gun cases investigated and prosecuted. Id. Two days later, on July 22, Mayor Lightfoot announced that she had spoken with President Trump about the deployment of federal agents to Chicago and that they reached an understanding about such a deployment. Am. Complt. ¶ 162.
That same day, President Trump and law enforcement officials announced a federal law enforcement initiative called Operation LeGend,4 whereby the federal government provides crime fighting resources to Chicago (and other cities) that are experiencing a significant rise in violent crime. Am. Complt. ¶ 129; 7/22/20 Press Conference Transcript, “Remarks by President Trump on Operation LeGend” (“7/22/20 Press Conference Transcript”).5 During this press conference,
3 7/20/20 Lightfoot Letter is cited in the amended complaint at ¶ 158 and is attached as Exhibit 2.
4 Operation LeGend is named in honor of four-year-old LeGend Taliferro, who was shot and killed in Kansas City, Missouri, on June 29, 2020.
5 This July 22, 2020 press conference is cited in the amended complaint at ¶¶ 129,138-40, and the 7/22/20 Press Conference Transcript is attached as Exhibit 3.
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President Trump explained that Operation LeGend had already been used successfully in Kansas City and was being expanded to Chicago and Albuquerque due to the rise in violent crime in those cities. Id. at 4-5. President Trump explained that in Chicago, for example, 1,900 people had already been shot this year and 414 had been murdered, which is a 50 percent increase over last year. Id. at 2.
Attorney General William Barr and Acting Secretary of DHS Chad Wolf explained that Operation LeGend is aimed at protecting people from violent crime and that it is obviously a different type of operation than the tactical teams used to defend federal property against rioters in Portland. 7/22/20 Press Conference Transcript at 7, 9.6 Federal agents deployed under Operation LeGend are augmenting their longstanding crime fighting activities where federal investigators work jointly with state and local police to solve murders and take down violent gangs. Id. at 7-8. As it relates to Chicago, Operation LeGend committed 200 federal agents from the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), USMS, and DHS to expand Chicago’s existing violent crime task forces. Linked to the increase in federal law enforcement officers under Operation LeGend, the United States also provides $61 million in financial assistance to state and local law enforcement for expenses they incur in connection with these federal task force operations. Id. at 5, 8.
6 The deployment of federal agents in Portland was under Operation Diligent Valor, not Operation LeGend. See Index Newspapers, 2020 WL 4883017 at *12, *15 n.6.
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III. Federal Law Enforcement Agencies Law enforcement agents with the Department of Homeland Security as well as the
Department of Justice are authorized by Congress to engage in a variety of federal law enforcement activities, which include both the protection of federal property as well as the enforcement of federal criminal laws relating to violent crimes. The Federal Protective Service (FPS), a component of the DHS, is the federal agency charged with protecting federal facilities. See Federal Protective Service Operation, at https://www.dhs.gov/fps-operations. Congress authorized DHS to “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government.” 40 U.S.C. § 1315(a). While engaged in their duties, FPS officers are authorized to conduct a wide range of law enforcement functions, including carrying firearms, issuing warrants and subpoenas, conducting investigations on and off the federal property in question, making arrests, and enforcing federal laws for the protection of persons and property. 40 U.S.C. § 1315(b)(2). The Secretary of DHS may also designate DHS employees “as officers and agents for duty in connection with the protection of property owned or occupied by the Federal Government and persons on the property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property.” 40 U.S.C. § 1315(b)(1).
