U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:20-cv-01035-SI

Index Newspapers LLC et al v. City of Portland et al Assigned to: Judge Michael H. Simon Case in other court: 9th Circuit Court of Appeals, 20-
35739 Cause: 42:1983 Civil Rights Act

Date Filed: 06/28/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Tuck Woodstock and those similarly situated

represented by Athul K. Acharya BraunHagey & Borden LLP 351 California Street, 10th Floor San Francisco, CA 94104 415-963-4493 Email: acharya@braunhagey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly K. Simon ACLU of Oregon P.O. Box 40585 Portland, OR 97240 503-444-7015 Email: ksimon@aclu-or.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gunnar Martz BraunHagey & Borden LLP 351 California Street 10th Floor San Francisco, CA 94104 415-599-0210 Email: martz@braunhagey.com ATTORNEY TO BE NOTICED

J. Noah Hagey BraunHagey & Borden 351 California St., 10th Floor San Francisco, CA 94104 415-599-0210 Email: hagey@braunhagey.com

Plaintiff Doug Brown and those similarly situated
Plaintiff Sam Gehrke and those similarly situated

ATTORNEY TO BE NOTICED
Matthew Borden BraunHagey & Borden LLP 351 California Street, 10th Floor San Francisco, CA 94104 415-599-0210 Email: borden@braunhagey.com ATTORNEY TO BE NOTICED
represented by Athul K. Acharya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gunnar Martz (See above for address) ATTORNEY TO BE NOTICED
J. Noah Hagey (See above for address) ATTORNEY TO BE NOTICED
Matthew Borden (See above for address) ATTORNEY TO BE NOTICED
represented by Athul K. Acharya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gunnar Martz

Plaintiff Mathieu Lewis-Rolland and those similarly situated
Plaintiff Kat Mahoney and those similarly situated

(See above for address) ATTORNEY TO BE NOTICED
J. Noah Hagey (See above for address) ATTORNEY TO BE NOTICED
Matthew Borden (See above for address) ATTORNEY TO BE NOTICED
represented by Athul K. Acharya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gunnar Martz (See above for address) ATTORNEY TO BE NOTICED
J. Noah Hagey (See above for address) ATTORNEY TO BE NOTICED
Matthew Borden (See above for address) ATTORNEY TO BE NOTICED
represented by Athul K. Acharya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff John Rudoff and those similarly situated
Plaintiff Index Newspapers LLC dba Portland Mercury
Plaintiff

Gunnar Martz (See above for address) ATTORNEY TO BE NOTICED
J. Noah Hagey (See above for address) ATTORNEY TO BE NOTICED
Matthew Borden (See above for address) ATTORNEY TO BE NOTICED
represented by Athul K. Acharya (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gunnar Martz (See above for address) ATTORNEY TO BE NOTICED
J. Noah Hagey (See above for address) ATTORNEY TO BE NOTICED
Matthew Borden (See above for address) ATTORNEY TO BE NOTICED
represented by Athul K. Acharya (See above for address) ATTORNEY TO BE NOTICED
Matthew Borden (See above for address) ATTORNEY TO BE NOTICED

Alex Milan Tracy
Plaintiff Brian Conley
Plaintiff Justin Yau
Plaintiff Sergio Olmos
V. Defendant City of Portland a municipal corporation;

represented by Athul K. Acharya (See above for address) ATTORNEY TO BE NOTICED
Matthew Borden (See above for address) ATTORNEY TO BE NOTICED
represented by Athul K. Acharya (See above for address) ATTORNEY TO BE NOTICED
Matthew Borden (See above for address) ATTORNEY TO BE NOTICED
represented by Athul K. Acharya (See above for address) ATTORNEY TO BE NOTICED
Matthew Borden (See above for address) ATTORNEY TO BE NOTICED
represented by Athul K. Acharya (See above for address) ATTORNEY TO BE NOTICED
Matthew Borden (See above for address) ATTORNEY TO BE NOTICED
represented by Naomi Sheffield Portland City Attorney's Office 1221 SW 4th Ave. Room 430 Portland, OR 97204 503-823-3122

Defendant
John Does 1-60 individual and supervisory officers of Portland Police Bureau and other agencies working in concert,

Fax: 503-823-3089 Email: naomi.sheffield@portlandoregon.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denis M. Vannier City Attorney's Office 1221 SW Fourth Avenue Room 430 Portland, OR 97204 503-823-4047 Fax: 503-823-3089 Email: denis.vannier@portlandoregon.gov ATTORNEY TO BE NOTICED
Ryan C. Bailey City of Portland City Attorney's Office 1221 SW Fourth Ave Room 430 Portland, OR 97204 503-823-9968 Fax: 503-823-3089 Email: ryan.bailey@portlandoregon.gov ATTORNEY TO BE NOTICED
YoungWoo Joh City Attorney's Office City Attorney's Office 1221 SW 4th Ave Ste 430 Portland, OR 97204 503-823-9969 Fax: 503-823-3089 Email: youngwoo.joh@portlandoregon.gov ATTORNEY TO BE NOTICED

Defendant U.S. Marshals Service
Defendant U.S. Department of Homeland Security

represented by Andrew Warden DOJ-Civ 1100 L St., N.W. Ste 7301 Washington, DC 20005 202-616-5084 Email: andrew.warden@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Von Bokern DOJ-Civ Federal Programs Branch 1100 L Street NW Washington, DC 20005 202-305-7919 Email: jordan.l.von.bokern2@usdoj.gov ATTORNEY TO BE NOTICED
Joshua E Gardner DOJ-Civ Poc Agostinho, Jean 1100 L St., N.W. Ste 12200 Washington, DC 20530 202-305-7583 Email: joshua.e.gardner@usdoj.gov ATTORNEY TO BE NOTICED
represented by Andrew Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Von Bokern (See above for address) ATTORNEY TO BE NOTICED
Joshua E Gardner (See above for address) ATTORNEY TO BE NOTICED

Amicus National Police Association
Amicus Reporters Committee for Freedom of the Press
Amicus Eugene Weekly
Amicus Gales Creek Journal
Amicus KPTV-KPDX Broadcasting Corporation, Amicus Malheur Enterprise
Amicus

represented by James L. Buchal Murphy & Buchal, LLP 3425 S.E. Yamhill Street, Suite 100 Portland, OR 97214 503-227-1011, ext. 2 Fax: 503-5731939 Email: jbuchal@mbllp.com ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II Davis Wright Tremaine, LLP 1300 SW Fifth Avenue Suite 2400 Portland, OR 97201-5630 503-778-5224 Fax: 503-778-5299 Email: duanebosworth@dwt.com ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED

News-Register Publishing Co.
Amicus Oregon Association of Broadcasters
Amicus Oregon Newspaper Publishers Association
Amicus Oregon Public Broadcasting
Amicus The Oregonian
Amicus Pamplin Media Group
Amicus Portland Business Journal
Amicus Reuters News & Media Inc.
Amicus Salem Reporter

represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED

Amicus Society of Professional Journalists Oregon Territory Chapter
Amicus TEGNA Inc. / KGW-TV (Portland)
Amicus Underscore.news

represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED
represented by Duane A. Bosworth , II (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/28/2020
06/29/2020 06/29/2020 06/29/2020 06/29/2020

# Docket Text
1 Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: AORDC-6907171 Jury Trial Requested: Yes. Filed by Doug Brown, Tuck Woodstock, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, John Rudoff against All Defendants (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons). (Simon, Kelly) (Entered: 06/28/2020)
2 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Gunnar K. Martz. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6911137. Filed by All Plaintiffs. (Martz, Gunnar) (Entered: 06/29/2020)
3 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Matthew B. Borden. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6911177. Filed by All Plaintiffs. (Borden, Matthew) (Entered: 06/29/2020)
4 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney J. Noah Hagey. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-6911218. Filed by All Plaintiffs. (Hagey, J.) (Entered: 06/29/2020)
5 Notice of Case Assignment to Judge Anna J. Brown and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 10/27/2020. Joint Alternate Dispute

06/29/2020 06/29/2020 06/29/2020 06/29/2020 06/30/2020 06/30/2020 06/30/2020 06/30/2020

Resolution Report is due by 11/27/2020. Pretrial Order is due by 11/27/2020. Ordered by Judge Anna J. Brown. (ecp) (Entered: 06/29/2020)
6 Summons Issued Electronically as to City of Portland. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (ecp) (Entered: 06/29/2020)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Gunnar K. Martz. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC6911137 2 : Reviewed and Ready for Ruling. (ecp) (Entered: 06/29/2020)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Matthew B. Borden. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC6911177 3 : Reviewed and Ready for Ruling. (ecp) (Entered: 06/29/2020)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney J. Noah Hagey. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC6911218 4 : Reviewed and Ready for Ruling. (ecp) (Entered: 06/29/2020)
7 Motion for Temporary Restraining Order . Expedited Hearing requested. Filed by All Plaintiffs. (Acharya, Athul) (Entered: 06/30/2020)
8 Declaration of Matthew Borden in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Attachments: # 1 Exhibit 1) (Acharya, Athul) (Entered: 06/30/2020)
9 Declaration of Doug Brown in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
10 Declaration of Sam Gehrke in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)

06/30/2020 06/30/2020 06/30/2020 06/30/2020 06/30/2020 06/30/2020 06/30/2020 06/30/2020 06/30/2020 06/30/2020

11 Declaration of Wm. Steven Humphrey in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Attachments: # 1 Exhibit 1) (Acharya, Athul) (Entered: 06/30/2020)
12 Declaration of Mathieu Lewis-Rolland in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
13 Declaration of Kat Mahoney in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
14 Declaration of Nathan Millsap in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
15 Declaration of Sergio Olmos in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
16 Declaration of Zach Putnam in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
17 Declaration of John Rudoff in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Attachments: # 1 Exhibit 1) (Acharya, Athul) (Entered: 06/30/2020)
18 Declaration of Suzette Smith in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
19 Notice of Case Reassignment: This case has been reassigned from Judge Anna J. Brown to Judge Michael H. Simon. (eo) (Entered: 06/30/2020)
20 Declaration of Blair Stenvick in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

06/30/2020 06/30/2020 06/30/2020 06/30/2020 06/30/2020 07/01/2020 07/01/2020 07/01/2020 07/01/2020

document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
21 Declaration of Elliot Tippie in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
22 Declaration of Alex Milan Tracy in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Attachments: # 1 Exhibit 1) (Acharya, Athul) (Entered: 06/30/2020)
23 Declaration of Tuck Woodstock in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
24 Declaration of Alex Zielinski in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 06/30/2020)
25 Scheduling Order by Judge Michael H. Simon. ORDER - Setting a Telephone Conference to discuss the status of the case for 7/1/2020 at 2:00PM. The Court will provide the parties with a call-in number by separate sealed entry. Ordered by Judge Michael H. Simon. (mja) (Entered: 06/30/2020)
26 Supplemental Declaration of Kat Mahoney in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 07/01/2020)
27 Supplemental Declaration of Matthew Borden in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Attachments: # 1 Exhibit 1) (Acharya, Athul) (Entered: 07/01/2020)
28 Supplemental Declaration of Alex Milan Tracy in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Acharya, Athul) (Entered: 07/01/2020)
29 MINUTES OF TELEPHONE CONFERENCE: ORDER - Setting a further Telephone Conference for 7/2/2020 at 11:00AM. The Court will provide the parties with a call-in number by separate sealed entry.

07/02/2020
07/02/2020 07/02/2020 07/02/2020 07/02/2020 07/03/2020 07/08/2020 07/09/2020
07/10/2020

Matthew Borden, Athul K. Acharya, Gunner Martz, and Kelly K. Simon present as counsel for Plaintiffs. Naomi Sheffield present as counsel for Defendants. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 07/01/2020)
30 MINUTES OF TELEPHONE CONFERENCE: Status of case discussed as stated on the record. The Court takes this matter under advisement on 7/2/2020. Matthew Borden, Athul K. Acharya, Gunner Martz, and Kelly K. Simon present as counsel for Plaintiffs. Denis M. Vannier and Naomi Sheffield present as counsel for Defendants. Beth Ann Creighton and Michael Rose present as amicus/potential intervenor. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 07/02/2020)
31 Motion to Appear as Amicus Curiae . Filed by National Police Association. (Buchal, James) (Entered: 07/02/2020)
32 Declaration of Ed Hutchison . Filed by National Police Association. (Related document(s): Motion to appear as amicus curiae 31 .) (Buchal, James) (Entered: 07/02/2020)
33 TEMPORARY RESTRAINING ORDER. Signed on 7/2/2020 by Judge Michael H. Simon. (mja) (Entered: 07/02/2020)
34 ORDER - The National Police Association's Motion to Appear as Amicus Curiae (ECF 31 ) is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 07/02/2020)
35 Notice of Appearance of Naomi Sheffield appearing on behalf of City of Portland Filed by on behalf of City of Portland. (Sheffield, Naomi) (Entered: 07/03/2020)
36 Notice of Appearance of Denis M. Vannier appearing on behalf of City of Portland Filed by on behalf of City of Portland. (Vannier, Denis) Modified on 7/9/2020 to reflect correction representation from All Defendants to City of Portland, NEF regenerated.(rs). (Entered: 07/08/2020)
37 ORDER - The Court directs the parties in both Woodstock v. City of Portland, Case No. 20-cv-1035-SI, and Elia v. Wheeler, Case No. 20cv-1106-SI, to contact the chambers of United States Magistrate Judge John V. Acosta for the purpose of promptly participating in a joint settlement conference in both matters. Ordered by Judge Michael H. Simon. (mja) (Entered: 07/09/2020)
38 Scheduling Order - SETTING a Telephone Status Conference for Thursday, July 16, 2020 at 10:30 AM in Portland before Magistrate

07/10/2020 07/10/2020 07/13/2020 07/14/2020 07/14/2020 07/14/2020 07/14/2020

Judge John V. Acosta for the purpose of discussing the scheduling of a settlement conference pursuant to Judge Simon's Order 37 . The Court's conference call information shall be provided by separate entry. Ordered by Magistrate Judge John V. Acosta. (pjg) Modified on 7/14/2020 to correct month of status conference from June to July (mja). (Entered: 07/10/2020)
39 Notice of Association of Attorney YoungWoo Joh for City of Portland. Filed by City of Portland. (Joh, YoungWoo) (Entered: 07/10/2020)
40 First Amended Complaint . Filed by Sam Gehrke, Doug Brown, Tuck Woodstock, Mathieu Lewis-Rolland, Kat Mahoney, John Rudoff, Index Newspapers LLC, Alex Milan Tracy, Brian Conley, Justin Yau, Sergio Olmos against All Defendants. (Acharya, Athul) (Entered: 07/10/2020)
41 Notice of Association of Attorney Ryan C. Bailey,Ryan C. Bailey,Ryan C. Bailey for City of Portland. Filed by City of Portland. (Bailey, Ryan) (Entered: 07/13/2020)
42 Emergency Motion for Leave to File Amended Complaint/Petition . Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Acharya, Athul) (Entered: 07/14/2020)
43 Declaration of Garrison Davis Regarding Events of July 12, 2020. Filed by All Plaintiffs. (Related document(s): Motion for Leave to File Amended Complaint/Petition 42 .) (Acharya, Athul) (Entered: 07/14/2020)
44 Declaration of Mathieu Lewis-Rolland Regarding Events of July 12, 2020. Filed by All Plaintiffs. (Related document(s): Motion for Leave to File Amended Complaint/Petition 42 .) (Acharya, Athul) (Entered: 07/14/2020)
45 SCHEDULING ORDER - Defendant City of Portland's response to Plaintiff's Emergency Motion for Leave to File Second Amended Complaint (ECF 42 ) is due by the close of business on Wednesday, July 15, 2020, as agreed upon by the parties. Plaintiff's reply is due by 8:00 a.m. on Thursday, July 16, 2020. The Court will hear oral argument by telephone on Thursday, July 16, 2020 at 3:00PM. The Court will provide the parties with a call-in number by separate sealed entry. Ordered by Judge Michael H. Simon. (mja) (Entered: 07/14/2020)

07/15/2020 07/16/2020 07/16/2020 07/16/2020 07/16/2020
07/16/2020
07/17/2020 07/17/2020

46 Response in Opposition to Emergency Motion for Leave to File Amended Complaint/Petition 42 Oral Argument requested. Filed by City of Portland. (Vannier, Denis) (Entered: 07/15/2020)
47 Reply to Emergency Motion for Leave to File Amended Complaint/Petition 42 . Filed by All Plaintiffs. (Acharya, Athul) (Entered: 07/16/2020)
48 Stipulated Motion for Preliminary Injunction . Filed by All Plaintiffs. (Acharya, Athul) (Entered: 07/16/2020)
49 Stipulated Preliminary Injunction. Signed on 7/16/2020 by Judge Michael H. Simon. (mja) (Entered: 07/16/2020)
50 MINUTES of Proceedings: Telephonic Status Conference held before Judge John V. Acosta. Ordered Motions 2 by Gunnar Martz, 3 by Matthew Borden, and 4 by Noah Hagey to appear Pro Hac Vice as counsel for plaintiffs are granted. Ordered the parties shall confer and submit a joint proposed discovery plan to the Court by 7/30/2020. The discovery plan shall address the discovery needed for a settlement conference and a timetable to complete discovery. If the parties are unable to agree, each parties' position shall be addressed in the proposed discovery plan. Matthew Borden, Gunnar Martz, Athul Acharya present as counsel for plaintiffs. Denis Vannier present as counsel for defendants. Tape No: Hearing was not recorded. Magistrate Judge John V. Acosta presiding. (cw) (Entered: 07/16/2020)
51 MINUTES OF TELEPHONE ORAL ARGUMENT: ORDER Plaintiffs' Emergency Motion for Leave to Amend Complaint (ECF 42 ) is taken under advisement as of 7/16/2020. Athul K. Acharya, Kelly K. Simon, and Matthew Bordon present as counsel for Plaintiffs. Denis M. Vannier present as counsel for Defendants. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 07/16/2020)
52 Opinion and Order - The Court GRANTS Plaintiffs' Emergency Motion for Leave to File Second Amended Complaint. ECF 42 . Signed on 7/17/2020 by Judge Michael H. Simon. (mja) (Entered: 07/17/2020)
53 Second Amended Complaint . Filed by Alex Milan Tracy, Sam Gehrke, Brian Conley, Index Newspapers LLC, Tuck Woodstock, Doug Brown, Justin Yau, Mathieu Lewis-Rolland, Kat Mahoney, John Rudoff, Sergio Olmos against All Defendants (Attachments: # 1 Proposed Summons). (Borden, Matthew) (Entered: 07/17/2020)

07/17/2020 07/17/2020 07/17/2020 07/18/2020
07/20/2020 07/20/2020 07/20/2020

54 Motion for Temporary Restraining Order and Preliminary Injunction. Expedited Hearing requested. Filed by All Plaintiffs. (Borden, Matthew) (Entered: 07/17/2020)
55 Declaration of Doug Brown in Support of Plaintiff's Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/17/2020)
56 Declaration of Justin Yau in Support of Plaintiff's Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/17/2020)
57 SCHEDULING ORDER: The Federal Defendants' response to Plaintiffs' Motion for Temporary Restraining Order (ECF 54 ) is due Tuesday, July 21, 2020, by 5:00 p.m., and Plaintiffs' reply is due Wednesday, July 22, 2020, by 5:00 p.m. The Court will hold a telephonic hearing on Thursday, July 23, 2020, at 1:00 p.m. and will provide a call-in number by separate sealed entry. The Courtroom Deputy is directed to provide a copy of this Scheduling Order and Plaintiff's Motion by email to the United States Attorney for the District of Oregon. Ordered by Judge Michael H. Simon (mja) (Entered: 07/18/2020)
58 Declaration of Nathan Howard in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/20/2020)
59 Declaration of John Rudoff in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/20/2020)
60 Declaration of Alex Milan Tracy in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/20/2020)

07/21/2020 07/21/2020 07/21/2020 07/21/2020 07/21/2020 07/21/2020 07/21/2020
07/21/2020 07/22/2020
07/22/2020

61 Declaration of Nate Haberman-Ducey in Support of Plaintiff's Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/21/2020)
62 Declaration of Jungho Kim in Support of Plaintiff's Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/21/2020)
63 Declaration of James Comstock in Support of Plaintiff's Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/21/2020)
64 Declaration of Jake Johnson in Support of Plaintiff's Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/21/2020)
65 Amicus Memorandum . Filed by National Police Association. (Buchal, James) (Entered: 07/21/2020)
66 Notice of Appearance of Andrew Warden appearing on behalf of U.S. Department of Homeland Security, U.S. Marshals Service Filed by on behalf of U.S. Department of Homeland Security, U.S. Marshals Service. (Warden, Andrew) (Entered: 07/21/2020)
67 Memorandum in Opposition to Motion for Temporary Restraining Order and Preliminary Injunction 54 . Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit) (Warden, Andrew) (Entered: 07/21/2020)
68 Waiver of Service of Summons Returned Executed by City of Portland waiver sent on 7/10/2020. Filed by All Plaintiffs. (Acharya, Athul) (Entered: 07/21/2020)
69 Summons Issued Electronically as to U.S. Department of Homeland Security, U.S. Marshals Service. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (rs) (Entered: 07/22/2020)
70 City Memorandum in Support of Motion for Temporary Restraining Order Against Federal Defendants. Filed by City of Portland. (Related