Federal law enforcement agencies within DOJ, including the DEA, ATF, FBI, and USMS, as well as DHS’s Homeland Security Investigations (HSI) are authorized to enforce a variety of federal criminal laws relating to violent crime. The FBI is the primary law enforcement agency for the United States and has authority to gather intelligence and to investigate federal crimes in 200 categories, including violent crime areas of gangs, narcotics, organized crime, robberies, kidnapping, and motor vehicle theft. 28 U.S.C. § 533; see https://www.fbi.gov/investigate. The
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DEA has specific authority to investigate drug trafficking and distribution under the Controlled Substances Act, 21 U.S.C. § 13, et al. See https://admin.dea.gov/mission. ATF has authority to investigate federal crimes for illegal use, possession, and transfer of firearms under the Gun Control Act, 18 U.S.C., Chapter 44 and the National Firearms Act, 26 U.S.C., Chapter 53. USMS is the enforcement arm of the federal courts and is responsible for protecting the federal judiciary, apprehending federal fugitives, managing and selling seized assets, and housing and transporting federal prisoners. 28 U.S.C. § 566; 31 U.S.C. § 41503; 28 C.F.R. § 0.111. HSI investigates and enforces laws related to cross-border criminal activity, including narcotics and weapons smuggling/trafficking, human smuggling, and transnational gang activity. See 19 U.S.C. § 1589a; 8 U.S.C. § 1357; https://www.ice.gov/hsi. In enforcing these laws, federal agents regularly cooperate with state and local law enforcement officials, which often takes the form of joint task forces in which federal agents work with state and local officials to fight crime committed under federal laws. See, e.g., https://www.fbi.gov/investigate/violent-crime/gangs; 28 U.S.C. § 566; 28 C.F.R. § 0.111. IV. Amended Complaint
Plaintiffs in this action are a group of organizations that have been and will continue to be involved in Chicago protests against police violence and systemic racism, stemming from George Floyd’s death (“Chicago Protests”). Am. Complt. ¶¶ 4, 34-38. Plaintiffs include (1) six organizations whose members regularly plan and participate in Chicago Protests;7 (2) two
7 These plaintiffs include (1) Black Lives Matter Chicago (BLM), (2) Black Abolitionist Network (BAN), (3) Chicago Democratic Socialists of America (CDSA), (4) Good Kids/Mad City (GKMC), (5) #Letusbreathe Collective, and (6) South Siders Organized for Unity and Liberation (SOUL).
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organizations whose members provide legal support and observers for those engaged in Chicago Protests;8 and (3) one organization, In These Times (ITT), that operates a magazine and provides journalism coverage for Chicago Protests. Id., ¶¶ 10-18. Plaintiffs bring this action on behalf of themselves and their members and assert claims against various federal law enforcement agencies within DHS and DOJ that have deployed federal agents to Chicago as well as unknown officers of the United States. Id., ¶¶ 20-31.9
Based on the events in Portland, plaintiffs feared that the federal agents recently deployed to Chicago to fight gun and gang violence would instead be used to intimidate, physically abuse, and unlawfully arrest peaceful protesters in Chicago, similar to what they allege to have occurred in Portland. Plaintiffs do not allege that any illegal federal law enforcement conduct has already occurred in Chicago, but claim that if it does, their members may be subject to such unlawful conduct and the organizations may have to divert resources to address it. Am. Complt. ¶¶ 10-18. Other than this generalized fear of future harm, plaintiffs allege that one organization, National Lawyers Guild, has already diverted resources in order to distribute “Know Your Rights” fliers due to protester inquiries about encountering federal agents at protests. Am. Complt. ¶¶ 178-79. Additionally, in the original complaint filed on July 23, 2020, plaintiffs alleged that due to deployment of federal agents to Chicago, certain BLM members would not be attending protest activity planned for the upcoming weekend of July 24-26. Complt. ¶ 142. In the amended
8 These plaintiffs include (1) National Lawyers Guild Chicago (NLG Chicago); and (2) First Defense Legal Aid (FDLA).
9 In addition to DOJ and DHS, additional defendants include investigative arms within DOJ (FBI, DEA, ATF, and USMS), as well as components within DHS (HSI, ICE, CBP, and FPS). Am. Complt. ¶¶ 20-30.
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complaint filed a week later on July 31, however, plaintiffs note only that their members engaged in the protests of July 24-26, but do not allege that any members refused to participate because of fear of federal agents or that anyone encountered any problems at all from federal law enforcement officers.10
Based on these allegations, plaintiffs assert three constitutional claims. First, plaintiffs allege that their members have a “well-founded fear” that the federal agents deployed to Chicago on July 22 were going to brutalize and kidnap plaintiffs’ members for no reason other than engaging in protected First Amendment activity. As a result, plaintiffs claim that their First Amendment rights to speak, assemble, petition, and gather news are being chilled and will be violated in the future if federal agents engage in misconduct. Am. Complt. Ct. I. Second, plaintiffs claim that in the absence of an injunction, federal agents deployed to Chicago will unlawfully arrest and seize plaintiffs’ members in violation of the Fourth Amendment. Am. Complt. Ct. II. Third, plaintiffs allege that the federal agents deployed to Chicago will be conducting “traditional law enforcement activities on the streets and sidewalks of Chicago” and thus will be encroaching upon powers explicitly reserved to the State of Illinois in violation of the Tenth Amendment. Am. Complt. Ct. V. For relief, plaintiffs seek only equitable relief, including declarations that defendants’ actions infringe on plaintiffs’ First and Fourth Amendment rights and a permanent injunction, prohibiting defendants from engaging in unconstitutional conduct.
10 Instead, plaintiffs simply repeat in the amended complaint the same allegation from the original complaint that certain BLM members will not “attend the protests and rallies planned for this weekend because they fear federal agents will kidnap, falsely arrest, or physically abuse them, as they did to protestors in Portland.” Compare Complt. ¶ 142 with Am. Complt. ¶ 176.
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Argument The protests that have taken place in recent months here in Chicago and throughout the country touch on matters of great concern to many Americans, and it is vital to our democracy that First Amendment rights of all Americans be respected. But in this case, plaintiffs have alleged that by taking part in protests here in Chicago, they are afraid they might be subject to an injury at some undetermined time in the future based on reports of what has happened in Portland. The Constitution requires more than that to make out a claim in federal court. The plaintiffs have failed to meet their burden at this stage in the litigation to plead a case that shows injury in fact, and for this reason their case should be dismissed. Even if plaintiffs adequately were able to allege injury in fact for purposes of standing, their Tenth Amendment claim should be dismissed for failure to state a claim. I. Plaintiffs Lack Article III Standing. A. Plaintiffs’ Complaint Fails to Allege an Injury in Fact. Plaintiffs’ complaint contains a great deal of speculation about what injury might befall the members of the various plaintiff organizations, but nowhere does the complaint allege the kind of concrete, particularized injury that is necessary to establish standing under Article III. The question of standing is, in essence, “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975); Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 495 (7th Cir. 2005). As such, the doctrine of standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The “irreducible constitutional minimum” of standing contains three elements: an injury in fact; a
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causal link between the injury and the challenged action such that the challenged conduct is fairly traceable to the defendant; and redressability through a favorable court decision. Id. at 560-61 (1992); Lopez-Aguilar v. Marion Cty. Sheriff’s Dept., 924 F.3d 375, 384-85 (7th Cir. 2019). In cases such as this one where the plaintiffs are associations or civic groups, an association has standing to represent the interests of its members if the individual members would have standing in their own right; the interests represented are germane to the association’s purpose; and the relief sought does not require the participation of the individual members. Tex. Indep. Prod. And Royalty Owners Assoc. v. Env’l Prot. Agency, 410 F.3d 964, 971 (7th Cir. 2005); Speech First, Inc. v. Kileen, 968 F.3d 628, 638 (7th Cir. 2020). At all times, it remains the plaintiffs’ burden to establish the elements of standing where the plaintiff is the party invoking federal jurisdiction over the alleged case or controversy. Doe v. County of Montgomery, Ill., 41 F.3d 1156, 1159 (7th Cir. 1994).
Here, plaintiffs’ amended complaint fails to allege an injury in fact that satisfies the first requirement of Article III standing. An “injury in fact” is an “invasion of a legally-protected interest which is (1) concrete and particularized, that is, affecting the plaintiff in a personal and individual way and (2) actual or imminent and not merely conjectural or hypothetical.” Id. (citing Lujan, 504 U.S. at 561); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (the “threatened injury must be certainly impending” and not merely “possible”); Speech First, Inc., 968 F.3d at 638. The requirement that the injury be “particularized” means that a plaintiff cannot simply “raise only a generally available grievance about the government.” Lac Du Flambeau, 422 F.3d at 496. Where the plaintiff “claims only harm to his and every citizen’s interest in proper application of the Constitution and laws, and [seeks] relief that no more directly and tangibly
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benefits him than it does the public at large,” the plaintiff fails to state an Article III case or controversy. Id.
Such is the case with plaintiffs here. The amended complaint contains multiple allegations of events that occurred in other cities and of statements made by the President, the Attorney General, and the Acting Secretary of DHS, Am. Complt. ¶¶ 130-135, but alleges no injury that is particular and concrete with regard to the plaintiff organizations’ members in this city. Rather, by merely detailing events in the national news and quotes from high-level government officials, plaintiffs’ amended complaint simply alleges “the psychological consequence presumably produced by observation of conduct with which one disagrees.” Doe, 41 F.3d 1156 at 1159. Such claims fall well short of the case or controversy standard.