07/22/2020 07/22/2020 07/22/2020 07/22/2020 07/22/2020 07/22/2020 07/22/2020

document(s): Motion for Temporary Restraining Order 54 .) (Vannier, Denis) (Entered: 07/22/2020)
71 Declaration of Karina Brown in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/22/2020)
72 Declaration of Noah Berger in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/22/2020)
73 Declaration of Mike Bivins in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/22/2020)
74 Supplemental Declaration of Alex Milan Tracy in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/22/2020)
75 Declaration of Kat Mahoney in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/22/2020)
76 Declaration of Tuck Woodstock in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/22/2020)
77 Declaration of Mathieu Lewis-Rolland in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against

07/22/2020 07/22/2020 07/22/2020 07/22/2020 07/22/2020 07/23/2020

Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Borden, Matthew) (Entered: 07/22/2020)
78 Declaration of Elizabeth Dylan (Eddy) Binford-Ross in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Borden, Matthew) (Entered: 07/22/2020)
79 Reply to Motion for Temporary Restraining Order and Preliminary Injunction 54 Oral Argument requested. Filed by All Plaintiffs. (Borden, Matthew) (Entered: 07/22/2020)
80 Supplemental Declaration of John Rudoff in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Acharya, Athul) (Entered: 07/22/2020)
81 Declaration of Steve Hickey in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Acharya, Athul) (Entered: 07/22/2020)
82 Declaration of Gabriel Trumbly in Support of Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 54 .) (Acharya, Athul) (Entered: 07/22/2020)
83 MINUTES OF TELEPHONE ORAL ARGUMENT: ORDER Plaintiffs' Motion for Temporary Restraining Order (ECF 54 ) is taken under advisement as of July 23, 2020. Matthew Bordan present as counsel for Plaintiffs. Denis M. Vannier present as counsel for Defendant City of Portland. Andrew Warden present as counsel for Defendants U.S. Marshals Service and U.S. Department of Homeland Security. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 07/23/2020)

07/23/2020 07/28/2020 07/28/2020
07/28/2020 07/28/2020 07/28/2020 07/28/2020 07/28/2020 07/28/2020

84 Temporary Restraining Order Enjoining Federal Defendants. Signed on 7/23/2020 by Judge Michael H. Simon. (mja) (Entered: 07/23/2020)
85 Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Borden, Matthew) (Entered: 07/28/2020)
86 Declaration of Matthew Borden in Support of Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service.. Filed by All Plaintiffs. (Related document(s): Motion for Imposition of Sanctions 85 .) (Attachments: # 1 Exhibit 1) (Borden, Matthew) (Entered: 07/28/2020)
87 Declaration of Brian Conley in Support of Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service.. Filed by All Plaintiffs. (Related document(s): Motion for Imposition of Sanctions 85 .) (Borden, Matthew) (Entered: 07/28/2020)
88 Declaration of Rebecca Ellis in Support of Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service.. Filed by All Plaintiffs. (Related document(s): Motion for Imposition of Sanctions 85 .) (Borden, Matthew) (Entered: 07/28/2020)
89 Declaration of Kathryn Elsesser in Support of Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service.. Filed by All Plaintiffs. (Related document(s): Motion for Imposition of Sanctions 85 .) (Borden, Matthew) (Entered: 07/28/2020)
90 Declaration of Justin Grinnell in Support of Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service.. Filed by All Plaintiffs. (Related document(s): Motion for Imposition of Sanctions 85 .) (Borden, Matthew) (Entered: 07/28/2020)
91 Declaration of Daniel Hollis in Support of Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service.. Filed by All Plaintiffs. (Related document(s): Motion for Imposition of Sanctions 85 .) (Borden, Matthew) (Entered: 07/28/2020)
92 Declaration of Bruce Knivila in Support of Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S.

Department of Homeland Security and U.S. Marshals Service.. Filed by All Plaintiffs. (Related document(s): Motion for Imposition of Sanctions 85 .) (Borden, Matthew) (Entered: 07/28/2020)

07/28/2020

93 Declaration of Jonathan Levinson in Support of Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service.. Filed by All Plaintiffs. (Related document(s): Motion for Imposition of Sanctions 85 .) (Borden, Matthew) (Entered: 07/28/2020)

07/28/2020

94 Declaration of Kat Mahoney in Support of Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service.. Filed by All Plaintiffs. (Related document(s): Motion for Imposition of Sanctions 85 .) (Borden, Matthew) (Entered: 07/28/2020)

07/28/2020

95 Declaration of Haley Nicholson in Support of Motion for Imposition of Sanctions and Finding of Contempt Against Defendants U.S. Department of Homeland Security and U.S. Marshals Service.. Filed by All Plaintiffs. (Related document(s): Motion for Imposition of Sanctions 85 .) (Borden, Matthew) (Entered: 07/28/2020)

07/29/2020

96 Scheduling Order by Judge Michael H. Simon. ORDER - The Court sets a Telephone Status and Scheduling Conference for 7/31/2020 at 10:00AM. The Court will provide the parties with a call-in number by email. Ordered by Judge Michael H. Simon. (mja) (Entered: 07/29/2020)

07/29/2020

97 Proof of Service upon United States Department of Homeland Security Return of Service Executed as to All Plaintiffs. Service specifically made upon Local U.S. Attorney. (Borden, Matthew) (Entered: 07/29/2020)

07/29/2020

98 Proof of Service upon United States Marshals Service Return of Service Executed as to All Plaintiffs. Service specifically made upon Local U.S. Attorney. (Borden, Matthew) (Entered: 07/29/2020)

07/30/2020

99 Notice of Appearance of Jordan Von Bokern appearing on behalf of U.S. Department of Homeland Security, U.S. Marshals Service Filed by on behalf of U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 07/30/2020)

07/30/2020

100 Joint Rule 26(f) Report and Discovery Plan and Proposed Scheduling Order for Settlement. Filed by City of Portland. (Sheffield, Naomi) (Entered: 07/30/2020)

07/30/2020

101 Motion for Reconsideration of Temporary Restraining Order Enjoining Federal Defendants. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit Declaration of Andrew Smith, # 2 Exhibit Declaration of CBP PAO #1, # 3 Exhibit Declaration of FPS Badge No. 824, # 4 Exhibit Declaration of FPS Badge No. 882, # 5 Exhibit Declaration of Gabriel Russell, # 6 Exhibit Declaration of NZ1, # 7 Exhibit Declaration of SOG 1) (Von Bokern, Jordan) (Entered: 07/30/2020)

07/30/2020

102 Unopposed Motion for Leave to File Documents Under Seal. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit A, # 2 Proposed Order) (Von Bokern, Jordan) (Entered: 07/30/2020)

07/31/2020

103 ORDER - Federal Defendants' Unopposed Motion for Leave to File Documents Under Seal Supplementing Federal Defendants' Motion for Reconsideration (ECF 102 ) is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 07/31/2020)

07/31/2020

104 ORDER - Other than the parties and counsel for the parties, only this Court and its staff may review, copy, photograph, and/or inspect the materials. Signed on 7/31/2020 by Judge Michael H. Simon. (mja) (Entered: 07/31/2020)

07/31/2020

105 Notice of Filing of Declarations Addressing Compliance with the Court's Temporary Restraining Order Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit) (Warden, Andrew) (Entered: 07/31/2020)

07/31/2020

106 Corrected Declaration of Andrew Smith (with Exhibits). Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Related document(s): Motion for Reconsideration,, 101 .) (Attachments: # 1 Errata Corrected Declaration of Andrew Smith with Exhibits) (Warden, Andrew) (Entered: 07/31/2020)

07/31/2020

107 Exhibits 1-5 to the Motion for Reconsideration of Temporary Restraining Order Enjoining Federal Defendants (# 101 ). (DOCUMENT FILED UNDER SEAL). Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5) (eo) (Entered: 07/31/2020)

07/31/2020

108 MINUTES OF TELEPHONE CONFERENCE AND SCHEDULING ORDER - As discussed during the telephone conference held on July 31, 2020, the Court sets the following schedule and issues the following orders: (1) not later than Tuesday, August 4,

2:00 p.m. Pacific time, the parties may file any further briefing and evidence on whether the existing TRO (ECF 84 ) should be extended, either with or without modification, for an additional 14 days; (2) not later than Wednesday, August 5, 2:00 p.m. Pacific time, the parties may file any further briefing and evidence responding to a party's August 4 filings; (3) the Court will hear telephonic oral argument on Thursday, August 6 at 10:00 a.m. on (a) whether to extend the existing TRO, either with or without modification, and (b) the Federal Defendants' Motion for Reconsideration (ECF 101 ); (4) the Court will hear argument by telephone on Tuesday, August 18 at 10:00 a.m. on whether to issue a preliminary injunction; and (5) the parties shall notify the Court by August 3 on whether they have stipulated to a briefing schedule for any preliminary injunction motion. The Court authorizes expedited discovery, as discussed on the record. The Court suspends briefing and consideration of Plaintiffs' Motion for Findings of Contempt and for Sanctions (ECF 85 ) pending further order of the Court. In the parties' briefs due August 4, the parties should address the following: (1) whether the TRO should be modified to include a requirement that any employee, officer, or agent of any Federal Defendant who leaves the interior of the federal courthouse during a protest while carrying or using any crowd-control device must wear a clearly visible unique identifying code on the front and back of the outside of that person's clothing (with white numbers or letters not less than eight inches in height against a dark background) and a further requirement that a list matching each unique identifying code to the name and unit of that person shall be maintained by counsel for the Federal Defendants but need not be disclosed absent further court order after an opportunity to be heard; and (2) whether the TRO should be modified to restrict the definition of "Journalist" covered by the TRO to a person who is a professional or authorized journalist and who has been issued a colored and distinctive vest prominently indicating "ACLU Authorized Press" (or other similar words) by the ACLU of Oregon and a further requirement that a list of all persons to whom the ACLU of Oregon has issued such a non-transferable distinctive vest shall be maintained by counsel for Plaintiffs but need not be disclosed absent further court order after an opportunity to be heard. For the hearing on August 6 at 10:00 a.m., the Court will provide the parties with a call-in number by email. Matthew Borden present as counsel for Plaintiffs. Denis M. Vannier, Naomi Sheffield, and Ryan C. Bailey present as counsel for Defendant City of Portland. Jordan Von Bokern, Alexander K. Haas, and Brigham J. Bowen present as counsel for Defendants U.S. Marshals Service & U.S. Department of Homeland Security. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 07/31/2020)

08/03/2020

109 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephonic Motion Hearing held on July 1, 2020, before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326-8182 or dennis_apodaca@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 8/10/2020. Redaction Request due 8/24/2020. Redacted Transcript Deadline set for 9/3/2020. Release of Transcript Restriction set for 11/2/2020. (Apodaca, Dennis) (Entered: 08/03/2020)

08/03/2020

110 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephonic Motion Hearing held on July 23, 2020, before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326-8182 or dennis_apodaca@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 8/10/2020. Redaction Request due 8/24/2020. Redacted Transcript Deadline set for 9/3/2020. Release of Transcript Restriction set for 11/2/2020. (Apodaca, Dennis) (Entered: 08/03/2020)

08/03/2020

111 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephonic Motion Hearing held on July 31,2020, before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326-8182 or dennis_apodaca@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 8/10/2020. Redaction Request due 8/24/2020. Redacted Transcript Deadline set for 9/3/2020. Release of Transcript Restriction set for 11/2/2020. (Apodaca, Dennis) (Entered: 08/03/2020)

08/04/2020

112 Memorandum in Support of Extending the Temporary Restraining Order with Limited Modifications. Filed by All Plaintiffs. (Related document(s): Temporary Restraining Order 84 .) (Borden, Matthew) (Entered: 08/04/2020)

08/04/2020

113 Memorandum in Opposition to Extending the Temporary Restraining Order. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3,

# 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Von Bokern, Jordan) (Entered: 08/04/2020)

08/04/2020

114 Declaration of Jann Carson . Filed by All Plaintiffs. (Related document(s): Memorandum in Support 112 .) (Acharya, Athul) (Entered: 08/04/2020)

08/04/2020

115 Declaration of Brian Conley . Filed by All Plaintiffs. (Related document(s): Memorandum in Support 112 .) (Acharya, Athul) (Entered: 08/04/2020)

08/04/2020

116 Declaration of Sarah Jeong . Filed by All Plaintiffs. (Related document(s): Memorandum in Support 112 .) (Acharya, Athul) (Entered: 08/04/2020)

08/04/2020

117 Declaration of Amy Katz . Filed by All Plaintiffs. (Related document(s): Memorandum in Support 112 .) (Acharya, Athul) (Entered: 08/04/2020)

08/04/2020

118 Declaration of Emily Molli . Filed by All Plaintiffs. (Related document(s): Memorandum in Support 112 .) (Acharya, Athul) (Entered: 08/04/2020)

08/04/2020

119 Declaration of Justin Yau . Filed by All Plaintiffs. (Related document(s): Memorandum in Support 112 .) (Acharya, Athul) (Entered: 08/04/2020)

08/04/2020

120 Declaration of Matthew Borden in Support of Plaintiffs' Memorandum in Support of Extending the TRO with Limited Modifications. Filed by All Plaintiffs. (Related document(s): Memorandum in Support 112 .) (Attachments: # 1 Exhibit 1) (Borden, Matthew) (Entered: 08/04/2020)

08/05/2020

121 Unopposed Motion to Appear as Amicus Curiae . Filed by Reporters Committee for Freedom of the Press, Eugene Weekly, Gales Creek Journal, KPTV-KPDX Broadcasting Corporation,, Malheur Enterprise, News-Register Publishing Co., Oregon Association of Broadcasters, Oregon Newspaper Publishers Association, Oregon Public Broadcasting, The Oregonian, Pamplin Media Group, Portland Business Journal, Reuters News & Media Inc., Salem Reporter, Society of Professional Journalists Oregon Territory Chapter, TEGNA Inc. / KGW-TV (Portland), Underscore.news. (Attachments: # 1 Proposed Document Proposed Brief) (Bosworth, Duane) (Entered: 08/05/2020)

08/05/2020

122 Memorandum in Opposition to Plaintiffs' Memorandum in Support of Extending the Temporary Restraining Order. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 08/05/2020)

08/05/2020

123 Memorandum in Support of Extending the Temporary Restraining Order with Limited Modifications. Filed by All Plaintiffs. (Related document(s): Memorandum in Support 112 .) (Borden, Matthew) (Entered: 08/05/2020)

08/05/2020

124 Declaration of Athul K. Acharya in Support of Plaintiffs' Reply in Support of Extending the TRO with Limited Modifications. Filed by All Plaintiffs. (Related document(s): Memorandum in Support 123 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Acharya, Athul) (Entered: 08/05/2020)

08/05/2020

125 ORDER - The Court GRANTS the Unopposed Motion of the Reporters Committee for Freedom of the Press and 16 News Media Organizations for Leave to Submit Brief as Amici Curiae (ECF 121 ). In addition, the Court allows counsel for these amici curiae, as well as counsel for amicus curiae National Police Association, to participate in all telephonic hearings in this case. The Courtroom Deputy will provide counsel with a call-in number by email. Ordered by Judge Michael H. Simon. (mja) (Entered: 08/05/2020)

08/06/2020

126 MINUTES OF TELEPHONE ORAL ARGUMENT: ORDER - For the reasons stated on the record, the Court finds good cause and extends the temporary restraining order (ECF 84 ) for an additional 14 days, until August 20, 2020, at 5:00 p.m. The Court also DENIES the Federal Defendants' motion for reconsideration of temporary restraining order (ECF 101 ). SCHEDULING The Court sets a preliminary injunction briefing and hearing schedule as follows: (1) Plaintiffs' opening brief is due by August 9, 2020; (2) Defendants' response is due by August 12, 2020; (3) Plaintiffs' reply is due by 5:00 p.m. on August 14, 2020; and (4) a Preliminary Injunction Hearing (by telephone) remains set for August 18, 2020, at 10:00 a.m. The Court will provide the parties with a call-in number by email. Matthew Borden, Athul K. Acharya, Kelly K. Simon, and Gunner Martz present as counsel for Plaintiffs. Naomi Scheffield present as counsel for Defendant City of Portland. Jordan Von Bokern present as counsel for Defendants U.S. Marshal Service and DHS. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 08/06/2020)

08/06/2020

127 Scheduling Order by Judge Michael H. Simon. ORDER - At the parties' request, the Court is setting a Telephone Conference to discuss discovery issues for 8/7/2020 at 1:30PM. The Court will provide the parties with a call-in number by email. Ordered by Judge Michael H. Simon. (mja) (Entered: 08/06/2020)

08/07/2020

128 Notice of appearance of Joshua E. Gardner on behalf of Federal Defendants Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 08/07/2020)

08/07/2020

129 MINUTES OF TELEPHONE CONFERENCE - Discovery matter discussed as stated on the record. Matthew Borden and Gunner Martz present as counsel for Plaintiffs. Denis M. Vannier and Naomi Sheffield present as counsel for Defendant City of Portland. Joshua Gardner present as counsel for Defendants U.S. Marshal Service and DHS. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 08/07/2020)

08/07/2020

130 Stipulated Motion for Protective Order . Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 08/07/2020)

08/07/2020 131 Stipulated Protective Order. Signed on 8/7/2020 by Judge Michael H. Simon. (mja) (Entered: 08/07/2020)

08/09/2020

132 Joint Stipulation Regarding Preliminary Injunction Hearing by All Plaintiffs. Filed by All Plaintiffs. (Borden, Matthew) (Entered: 08/09/2020)

08/10/2020

133 Redacted Motion for Preliminary Injunction Against Federal Defendants. Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Borden, Matthew) (Entered: 08/10/2020)

08/10/2020

134 Motion for Preliminary Injunction Against Federal Defendants. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Borden, Matthew) (Entered: 08/10/2020)

08/10/2020

135 Declaration of Gil Kerlikowske . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 134 , Motion for Preliminary Injunction 133 .) (Attachments: # 1 Exhibit 1) (Acharya, Athul) (Entered: 08/10/2020)

08/10/2020

136 Declaration of Matthew Borden in Support of Plaintiff's Motion for Preliminary Injunction Against Federal Defendants. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 134 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Borden, Matthew) (Entered: 08/10/2020)

08/10/2020 137 Declaration of Matthew Borden in Support of Plaintiff's Motion for Preliminary Injunction Against Federal Defendants. Filed by All

Plaintiffs. (Related document(s): Motion for Preliminary Injunction 133 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Borden, Matthew) (Entered: 08/10/2020)

08/12/2020

138 Response in Opposition to Redacted Motion for Preliminary Injunction Against Federal Defendants 133 . Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7) (Von Bokern, Jordan) (Entered: 08/12/2020)

08/12/2020

139 Unopposed Motion for Leave to File Documents Under Seal. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Proposed Order) (Von Bokern, Jordan) (Entered: 08/12/2020)

08/13/2020

140 ORDER - Federal Defendants' Unopposed Motion for Leave to File Documents Under Seal (ECF 139 ) is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 08/13/2020)

08/13/2020

141 Exhibit 1 and 2 to the Response in Opposition to Motion (# 138 ). (DOCUMENT FILED UNDER SEAL). Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit 2) (eo) (Entered: 08/13/2020)

08/14/2020

142 Reply in Support to Motion for Preliminary Injunction Against Federal Defendants 134 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Plaintiffs. (Borden, Matthew) (Entered: 08/14/2020)

08/14/2020

143 Declaration of Athul K. Acharya in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction Against Federal Defendants. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Plaintiffs. (Related document(s): Reply to Motion, 142 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12) (Acharya, Athul) (Entered: 08/14/2020)

08/14/2020

144 Redacted Reply in Support to Motion for Preliminary Injunction Against Federal Defendants 134 Oral Argument requested. Filed by All Plaintiffs. (Borden, Matthew) (Entered: 08/14/2020)

08/14/2020

145 Supplemental Declaration of Gil Kerlikowske . Filed by All Plaintiffs. (Related document(s): Reply to Motion, 142 .) (Acharya, Athul) (Entered: 08/14/2020)

08/14/2020

146 Declaration of Athul K. Acharya in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction Against Federal Defendants. Filed by All Plaintiffs. (Related document(s): Reply to Motion 144 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12) (Acharya, Athul) (Entered: 08/14/2020)

08/14/2020

147 Corrected Declaration of Athul K. Acharya in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction Against Federal Defendants. Filed by All Plaintiffs. (Related document(s): Declaration, 146 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12) (Acharya, Athul) (Entered: 08/14/2020)

08/14/2020

148 Corrected Declaration of Athul K. Acharya in Support of Reply in Support of Plaintiffs' Motion for Preliminary Injunction Against Federal Defendants. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Plaintiffs. (Related document(s): Declaration,, 143 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12) (Acharya, Athul) (Entered: 08/14/2020)

08/17/2020

149 Notice of Appearance of Joshua E Gardner appearing on behalf of U.S. Department of Homeland Security, U.S. Marshals Service Filed by on behalf of U.S. Department of Homeland Security, U.S. Marshals Service. (Gardner, Joshua) (Entered: 08/17/2020)

08/18/2020 150 Notice of Filing of DVD Filed by All Plaintiffs. (Acharya, Athul) (Entered: 08/18/2020)

08/18/2020

151 MINUTES OF TELEPHONE PRELIMINARY INJUNCTION HEARING: ORDER - Plaintiffs' Motion for Preliminary Injunction Against Federal Defendants (ECF 134 ) is taken under advisement as of 8/18/2020. Matthew Bordan, Athul K. Acharya, Kelly K. Simon, and Gunner Martz present as counsel for Plaintiffs. Naomi Scheffield present as counsel for Defendant City of Portland. Jordan Von Bokern and Joshua E. Gardner present as counsel for Federal Defendants. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 08/18/2020)

08/18/2020

152 Declaration of Chris A. Bishop . Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 08/18/2020)

08/18/2020

153 Supplemental Brief in Support of Motion for Preliminary Injunction Against Federal Defendants. Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 134 .) (Borden, Matthew) (Entered: 08/18/2020)

08/19/2020 154 Motion to Strike Declaration of Chris Bishop Declaration 152 . Filed by All Plaintiffs. (Borden, Matthew) (Entered: 08/19/2020)

08/19/2020

155 Declaration of Matthew Borden in Support of Plaintiffs' Motion to Strike Declaration of Chris Bishop. Filed by All Plaintiffs. (Related document(s): Motion to Strike 154 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Borden, Matthew) (Entered: 08/19/2020)

08/19/2020

156 Response in Opposition to Motion to Strike Declaration of Chris Bishop Declaration 152 154 . Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 08/19/2020)

08/20/2020

157 Opinion and Order Granting Preliminary Injunction Against Federal Defendants. Signed on 8/20/2020 by Judge Michael H. Simon. (mja) (Entered: 08/20/2020)

08/21/2020

158 Notice of Appeal to the 9th Circuit (fee exempt status selected (AUSA)). Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 08/21/2020)

08/24/2020

USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal - Preliminary Injunction 158 . Case Appealed to 9th Circuit Court of Appeals Case Number 2035739 assigned. (jtj) (Entered: 08/24/2020)

08/24/2020

159 Motion for Stay of Preliminary Injunction Pending Appeal. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 08/24/2020)

08/25/2020

160 Order Denying Federal Defendants' Renewed Motion to Stay Preliminary Injunction Pending Appeal. Signed on 8/25/2020 by Judge Michael H. Simon. (mja) (Entered: 08/25/2020)

08/28/2020

161 Order from USCA for the 9th Circuit, USCA # 20-35739 re Notice of Appeal - Preliminary Injunction 158 . Order by Judges MILLER and BRESS, Dissent by Judge McKEOWN. We have received appellants' emergency motion at Docket Entry No. 7 seeking to stay the district court's August 20, 2020 order pending resolution of this appeal. Appellants request for an immediate administrative stay of the district court's August 20, 2020 order pending resolution of the emergency motion is granted. See Nken v. Holder, 556 U.S. 418, 426 (2009).