The Supreme Court case City of Los Angeles v. Lyons, 461 U.S. 95 (1983), is instructive. In Lyons, the plaintiff sought declaratory relief and an injunction barring the City of Los Angeles from violating his civil rights based on allegations that members of the Los Angeles Police Department had previously used illegal chokeholds to restrain the defendant. Id. at 98. The Court, relying on precedent, held that “past exposure to illegal conduct does not itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effects.” Lyons, 461 U.S. at 102 (citing O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). The simple assertion that the plaintiff in Lyons might again be subject to an illegal chokehold did not create the actual controversy that must exist for a declaratory judgment to be entered. Id. at 104. In order to establish an actual controversy in the case, the plaintiff in Lyons needed to allege either that all Los Angeles police officers always apply chokeholds to any citizen they encounter, or that the City had explicitly ordered or authorized such behavior. Even an official policy that simply
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allowed for the challenged conduct is insufficient. Mere instances of past misconduct did not establish a right to declaratory relief. Id. at 106.
The claims in this case fare no better. Here, plaintiffs are not even alleging that they previously suffered a discrete, concrete injury (such as the chokehold in Lyons). Rather, they allege that other individuals in another city have suffered some particular injury, and for that reason plaintiffs are afraid they might suffer a similar fate at some abstract point in the future. Plaintiffs’ alleged threat of injury is even more speculative, given the different circumstances presented in Portland and Chicago. Plaintiffs do not allege that federal property in Chicago has come under attack or that federal agents have been deployed to Chicago to protect federal property and patrol protesters. Rather, the complete statements of federal officials that plaintiffs selectively cite in their amended complaint make clear that federal agents have been deployed to Chicago to augment their longstanding work in fighting violent gun and gang crime in Chicago (in other words, more of the same). Plaintiffs have no present injury of their own that can be remedied by this court, and any future injury they might suffer is purely hypothetical. Thus, the prayer for relief in this case — which seeks only injunctive and declaratory relief — is attempting to remedy an abstract injury that simply does not exist and at this point cannot be credibly alleged. See id. at 105; Robinson v. City of Chicago, 868 F.2d 959, 967 (7th Cir. 1989) (applying the rule in Lyons and holding that, “plaintiffs cannot show irreparable injury precisely because they cannot show a real or immediate threat that they will be wronged again, while any previous injury can be . . . compensated for by damages”).11
11 The lack of a concrete, imminent injury is fatal to all of the individual claims in plaintiffs’ amended complaint, for the reasons stated herein. In addition, plaintiffs’ Tenth Amendment claim suffers a further defect discussed in Section II, infra.
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B. Plaintiffs’ Allegations Regarding Diversion of Resources and Chilling of Speech Do Not Establish Standing.
Plaintiffs’ amended complaint attempts to allege a concrete injury based simply on “fear” that they will be subject to unlawful abuse at some future point in time, but plaintiffs’ subjective fear of chilling (assuming that it still exists a couple of months later and with the benefit of hindsight) does not in itself establish standing under Article III. Am. Complt. ¶ 173. Likewise, plaintiffs’ claim about the “diversion” of financial resources lacks any basis in law for circumstances such as these, where there is no actual policy or action by the government that plaintiffs must divert resources to combat. Am. Complt. ¶ 177.
Plaintiffs’ purported fear that they might be subject to injury does not establish Article III standing because, again, on its face plaintiffs’ amended complaint does not demonstrate that their subjective fear is grounded in actual facts relating to Chicago. In free speech cases brought under the First Amendment, a plaintiff’s “notional or subjective fear of chilling is insufficient to sustain a court’s jurisdiction under Article III.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972) (denying plaintiff’s First Amendment claim involving fear of unlawful surveillance during protest activity). In order to establish standing, the plaintiff must “substantiate a concrete and particularized chilling effect on his protected speech or expressive conduct” to pursue prospective relief. Bell v. Keating, 697 F.3d 445, 454 (7th Cir. 2012); Speech First, Inc., 968 F.3d at 639. Plaintiffs here originally alleged that certain BLM members would not attend a protest scheduled for the weekend of July 24-26 out of fear they might suffer injury, but then the July 24 weekend came and went, and plaintiffs’ post-July 24-weekend amended complaint makes no mention of any infringement of First Amendment rights that took place. Instead, plaintiffs simply make a vague statement that
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they have “protests and political actions into the foreseeable future,” but do not allege that any members are too fearful to attend. Am. Complt. ¶ 166.