Based on our preliminary review, appellants have made a strong showing of likely success on the merits that the district court's injunction exempting Journalists and Legal Observers from generally applicable dispersal orders is without adequate legal basis. Given the order's breadth and lack of clarity, particularly in its non-exclusive indicia of who qualifies as Journalists and Legal Observers, appellants have also demonstrated that, in the absence of a stay, the order will cause irreparable harm to law enforcement efforts and personnel. The August 20, 2020 order is stayed, temporarily, pending resolution of the emergency motion. This administrative stay preserves the status quo as it existed before the district courts preliminary injunction and temporary restraining order. This order does not disturb the portion of the district court's August 20, 2020 order directing the parties to confer regarding identifying markings and directing that the parties submit proposals to the district court within 14 days if the parties cannot reach an agreement. However, the district court shall not issue a final order regarding identifying markings pending this courts resolution of the emergency motion. Appellees' response to the emergency motion is due by 9:00 a.m. PDT September 2, 2020. Appellants' optional reply is due by 5:00 p.m. PDT September 3, 2020. McKEOWN, Circuit Judge, dissenting: I respectfully dissent and would deny the Federal Defendants request for an administrative stay. The factual conclusions underlying the entry of a preliminary injunction are reviewed for clear error. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In light of the deferential review accorded to the district court's factual finding at this stage, the district court's extensive factual findings with respect to journalists and legal observers, including the finding that the injunction would not impair law enforcement operations to protect federal property and personnel, and the fact that a temporary restraining order has been in place since July 23, 2020, the government has failed to meet its burden to demonstrate either an emergency or irreparable harm to support an immediate administrative stay. I concur in the order with respect to the markings (ecp) (Entered: 08/28/2020)

09/03/2020

162 Brief Regarding Federal Defendants' Proposal Pursuant to the Preliminary Injunction. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Von Bokern, Jordan) (Entered: 09/03/2020)

09/03/2020

163 Unopposed Motion for Leave to File Document Under Seal. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 09/03/2020)

09/03/2020

164 Declaration of Russel Burger . (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 09/03/2020)

09/03/2020 165 Supplemental Brief re: Marking Federal Defendants' Uniforms. Filed by All Plaintiffs. (Acharya, Athul) (Entered: 09/03/2020)

09/03/2020

166 Declaration of Athul K. Acharya re: Marking Federal Defendants' Uniforms. Filed by All Plaintiffs. (Related document(s): Brief 165 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Acharya, Athul) (Entered: 09/03/2020)

09/04/2020

167 ORDER - Federal Defendants' Unopposed Motion to File Under Seal Document Supplementing Federal Defendants' Proposal on Uniform Markings (ECF 163 ) is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 09/04/2020)

09/04/2020

168 Stipulated Motion for Preliminary Injunction Amended. Filed by City of Portland. (Sheffield, Naomi) Modified on 9/4/2020 (mja). (Entered: 09/04/2020)

09/04/2020 169 Amended Stipulated Preliminary Injunction. Signed on 9/4/2020 by Judge Michael H. Simon. (mja) (Entered: 09/04/2020)

09/04/2020

170 Exhibit 2 to Federal Defendants' Proposal on Uniform Markings (# 162 ). (DOCUMENT FILED UNDER SEAL). Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit 2) (eo) (Entered: 09/04/2020)

09/09/2020

171 Order from USCA for the 9th Circuit, USCA # 20-35739 re Notice of Appeal - Preliminary Injunction 158 . The court has received appellants' emergency motion to stay the district court's August 20, 2020 order at Docket Entry No. 7 , and the response and reply thereto. The court will hold virtual oral argument on the emergency motion at 2:00 p.m. Pacific Time on Thursday, September 17, 2020. Each side is allotted 20 minutes for argument. (ecp) (Entered: 09/09/2020)

09/09/2020 172 Answer to 53 Amended Complaint, . Filed by City of Portland. (Sheffield, Naomi) (Entered: 09/09/2020)

09/10/2020

173 Brief in Response to Plaintiffs' Supplemental Brief in Support of a Preliminary Injunction. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Von Bokern, Jordan) (Entered: 09/10/2020)

09/10/2020

174 Unopposed Motion for Leave to File Document Under Seal. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 09/10/2020)

09/10/2020

175 Brief Response re: Marking Federal Defendants' Uniforms. Filed by All Plaintiffs. (Related document(s): Brief, 162 .) (Borden, Matthew) (Entered: 09/10/2020)

09/10/2020

176 Declaration of Athul K. Acharya in Support of Plaintiffs' Response re: Marking Federal Defendants' Uniforms. Filed by All Plaintiffs. (Related document(s): Brief 175 .) (Attachments: # 1 Exhibit 1) (Borden, Matthew) (Entered: 09/10/2020)

09/11/2020

177 ORDER - Federal Defendants' Unopposed Motion to File Under Seal Document Supplementing Federal Defendants' Response to Plaintiffs' Proposal on Uniform Markings (ECF 174 ) is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 09/11/2020)

09/14/2020

178 Exhibit 2 to Federal Defendants' Response to Plaintiff's Proposal on Uniform Markings (# 173 ). (DOCUMENT FILED UNDER SEAL). Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (eo) (Entered: 09/14/2020)

09/15/2020

179 Stipulated Motion for Protective Order Between Plaintiffs and Defendant City of Portland. Filed by City of Portland. (Sheffield, Naomi) (Entered: 09/15/2020)

09/15/2020 180 Protective Order. Signed on 9/15/2020 by Judge Michael H. Simon. (mja) (Entered: 09/15/2020)

09/21/2020

181 Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, and to Stay Discovery. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 09/21/2020)

09/23/2020

182 Stipulated Motion for Protective Order between Plaintiffs and Defendant City of Portland. Filed by City of Portland. (Sheffield, Naomi) (Entered: 09/23/2020)

09/23/2020

183 Stipulated Motion for Preliminary Injunction between Plaintiffs and Defendant City of Portland Amended. Filed by City of Portland. (Sheffield, Naomi) (Entered: 09/23/2020)

09/23/2020 184 Stipulated Protective Order. Signed on 9/23/2020 by Judge Michael H. Simon. (mja) (Entered: 09/23/2020)

09/23/2020 185 Amended Stipulated Preliminary Injunction. Signed on 9/23/2020 by Judge Michael H. Simon. (mja) (Entered: 09/23/2020)

10/01/2020

186 Order from USCA for the 9th Circuit, USCA # 20-35739 re Notice of Appeal - Preliminary Injunction 158 . We have received the motions for leave to proceed as amici in opposition to the pending motion to stay the district court's August 20, 2020 order. The motions to proceed as amici are granted (Docket Entry Nos. 16 and 18 ). The motion to stay the district court's August 20, 2020 order will be addressed separately. We sua sponte extend the briefing schedule for this appeal. The opening brief and excerpts of record are due October 14, 2020. The answering brief is due November 16, 2020. The optional reply brief is due 21 days after service of the answering brief. (jtj) (Entered: 10/01/2020)

10/01/2020

187 Redacted Declaration of Matthew Borden in Support of Plaintiff's Motion for Preliminary Injunction Against Federal Defendants. Filed by All Plaintiffs. (Related document(s): Declaration, 137 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Borden, Matthew) (Entered: 10/01/2020)

10/01/2020

188 Redacted Declaration of Athul K. Acharya in Support of Plaintiff's Motion for Preliminary Injunction Against Federal Defendants. Filed by All Plaintiffs. (Related document(s): Declaration, 147 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12) (Borden, Matthew) (Entered: 10/01/2020)

10/02/2020

189 Joint Stipulation re Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, and to Stay Discovery 181 to Extend Plaintiffs' Deadline to Respond by All Plaintiffs. Filed by All Plaintiffs. (Borden, Matthew) (Entered: 10/02/2020)

10/05/2020

190 ORDER - The Parties' Joint Stipulation to Extend Plaintiffs' Deadline to Respond to Federal Defendants' Motion to Dismiss (ECF 189 ) is GRANTED. Plaintiffs' response is due by 10/19/2020. Defendants' reply is due by 11/2/2020. Ordered by Judge Michael H. Simon. (mja) (Entered: 10/05/2020)

10/13/2020

191 Order from USCA for the 9th Circuit, USCA # 20-35739 re Notice of Appeal - Preliminary Injunction 158 . The Federal Defendants have not made a strong showing that they are likely to succeed on the merits of plaintiffs' claims. Nor have they shown that they are likely to suffer irreparable injury as a result of the district court's preliminary injunction. Further, a stay of the district courts injunction would substantially injure both the City and the plaintiffs. For these reasons,

we cannot say at this juncture that the Federal Defendants are entitled to a stay of the preliminary injunction pending appeal. The Federal Defendants' emergency motion for a stay pending appeal is DENIED, and the administrative stay entered August 27, 2020 is lifted. (jtj) (Entered: 10/13/2020)

10/19/2020

192 Memorandum in Opposition to Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, and to Stay Discovery 181 . Filed by All Plaintiffs. (Borden, Matthew) (Entered: 10/19/2020)

10/19/2020

193 Declaration of Athul Acharya in Support of Plaintiffs' Opposition to Federal Defendants' Motion to Dismiss and to Stay Discovery. Filed by All Plaintiffs. (Related document(s): Memorandum in Opposition 192 .) (Borden, Matthew) (Entered: 10/19/2020)

11/04/2020

194 Unopposed Motion for Extension of Time to File a Response/Reply , Nunc Pro Tunc, in Support to Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, and to Stay Discovery 181 . Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Von Bokern, Jordan) (Entered: 11/04/2020)

11/04/2020

195 ORDER - Federal Defendants' Unopposed Motion for an Extension of Time, Nunc Pro Tunc, in Which to File a Reply Brief in Support of Federal Defendants' Motion to Dismiss and Stay Discovery (ECF 194 ) is GRANTED. Reply is due by 11/6/2020. Ordered by Judge Michael H. Simon. (mja) (Entered: 11/04/2020)

11/06/2020

196 Reply Brief in Support to Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, and to Stay Discovery 181 . Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Exhibit Declaration of Jordan L. Von Bokern) (Von Bokern, Jordan) (Entered: 11/06/2020)

12/08/2020

197 Stipulation in Lieu of Contempt Motion by All Plaintiffs. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Plaintiffs. (Borden, Matthew) (Entered: 12/08/2020)

12/08/2020

198 Redacted Stipulation re Stipulation 197 in Lieu of Contempt Motion by All Plaintiffs. Filed by All Plaintiffs. (Borden, Matthew) (Entered: 12/08/2020)

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 Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 1 of 39

Athul K. Acharya, OSB No. 152436 acharya@braunhagey.com Matthew Borden, pro hac vice application pending borden@braunhagey.com J. Noah Hagey, pro hac vice application pending hagey@braunhagey.com Gunnar K. Martz, pro hac vice application pending martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210 Facsimile: (415) 276-1808
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

TUCK WOODSTOCK; DOUG BROWN; SAM GEHRKE; MATHIEU LEWISROLLAND; KAT MAHONEY; JOHN RUDOFF; and those similarly situated,
Plaintiffs,
v.

Case No.
CLASS ACTION ALLEGATION COMPLAINT DEMAND FOR JURY TRIAL

CITY OF PORTLAND, a municipal corporation; and JOHN DOES 1-60, individual and supervisory officers of Portland Police Bureau and other agencies working in concert,

Defendants.

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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 2 of 39
Plaintiffs Tuck Woodstock, Mathieu Lewis-Rolland, Kat Mahoney, Doug Brown, Sam Gehrke, and John Rudoff, on behalf of themselves and those similarly situated, allege as follows:
INTRODUCTION 1. This case seeks to stop the Portland police1 from assaulting news reporters, photographers, legal observers, and other neutrals who are documenting the police’s violent response to protests over the murder of George Floyd. The police’s efforts to intimidate the press and suppress reporting on the police’s own misconduct offends fundamental constitutional protections and strikes at the core of our democracy. 2. Plaintiffs are members of the media and legal observers, who have a right to witness important public events and recount them to the world. Plaintiffs Tuck Woodstock, Mathieu Lewis-Rolland, Sam Gehrke, and John Rudoff are journalists whom the Portland police attacked with flash-bang grenades, rubber bullets, and tear gas merely for seeking to cover the protests. Plaintiffs Kat Mahoney and Doug Brown are neutral legal observers whom the Portland police assaulted with batons, rubber bullets, and tear gas simply for watching how they were treating demonstrators. Plaintiff Class is comprised of all journalists who have or will be attacked or forcefully dispersed by Defendants pursuant to their unlawful policy of targeting and dispersing neutrals. 3. The police retaliation against Plaintiffs is part of a broader pattern of the Portland police repeatedly and intentionally shooting, gassing, and beating journalists and observers covering the George Floyd demonstrations. 4. On June 3, the police physically assaulted KBOO reporter Cory Elia, even though he identified himself as press, because he was recording them. Video here: https://tinyurl.com/EliaAssaulted.
1 For convenience, the term “Portland police” in this Complaint refers to officers of the Portland Police Bureau as well as any officers of other law enforcement agencies working in concert with the Portland Police Bureau within the City of Portland.
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 3 of 39
5. On June 6, the police hit freelance journalist Sergio Olmos with a truncheon and threatened to tear gas him because he was recording them. His press pass was clearly visible. Video here: https://tinyurl.com/OlmosBeaten.
6. On June 7, the police attacked Donovan Farley with a wooden bat and sprayed him in the face with tear gas or pepper spray while he was trying to walk away from them. He had identified himself as press and was filming several police officers kneeling on a protester’s neck, George Floyd-style. Video here: https://tinyurl.com/FarleyBeatenAndSprayed.
Figure 1: Farley films the arrest (1); one officer approaches him, truncheon aloft (2); officer beats Farley as he retreats (3); officer sprays Farley as he retreats (4).
7. On June 7, the police attacked Mr. Elia again—this time with a blast of tear gas to the face. Mr. Elia was holding up his press pass, and police knew he was press when they attacked him. Video here: https://tinyurl.com/EliaSprayed.
8. On June 13, the police slammed reporter Beth Nakamura of The Oregonian in the back with a truncheon. She had her hands up, press pass in hand, and was saying “press, press.” The officer responded: “I don’t give a fuck.”
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 4 of 39
9. Also on June 13, the police ordered reporter Zane Sparling of The Portland Tribune to leave an area where they were enforcing a dispersal order against protesters. Sparling responded that he was media. The officer responded: “I don’t give a shit! Go!” He then shoved Mr. Sparling into a wall, and another officer shot a crowd-control munition at his heel. Video here: https://tinyurl.com/SparlingAssaulted.
10. On June 14, the police announced that they would use force to disperse reporters and protestors alike—except for select reporters that they allowed to “imbed” with police. This viewpoint-based restriction on speech violates the rights of the press to observe and report on important events. It is not narrowly tailored to achieve any legitimate government objective; rather, it is designed to prevent the press from exposing police violence. Nor could any law preventing coverage of protests pass constitutional muster because there is no compelling need to preclude the media from observing and reporting. Defendants’ policy remains in place, is being used to remove journalists and observers, and is chilling reporters and observers from monitoring and reporting on important events.
11. Many other journalists have reported that they have been specifically targeted.2 Indeed, members of the Plaintiff Class have petitioned Portland Mayor Ted Wheeler “to ensure that the Portland Police Bureau ceases assaulting and intimidating reporters.”3
12. In addition to intentionally targeting reporters and observers, the police are using indiscriminate force to punish them along with demonstrators. For instance, on June 2, the police sprayed a large group of protesters with tear gas from all sides in what is known as a “kettling” or “killbox” military strategy. Killboxing protesters cannot disperse them. Its sole purpose is to inflict pain and suffering. The police gassed many journalists and observers in this operation,
2 Rebecca Ellis, Police Keep Injuring Journalists Covering Portland Protests, OPB (June 15, 2020), https://www.opb.org/news/article/portland-journalists-harmed-covering-george-floydblm-protests/. 3 Mayor Wheeler: Protect journalists and the First Amendment, Change.org, https://www.change.org/p/mayor-ted-wheeler-mayor-wheeler-protect-the-first-amendment (last visited June 24, 2020, 1:39 P.M.).
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 5 of 39
including Plaintiffs Gehrke and Mahoney and Portland Mercury reporters Alex Zielinski and Blair Stenvick.
13. Intimidating reporters is the craft of the world’s most oppressive regimes and has no place in Portland—or anywhere else in the world.4 As the Ninth Circuit has observed, “[w]hen wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.” Leigh v. Salazar, 677 F.3d 892, 898 (9th Cir. 2012).
14. Plaintiffs seek monetary damages and prospective injunctive relief to so that they can report on police activities without fear of being targeted for punishment.
PARTIES 15. Plaintiff Tuck Woodstock is an Oregon resident who lives in the City of Portland. They have been a journalist for seven years and their work has been published in the Washington Post, NPR, Portland Monthly, Travel Portland, and the Portland Mercury. They have attended the protests in Portland over the last month at least 15 times as a freelance and independent journalist for the purpose of documenting and reporting on them. 16. Plaintiff John Rudoff is an Oregon resident who lives in the City of Portland. He is a photojournalist whose work has been published internationally, including extensive reporting on the Syrian refugee crisis, the ‘Unite the Right’ events in Charlottesville, Virginia, the Paris ‘Yellow Vest’ protests, and the Rohingya Genocide. He has covered protests (among other things) in Portland for more than 5 years, and his work has appeared in the New York Times, the Guardian, CBS, and ABC, among other sites. He has attended the protests in Portland over the last month for the purpose of documenting and reporting on them.
4 See, e.g., Syrian Forces Aimed to Kill Journalists, U.S. Court Is Told, N.Y. Times (Apr. 9, 2018), https://www.nytimes.com/2018/04/09/world/middleeast/syria-marie-colvin-death.html; Duterte Says Journalists in the Philippines ‘Are Not Exempt from Assassination’, Time (June 1, 2016), https://time.com/4353279/duterte-philippines-journalists-assassination/; Violence against Journalists Escalates in Hong Kong, Reporters Without Borders (Aug. 13, 2019), https://rsf.org/en/news/violence-against-journalists-escalates-hong-kong.
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 6 of 39
17. Plaintiff Mathieu Lewis-Rolland is an Oregon resident who lives in the City of Portland. He is a photographer for Eleven PDX, and his work has also been featured in local news outlets and on the official website for the City of Portland. He attended protests in Portland on several nights for the purpose of documenting them.
18. Plaintiff Kat Mahoney is an Oregon resident who lives in the City of Portland. She is an independent attorney and volunteers as a legal observer with the ACLU. She has attended the protests nearly every night for the purpose of documenting police interaction with protesters.
19. Plaintiff Doug Brown is an Oregon resident who lives in the City of Portland. He has attended protests in Portland every year since 2016, first as a journalist with the Portland Mercury and then as a volunteer legal observer with the ACLU. He has attended the George Floyd protests on several nights for the purpose of documenting police interaction with protesters.
20. Plaintiff Sam Gehrke is an Oregon resident who lives in the City of Portland. He is a freelance photojournalist whose work has been published in Pitchfork, Rolling Stone, Vortex Music, and Eleven PDX. He has attended the protests in Portland over the last month for the purpose of documenting and reporting on them.
21. Defendant City of Portland is a municipality incorporated in the State of Oregon. As a local governmental entity, the City of Portland is a juridical entity under 42 U.S.C. § 1983. The Bureau is a department or division of the City.
22. Defendant John Does 1-20 are police officers employed by the City who directly assaulted Plaintiffs and members of the Plaintiff Class. They are sued in their individual capacity.
23. Defendant John Does 21-30 are supervisory officials whose liability could include their own culpable action or inaction in the training, supervision, or control of their subordinates, their acquiescence in the constitutional deprivations alleged here, or conduct showing a reckless or callous indifference to the rights of Plaintiffs. They are sued in their individual capacity.
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 7 of 39
24. Defendant John Does 31-60 are individual and supervisory officers of other law enforcement agencies, including but not limited to the Clackamas County Sheriff’s Office, Clark County Sheriff’s Office, Multnomah County Sheriff’s Office, Washington County Sheriff’s Office, Port of Portland Police, Gresham Police, Vancouver Police, Washougal Police, Oregon State Police, and the Oregon National Guard, who are working under the Portland Police Bureau’s direction and control pursuant to PPB Directive 635.10 § 7 (“The Bureau may request assistance from other law enforcement agencies . . . The Bureau [Incident Commander] shall maintain the authority to determine tactical objectives; direct the overall police response (all agencies); and determine, when objectively reasonable, how and when force may be used and when to deploy less lethal munitions to address civil disturbance and/or disperse the crowd.”). Does 31-60 are acting in concert with and agents of the City and Does 1-30.
25. The Doe Defendants have concealed their identities and their names or they are not yet fully known to Plaintiffs. On information and belief, Does 1-60 are responsible for the conduct alleged herein.
JURISDICTION AND VENUE 26. This Court has subject matter jurisdiction over Plaintiffs’ claims of violation of federal constitutional rights under 28 U.S.C. §§ 1331 and 1343 because Plaintiffs’ causes of action arise under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202. 27. Venue is proper in the District of Oregon under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in the District of Oregon and because defendants are subject to personal jurisdiction in the District of Oregon.
FACTUAL ALLEGATIONS A. The Police Murdered George Floyd 28. On May 25, 2020, the police killed George Floyd in Minneapolis, Minnesota. 29. Mr. Floyd was the most recent in a long list of Black victims of police brutality, many of which caused protests across the nation. In Portland alone, the police have killed several Black people, including Quanice Hayes, Terrell Johnson, Keaton Otis, Aaron Campbell, Patrick
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 8 of 39
Kimmons, Darris Johnson, and Kendra James. Some other well-known victims of lethal police force include Michael Brown, Breonna Taylor, Tamir Rice, Philando Castile, Freddie Gray, Walter Scott, Botham Jean, Atiana Jefferson, and, of course, Eric Garner, whose last words echoed those of Mr. Floyd: “I can’t breathe.”
30. Videos of Mr. Floyd’s murder were widely and rapidly disseminated around the world and catalyzed protests across the country in every major city.
B. Portland Police Use Brutal Force Against Demonstrators Protesting Police Brutality
31. In Portland, for over four weeks, thousands of people have gathered every night to protest and mourn Mr. Floyd’s murder and insist that our institutions start ensuring that Black lives matter. These protests continue to the present day.
32. One focal point for protesters has been the “Justice Center” in downtown Portland. The building houses the police’s central precinct, which includes offices for their command staff, a few county courtrooms, and a county jail where hundreds of people— disproportionately Black—are warehoused in small cage-like cells. Both Portland police arrest data and Multnomah County criminal justice data reveal that Black residents are disproportionately harmed by every part of the criminal justice system from arrest through prosecution and sentencing.5 The Justice Center is, in short, a perfect symbol of the iniquities protesters are demonstrating against.
33. With limited exceptions, these protests have been overwhelmingly peaceful. But nearly every night, the Portland police have used increasingly severe tactics to deter speech on this important issue.
34. Portland police have shot rubber bullets into crowds of protesters. Rubber bullets are 40mm-wide “pain compliance devices.” They are designed to “provide sufficient pain stimulus” to “incapacitat[e] … an aggressive, non-compliant subject.” But they can be lethal,
5 W. Haywood Burns Institute for Justice Fairness and Equity, Racial and Ethnic Disparities in Multnomah County (Nov. 2019), https://multco.us/file/84525/download.
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 9 of 39 especially if they hit someone in the head. Figure 2 depicts a round that an officer shot at one protester’s head as he was retreating with his hands up. Figure 3 depicts the severe type of injury such a round can inflict, even when it impacts only a large muscle group on a young, healthy individual.
Figure 2: Left, the manufacturer’s image of the 40mm eXact iMpact Sponge Round. Right, a rubber bullet that Portland police officers fired at a retreating, compliant protester.
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 10 of 39
Figure 3: An example of the severe injuries rubber bullets can inflict.
35. Portland police have also deployed multiple types of tear gas, including Agent CS, phenacyl chloride, and oleoresin capsicum. The use of tear gas is banned in warfare.6 It can cause inflammation, coughing, wheezing, vomiting, blistering, burns, and breathing difficulty or airway closure, especially in people with respiratory conditions.7 Its use is especially deadly during the current coronavirus pandemic, because it (1) “weaponizes” infected individuals to become “efficient transmitter[s] of infection”; (2) makes those not infected more likely become infected; and (3) makes coronavirus more deadly to those it infects.8 Nevertheless, the police used tear gas indiscriminately against protesters nearly every night for the first week of protests and many nights since then.
6 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571. 7 Health Impacts of Crowd-Control Weapons: Chemical Irritants (Tear Gas and Pepper Spray), Physicians for Human Rights (Jan. 1, 2017), https://phr.org/our-work/resources/health-impactsof-crowd-control-weapons-chemical-irritants-tear-gas-and-pepper-spray/. 8 Expert Declaration of Peter Chin-Hong ¶¶ 6-7, Don’t Shoot Portland v. City of Portland, No. 3:20-cv-917-HZ (June 9, 2020), Dkt. 24. PAGE 10 - COMPLAINT

Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 11 of 39
36. On June 6, Mayor Wheeler supposedly suspended the use of tear gas.9 On June 9, this Court enjoined the police from using tear gas unless “the lives or safety of the public or the police are at risk,” and specifically ordered the police not to use tear gas “to disperse crowds where there is no or little risk of injury.”10 Nevertheless—defying this Court’s Order—Portland police have continued to use tear gas as recently as the night of June 25.
37. The police have also beat protesters with truncheons and shot them with flashbang grenades with little or no warning, in the absence of any danger to the public, police, or property.
38. The police’s use of disproportionate force against demonstrations over police violence against people of color follows the Portland police’s prolific history of excessive force against people of color, including the shootings of Quanice Hayes in 2017, Denorris McClendon in 2015, Keaton Otis and Aaron Campbell in 2010, and Kendra James in 2003. In 2012, the U.S. Department of Justice filed suit against the City “to remedy a pattern or practice of unconstitutional uses of force by officers of the Portland Police Bureau,”11 which was settled by a consent decree in 2015.12 The decree has not resulted in a less brutal police force.13
C. Both the Protests and the Police’s Handling of Them Garner National Interest and Are Widely Discussed in the Press and Other Public Fora
39. Nationwide protests over the murder of George Floyd have garnered coverage in every major news outlet. They have been discussed in the New York Times, the Washington Post, the Los Angeles Times, and the Chicago Sun-Times. They have been featured on MSNBC, CNN, and Fox News. Every local paper has covered them.
9 Nicole Chavez, Portland is the latest city to suspend the use of tear gas on protesters, CNN (June 6, 2020), https://www.cnn.com/2020/06/06/us/portland-police-tear-gas-protests/index.html. 10 Order, Don’t Shoot Portland v. City of Portland, No. 3:20-cv-917-HZ (June 9, 2020), Dkt. 29. 11 Complaint, United States v. City of Portland, No. 3:12-cv-2265-SI (Dec. 17, 2012), Dkt. 1. 12 Amended Order Entering Settlement Agreement Conditionally Dismissing Litigation, id., Dkt. 99. 13 Alex Zielinski, Hall Monitor: Checking Boxes, Portland Mercury (Nov. 7, 2019), https://www.portlandmercury.com/opinion/2019/11/07/27438204/hall-monitor-checking-boxes.
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40. The police’s violent response to the protests has also been the subject of national attention. The New York Times wrote about the 99 U.S. cities where police used tear gas against protesters.14 The Washington Post covered police violence in Richmond, Virginia.15 The L.A. Times demanded an investigation of police violence in Los Angeles.16 In cities across the country, citizens have protested, police have overreacted—and the press has been there to document and report on everything.
41. Or nearly everything. In a brazen effort to suppress speech, Portland police have taken to beating, gassing, and arresting journalists and observers as well as protesters.
D. The Police’s Pattern of Intentionally Targeting and Retaliating against Journalists and Observers
42. Since the protests began, the Portland police have been intentionally and indiscriminately attacking neutral members of the press and legal observers. This conduct has intimidated journalists and neutrals and reduced the number of media and observers willing to attend protests and to stay to document and observe the protests. The police’s conduct is part of a longstanding pattern of assaulting and threatening members of the press to prevent them from telling the public about the police’s conduct.
1. Police Intentionally Shoot at and Tear Gas Plaintiff Lewis-Rolland 43. Plaintiff Lewis-Rolland is a freelance photographer and photojournalist who has covered the ongoing Portland protests. He carries a large Nikon D850 camera with a 70-200mm lens and a flash. He is unmistakably present in a journalistic capacity.
14 K.K. Rebecca Lai et al., Here Are the 99 U.S. Cities Where Protesters Were Tear-Gassed, N.Y. Times (June 17, 2020), https://www.nytimes.com/interactive/2020/06/16/us/george-floyd-protests-police-tear-gas.html. 15 Gregory S. Schneider, Police fire chemical irritant, rubber bullets at Richmond protesters outside police headquarters, Wash. Post (June 15, 2020), https://www.washingtonpost.com/local/richmond-police-fire-pepper-spray-at-protesters-instandoff-near-police-headquarters/2020/06/14/be1ccb26-aeac-11ea-8f5663f38c990077_story.html. 16 Editorial: LAPD’s violence against protesters demands investigation, L.A. Times (June 9, 2020), https://www.latimes.com/opinion/story/2020-06-09/excessive-lapd-protest-response.
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 13 of 39 44. On the night of May 31, Mr. Lewis-Rolland was covering the protests. Around 10:40 p.m., he heard a loud bang and began proceeding toward the intersection it came from, SW Salmon Street and SW 3rd Street. The intersection was not crowded and was mostly clear of protesters. As he approached, he saw police marching in his direction. He began taking photographs. That is when he captured this image of an officer aiming a gun directly at him:
Figure 4. Police take aim at Plaintiff Mathieu Lewis-Rolland.
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45. Shortly after Mr. Lewis-Rolland captured that image, the officer fired upon him. The officer offered no warning, and Mr. Lewis-Rolland had done nothing to provoke the officer other than take a photograph. Mr. Lewis-Rolland was showered with shrapnel as the first round exploded at his feet. Several more followed, as well as canisters of tear gas. Mr. Lewis-Rolland was overcome by the effects of tear gas and was unable to continue documenting protests or police action at that location, but he attempted to continue operating his camera to the best of his ability while recovering from the effects of the tear gas. He was able to capture a visual cloud of gas hovering over the intersection he had just retreated from.
46. About an hour later, at the intersection of SW 4th Street and SW Taylor Street, Mr. Lewis-Rolland was documenting a tense interaction between police and protesters:
Figure 5: Plaintiff Lewis-Rolland (not pictured) documents a tense interaction between police and peaceful protesters.
47. This time, an officer popped open a crowd-control-sized canister of tear gas and threw it directly at Mr. Lewis-Rolland’s feet. Used at such close range, the canister delivered a PAGE 14 - COMPLAINT

Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 15 of 39
full frontal blast of gas to Mr. Lewis-Rolland’s face and once again, he was overcome by its effects. Mr. Lewis-Rolland was completely incapacitated for at least 30 seconds and forced to stop documenting the scene until he could recover.
2. Police Use Extra-Strong Tear Gas on Plaintiff Mahoney 48. Plaintiff Mahoney has been attending the protests nearly every night since they began. Nearly every night, from the beginning of the protests until this Court issued its injunction in Don’t Shoot Portland v. City of Portland, Ms. Mahoney was a victim of police’s tear gas. 49. Ms. Mahoney has served as a legal observer since 2017. She is no stranger to the police’s indiscriminate, excessive, and unlawful use of tear gas. 50. On June 2, however, she noticed that the police had begun to use a new form of tear gas. On that night, Ms. Mahoney was on her motorcycle. To avoid getting tear gas inside her helmet, she remained on a side street near the edges of the crowd. Nevertheless, the tear gas reached her and she sought to retreat. 51. Her first indication that this was a new type of gas was that it smelled different and felt stronger. She managed to drive her motorcycle only two blocks before losing her vision. In addition to the usual effects—profuse tears, profusely runny nose—her throat began to close and she had trouble breathing. She quickly sought medical attention. 52. Once she felt it was safe, she attempted to return home on her motorcycle. On the way home, however, she began involuntarily convulsing, shaking, and twitching. She was unable to concentrate on basic tasks like shifting gears. Fortunately, she was able to arrive home safely. 53. Once home, however, she was disoriented and unable to function for several hours. She was barely able to open her door. She was unable to count past six. She was unable to open a tube of toothpaste. Although Ms. Mahoney has been the victim of Portland police’s tear gas many times, she has never suffered such symptoms. On information and belief, on June 2, Portland police used tear gas of a different formulation, or a stronger concentration, in order to
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 16 of 39
inflict more severe injuries on neutrals and protesters. On information and belief, the police also used such tear gas in the “killbox” maneuver detailed below.
3. Police Shoot at Plaintiff Mahoney 54. On the night of June 10, Ms. Mahoney was attending the protests near the Justice Center as a legal observer volunteering with the ACLU. She was wearing a blue vest which clearly identified her as a legal observer. At all relevant times, she was well-lit by police floodlights. No police officer could have been confused as to the role in which she was attending. 55. Shortly after midnight, a woman who appeared to be mentally unstable wandered into the fenced-off area near the Justice Center. She walked back and forth for a moment, exited Ms. Mahoney’s field of view, and then returned having shed all of her clothing. At this point, Ms. Mahoney moved to the front of the crowd, because she knew that legal observation might become crucial. 56. Portland police officers began running at the woman. She began running away, but became confused and was unable to find the exit. She panicked. As she ran alongside the fence, a protester entered the fenced-off area to assist her. Together, they began running away from the police and toward the exit. 57. Most people who were at the fence, including Ms. Mahoney, were recording the events unfolding on their cameras and smartphones. Even though the two individuals inside the fenced-off area were retreating, Portland police officers opened fire on them. And, in an attempt to minimize video evidence, Portland police also opened fire on people recording the event near the fence, including Ms. Mahoney. 58. One rubber bullet impacted a cement barrier a few inches from Ms. Mahoney’s face. It exploded and shrapnel from the detonation hit Ms. Mahoney’s hands, phone, and shoulders. Had Ms. Mahoney not been recording the event, shrapnel would have hit her directly in the face. As it was, Ms. Mahoney suffered severe injuries to her left hand, including her left ring finger, which swelled up to three times its normal size.
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59. The police targeted Ms. Mahoney, even though she was clearly marked as a neutral legal observer by her blue vest, because she was recording an altercation between police and protesters.
4. Police Shoot at and Beat Plaintiff Brown 60. On the night of June 12, legal observer Doug Brown was attending the protests as a volunteer with the ACLU. He was wearing a blue vest which clearly identified him as a legal observer. 61. Shortly after 12:30 a.m., the police decided to put an end to the protests. They declared the area between Naito Parkway and 13th Street, from SW Lincoln Street to NW Everett Street, off-limits to everyone—protesters, press, legal observers, and anyone else. This area contains the entirety of downtown Portland and parts of two Northwest Portland neighborhoods and comprises some 21 million square feet. 62. A video of the following events can be viewed here: https://tinyurl.com/BrownAttacked. 63. At around 12:35 a.m., the police began firing flash-bang grenades into the crowd. A minute later, they fired a flash-bang grenade directly at Mr. Brown. Id. at 4:11-15. 64. Then, they began physically clearing people out of the park. Mr. Brown complied with their directive and moved with the crowd, but because he was present as an observer and not a protester, he continued filming and observing how the police enforced their order. 65. Around 12:39 a.m., the police had moved the crowd one block from their starting position. Then they began what is known as a “dynamic” maneuver. They halted and arranged in formation, truncheons and guns at the ready. Id. at 7:44. On command, they all began running at the crowd, yelling “MOVE!” and beating anyone in their way. Id. at 8:18. 66. This type of massed kinetic maneuver—a massed charge—is extremely dangerous. Strong, armored police, running full tilt at less-armored persons, frequently cause grave injury. And by design, they run over all things in their path—including journalists and legal observers.
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 18 of 39 67. Mr. Brown continued to observe and record. For that, the police beat him, too. Id. at 8:23-34. This still frame from his video shows police officers charging at him with their truncheons, shortly before they beat him:
Figure 6: Police charge at an ACLU legal observer to beat him with their truncheons.
68. Mr. Brown was forced to flee and could no longer safely document the police’s violent enforcement tactics.
69. After a minute, the police halted and began firing flash-bang grenades directly at people. They scored a direct hit on Mr. Brown. Id. at 8:58-9:09.
70. As a result of the police’s firing two flash-bang grenades at him and beating him with their batons, Mr. Brown suffered temporary tinnitus for several hours and some contusions. PAGE 18 - COMPLAINT

Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 19 of 39
71. The police’s efforts to prevent Mr. Brown from recording and reporting on their violent tactics were successful. Shortly after the second flash-bang, he left the scene, even though the protests and the police’s violent dispersal of protesters continued.
5. Police Threaten to Arrest Plaintiff Brown 72. On the night of June 14, Mr. Brown was again attending the protests as a volunteer with the ACLU. He was wearing a blue vest which clearly identified him as a legal observer. 73. Audio of the following events, together with some contemporaneous photos Mr. Brown took, is available here: https://tinyurl.com/BrownThreatened. 74. Around 10:40 p.m., Mr. Brown arrived at the intersection of SW 6th Street and SW Market Street, where Portland police officers were arresting a man undergoing a mentalhealth crisis. 75. As they had the previous night, the police had issued a dispersal order vacating downtown Portland. 76. Nevertheless, some five to seven people were at the scene, observing the arrest. Mr. Brown also began observing and recording the event. 77. For the first seven minutes Mr. Brown was present, the interaction between police and the individuals watching them was calm and uneventful. 78. At 10:47 p.m., the police decided to remove all observers from the scene. One officer, with a makeshift ID number 254047, ordered everyone to leave and threatened them with arrest if they did not comply. Id. at 7:00-7:50. 79. Mr. Brown continued to document the events. The officer heard his shutter clicking and turned on him: “You have plenty of pictures, okay? … We don’t want to make an arrest.” Id. at 7:58-8:20. 80. Three more officers walked up to Mr. Brown and put their hands on him. One of them said: “You should know better, you’re with the ACLU.” Id. at 8:35.
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Case 3:20-cv-01035-SI Document 1 Filed 06/28/20 Page 20 of 39
81. A minute later, a police SUV with a long-range acoustic system arrived. It, too, singled Mr. Brown out as an ACLU legal observer and threatened him with arrest: “You are all subject to arrest for trespassing. This area is closed. That includes the ACLU legal observer. You are trespassing. … You are failing to obey the direct order of a peace officer in the State of Oregon.” Id. at 9:52-10:15.
82. Again, the police’s efforts to eject Mr. Brown from the scene of an arrest were successful. Rather than be arrested himself, he left the scene and was no longer able to fulfill his role as a legal observer.
6. The Police Have Intentionally Targeted Many Other Reporters and Neutrals
83. The police’s use of excessive force against neutral observers extends to all Plaintiff Class members and other neutrals.
84. On June 3, the police physically assaulted KBOO reporter Cory Elia because he was recording them. He had identified himself as press. As the bystander who recorded the interaction later recalled, “Hearing the screams from him in the background is truly terrifying.”17
85. On the night of June 5, a red truck flying an American flag drove through a crowd of protesters and nearly hit one of iHeartRadio podcaster Robert Evans’s staffers. When the staffer attempted to capture the license plate of the truck, the police aimed their crowd-control weapons at her and threatened to fire. They prevented her from recording the license plate of the truck. She no longer accompanies Mr. Evans to the protests in Portland.18
86. On June 6, the police physically assaulted freelance reporter Sergio Olmos and threatened him with tear gas because he was recording them. Mr. Olmos was attempting to comply with a dispersal order, but found himself trapped behind a phalanx of police officers. To
17 @Billings29James, Twitter (June 3, 2020, 12:16 A.M.), https://twitter.com/Billings29James/status/1268079034321133570. 18 @IwriteOK, Twitter (June 6, 2020, 3:41 P.M.), https://twitter.com/IwriteOK/status/1269399061775306752.
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avoid giving surprise, he tried to inform them that he was approaching from behind. He had his press pass clearly visible. Nevertheless, the police attacked him with a baton.19
87. Also on June 6, Mr. Evans was filming the police arranged in a phalanx advancing on a crowd of protesters. He was holding his phone in one hand and his press pass in the other. Also, his helmet was clearly labeled “PRESS.” Police fired an impact munition at him, hitting him in the very hand that was holding the press pass.
88. June 7 was a banner day for Portland police’s campaign of violence against journalists:
a. The police brutally attacked Donovan Farley with a truncheon and tear gas. Farley, a reporter who has been published in Rolling Stone, VICE, and the Willamette Week, was recording the police, who were arresting a protester using exactly the same maneuver that had killed George Floyd. When they noticed him, they chased him away, beat him, and—even as he was retreating from the scene— sprayed him in the face with tear gas.20 b. The police also attacked Mr. Elia again—this time with tear gas rather than a truncheon—even though, as before, he was holding up his press pass and police knew he was press when they attacked him.21 c. The police also arrested one of Mr. Evans’s staff members for asking an officer his name. She did not provoke him in any other way or do anything to justify police action. Nevertheless, police arrested her and took her to the Justice Center, where they held her for several hours.
19 @MrOlmos, Twitter (June 6, 2020, 1:27 A.M.), https://twitter.com/MrOlmos/status/1269184050314407936; @MrOlmos, Twitter (June 6, 2020, 4:15 A.M.), https://twitter.com/MrOlmos/status/1269226525020184577. 20 @DonovanFarley, Twitter (June 7, 2020, 11:44 A.M.), https://twitter.com/DonovanFarley/status/1269701897377603584; @TVAyyyy, Twitter (June 7, 2020, 12:08 A.M.), https://twitter.com/TVAyyyy/status/1269526590456643584. 21 @Human42LM, Twitter (June 7, 2020, 10:29 A.M.), https://twitter.com/Human42LM/status/1269683012515409921.
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89. On June 11, the police confiscated medical supplies from an OHSU medic tent. They also arrested one of the medics, Michael Martinez, because he was recording them.22
90. On June 12, Plaintiff Sam Gehrke was taking photos near the Justice Center when the police shot him in the back with a rubber bullet. Mr. Gehrke was holding a large camera, wearing a press pass from the Willamette Week, and was obviously present as a journalist to record and report on the protests. Shortly after this, the police swarmed the crowd from behind, physically assaulting and beating people at random.
91. On June 13, the police beat reporter Beth Nakamura of The Oregonian with a truncheon, even though she was displaying her press pass and shouting “press, press.” The officer responded: “I don’t give a fuck.”23
92. Also on June 13, the police ordered reporter Zane Sparling of The Portland Tribune to leave an area where they were enforcing a dispersal order against protesters, shoved him into a wall, and shot a crowd-control munition at his heel.24 When Mr. Sparling informed them that he was media, they responded that they didn’t “give a shit.”
93. On the night of June 15, OPB reporter Jonathan Levinson was reporting on the protests downtown. As Portland police issued orders to disperse, he continued reporting. Officers informed him that if he did not “run,” they would arrest him.25 They then violently arrested another individual and prevented Mr. Levinson from recording or reporting on the arrest.26
22 Lindsay Nadrich, OHSU student arrested handing medical supplies to protesters, KOIN (June 18, 2020), https://www.koin.com/news/protests/ohsu-student-arrested-handing-medical-suppliesto-protesters/. 23 @bethnakamura, Twitter (June 15, 2020, 8:27 A.M.), https://twitter.com/bethnakamura/status/1272551330184228864; @bethnakamura, Twitter (June 15, 2020, 8:54 A.M.), https://twitter.com/bethnakamura/status/1272558094870970368. 24 @PDXzane, Twitter (June 13, 2020, 11:49 P.M.), https://twitter.com/PDXzane/status/1272058454799028226. 25 @MrOlmos, Twitter (June 16, 2020, 12:40 A.M.), https://twitter.com/MrOlmos/status/1272796206071087105. 26 @MrOlmos, Twitter (June 16, 12:48 A.M.), https://twitter.com/MrOlmos/status/1272798234809782272.
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94. On June 19, the Portland police shot Plaintiff John Rudoff with pepper balls while he was documenting the protest at the Justice Center. Mr. Rudoff was displaying press identification from the National Press Photographers Association, carrying large camera equipment, wearing a helmet clearly marked “press.”
7. The Police Have Intentionally Targeted Reporters and Legal Observers in the Past
95. In August 2018, Plaintiff Brown and Donovan Farley were reporting on protests in downtown Portland. Without warning, the police rushed protesters, shot rounds, and set off explosions. Then, they charged at and beat a group of journalists, including Mr. Brown and Mr. Farley, all of whom had press passes clearly displayed or were holding obviously professional cameras.27 Video here: https://tinyurl.com/BrownBeaten18.
96. At the same protest, police hit KATU reporter Ric Peavyhouse with a rubber bullet28 and documentary filmmaker Michelle Fawcett with a flash-bang grenade.29
97. During protests in 2017, Mr. Brown was attending as a journalist for the Portland Mercury. Police beat him with a truncheon and fired on him with flash-bangs.
98. Also during protests in 2017, the police beat Plaintiff Rudoff with a truncheon because he was not moving quickly enough for an officer’s liking.
E. Police Deploy a Killbox Tactic against Reporters and Observers 99. Portland police use tear gas indiscriminately when confronted with crowds. Lt. Franz Schoening, commander of the Bureau’s Rapid Response Team, has stated as much:
27 Donovan Farley, In Portland, the Police Played Into the Hands of the Fascists and Attacked Their Own Citizens, Paste Magazine (Aug. 7, 2018), https://www.pastemagazine.com/politics/political-violence/in-portland-the-police-played-intothe-hands-of-th/. 28 @RPeavyhouse, Twitter (Aug. 5, 2018, 2:34 P.M.), https://twitter.com/RPeavyhouse/status/1026219809552224256. 29 Alex Zielinski, Portland Police Explain Why They Fired Munitions at Protesters on August 4, Portland Mercury (June 4, 2019), https://www.portlandmercury.com/blogtown/2019/06/04/26589682/portland-police-explain-whythey-fired-munitions-at-protesters-on-august-4.
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“[W]hen officers can’t see disrupters in a dense crowd because they’re four to five rows back from officers and they won’t comply with orders to leave the area,” the Bureau’s formal policy is to use tear gas against the crowd as a whole.30
100. Because tear gas is inherently an indiscriminate weapon, this policy necessarily means that Portland police shoot tear gas at neutral parties who are attending to document and report on protests. And indeed, many journalists and legal observers have found themselves caught in the police’s widespread use of tear gas during these protests.
101. One particularly egregious example took place on the night of June 2, when reporters employed by the Portland Mercury, as well as Plaintiffs Sam Gehrke and Kat Mahoney, found themselves victims of a “killbox” action by Portland police.
102. Reporters Alex Zielinski and Blair Stenvick were covering the protests for the Mercury that night. Ms. Zielinski was in the middle of the crowd, while Stenvick was towards the back. Neither was near the fence surrounding the Justice Center. Plaintiff Gehrke was also in the crowd reporting on the protests.
103. The police issued a warning to protesters to stay away from the fence. To underscore the point, officers on the other side of the fence shot tear gas at protesters near the fence.
104. Had officers merely shot gas at protesters closest to the fence, the reporters might not have been injured. However, the police had decided to create a gas trap by shooting tear gas from the rear and sides of the crowd as well. This gas trap, by design, snared not only protesters agitating near the fence, but many other peaceful protesters far from the fence with no desire to get involved. And, of course, it also caught all three reporters, as well as Plaintiff Mahoney.
105. Because they had been inundated with tear gas, neither Ms. Zielinski nor Stenvick was able to report on the protests for the rest of the night. As the Mercury’s editor wrote that
30 Maxine Bernstein, Portland police, fire medics describe crowd control tactics, munitions, The Oregonian (June 4, 2020), https://www.oregonlive.com/portland/2020/06/portland-police-firemedics-describe-crowd-control-tactics-munitions.html.
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night: “Due to the dangerous situation and loss of control exhibited by the Portland Police, we have pulled our reporters off the street for the night. It’s simply too dangerous for them to be out there right now.”31
106. Portland police have a policy or practice of using indiscriminate killbox or kettling tactics against crowds including journalists and other neutrals. They have used the same tactic in at least November 2014, January 2017, and June 2017.32
F. The Police Announce an Unconstitutional Policy of Dispersing and Arresting Members of the Press Who Are Trying to Report on the Protests
107. On June 14, the police announced that they would enforce dispersal orders against media and neutral observers unless the members of the press had been handpicked by the police to be “imbed[ded]” with the police.33
108. The police subsequently warned reporters and neutral observers that they must obey the police’s dispersal orders to protesters if they wished to “stay safe and avoid arrest or altercation.” In the view of the police, “[t]he unlawful orders [sic] apply to everyone”—except those the police have permitted to be “imbedded” with them.34
109. This proclamation was issued from the official Twitter account of the Portland police, @PortlandPolice, and is a written statement of the Bureau’s formal policy. It is also an accurate statement of the Portland police’s widespread custom and practice. Plaintiffs and
31 Wm. Steven Humphrey, Live Updates: Protesting the Death of George Floyd in Downtown Portland, Night Five, Portland Mercury (June 2, 2020), https://www.portlandmercury.com/blogtown/2020/06/02/28499376/live-updates-protesting-thedeath-of-george-floyd-in-downtown-portland-night-five. 32 Maxine Bernstein, Portland police deny ‘kettling’ of protesters in response to ACLU lawsuit, The Oregonian (Jan. 19, 2019), https://www.oregonlive.com/portland/2018/01/portland_police_deny_kettling.html. 33 @PortlandPolice, Twitter (June 14, 2020, 9:33 P.M.), https://twitter.com/PortlandPolice/status/1272386641462607872. 34 @PortlandPolice, Twitter (June 14, 2020, 9:33 P.M.), https://twitter.com/PortlandPolice/status/1272386738338410496.
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Plaintiff Class have repeatedly been dispersed by the police when they were peacefully trying to record the protests and posed no danger to the public or law enforcement.
110. The police have not rescinded this proclamation or changed their practice. 111. This policy is an unlawful viewpoint-based restriction on speech. Once the police issue a dispersal order, this policy gives them unbridled discretion over which reporters may remain, and thus permits them to control the content of reporters’ coverage.35 It is designed to prevent reporters and legal observers from holding the police accountable precisely when accountability is most needed. No government interest can justify such a policy, especially because reporters are not a threat to the public, police, or property. Nor is there any alternative way for reporters not embedded with the police to report on the violence with which police enforce their dispersal order. G. The Police’s Intimidation Campaign Works 112. The police’s campaign of intimidation and fear has been effective. Plaintiff Woodstock’s experience is typical. 113. Plaintiff Woodstock has been a journalist for seven years. They have been published in the Washington Post, NPR, Portland Monthly, Travel Portland, and the Portland Mercury. They are a seasoned veteran of reporting in tense situations. 114. Plaintiff Woodstock is not a threat to the public or to law enforcement and has not engaged in any activities that would constitute such a threat. Plaintiff Woodstock does their best to avoid police violence but has been swept up in it anyway when the police assaulted individuals near them or ordered them to leave on pain of being assaulted or arrested. They have seen people next to them get shot in the head with rubber munitions. They have witnessed
35 See, e.g., Elana J. Zeide, Note, In Bed with the Military: First Amendment Implications of Embedded Journalism, 80 N.Y.U. LAW REV. 1309, 1321 (“Embedding typically takes place in a constrained environment where journalists cannot afford to alienate the limited sources available. Accordingly, most reporters will be reluctant to publish anything that the officers and soldiers surrounding them might receive badly.”).
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reporters getting shot with rubber bullets or maced in the face when they tried to gather evidence. The have been tackled by police in the course of their reporting through no fault of their own.
115. The Portland police’s indiscriminately violent conduct toward journalists and protesters alike has made it difficult—and at times, impossible—for Plaintiff Woodstock to report on the protests accurately and thoroughly.
116. For example, because police shoot rubber bullets at and otherwise use force against anyone who approaches gas canisters or spent rounds, including journalists, Plaintiff Woodstock is unable to verify whether tear gas was used at a particular location, or whether a particular round fired at a protester’s head was a rubber bullet or some other impact munition.
117. Similarly, Plaintiff Woodstock is unable to determine which agency’s officers are enforcing a dispersal order in a given location because police shoot anyone who approaches, including journalists.
118. Because the police threaten to arrest any journalist who remains in an area after a dispersal order, Plaintiff Woodstock generally complies and departs after a dispersal order is issued. The result, however, is that Plaintiff Woodstock is unable to document the violent tactics with which police enforce their dispersal order against protesters. On information and belief, at least one time after they complied with a dispersal order, the police severely attacked the group of protesters they were covering.
119. The police’s goal is to prevent the press from holding them accountable. It works. H. Plaintiffs Are Suffering Irreparable Harm 120. Plaintiffs fear for their safety from police violence. Reporters who attend and document the protests are at risk of being hit with tear gas, rubber bullet, police batons, arrests, and more. Even reporters who remain at the rear of the crowd cannot cover the protests without injury because the police use strategies like the “killbox” strategy they used on June 2. 121. Plaintiffs and Plaintiff Class want to continue attending protests to gather news and observe and document how police are treating demonstrators, and whether demonstrators are actually provoking the outpouring of violence from the police, as the police claim, or whether
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police are engaging in indiscriminate unprovoked violence. They also want to be able to document how police are dispersing protesters. They are fearful, however, that they themselves will be targeted for the same violence police mete out against protesters. The police have prevented Plaintiffs and Plaintiff Class from documenting how police have dispersed protesters and have repeatedly told them that they will be similarly arrested and assaulted if they fail to stop recording these events.
122. On information and belief, countless others would report on the ongoing protests and volunteer to neutrally and peacefully observe them, but for fear that they would be subjected to police violence.
123. The police’s use of force against journalists has become so untenable, and their targeting of journalists so obvious, that even Mayor Wheeler admitted that the Bureau’s tactics are “extremely concerning” and that “[j]ournalists need to be able to cover the protests safely.”36
CLASS ALLEGATIONS 124. Plaintiffs Lewis-Rolland, Woodstock, Gehrke, and Rudoff (the “Journalist Plaintiffs”) bring this action under Rules 23(a) and 23(b)(1)-(3) of the Federal Rules of Civil procedure on behalf of themselves and a class of similarly situated people who, as journalists, reporters, and photographers, have been subjected to violence, retaliation, arrest, or dispersal by the Portland police, or who will in the future report on protest activity or the conduct of law enforcement officers on duty within the City of Portland in traditional or designated public fora (the “Plaintiff Class”). The Plaintiff Class is defined as: All reporters, journalists, and photographers who on or after May 25, 2020, have been subjected to violence, arrested, or dispersed by the Portland police while covering a protest, or who intend to engage in newsgathering or reporting in Portland related to protest activities and/or the law enforcement response to those
36 @tedwheeler, Twitter (June 15, 2020, 11:30 A.M.), https://twitter.com/tedwheeler/status/1272597259150999553.
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protests. 125. The Plaintiff Class is so numerous that joinder of all the members would be impracticable. Hundreds of journalists are in Portland to cover the protests that followed Mr. Floyd’s murder and the aftermath. 126. As a result of Defendants’ custom or policy of arresting members of the Plaintiff Class; targeting them with rubber bullets, chemical irritants, truncheons, and other uses of force; denying them freedom of movement to observe, record, and report on public demonstrations and law enforcement officers on duty; and intimidating them by threats of violence and arrest, the Plaintiff Class have been and will continue to be deprived of their constitutional rights under the First and Fourth Amendments. 127. The Journalist Plaintiffs’ claims for prospective relief are typical of the members of the Plaintiff Class because protests are ongoing and the Journalist Plaintiffs and Plaintiff Class have a reasonable fear that Defendants will continue to carry out their unconstitutional customs or policies. 128. The Journalist Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. The Journalist Plaintiffs have no conflicts involving other class members or Defendants. The Journalist Plaintiffs understand their role as class representatives and their duties to the class in this litigation. Plaintiffs are represented by competent and skilled counsel whose interests are fully aligned with the interests of the class. 129. Questions of law or fact are common to the class. These legal and factual questions include but are not limited to:
a. Whether targeting journalists with violence and threats of violence violates the First Amendment; b. Whether targeting journalists with violence and threats of violence violates the Fourth Amendment; c. Whether targeting journalists with arrests and threats of arrest violates the First Amendment;
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d. Whether targeting journalists with arrests and threats of arrest violates the Fourth Amendment; e. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists constitute a viewpoint-based restriction on speech that violates the First Amendment; f. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists constitute an overbroad restriction on speech that violates the First Amendment; g. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists serve any legitimate government interest; h. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists are narrowly tailored; i. Whether Defendants’ policy of embedding select journalists vests unbridled discretion to permit or prohibit speech in City officials; j. Whether Defendants’ policy of embedding select journalists is an unlawful prior restraint in violation of the First Amendment; k. Whether Defendant City of Portland is liable for implementing a written or unwritten policy that violates the Fourth Amendment under principles of municipal liability; l. Whether Defendant City of Portland is liable for a custom or practice that violates the First Amendment under principles of municipal liability; m. Whether Defendant City of Portland is liable for a custom or practice that violates the Fourth Amendment under principles of municipal liability; n. Whether Defendant City of Portland has manifested a failure to properly train and supervise its agents and officers; o. Whether Defendant City of Portland has exhibited a deliberate indifference to the unconstitutional conduct alleged in this Complaint.
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130. Maintaining individual actions would create a risk of “inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Multiple courts issuing multiple injunctions governing the engagement and use-of-force standards for law enforcement would be entirely untenable. Doing so would only contribute to a state of uncertainty and confusion that would allow the constitutional violations described in this Complaint to continue.
131. This case involves “adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications.” Fed. R. Civ. P. 23(b)(1)(B). A ruling with respect to a single Journalist Plaintiff in this case would arguably be strong stare decisis with respect to other putative class members and members of the law enforcement community. There is no benefit to litigating the overwhelmingly common issues in this case individually. The interests of both Plaintiff Class members and Defendants requires class-wide treatment.
132. Defendants have “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The Journalist Plaintiffs were targeted not because of anything unique to them as individuals, but because of their activities as journalists. Defendants targeted the Journalist Plaintiffs as part of a broader pattern and practice of unconstitutional conduct directed against the Plaintiff Class, including without limitation the police’s unlawful policy related to dispersing members of the press. Injunctive relief for the “class as a whole” is the only mechanism available to afford relief in light of conduct directed specifically to the class.
133. Common questions of law and fact “predominate over any questions affecting only individual members,” and a class action is “superior to other available methods for fairly and efficiently adjudicating” this controversy. Fed. R. Civ. P. 23(b)(3). The questions outlined in
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paragraph 129 above are the primary questions in this litigation, and no other method will adjudicate this controversy as fairly and efficiently as a class action.
CAUSES OF ACTION 134. “If a government agency restricts public access, the media’s only recourse is the court system. The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.” Leigh, 677 F.3d at 898.
First Cause of Action (Violation of the First Amendment) 135. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 136. Plaintiffs and Plaintiff Class are engaged in constitutionally protected acts of speech and expressive conduct. Defendants retaliated against Plaintiffs and Plaintiff Class for engaging in such constitutionally protected activity. Defendants have targeted journalists and legal observers for arrests, threats of arrests, and use of force. 137. Defendants’ policy of dispersing neutrals who are reporting on protests violates Plaintiffs’ First Amendment rights on its face and as applied. Journalists and observers engaged in newsgathering do not present public safety issues, and keeping them from newsgathering during a protest thus does not serve any legitimate government interest. Defendants know that reporters do not threaten public safety because they are willing to allow reporters and observers whom they handpick to attend the protests. Moreover, preventing journalists and observers from newsgathering during enforcement of an unlawful-assembly order does not provide alternative channels for newsgathering on police’s enforcement of that order. 138. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from reporting on the protests, including the very police brutality against which the protesters were demonstrating. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from monitoring, recording, and reporting on police misconduct.
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139. Defendants’ acts would chill a reasonable person from continuing to engage in a constitutionally protected activity. These acts did, in fact, chill Plaintiffs and Plaintiff Class from continuing to support, observe, record, and report on some events of public interest, including constitutionally protected demonstrations and the conduct of law enforcement officers on duty in a public place. Plaintiffs and Plaintiff Class reasonably fear that if they continue to engage in such constitutionally protected activity, the police will continue to use tear gas, excessive force, flash-bang grenades, rubber bullets, riot batons, and other means to chill their right to free speech.
140. By retaliating against Plaintiffs and Plaintiff Class for engaging in constitutionally protected activity, and by adopting an unlawful policy that restricts activities protected by the First Amendment, Defendants, under color of state law, subjected or caused Plaintiffs and Plaintiff Class to be subjected to the deprivation of rights secured by the First Amendment of the Constitution.
141. It was the City’s policy, practice, or custom, as well as its failure to train and supervise its employees and agents and issue corrective instructions after violations were brought to light, that caused the First Amendment retaliation.
142. The City’s failure to supervise and train its employees and agents with respect to the First Amendment rights of Plaintiffs and Plaintiff Class, including a failure to investigate and discipline officers for First Amendment violations, amounts to deliberate indifference to the rights of Plaintiffs and Plaintiff Class.
143. The pattern of similar constitutional violations against Plaintiffs and Plaintiff Class that occurred during the George Floyd protests demonstrates the City’s deliberate indifference to Plaintiffs’ and Plaintiff Class’s First Amendment rights.
144. Given the multiple constitutional violations documented above, the need for more supervision or training was so obvious, and the inadequacy of the training and supervision so likely to result in the violation of constitutional rights, that the City demonstrated its deliberate indifference to the need for such training and supervision.
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Second Cause of Action (Violation of the Fourth Amendment) 145. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 146. Plaintiffs and Plaintiff Class, who were present at the protests to observe and report committed no crime. Nor did they pose a threat to any of Defendants’ officers or agents or any other person. 147. Plaintiffs and Plaintiff Class were seized by Defendants when their officers intentionally, through threats of arrest, chemical agents, rubber bullets, and other uses of force, terminated their freedom of movement. 148. Using threats of arrest, riot batons, semi-lethal projectiles, and chemical weapons against neutral parties who are present to observe protests and report on them is an unconstitutionally excessive use of force. Defendants’ seizure of Plaintiffs and Plaintiff Class was thus objectively unreasonable. Defendants, under color of state law, subjected or caused Plaintiffs to be subjected to the deprivation of rights secured by the Fourth Amendment of the Constitution. 149. It was the City’s policy, practice, or custom, as well as its failure to train and supervise its employees and agents and issue corrective instructions after violations were brought to light, that caused the Fourth Amendment violations. 150. The City’s failure to supervise and train its employees and agents with respect to the Fourth Amendment rights of Plaintiffs and Plaintiff Class, including a failure to investigate and discipline officers for Fourth Amendment violations, amounts to deliberate indifference to the rights of Plaintiffs and Plaintiff Class. 151. The pattern of similar constitutional violations against Plaintiffs and Plaintiff Class that occurred during the Floyd protests demonstrates the City’s deliberate indifference to Plaintiffs’ and Plaintiff Class’s Fourth Amendment rights.
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152. Given the multiple constitutional violations documented above, the need for more supervision or training was so obvious, and the inadequacy of the training and supervision so likely to result in the violation of constitutional rights, that the City demonstrated its deliberate indifference to the need for such training and supervision.
153. Plaintiffs reasonably fear further retaliation in the future in violation of the Fourth Amendment if they continue to observe, record, or participate in constitutionally protected activity.
Third Cause of Action (Violation of the Oregon Constitution, Art. I, §§ 8, 26) 154. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 155. Article I, § 8, of the Oregon Constitution provides: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for abuse of this right.” Article I, § 26, provides: “No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of [grievances].” 156. “The difference in the language of the Oregon and federal constitutions may . . . be pointed to as indicating an intention to provide a larger measure of protection to free expression under the Oregon Constitution. The California Constitution, which contains language similar to Oregon Constitution, Art. I, § 8, was so construed in Wilson v. Superior Court of Los Angeles County, 532 P.2d 116, 120 (Cal. 1975), where the court said: ‘A protective provision more definitive and inclusive than the First Amendment is contained in our state constitutional guarantee of the right of free speech and press.’” Deras v. Myers, 272 Or. 47, 64 n.17 (Or. 1975); see also State v. Tusek, 52 Or. App. 997, 1000 n.2 (Or. Ct. App. 1981) (“[I]n some instances, Art I
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§ 8 of the Oregon Constitution provides a larger measure of protection to citizens than does the First Amendment to the U.S. Constitution.”).
157. Plaintiffs and Plaintiff Class are engaged in constitutionally protected acts of speech and expressive conduct secured by the Oregon Constitution, Art. I, §§ 8 and 26. Defendants retaliated against Plaintiffs and Plaintiff Class for engaging in such constitutionally protected activity. Defendants have targeted journalists and legal observers for arrests, threats of arrests, and use of force.
158. Defendants’ policy of dispersing neutrals who are reporting on protests violates Plaintiffs’ constitutional right to free speech on its face and as applied. Journalists and observers engaged in newsgathering do not present public safety issues, and keeping them from newsgathering during a protest thus does not serve any legitimate government interest. Defendants know that reporters do not threaten public safety because they are willing to allow reporters and observers whom they handpick to attend the protests. Moreover, preventing journalists and observers from newsgathering during enforcement of an unlawful-assembly order does not provide alternative channels for newsgathering on police’s enforcement of that order.
159. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from reporting on the protests, including the very police brutality against which the protesters were demonstrating. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from monitoring, recording, and reporting on police misconduct.
160. Defendants’ acts would chill a reasonable person from continuing to engage in a constitutionally protected activity. These acts did, in fact, chill Plaintiffs and Plaintiff Class from continuing to support, observe, record, and report on some events of public interest, including constitutionally protected demonstrations and the conduct of law enforcement officers on duty in a public place. Plaintiffs and Plaintiff Class reasonably fear that if they continue to engage in such constitutionally protected activity, the police will continue to use tear gas, excessive force, flash-bang grenades, rubber bullets, riot batons, and other means to chill their right to free speech.
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161. By retaliating against Plaintiffs and Plaintiff Class for engaging in constitutionally protected activity, Defendants subjected or caused Plaintiffs to be subjected to the deprivation of rights secured by the Oregon Constitution, Art. I, §§ 8 and 26.
Fourth Cause of Action (Declaratory Judgment) 162. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 163. Plaintiffs and Plaintiff Class intend to continue attending protests in Portland for the purpose of documenting, reporting on and observing the events. Plaintiffs are fearful, however, that they will be subjected to police violence or dispersed pursuant to the police’s illegal policy. Plaintiffs are also fearful that the police will continue to use kettling and killbox tactics against protesters that sweep in media and observers. 164. As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant issuing a declaratory judgment that threatening Plaintiffs and Plaintiff Class with arrest, arresting Plaintiffs and Plaintiff Class, and targeting Plaintiffs and Plaintiff Class for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters, violates the First Amendment. 165. As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant issuing a declaratory judgment that threatening Plaintiffs and Plaintiff Class with arrest, arresting Plaintiffs and Plaintiff Class, and targeting Plaintiffs and Plaintiff Class for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters, violates the Fourth Amendment.
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166. As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant issuing a declaratory judgment that threatening Plaintiffs and Plaintiff Class with arrest, arresting Plaintiffs and Plaintiff Class, and targeting Plaintiffs and Plaintiff Class for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters, violates Article I, Section 8 of the Oregon Constitution.
167. A judicial declaration is necessary and appropriate so that Plaintiffs and Plaintiff Class may ascertain their rights to engage in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters.
168. Plaintiffs and Plaintiff Class are entitled to a declaratory judgment that Defendants may not threaten Plaintiffs and Plaintiff Class with arrest, arrest Plaintiffs and Plaintiff Class, or target Plaintiffs and Plaintiff Class for uses of force, while they are engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters. / / / / / / / / / / / / / / / / / / / / / /
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief: A. Declaratory relief; B. Injunctive relief; C. Compensatory damages; D. Punitive damages; E. An award of pre-judgment interest; F. An award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; G. Any other relief the Court deems proper.