Plaintiffs’ claims about diversion of financial resources are also insufficient to establish an injury in fact. It is true that for certain advocacy groups, the deflection of the group’s time and money to legal efforts can qualify as an injury for purposes of Article III. See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (upholding “drain on resources” standing in the context of an organization that works to combat discrimination in housing); H.O.P.E., Inc. v. Alden Gardens of Bloomingdale, Inc., No. 15 C 9715, 2017 WL 4339823 at * 5 (N.D. Ill. Sept. 29, 2017) (same). But the cases that stand for this proposition are universally ones that deal with issues such as voting rights, housing discrimination, and immigration — areas in which the plaintiffs are able to allege there is an actual policy, rule, or law that is enforced by the defendants and will have the effect of diverting the group’s resources. See Common Cause Indiana v. Lawson, 937 F.3d 944, 953 (7th Cir. 2019) (collecting cases). Plaintiffs still must show that there are new, concrete burdens created by the law being challenged, that the disruption to the organization’s operations is real, and that its response is warranted. Id. at 955. The allegation in the present case — that the plaintiff National Lawyers Guild Chicago has printed “Know Your Rights” fliers and information for protestors — does not amount to a claim that defendants have actually injured plaintiffs in a concrete way. Am. Complt. ¶ 179.12 There is no claim of a specific rule or policy in effect that plaintiffs are compelled to combat. See Common Cause Indiana, 937 F.3d at 955 (noting that
12 The amended complaint also alleges that a group denoted as “OCAD” “has had to redirect their staff and financial resources” as a result of defendants’ alleged conduct. Am. Complt. ¶ 178. However, it is not clear from the amended complaint who OCAD is, what the acronym stands for, or whether OCAD was intended to be named an actual plaintiff in this lawsuit.
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organizations do not have standing based solely on the baseline work they are already doing — they “cannot convert ordinary program costs into an injury in fact”).
Finally, a plaintiff cannot simply create an injury by undertaking action to avoid harm. Clapper, 568 U.S. at 416 (plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending”). When such self-imposed harm is based on an injury that is too speculative, it is not fairly traceable to the defendant’s conduct. Id. As explained above, plaintiffs’ alleged fear that their members’ First and Fourth Amendment rights will be violated while engaging in peaceful protests in Chicago is exceedingly speculative. Accordingly, any diversion of resources or concrete chilling effect based on this fear is not fairly traceable to defendants’ conduct.
C. Plaintiffs Cannot Establish Standing Merely by Citing to Events That Took Place in Portland.
Ultimately, this case was not filed in Portland, and it cannot be maintained based merely on the events that are alleged to have taken place 1800 miles away. The doctrine of standing “is not an ingenious academic exercise in the conceivable.” Doe, 41 F.3d at 1162. An individual who simply reads about events affecting someone else in another state cannot bring suit on the theory that he himself is injured. Mainstreet Org. of Realtors v. Calumet City, Ill., 505 F.3d 742, 745 (7th Cir. 2007); see also Aurora Loan Serv., Inc. v. Craddieth, 442 F.3d 1018, 1024 (7th Cir. 2006) (“There is a sense in which I am ‘injured’ when I become upset by reading about the damage caused that fine old vineyard in Burgundy by a band of marauding teetotalers, yet that injury would not be an ‘injury’ that conferred standing to sue under Article III.”).
Even if it were the case that the events in Portland could form the basis for an articulable injury in Chicago, this case would still be improper under the doctrine of prudential standing.
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Mainstreet, 505 F.3d at 745; Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474-75 (1982). That is, a set of facts should not be litigated by a plaintiff whose injury, if any, is derivative from the actual immediate victims of the alleged conduct. Mainstreet, 505 F.3d at 745. In other words, individuals in Portland are perfectly capable of vindicating their own rights and prosecuting their own case where warranted. Many groups in Portland are already doing so. See Background Section I, supra. But Chicagoans are not directly affected by those events, and the “victims with the largest stakes” who have first-hand information about the facts in Portland are the ones best situated to bring those cases. Id. Absent a particular injury that is specific to the events and plaintiffs here in Chicago (and no such injury is alleged in plaintiffs’ amended complaint), there is no case or controversy to be litigated here.13 II. Plaintiffs Fail to State a Claim Under the Tenth Amendment.
Standing issues aside, plaintiffs’ Tenth Amendment claim is both impermissibly broad and vague. While plaintiffs vaguely complain that federal law enforcement is impermissibly conducting “traditional state law enforcement activities” in Chicago, they do not cite to a specific statute that they claim violates the Tenth Amendment’s limit to federal legislative authority. Nor can plaintiffs allege that the type of federal law enforcement activity being conducted in Portland or Chicago is beyond that authorized by Congress or interferes in any way with State law enforcement.