Dated: June 28, 2020

Respectfully submitted,
By: s/ Kelly K. Simon Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Athul K. Acharya, OSB No. 152436 Matthew Borden, pro hac vice pending J. Noah Hagey, pro hac vice pending Gunnar K. Martz, pro hac vice pending BRAUNHAGEY & BORDEN LLP
Attorneys for Plaintiffs

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 Case 3:20-cv-01035-SI Document 33 Filed 07/02/20 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

TUCK WOODSTOCK; DOUG BROWN; SAM GEHRKE; MATHIEU LEWISROLLAND; KAT MAHONEY; JOHN RUDOFF; and those similarly situated,
Plaintiffs,
V.
CITY OF PORTLAND; and JOHN DOES 1-60,
Defendants.

Case No. 3:20-cv-1035-SI
TEMPORARY RESTRAINING ORDER

Matthew Borden, J. Noah Hagey, Athul K. Acharya, and Gunnar K. Martz, BRAUNHAGEY & BORDEN LLP, 351 California Street, Tenth Floor, San Francisco, CA 94104; Kelly K. Simon, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON, P.O. Box 40585, Portland, OR 97240. Of Attorneys for Plaintiffs.
Naomi Sheffield and Denis M. Vannier, Deputy City Attorneys, OFFICE OF THE PORTLAND CITY ATTORNEY, 1221 SW Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendants.
Michael H. Simon, District Judge.
Plaintiffs Tuck Woodstock, Doug Brown, Sam Gehrke, Mathieu Lewis-Rolland, Kat
Mahoney, and John Rudoff (collectively, "Plaintiffs") bring this putative class action against the
City of Portland (the "City") and numerous as-of-yet unnamed individual and supervisory

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officers of the Portland Police Bureau ("PPB") and other agencies allegedly working in concert with the PPB. As alleged in the Complaint, Plaintiffs seek "to stop the Portland police from assaulting news reporters, photographers, legal observers, and other neutrals who are documenting the police's violent response to protests over the murder of George Floyd."
Complaint, ,r 1 (ECF 1). Plaintiffs asse1i that "[t]he police's efforts to intimidate the press and
suppress reporting on the police's own misconduct offends fundamental constitutional protections and strikes at the core of our democracy." Id. Plaintiffs allege violations of the First and Fourth Amendments of the United States Constitution and Article I, sections 8 and 26 of the Oregon Constitution. Plaintiffs request declaratory and injunctive relief and money damages. Pending before the Court is Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction. ECF 7. The Court has reviewed Plaintiffs' motion and 19 supporting declarations. Although Defendants have not yet formally appeared in this lawsuit or had sufficient time to file any responsive documents, on July 1 and July 2, 2020, the Court heard the respective positions of the parties by telephone conference. For the reasons explained below, Plaintiffs' motion for a temporary restraining order ("TRO") is granted in part.
STANDARDS In deciding whether to grant a motion for TRO, courts look to substantially the same factors that apply to a court's decision on whether to issue a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that
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an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit's earlier rule that the mere "possibility" of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).
The Supreme Court's decision in Winter, however, did not disturb the Ninth Circuit's alternative "serious questions" test. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, '"serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132. Thus, a preliminary injunction may be granted "if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest." MR. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).
DISCUSSION Plaintiff Tuck Woodstock has been a journalist for seven years. Their work has been published in the Washington Post, NPR, Portland Monthly, Travel Portland, and the Portland Mercury. They has attended the George Floyd protests several times as a freelancer for the Portland Mercury and more times as an independent journalist. When they attended these protests, they wears a press pass from the Portland Mercury that states "MEDIA" in large block letters. At all times during police-ordered dispersals, They holds a media badge over their head.
ECF 23, ,r,r 2-3.
Plaintiff Doug Brown has attended many protests in Portland, first as a journalist with the Portland Mercury and later as a volunteer legal observer with the ACLU. He has attended the George Floyd protests on several nights, wearing a blue vest issued by the ACLU that clearly identifies him as a legal observer, for the purpose of documenting police interactions with
protesters. ECF 9, ,r,r 1-2.
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Plaintiff Sam Gehrke has been a journalist for four years. He previously was on the staff of the Willamette Week as a contractor. He now is a freelance journalist. His work has been published in Pitchfork, Rolling Stone, Vortex Music, and Eleven PDX, a Portland music magazine. He has attended the protests in Portland during the last month for the purpose of documenting and reporting on them, and he wears a press pass from the Willamette Week.
ECF 10, ,r,r 1-3.
Plaintiff Mathieu Lewis-Rolland is a freelance photographer and photojournalist who has covered the ongoing Portland protests. He has been a freelance photographer and photojournalist for three years and is a regular contributor to Eleven PDX He is listed on its masthead. ECF 12,
,r,r 1-2.
Plaintiff Kat Mahoney is an independent attorney and unpaid legal observer. She has attended the Portland protests nearly every night for the purpose of documenting police interactions with protesters. She wears a blue vest issued by the ACLU that clearly identifies her
as an "ACLU LEGAL OBSERVER." ECF 13, ,r,r 1-2; ECF 26, ,r 3.
Plaintiff John Rudoff is a photojournalist. His work has been published internationally, including reporting on the Syrian refugee crises, the "Unite the Right" events in Charlottesville, Virginia, the Paris "Yellow Vest" protests, and the Rohingya Genocide. He has attended the protests in Portland during the past month for the purpose of documenting and reporting on them. While attending the Portland protests, he carries and displays around his neck press identification from the National Press Photographers Association, of which he has been a member for
approximately ten years. He also wears a helmet that is clearly marked "Press." ECF 17, ,r,r 1-3.
Plaintiffs and other declarants have submitted evidence of PPB officers targeting journalists. For example, Tuck Woodstock reports that on several nights, the police have
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announced that any members of the press who remain in a specified area "will be arrested alongside protesters." ECF 23,, 10. In addition, on June 30, 2020, Ms. Mahoney attended the protests in North Portland as a legal observer. She wore a blue ACLU-issued vest that clearly identifies her as a legal observer. Her vest reads "ACLU LEGAL OBSERVER," in big block letters across the back and smaller lettering on the front. Ms. Mahoney states that a police officer slammed her in the back with a truncheon, striking her diagonally from the base of her right shoulder blade to her lower left side, across her spine and ribcage. Another officer ran up to her, yelled, "MOVE," and shoved her. She stumbled into a protester and had to be helped to her feet, all while wearing her blue ACLU-issued legal observer vest with the words "ACLU LEGAL OBSERVER" plainly visible. She adds that she also saw the police chase and attempt to beat two other legal observers who also were clearly marked as legal observers. ECF 26, ,, 3, 9, 13.
Declarant Alex Milan Tracy is a journalist with a master's degree in photojournalism. He reports seeing PPB officers arresting photojournalist Justin Yau and journalists Cory Elia and Lesley McLay after the arresting officers were informed that these people were credentialed members of the press. Declarant Tracy adds that the police removed Ms. McLay's press badge during her arrest. ECF 28, ,, 1, 8-12. Declarant Tracy also reports that in the early hours of
June 16th, he was documenting police officers, when one officer told Mr. Tracy to "get out of here now" or he would be arrested. According to Mr. Tracy, the officer added, "I don't care if
you're press, get out of here right now." ECF 22,, 12. The First Amendment prohibits any law "abridging the freedom of speech, or of the
press[.]" U.S. Const., amend. I. Although the First Amendment does not enumerate special rights for observing government activities, "[t]he Supreme Court has recognized that newsgathering is an activity protected by the First Amendment." United States v. Sherman, 581 F.2d 1358, 1361
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(9th Cir. 1978); see Branzburg v. Hayes, 408 U.S. 665, 681 (1972) ("[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated.").
As the Ninth Circuit has explained: "Open government has been a hallmark of our democracy since our nation's founding." Leigh v. Salazar, 677 F.3d 892, 897 (9th Cir. 2012). Further, "the Supreme Court has long recognized a qualified right of access for the press and public to observe government activities." Id. at 898. By reporting about the government, the media are "surrogates for the public." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (Burger, C.J., announcing judgment); see also Cox Broad. Corp. v. Cohn, 420 U.S. 469, 490-91 (1975) ("[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations."). As further described by the Ninth Circuit, "[w]hen wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate." Leigh, 677 F.3d at 900 (quoting Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 STAN. L. REV. 927, 949 (1992) ("[W]hen the government announces it is excluding the press for reasons such as administrative convenience, preservation of evidence, or protection of reporters' safety, its real motive may be to prevent the gathering of information about government abuses or incompetence.")).
Addressing the requirements for granting a temporary restraining order, because Defendants have not yet entered a formal appearance or had a sufficient opportunity to respond to the allegations and evidence, it would be unfair at this time for the Court to conclude that Plaintiffs have shown a substantial likelihood of success on the merits. There is, however, nothing unfair in the Court recognizing now that Plaintiffs have shown, at the minimum, serious questions going to the merits. In Press-Enterprise Co. v. Superior Court ("Press-Enterprise IF'),
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478 U.S. 1 (1986), the Supreme Court established a two-part test for right of access claims. First, the court must determine whether a right of access attaches to the government proceeding or activity by considering (1) whether the place and process have historically been open to the press and general public and (2) whether public access plays a significant positive role in the functioning of the particular process in question. Press-Enterprise II, 478 U.S. at 8-9. Second, if the court determines that a qualified right applies, the government may overcome that right only by demonstrating "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 9 (citation omitted); see also Leigh, 677 F.3d at 898 (discussing Press-Enterprise II). The public streets historically have been open to the press and general public, and public observation of police activities in the streets plays a significant positive role in ensuring conduct remains consistent with the Constitution. Further, there are at least serious questions regarding the police tactics directed toward journalists and other legal observers and whether restrictions placed upon them by the PPB are narrowly tailored.
Next, anytime there is a serious threat to First Amendment rights, there is a likelihood of irreparable injury. "[U]nder the law of this circuit, a party seeking preliminary injunctive relief in a First Amendment context can establish irreparable injury sufficient to merit the grant of relief by demonstrating the existence of a colorable First Amendment claim." Warsoldier v. Woodford, 418 F.3d 989, 1001-02 (9th Cir. 2005) (quotation marks omitted); see also 1lA Charles Alan WRIGHT, FEDERAL PRACTICE & PROCEDURE,§ 2948.1 (2d ed. 2004) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of i1Teparable injury is necessary.").
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Regarding the public interest, "[c]ourts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles." Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (quotation marks omitted). Further, "it is always in the public interest to prevent the violation of a party's constitutional rights." Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quotation marks omitted) (granting an injunction under the Fourth Amendment). Finally, because Plaintiffs have "raised serious First Amendment questions," the balance of hardships "tips sharply in [Plaintiffs'] favor." Cmty. House, Inc. v. City ofBoise, 490 F.3d 1041, 1059 (9th Cir. 2007) (quotation marks omitted).
Accordingly, the Court grants in part Plaintiffs' motion for TRO (ECF 7) and Orders as follows:
TEMPORARY RESTRAINING ORDER 1. Defendants and their agents and employees, including but not limited to the Portland Police Bureau and all persons acting under the direction of the Portland Police Bureau (collectively, "the Police"), are enjoined from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), unless the Police have probable cause to believe that such individual has committed a crime. For purposes of this Order, such persons shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse. Such persons shall, however, remain bound by all other laws. 2. Defendants and their agents and employees, including but not limited to the Portland Police Bureau and all persons acting under the direction of the Portland Police Bureau (collectively, "the Police"), are further enjoined from seizing any photographic equipment,
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audio- or video-recording equipment, or press passes from any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), or ordering such person to stop photographing, recording, or observing a protest, unless Defendants are also lawfully seizing that person consistent with this Order. Police must return any seized equipment or press passes immediately upon release of a person from custody.
3. To facilitate the Police's identification of Journalists protected under this Order, the following shall be considered indicia of being a Journalist: visual identification as a member of the press, such as by carrying a professional or authorized press pass or wearing a professional or authorized press badge or distinctive clothing that identifies the wearer as a member of the press. These indicia are not exclusive, and a person need not exhibit every indicium to be considered a Journalist under this Order. The Police shall not be liable for unintentional violations of this Order in the case of an individual who does not carry a press pass or wear a press badge or distinctive clothing that identifies the wearer as a member of the press.
4. To facilitate the Police's identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU issued or authorized Legal Observer vest.
5. The Police may issue otherwise lawful crowd-dispersal orders for a variety of lawful reasons. The Police shall not be liable for violating this Order if a Journalist or Legal Observer is incidentally exposed to crowd-control devices after remaining in the area where such devices were deployed after the issuance by the Police of an otherwise lawful dispersal order.
6. In the interest ofjustice, Plaintiffs need not provide any security, and all requirements under Rule 65(c) of the Federal Rules of Civil Procedure are waived.
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Case 3:20-cv-01035-SI Document 33 Filed 07/02/20 Page 10 of 10 7. This Order shall expire fourteen (14) days after entry, unless otherwise extended by stipulation of the parties or by further order of the Court. 8. The paiiies shall confer and propose to the Court a schedule for briefing and hearing on whether the Court should issue a preliminary injunction. IT IS SO ORDERED. DATED this 2nd day of July, 2020, at 4:55~
Michael H. Simon United States District Judge
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Matthew Borden, pro hac vice application pending borden@braunhagey.com J. Noah Hagey, pro hac vice application pending hagey@braunhagey.com Athul K. Acharya, OSB No. 152436 acharya@braunhagey.com Gunnar K. Martz, pro hac vice application pending martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND, a municipal corporation; and JOHN DOES 1-60, officers of Portland Police Bureau and other agencies working in concert,
Defendants.

Case No. 3:20-cv-1035-SI
CLASS ACTION ALLEGATION FIRST AMENDED COMPLAINT DEMAND FOR JURY TRIAL

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Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau, on behalf of themselves and those similarly situated, allege as follows:
INTRODUCTION 1. This case seeks to stop the Portland police1 from assaulting news reporters, photographers, legal observers, and other neutrals who are documenting the police’s violent response to protests over the murder of George Floyd. The police’s efforts to intimidate the press and suppress reporting on the police’s own misconduct offends fundamental constitutional protections and strikes at the core of our democracy. 2. Plaintiffs are a newspaper, members of the media, and legal observers, who have a right to witness important public events and recount them to the world. Plaintiff Portland Mercury is a newspaper that has been reporting on critical events for the last two decades. Plaintiffs Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Sergio Olmos, John Rudoff, Alex Tracy, Tuck Woodstock, and Justin Yau are journalists whom the Portland police attacked with flash-bang grenades, rubber bullets, and tear gas merely for seeking to cover the protests. Plaintiffs Kat Mahoney and Doug Brown are neutral legal observers whom the Portland police assaulted with batons, rubber bullets, and tear gas simply for watching how they were treating demonstrators. Plaintiff Class is comprised of all journalists and legal observers who have or will be attacked or forcefully dispersed by Defendants pursuant to their unlawful policy of targeting and dispersing neutrals. 3. The police retaliation against Plaintiffs is part of a broader pattern: The Portland police have repeatedly and intentionally shot, gassed, and beaten journalists and observers covering the George Floyd demonstrations.
1 For convenience, the term “Portland police” in this Complaint refers to officers of the Portland Police Bureau as well as any officers of other law enforcement agencies working in concert with the Portland Police Bureau within the City of Portland.
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4. On June 2, the police tear-gassed reporters Alex Zielinski and Blair Stenvick of Plaintiff Portland Mercury; Plaintiffs Gerhke, Mahoney, and Tracy; and many other journalists and legal observers.
5. On June 3, the police physically assaulted KBOO reporter Cory Elia, even though he identified himself as press, because he was recording them. Video here: https://tinyurl.com/EliaAssaulted.
6. On June 6, the police hit freelance journalist Plaintiff Sergio Olmos with a truncheon and threatened to tear gas him because he was recording them. His press pass was clearly visible. Video here: https://tinyurl.com/OlmosBeaten.
7. On June 7, the police attacked Donovan Farley with a wooden bat and sprayed him in the face with tear gas or pepper spray while he was trying to walk away from them. He had identified himself as press and was filming several police officers kneeling on a protester’s neck, Derek Chauvin-style. Video here: https://tinyurl.com/FarleyBeatenAndSprayed.
Figure 1: Farley films the arrest (1); one officer approaches him, truncheon aloft (2); officer beats Farley as he retreats (3); officer sprays Farley as he retreats (4).
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8. On June 7, the police attacked Mr. Elia again—this time with a blast of tear gas to the face. Mr. Elia was holding up his press pass, and police knew he was press when they attacked him. Video here: https://tinyurl.com/EliaSprayed.
9. On June 13, the police slammed reporter Beth Nakamura of The Oregonian in the back with a truncheon. She had her hands up, press pass in hand, and was saying “press, press.” The officer responded: “I don’t give a fuck.”
10. Also on June 13, the police ordered reporter Zane Sparling of The Portland Tribune to leave an area where they were enforcing a dispersal order against protesters. Sparling responded that he was media. The officer responded: “I don’t give a shit! Go!” He then shoved Mr. Sparling into a wall, and another officer shot a crowd-control munition at his heel. Video here: https://tinyurl.com/SparlingAssaulted.
11. On June 14, the police announced that they would use force to disperse reporters and protestors alike—except for select reporters that they allowed to “imbed” with police. This viewpoint-based restriction on speech violates the rights of the press to observe and report on important events. It is not narrowly tailored to achieve any legitimate government objective; rather, it is designed to prevent the press from exposing police violence. Nor could any law preventing coverage of protests pass constitutional muster because there is no compelling need to preclude the media from observing and reporting. Defendants’ policy remains in place, is being used to remove journalists and observers, and is chilling reporters and observers from monitoring and reporting on important events.
12. Thereafter, the police continued their attacks on journalists and legal observers. 13. On the night of June 15-16, the police noticed Plaintiff Conley using his camera and launched at least one flash-bang grenade directly at him. He was nowhere near any protesters and there was no other target at which the police could have been aiming. The police later charged at him, after telling him that it did not matter if he was media. Plaintiff Conley fell over while running away and only narrowly avoided a traumatic head injury. 14. On June 19, the police shot Plaintiff Rudoff with pepper balls.
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15. The day after this lawsuit was filed, the police intensified their attacks on journalists and legal observers. They struck Plaintiff Mahoney with a truncheon across the back, where the words “ACLU LEGAL OBSERVER” are emblazoned on her vest; they arrested Plaintiff Yau; they assaulted Plaintiff Woodstock; and they arrested two other journalists, Cory Elia and Lesley McLam.
16. Many other journalists have reported that they have been specifically targeted.2 Indeed, members of the Plaintiff Class have petitioned Portland Mayor Ted Wheeler “to ensure that the Portland Police Bureau ceases assaulting and intimidating reporters.”3
17. In addition to intentionally targeting reporters and observers, the police are using indiscriminate force to punish them along with demonstrators. For instance, on June 2, the police sprayed a large group of protesters with tear gas from all sides in what is known as a “kettling” or “killbox” military strategy. Killboxing protesters cannot disperse them. Its sole purpose is to inflict pain and suffering. The police gassed many journalists and observers in this operation, including Plaintiffs Gehrke, Mahoney, and Tracy, as well as reporters Alex Zielinski and Blair Stenvick of Plaintiff Portland Mercury.
18. Intimidating reporters is the craft of the world’s most oppressive regimes and has no place in Portland—or anywhere else in the world.4 As the Ninth Circuit has observed, “[w]hen wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.” Leigh v. Salazar, 677 F.3d 892, 898 (9th Cir. 2012).
2 Rebecca Ellis, Police Keep Injuring Journalists Covering Portland Protests, OPB (June 15, 2020), https://www.opb.org/news/article/portland-journalists-harmed-covering-george-floydblm-protests/. 3 Mayor Wheeler: Protect journalists and the First Amendment, Change.org, https://www.change.org/p/mayor-ted-wheeler-mayor-wheeler-protect-the-first-amendment (last visited June 24, 2020, 1:39 P.M.). 4 See, e.g., Syrian Forces Aimed to Kill Journalists, U.S. Court Is Told, N.Y. Times (Apr. 9, 2018), https://www.nytimes.com/2018/04/09/world/middleeast/syria-marie-colvin-death.html; Duterte Says Journalists in the Philippines ‘Are Not Exempt from Assassination’, Time (June 1, 2016), https://time.com/4353279/duterte-philippines-journalists-assassination/; Violence against Journalists Escalates in Hong Kong, Reporters Without Borders (Aug. 13, 2019), https://rsf.org/en/news/violence-against-journalists-escalates-hong-kong.
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19. Plaintiffs seek monetary damages and prospective injunctive relief so that they can report on police activities without fear of being targeted for punishment.
PARTIES 20. Plaintiff Portland Mercury is an alternative bi-weekly newspaper and media company founded in 2000 in Portland, Oregon. Its headquarters are at 115 SW Ash Street, Suite 600, Portland, OR 97204. It is published by Index Newspapers LLC, a Washington limitedliability company. 21. Plaintiff Doug Brown is an Oregon resident who lives in the City of Portland. He has attended protests in Portland every year since 2016, first as a journalist with the Portland Mercury and then as a volunteer legal observer with the ACLU. He has attended the George Floyd protests on several nights for the purpose of documenting police interaction with protesters. 22. Plaintiff Sam Gehrke is an Oregon resident who lives in the City of Portland. He is a freelance photojournalist whose work has been published in Pitchfork, Rolling Stone, Vortex Music, and Eleven PDX. He has attended the protests in Portland on several nights for the purpose of documenting and reporting on them. 23. Plaintiff Mathieu Lewis-Rolland is an Oregon resident who lives in the City of Portland. He is a photographer for Eleven PDX, and his work has also been featured in local news outlets and on the official website for the City of Portland. He attended protests in Portland on several nights for the purpose of documenting them. 24. Plaintiff Kat Mahoney is an Oregon resident who lives in the City of Portland. She is an independent attorney and volunteers as a legal observer with the ACLU. She has attended the protests nearly every night for the purpose of documenting police interaction with protesters. 25. Plaintiff Sergio Olmos is an Oregon resident who lives in the City of Portland. His work has been published in the Portland Tribune, the Willamette Week, Reveal: The Center for Investigative Reporting, Crosscut, The Columbian, and InvestigateWest. He has attended the
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protests as a freelance journalist on many nights for the purpose of documenting and reporting on them.
26. Plaintiff John Rudoff is an Oregon resident who lives in the City of Portland. He is a photojournalist whose work has been published internationally, including extensive reporting on the Syrian refugee crisis, the ‘Unite the Right’ events in Charlottesville, Virginia, the Paris ‘Yellow Vest’ protests, and the Rohingya Genocide. He has covered protests (among other things) in Portland for more than five years, and his work has appeared in the New York Times, the Guardian, CBS, and ABC, among other sites. He has attended the protests in Portland on many nights for the purpose of documenting and reporting on them.
27. Plaintiff Alex Milan Tracy is an Oregon resident who lives in the City of Portland. He has published his work in local and national publications, including the Associated Press. He has attended the protests as a freelance journalist on many nights for the purpose of documenting and reporting on them.
28. Plaintiff Tuck Woodstock is an Oregon resident who lives in the City of Portland. They have been a journalist for seven years and their work has been published in the Washington Post, NPR, Portland Monthly, Travel Portland, and the Portland Mercury. They have attended the protests in Portland over the last six weeks over 20 times as a freelance and independent journalist for the purpose of documenting and reporting on them.
29. Plaintiff Justin Yau is an Oregon resident who lives in the City of Portland. He has covered protests in Hong Kong and Portland. He is a student at the University of Portland studying communications under the G.I. Bill, with a focus on journalism; before that, he served in the U.S. Army, where he was deployed to the Middle East in support of Operation Inherent Resolve. His work has been published in the Daily Mail, Reuters, and msn.com. He has attended the protests in Portland as a freelance and independent journalist for the purpose of documenting and reporting on them.
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30. Defendant City of Portland is a municipality incorporated in the State of Oregon. As a local governmental entity, the City of Portland is a juridical entity under 42 U.S.C. § 1983. The Bureau is a department or division of the City.
31. Defendant John Does 1-20 are police officers employed by the City who directly assaulted Plaintiffs and members of the Plaintiff Class. They are sued in their individual capacity.
32. Defendant John Does 21-30 are supervisory officials whose liability could include their own culpable action or inaction in the training, supervision, or control of their subordinates, their acquiescence in the constitutional deprivations alleged here, or conduct showing a reckless or callous indifference to the rights of Plaintiffs. They are sued in their individual capacity.
33. Defendant John Does 31-60 are individual and supervisory officers of other law enforcement agencies, including but not limited to the Clackamas County Sheriff’s Office, Clark County Sheriff’s Office, Multnomah County Sheriff’s Office, Washington County Sheriff’s Office, Port of Portland Police, Gresham Police, Vancouver Police, Washougal Police, Oregon State Police, and the Oregon National Guard, who are working under the Portland Police Bureau’s direction and control pursuant to PPB Directive 635.10 § 7 (“The Bureau may request assistance from other law enforcement agencies . . . . The Bureau [Incident Commander] shall maintain the authority to determine tactical objectives; direct the overall police response (all agencies); and determine, when objectively reasonable, how and when force may be used and when to deploy less lethal munitions to address civil disturbance and/or disperse the crowd.”). Does 31-60 are acting in concert with and as agents of the City and Does 1-30.
34. The Doe Defendants have concealed their identities and their names or they are not yet fully known to Plaintiffs. On information and belief, Does 1-60 are responsible for the conduct alleged herein.
JURISDICTION AND VENUE 35. This Court has subject matter jurisdiction over Plaintiffs’ claims of violation of federal constitutional rights under 28 U.S.C. §§ 1331 and 1343 because Plaintiffs’ causes of action arise under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202.
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36. Venue is proper in the District of Oregon under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in the District of Oregon and because Defendants are subject to personal jurisdiction in the District of Oregon.
FACTUAL ALLEGATIONS A. The Police Murdered George Floyd 37. On May 25, 2020, the police killed George Floyd in Minneapolis, Minnesota. 38. Mr. Floyd was the most recent in a long list of Black victims of police brutality, many of which caused protests across the nation. In Portland alone, the police have killed several Black people, including Quanice Hayes, Terrell Johnson, Keaton Otis, Aaron Campbell, Patrick Kimmons, Darris Johnson, and Kendra James. Some other well-known victims of lethal police force include Michael Brown, Breonna Taylor, Tamir Rice, Philando Castile, Freddie Gray, Walter Scott, Botham Jean, Atiana Jefferson, and, of course, Eric Garner, whose last words echoed those of Mr. Floyd: “I can’t breathe.” 39. Videos of Mr. Floyd’s murder were widely and rapidly disseminated around the world and catalyzed protests across the country in every major city. B. Portland Police Use Brutal Force Against Demonstrators Protesting Police
Brutality 40. In Portland, for over six weeks, thousands of people have gathered every night to protest and mourn Mr. Floyd’s murder and insist that our institutions start ensuring that Black lives matter. These protests continue to the present day. 41. One focal point for protesters has been the “Justice Center” in downtown Portland. The building houses the police’s central precinct, which includes offices for their command staff, a few county courtrooms, and a county jail where hundreds of people— disproportionately Black—are warehoused in small cage-like cells. Both Portland police arrest data and Multnomah County criminal justice data reveal that Black residents are disproportionately harmed by every part of the criminal justice system from arrest through
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prosecution and sentencing.5 The Justice Center is, in short, a perfect symbol of the iniquities protesters are demonstrating against.
42. With limited exceptions, these protests have been overwhelmingly peaceful. But nearly every night, the Portland police have used increasingly severe tactics to deter speech on this important issue.
43. Portland police have shot rubber bullets into crowds of protesters. Rubber bullets are 40mm-wide “pain compliance devices.” They are designed to “provide sufficient pain stimulus” to “incapacitat[e] … an aggressive, non-compliant subject.” But they can be lethal, especially if they hit someone in the head. Figure 2 depicts a round that an officer shot at one protester’s head as he was retreating with his hands up. Figure 3 depicts the severe type of injury such a round can inflict, even when it impacts only a large muscle group on a young, healthy individual.
Figure 2: Left, the manufacturer’s image of the 40mm eXact iMpact Sponge Round. Right, a rubber bullet that Portland police officers fired at a retreating, compliant protester.
5 W. Haywood Burns Institute for Justice Fairness and Equity, Racial and Ethnic Disparities in Multnomah County (Nov. 2019), https://multco.us/file/84525/download. PAGE 10 – FIRST AMENDED COMPLAINT

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Figure 3: An example of the severe injuries rubber bullets can inflict.
44. Portland police have also deployed multiple types of tear gas, including Agent CS, phenacyl chloride, and oleoresin capsicum. The use of tear gas is banned in warfare.6 It can cause inflammation, coughing, wheezing, vomiting, blistering, burns, and breathing difficulty or airway closure, especially in people with respiratory conditions.7 Its use is especially deadly during the current coronavirus pandemic, because it (1) “weaponizes” infected individuals to become “efficient transmitter[s] of infection”; (2) makes those not infected more likely to become infected; and (3) makes coronavirus more deadly to those it infects.8 Nevertheless, the police used tear gas indiscriminately against protesters nearly every night for the first week of protests and many nights since then.
6 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571. 7 Health Impacts of Crowd-Control Weapons: Chemical Irritants (Tear Gas and Pepper Spray), Physicians for Human Rights (Jan. 1, 2017), https://phr.org/our-work/resources/health-impactsof-crowd-control-weapons-chemical-irritants-tear-gas-and-pepper-spray/. 8 Expert Declaration of Peter Chin-Hong ¶¶ 6-7, Don’t Shoot Portland v. City of Portland, No. 3:20-cv-917-HZ (June 9, 2020), Dkt. 24. PAGE 11 – FIRST AMENDED COMPLAINT

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45. On June 6, Mayor Wheeler supposedly suspended the use of tear gas.9 On June 9, this Court enjoined the police from using tear gas unless “the lives or safety of the public or the police are at risk,” and specifically ordered the police not to use tear gas “to disperse crowds where there is no or little risk of injury.”10 Nevertheless—defying this Court’s Order—Portland police have continued to use tear gas.
46. The police have also beat protesters with truncheons and shot them with flashbang grenades with little or no warning, in the absence of any danger to the public, police, or property.
47. The police’s use of disproportionate force against demonstrations over police violence against people of color follows the Portland police’s prolific history of excessive force against people of color, including the shootings of Quanice Hayes in 2017, Denorris McClendon in 2015, Keaton Otis and Aaron Campbell in 2010, and Kendra James in 2003. In 2012, the U.S. Department of Justice filed suit against the City “to remedy a pattern or practice of unconstitutional uses of force by officers of the Portland Police Bureau,”11 which was settled by a consent decree in 2015.12 The decree has not resulted in a less brutal police force.13
C. Both the Protests and the Police’s Handling of Them Garner National Interest and Are Widely Discussed in the Press and Other Public Fora
48. Nationwide protests over the murder of George Floyd have garnered coverage in every major news outlet. They have been discussed in the New York Times, the Washington Post, the Los Angeles Times, and the Chicago Sun-Times. They have been featured on MSNBC, CNN, and Fox News. Every local paper has covered them.
9 Nicole Chavez, Portland is the latest city to suspend the use of tear gas on protesters, CNN (June 6, 2020), https://www.cnn.com/2020/06/06/us/portland-police-tear-gas-protests/index.html. 10 Order, Don’t Shoot Portland v. City of Portland, No. 3:20-cv-917-HZ (June 9, 2020), Dkt. 29. 11 Complaint, United States v. City of Portland, No. 3:12-cv-2265-SI (Dec. 17, 2012), Dkt. 1. 12 Amended Order Entering Settlement Agreement Conditionally Dismissing Litigation, id., Dkt. 99. 13 Alex Zielinski, Hall Monitor: Checking Boxes, Portland Mercury (Nov. 7, 2019), https://www.portlandmercury.com/opinion/2019/11/07/27438204/hall-monitor-checking-boxes.
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49. The police’s violent response to the protests has also been the subject of national attention. The New York Times wrote about the 99 U.S. cities where police used tear gas against protesters.14 The Washington Post covered police violence in Richmond, Virginia.15 The L.A. Times demanded an investigation of police violence in Los Angeles.16 In cities across the country, citizens have protested, police have overreacted—and the press has been there to document and report on everything.
50. Or nearly everything. In a brazen effort to suppress speech, Portland police have taken to beating, gassing, and arresting journalists and observers as well as protesters.
D. The Police’s Pattern of Intentionally Targeting and Retaliating Against Journalists and Observers
51. Since the protests began, the Portland police have been intentionally and indiscriminately attacking neutral members of the press and legal observers. This conduct has intimidated journalists and neutrals and reduced the number of media and observers willing to attend protests and to stay to document and observe the protests. The police’s conduct is part of a longstanding pattern of assaulting and threatening members of the press to prevent them from telling the public about the police’s conduct.
1. Police Threaten and Arrest Plaintiff Yau 52. Plaintiff Yau is a freelance journalist who has covered the ongoing Portland protests. He wears a black helmet that says “PRESS” in white letters on both sides, a glo-vest that says “PRESS” on the front and the back, and a press pass around his neck; he carries an SLR
14 K.K. Rebecca Lai et al., Here Are the 99 U.S. Cities Where Protesters Were Tear-Gassed, N.Y. Times (June 17, 2020), https://www.nytimes.com/interactive/2020/06/16/us/george-floyd-protests-police-tear-gas.html. 15 Gregory S. Schneider, Police fire chemical irritant, rubber bullets at Richmond protesters outside police headquarters, Wash. Post (June 15, 2020), https://www.washingtonpost.com/local/richmond-police-fire-pepper-spray-at-protesters-instandoff-near-police-headquarters/2020/06/14/be1ccb26-aeac-11ea-8f5663f38c990077_story.html. 16 Editorial: LAPD’s violence against protesters demands investigation, L.A. Times (June 9, 2020), https://www.latimes.com/opinion/story/2020-06-09/excessive-lapd-protest-response.
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camera around his neck and a gimbal video camera on his backpack. He is unmistakably present in a journalistic capacity. He attends the protests five to six nights per week in this capacity.
53. On June 5, Mr. Yau was covering the police’s dispersal of a crowd with two other journalists. They remained in front of the police skirmish line, but police yelled at them that “you have to pick up the pace—you’re interfering at this point and you will be arrested. Let’s go— FASTER!”
54. Mr. Yau and his colleagues informed the police that they were press. The police responded: “You’d better start running!”17
55. In the early hours of July 1, only a day after Plaintiffs filed this lawsuit, Mr. Yau was attending a protest in North Portland that the police had begun to disperse. He was 30-45 feet away from the police skirmish line, documenting a female protester walking slowly by herself, when he heard the leader of the skirmish line order her to “move to the sidewalk or you will be hurt.” He began filming.
56. Officers sprinted forward to tackle, mace, and arrest her. 57. A second later, as he was on the sidewalk, filming, Mr. Yau himself was tackled by several officers. All of his fragile equipment hit the ground at high speed. His phone flew out of his hands and his DSLR crashed to the ground with him, as did his gimbal camera. 58. At least two officers dogpiled on top of him, pushed him into the ground, removed his backpack, and put metal handcuffs on him. A third was also present. 59. Mr. Yau informed the arresting officers that he was a journalist. The officers looked at his press badge, said that they did not recognize the issuing organization, and asked what news stations he contributes to. Mr. Yau informed them that his work has been published in the Daily Mail, Reuters, and Spectee, a Japanese news outlet. The officers did not release Mr. Yau.
17 @PDocumentarians, Twitter (June 5, 2020, 3:51 A.M.), https://twitter.com/PDocumentarians/status/1268858091358924800.
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60. When the officers tackled Mr. Yau, he landed on his knee. It was so sore that he was unable to sleep.
61. This Court issued a TRO on July 2 ordering the police to “return any seized equipment or press passes immediately upon release of a person from custody.” Nevertheless, the police did not return Mr. Yau’s equipment until July 6.
62. On the night of the arrest, Mr. Yau was in contact with two news agencies, Reuters and Ruptly, to publish his footage from the night. Because officers confiscated his equipment, he was unable to complete the arrangement. He was deprived of licensing revenue and the public was deprived of his footage.
2. Police Intentionally Shoot at and Tear Gas Plaintiff Lewis-Rolland 63. Plaintiff Lewis-Rolland is a freelance photographer and photojournalist who has covered the ongoing Portland protests. He carries a large Nikon D850 camera with a 70-200mm lens and a flash. He is unmistakably present in a journalistic capacity. 64. On the night of May 31, Mr. Lewis-Rolland was covering the protests. Around 10:40 p.m., he heard a loud bang and began proceeding toward the intersection it came from, SW Salmon Street and SW 3rd Street. The intersection was not crowded and was mostly clear of protesters. As he approached, he saw police marching in his direction. He began taking photographs. That is when he captured this image of an officer aiming a gun directly at him:
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Case 3:20-cv-01035-SI Document 40 Filed 07/10/20 Page 16 of 49
Figure 4. Police take aim at Plaintiff Mathieu Lewis-Rolland.
65. Shortly after Mr. Lewis-Rolland captured that image, the officer fired upon him. The officer offered no warning, and Mr. Lewis-Rolland had done nothing to provoke the officer other than take a photograph. Mr. Lewis-Rolland was showered with shrapnel as the first round exploded at his feet. Several more followed, as well as canisters of tear gas. Mr. Lewis-Rolland was overcome by the effects of tear gas and was unable to continue documenting protests or police action at that location, but he attempted to continue operating his camera to the best of his PAGE 16 – FIRST AMENDED COMPLAINT