The Tenth Amendment to the United States Constitution provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved
13 Plaintiffs’ lack of standing requires dismissal of not just their three constitutional claims in Counts I, II, and V, but also their Declaratory Relief Act claim in Count III and their conspiracy claim in Count IV, since these two claims are derivatives of the constitutional claims.
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to the States respectively, or to the people.” Indeed, the Tenth Amendment protects the states from federal intrusion that might threaten their separate and independent existence. EEOC v. Wyoming, 460 U.S. 226 (1983). Simply put, the Tenth Amendment serves as an affirmative external limitation on federal legislation. Nat’l League of Cities v. Usery, 426 U.S. 833 (1976); see also New York v. United States, 505 U.S. 144, 188 (1992) (Congress may neither “compel the States to enact or administer a federal regulatory program.”).
Plaintiffs’ theory under the Tenth Amendment is not only atypical but is impermissibly broad. Plaintiffs vaguely allege that the defendants are “encroaching upon powers explicitly reserved to the State of Illinois [] and to Illinois citizens” by “conducting traditional law enforcement activities on the streets and sidewalks of Chicago.” Am. Complt. ¶ 211. They claimed when the case was filed that a federal “secret police force” would be deployed in Chicago and that there “would soon be an unchecked federal presence on the streets of Chicago.” Id. ¶ 141; see generally id. ¶¶ 130-155. Aside from the fact that that did not happen, what is glaringly missing from the complaint is any claim that a specific federal law violates the Tenth Amendment. Indeed, plaintiffs do not cite to a specific statute or in any way allege that a piece of federal legislation violates the Tenth Amendment.
Further, while the plaintiffs complain that the defendants are “encroaching upon powers explicitly reserved to the State of Illinois,” they do not articulate what specific powers they are referring to. A broad review of meritorious Tenth Amendment case law demonstrates that Tenth Amendment lawsuits commonly challenge congressional authority to legislate and do not address generalized complaints of federal law enforcement powers. See, e.g., New York, 505 U.S. at 155 (discussing Tenth Amendment jurisprudence and stating: “In some cases the Court has inquired
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whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution. In other cases courts have sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment.” (internal citations omitted)); Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999) (concluding that federal Gun Control Act of 1968 did not violate Tenth Amendment); Travis v. Reno, 12 F. Supp. 2d 921, 928 (W.D. Wis. 1998) (collecting Tenth Amendment cases addressing various federal statutes). Ultimately, the amended complaint fails to portray a picture of how the federal defendants are commandeering a state regulatory scheme.
To the extent that engaging in “traditional law enforcement activities” could somehow establish a valid Tenth Amendment claim, it would still fail in this case because the actions that plaintiffs complain of in Portland and Chicago relate exclusively to federal law enforcement powers and are not limited by, nor do they conflict with, state law enforcement. Plaintiffs’ alleged wrongdoing by DHS agents in Portland arises out of the agents’ efforts to protect federal property and federal officers. As explained above, DHS agents are authorized to “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government.” 40 U.S.C. § 1315(a). As part of this authority, a federal law enforcement officer may enforce federal laws, make arrests without a warrant if the federal officer has reasonable grounds to believe a felony has been committed, and conduct investigations into wrongdoing that may have occurred on federal property. 40 U.S.C. § 1315(b)(2); see also 28 U.S.C. 566; 28 C.F.R. § 0.111(f). Similarly, federal agents fighting violent crime in Chicago under Operation LeGend are authorized to do so under a variety of federal criminal laws such as those relating to guns and drugs. Indeed, plaintiffs appear to concede in their amended complaint that fighting such violent crime by federal
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agents is not only common but lawful. Am. Complt. ¶ 159 (“Chicago is already saturated with federal law enforcement agents who conduct duly authorized law enforcement activities”). Plaintiffs’ vague Tenth Amendment claim fails to explain how federal officers in Chicago are attempting to enforce state or local law or are prohibiting state entities from doing anything related to their own police powers. Accordingly, plaintiffs cannot state a claim that the federal agents’ law enforcement activity in Portland or Chicago violates the Tenth Amendment.
Conclusion For the foregoing reasons, the court should dismiss plaintiffs’ amended complaint.
Respectfully submitted, JOHN R. LAUSCH, Jr. United States Attorney By: s/ Kathleen M. Flannery
KATHLEEN M. FLANNERY NIGEL B. COONEY PATRICK W. JOHNSON Assistant United States Attorneys 219 South Dearborn Street Chicago, Illinois 60604 (312) 353-7223 kathleen.flannery@usdoj.gov
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