Case 3:20-cv-01035-SI Document 40 Filed 07/10/20 Page 17 of 49
ability while recovering from the effects of the tear gas. He was able to capture a visual cloud of gas hovering over the intersection he had just retreated from.
66. About an hour later, at the intersection of SW 4th Street and SW Taylor Street, Mr. Lewis-Rolland was documenting a tense interaction between police and protesters:
Figure 5: Plaintiff Lewis-Rolland (not pictured) documents a tense interaction between police and peaceful protesters.
67. This time, an officer popped open a crowd-control-sized canister of tear gas and threw it directly at Mr. Lewis-Rolland’s feet. Used at such close range, the canister delivered a full frontal blast of gas to Mr. Lewis-Rolland’s face and once again, he was overcome by its effects. Mr. Lewis-Rolland was completely incapacitated for at least 30 seconds and forced to stop documenting the scene until he could recover.
3. The Police’s Repeated Attacks on Plaintiff Mahoney 68. On June 2, the police used tear gas of a different formulation or a stronger concentration on Plaintiff Mahoney. On June 10, they shot a rubber bullet at her to prevent her PAGE 17 – FIRST AMENDED COMPLAINT

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from recording an arrest. And the day after Plaintiffs filed this action, the police beat Plaintiff Mahoney—right across the back of her vest where it says “ACLU LEGAL OBSERVER” in big block letters.
a. Police Use Extra-Strong Tear Gas on Plaintiff Mahoney 69. Plaintiff Mahoney has been attending the protests nearly every night since they began. Nearly every night, from the beginning of the protests until this Court issued its injunction in Don’t Shoot Portland v. City of Portland, Ms. Mahoney was a victim of police’s tear gas. 70. Ms. Mahoney has served as a legal observer since 2017. She is no stranger to the police’s indiscriminate, excessive, and unlawful use of tear gas. 71. On June 2, however, she noticed that the police had begun to use a new form of tear gas. On that night, Ms. Mahoney was on her motorcycle. To avoid getting tear gas inside her helmet, she remained on a side street near the edges of the crowd. Nevertheless, the tear gas reached her and she sought to retreat. 72. Her first indication that this was a new type of gas was that it smelled different and felt stronger. She managed to drive her motorcycle only two blocks before losing her vision. In addition to the usual effects—profuse tears, profusely runny nose—her throat began to close and she had trouble breathing. She quickly sought medical attention. 73. Once she felt it was safe, she attempted to return home on her motorcycle. On the way home, however, she began involuntarily convulsing, shaking, and twitching. She was unable to concentrate on basic tasks like shifting gears. Fortunately, she was able to arrive home safely. 74. Once home, however, she was disoriented and unable to function for several hours. She was barely able to open her door. She was unable to count past six. She was unable to open a tube of toothpaste. Although Ms. Mahoney has been the victim of Portland police’s tear gas many times, she has never suffered such symptoms. On information and belief, on June 2, Portland police used tear gas of a different formulation, or a stronger concentration, in order to
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inflict more severe injuries on neutrals and protesters. On information and belief, the police also used such tear gas in the “killbox” maneuver detailed below.
b. Police Shoot at Plaintiff Mahoney 75. On the night of June 10, Ms. Mahoney was attending the protests near the Justice Center as a legal observer volunteering with the ACLU. She was wearing a blue vest which clearly identified her as an ACLU legal observer. At all relevant times, she was well-lit by police floodlights. No police officer could have been confused as to the role in which she was attending. 76. Shortly after midnight, a woman who appeared to be mentally unstable wandered into the fenced-off area near the Justice Center. She walked back and forth for a moment, exited Ms. Mahoney’s field of view, and then returned having shed all of her clothing. At this point, Ms. Mahoney moved to the front of the crowd, because she knew that legal observation might become crucial. 77. Portland police officers began running at the woman. She began running away, but became confused and was unable to find the exit. She panicked. As she ran alongside the fence, a protester entered the fenced-off area to assist her. Together, they began running away from the police and toward the exit. 78. Most people who were at the fence, including Ms. Mahoney, were recording the events unfolding on their cameras and smartphones. Even though the two individuals inside the fenced-off area were retreating, Portland police officers opened fire on them. And, in an attempt to minimize video evidence, Portland police also opened fire on people recording the event near the fence, including Ms. Mahoney. 79. One rubber bullet impacted a cement barrier a few inches from Ms. Mahoney’s face. It exploded and shrapnel from the detonation hit Ms. Mahoney’s hands, phone, and shoulders. Had Ms. Mahoney not been recording the event, shrapnel would have hit her directly in the face. As it was, Ms. Mahoney suffered severe injuries to her left hand, including her left ring finger, which swelled up to three times its normal size.
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80. The police targeted Ms. Mahoney, even though she was clearly marked as a neutral legal observer by her blue vest, because she was recording an altercation between police and protesters.
c. The Police Intentionally Beat Plaintiff Mahoney the Day after Plaintiffs Filed this Action
81. The day after Plaintiffs filed this action, Ms. Mahoney attended the protests in North Portland as a legal observer. She wore her blue ACLU vest that clearly identified her as a legal observer with the words “ACLU LEGAL OBSERVER” in big block letters across the back and in smaller lettering on the front.
82. She had not intended to attend the protests that night, but another legal observer who was present informed her that only one ACLU observer was there, and that based on the police’s actions, more might be necessary.
83. She arrived at the intersection of N Lombard Street and N Denver Avenue a little before 9:30 p.m. When she arrived, the police had already declared an unlawful assembly and were pushing the crowd east.
84. Within minutes of Ms. Mahoney’s arrival, the police began firing pepper balls indiscriminately into the crowd. She began coughing and choking, and was forced to seek medical treatment. After she recovered from the pepper spray, she returned to continue observing.
85. Later, she became the target of a police dispersal maneuver. Officers began running toward her location yelling “MOVE!” Because there was a dense crowd in front of her, including a man on crutches whom several other protesters were helping, she could not get out of the way in time.
86. One officer slammed her in the back with a truncheon. He struck diagonally from the base of her right shoulder blade to her lower left side, across her spine and ribcage. Another officer ran up to her, yelled “MOVE,” and shoved her so hard she stumbled into a protester and had to be helped to her feet.
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87. Because she was wearing her blue ACLU legal observer vest, both officers could plainly see the words “ACLU LEGAL OBSERVER” when they beat her and shoved her.
88. The same night, Ms. Mahoney also saw the police chase and attempt to beat two other legal observers who were clearly marked as legal observers.
89. The following morning, her back was extremely painful. She was unable to rotate her torso or sit up for periods of time without pain. It hurt her to breathe.
4. The Police’s Assaults on Plaintiff Brown 90. On June 12, police fired a flash-bang grenade directly at Plaintiff Brown, twice, and beat him with their bats. And on June 14, they threatened to arrest him, even though they knew he was an ACLU legal observer.
a. Police Shoot at and Beat Plaintiff Brown 91. On the night of June 12, legal observer Doug Brown was attending the protests as a volunteer with the ACLU. He was wearing a blue vest which clearly identified him as an ACLU legal observer. 92. Shortly after 12:30 a.m., the police decided to put an end to the protests. They declared the area between Naito Parkway and 13th Street, from SW Lincoln Street to NW Everett Street, off-limits to everyone—protesters, press, legal observers, and anyone else. This area contains the entirety of downtown Portland and parts of two Northwest Portland neighborhoods and comprises some 21 million square feet. 93. A video of the following events can be viewed here: https://tinyurl.com/BrownAttacked. 94. At around 12:35 a.m., the police began firing flash-bang grenades into the crowd. A minute later, they fired a flash-bang grenade directly at Mr. Brown. Id. at 4:11-15. 95. Then, they began physically clearing people out of the park. Mr. Brown complied with their directive and moved with the crowd, but because he was present as an observer and not a protester, he continued filming and observing how the police enforced their order.
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96. Around 12:39 a.m., the police had moved the crowd one block from their starting position. Then they began what is known as a “dynamic” maneuver. They halted and arranged in formation, truncheons and guns at the ready. Id. at 7:44. On command, they all began running at the crowd, yelling “MOVE!” and beating anyone in their way. Id. at 8:18.
97. This type of massed kinetic maneuver—a massed charge—is extremely dangerous. Strong, armored police, running full tilt at less-armored persons, frequently cause grave injury. And by design, they run over all things in their path—including journalists and legal observers.
98. Mr. Brown continued to observe and record. For that, the police beat him, too. Id. at 8:23-34. This still frame from his video shows police officers charging at him with their truncheons, shortly before they beat him:
Figure 6: Police charge at an ACLU legal observer to beat him with their truncheons.
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Case 3:20-cv-01035-SI Document 40 Filed 07/10/20 Page 23 of 49
99. Mr. Brown was forced to flee and could no longer safely document the police’s violent enforcement tactics.
100. After a minute, the police halted and began firing flash-bang grenades directly at people. They scored a direct hit on Mr. Brown. Id. at 8:58-9:09.
101. As a result of the police’s firing two flash-bang grenades at him and beating him with their batons, Mr. Brown suffered temporary tinnitus for several hours and some contusions.
102. The police’s efforts to prevent Mr. Brown from recording and reporting on their violent tactics were successful. Shortly after the second flash-bang, he left the scene, even though the protests and the police’s violent dispersal of protesters continued.
b. Police Threaten to Arrest Plaintiff Brown 103. On the night of June 14, Mr. Brown was again attending the protests as a volunteer with the ACLU. He was wearing a blue vest which clearly identified him as a legal observer. 104. Audio of the following events, together with some contemporaneous photos Mr. Brown took, is available here: https://tinyurl.com/BrownThreatened. 105. Around 10:40 p.m., Mr. Brown arrived at the intersection of SW 6th Street and SW Market Street, where Portland police officers were arresting a man undergoing a mentalhealth crisis. 106. As they had the previous night, the police had issued a dispersal order vacating downtown Portland. 107. Nevertheless, some five to seven people were at the scene, observing the arrest. Mr. Brown also began observing and recording the event. 108. For the first seven minutes Mr. Brown was present, the interaction between police and the individuals watching them was calm and uneventful. 109. At 10:47 p.m., the police decided to remove all observers from the scene. One officer, with a makeshift ID number 254047, ordered everyone to leave and threatened them with arrest if they did not comply. Id. at 7:00-7:50.
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110. Mr. Brown continued to document the events. The officer heard his shutter clicking and turned on him: “You have plenty of pictures, okay? … We don’t want to make an arrest.” Id. at 7:58-8:20.
111. Three more officers walked up to Mr. Brown and put their hands on him. One of them said: “You should know better, you’re with the ACLU.” Id. at 8:35.
112. A minute later, a police SUV with a long-range acoustic system arrived. It, too, singled Mr. Brown out as an ACLU legal observer and threatened him with arrest: “You are all subject to arrest for trespassing. This area is closed. That includes the ACLU legal observer. You are trespassing. … You are failing to obey the direct order of a peace officer in the State of Oregon.” Id. at 9:52-10:15.
113. Again, the police’s efforts to eject Mr. Brown from the scene of an arrest were successful. Rather than be arrested himself, he left the scene and was no longer able to fulfill his role as a legal observer.
5. Police Assault Plaintiff Olmos 114. Plaintiff Olmos is a freelance journalist who has covered the ongoing Portland protests. He wears a press badge and a Kevlar vest that says “PRESS” on both sides. He also carries several cameras, including a film camera, in part so that it is unmistakable that he is present in a journalistic capacity as a member of the press. 115. On the night of June 6, Mr. Olmos was recording the way the police were enforcing their dispersal order. 116. He was also attempting to comply with the order, but found himself trapped behind a phalanx of police officers. To avoid giving surprise, he tried to inform them that he was approaching from behind. He had his press pass clearly visible.
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Case 3:20-cv-01035-SI Document 40 Filed 07/10/20 Page 25 of 49
117. Nevertheless, the police beat Plaintiff Olmos with a truncheon and threatened him with tear gas because he was recording them.18
118. Mr. Olmos has been subjected to physical harm by the Portland police on many other occasions during the protests. They have physically assaulted him to make him comply with a dispersal order, thrown a flash-bang grenade at his chest, and impacted him with flashbang grenades several other times.
6. Police Attack Plaintiff Tracy and Seize His Equipment after He Filed this Lawsuit
119. Plaintiff Tracy is a freelance journalist who has covered the ongoing Portland protests. He wears a helmet that reads “PRESS” on the front and back and a business card on his chest that clearly identifies him as a photojournalist. He also carries two large, professional-grade cameras around his neck and over his shoulder. He is unmistakably present in a journalistic capacity.
120. On June 7, Mr. Tracy was documenting as protesters ran and hid from oncoming police vehicles as streets were cleared in the early hours of the day. As he was recording, the police arrested two people who were hiding behind a car because they had been “taking photos.” Another officer approached Mr. Tracy and offered to arrest him, too, if he did not leave. Mr. Tracy held up his credentials and one of his two cameras clearly stating that he was press, but also moved back and complied with the order. The police’s threats prevented Mr. Tracy from documenting how the police executed the arrest.19
121. Later that evening, the police hit Mr. Tracy on the lower left leg with a neon green police paint marker round.
18 @MrOlmos, Twitter (June 6, 2020, 1:27 A.M.), https://twitter.com/MrOlmos/status/1269184050314407936; @MrOlmos, Twitter (June 6, 2020, 4:15 A.M.), https://twitter.com/MrOlmos/status/1269226525020184577. 19 @ AlexMilanTracy, Twitter (June 7, 2020, 3:29 A.M.), https://twitter.com/AlexMilanTracy/status/1269577129265524736.
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Case 3:20-cv-01035-SI Document 40 Filed 07/10/20 Page 26 of 49 122. Just after midnight that same evening, Mr. Tracy witnessed the police arrest a member of the media with press credentials clearly visible. The following is a photograph he took of the incident, with a close-up of the press pass inset:
Figure 7: Police arrest a member of the press with his press pass clearly visible.
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123. On June 16, Plaintiff Tracy was documenting Portland police making arrests. One officer told him to “get out of here now,” or he was going to go to jail. “I don’t care if you’re press,” he repeated, “get out of here right now.”20 Mr. Tracy was unable to continue reporting on the arrest.
124. The day after this action was filed, the police confiscated Mr. Tracy’s camera, claiming it was “evidence.” They had repeatedly been executing “dynamic” maneuvers against crowds including journalists and observers. While running away from one such charge, a GoPro Hero 8 camera that Mr. Tracy used for newsgathering purposes fell out from a pouch on his waist. One officer told him that it would be seized “as evidence” because the police line had advanced in front of it. He tried to communicate with officers to be able to look for and retrieve his camera, but they prevented him from doing so.
7. Police Intimidate and Launch Flash-Bangs at Plaintiff Conley 125. Plaintiff Brian Conley has been a journalist for twenty years and has trained journalists in video production across a dozen countries internationally. He founded Small World News, a documentary and media company dedicated to providing tools to journalists and citizens around the world to tell their own stories. 126. On the night of June 15-16, the police launched one or more flash-bang grenades directly at Mr. Conley, who was standing at least ten feet away from any protesters in the area around the Justice Center. 127. Mr. Conley was wearing a photographer’s vest and carrying a micro four-thirds camera with a large telephoto lens, an off-camera flash, a streaming cellphone held aloft in one hand, and at times held a second video camera that he otherwise carried in his backpack. He was unmistakably present in a journalistic capacity.
20 @ AlexMilanTracy, Twitter (June 16, 2020, 1:16 A.M.), https://twitter.com/AlexMilanTracy/status/1272805156225048578.
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128. The police did not notice him until he activated the light on his camera. At that point, an officer who was about 5-10 feet away saw him, saw that he was using his camera, and threw a flash-bang at him.
129. Mr. Conley was isolated away from protesters. There was no other target in the immediate vicinity.
130. Despite having covered international protests and war zones for twenty years, this was the first time that Mr. Conley was hit with a flash-bang grenade. The impact left him shocked, stunned, and the closest individual to the advancing police line.
131. Later, Mr. Conley was documenting near the intersection of Broadway and Salmon Streets in downtown Portland when the police issued a dispersal order. When Mr. Conley activated the light on his bigger camera, he saw an officer point at him and signal other officers towards Mr. Conley’s position.
132. Another officer approached Mr. Conley and several fellow journalists and told them they had to leave, and that it did not matter if they were media. Two officers then pursued them down the street outside the Heathman Hotel. Plaintiff Conley fell over a statue of a bulldog outside the hotel while fleeing but narrowly avoided a traumatic head injury.
133. Mr. Conley has covered only a few protests since that day because the police’s actions that day made him fearful about covering the protests without someone else present, such as a friend or colleague, in case the police were to ultimately injure or arrest Mr. Conley.
8. Police Shoot Plaintiff Rudoff 134. Plaintiff Rudoff is an internationally renowned freelance journalist who has covered the ongoing Portland protests. Mr. Rudoff wears press identification from the National Press Photographers Association, carries large camera equipment, and wears a helmet clearly marked “press.” 135. Since he began covering protests in Portland, Mr. Rudoff has been tear-gassed many times and occasionally shot with pepper balls. Most recently, on June 19, the Portland
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police shot Plaintiff John Rudoff with pepper balls while he was documenting the protest at the Justice Center.
136. On the same day, Mr. Rudoff was documenting police action near the Justice Center when a line of police began pushing the crowd down the street. He showed them his press pass and camera equipment, and an officer responded that he “[didn’t] care if you’re media” and pushed him to move with the crowd.
137. Mr. Rudoff was prevented from further documenting the protests and violent police response at that time. Moreover, he did not attend protests from that day until this Court entered a temporary restraining order on July 2, because the police’s actions that day made him fearful that the police would ultimately injure him.
9. Police Assault Plaintiff Woodstock 138. Plaintiff Woodstock is a freelance journalist who has covered the ongoing Portland protests. They wear a press pass from the Portland Mercury that says “MEDIA” in large block letters. 139. On the evening of June 30, they attended the protests in North Portland to report on them. Around 11:00 p.m., after the police issued their dispersal order, they were walking with a group of protesters and journalists complying with the order and moving east. All of a sudden, the police arrayed themselves in a line and then started sprinting at the group. The police tackled and arrested people to either side of Plaintiff Woodstock. 140. Plaintiff Woodstock tried to film the arrests. Almost immediately, however, they felt a baton pressed into their back as an officer yelled “MOVE, MOVE, MOVE, MOVE,” directly in their ear. They informed the officer several times that they were media, but the officer did not care and continued to push them to the east. They were physically pushed at least four times by two officers during this incident. 141. Some time later, police conducted another sprint-and-arrest maneuver. Again, there were people being arrested all around Plaintiff Woodstock. They tried to film the arrests
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but, again, an officer removed them from the scene. The officer said that “[I] know you’re media but you have to leave.”
142. Because of the actions of the police, Plaintiff Woodstock was unable to film the arrests at all. Both times, the officers pushed Plaintiff Woodstock out of the area so fast that they could not even record over their shoulder—they had to put down their phone and run or risk falling over and getting arrested as well.
10. Police Deploy a Killbox Tactic against Portland Mercury Reporters, Plaintiffs Gehrke, Mahoney, and Tracy, and Other Journalists and Observers
143. Portland police use tear gas indiscriminately when confronted with crowds. Lt. Franz Schoening, commander of the Bureau’s Rapid Response Team, has stated as much: “[W]hen officers can’t see disrupters in a dense crowd because they’re four to five rows back from officers and they won’t comply with orders to leave the area,” the Bureau’s formal policy is to use tear gas against the crowd as a whole.21
144. Because tear gas is inherently an indiscriminate weapon, this policy necessarily means that Portland police shoot tear gas at neutral parties who are attending to document and report on protests. And indeed, many journalists and legal observers have found themselves caught in the police’s widespread use of tear gas during these protests.
145. One particularly egregious example took place on the night of June 2, when reporters employed by the Portland Mercury, as well as Plaintiffs Sam Gehrke, Kat Mahoney, and Alex Tracy, found themselves victims of a “killbox” action by Portland police.
146. Portland Mercury reporters Alex Zielinski and Blair Stenvick were covering the protests for the Mercury that night. Ms. Zielinski was in the middle of the crowd, while Stenvick was towards the back. Neither was near the fence surrounding the Justice Center. Plaintiffs Gehrke and Tracy were also in the crowd reporting on the protests.
21 Maxine Bernstein, Portland police, fire medics describe crowd control tactics, munitions, The Oregonian (June 4, 2020), https://www.oregonlive.com/portland/2020/06/portland-police-firemedics-describe-crowd-control-tactics-munitions.html.
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147. The police issued a warning to protesters to stay away from the fence. To underscore the point, officers on the other side of the fence shot tear gas at protesters near the fence.
148. Had officers merely shot gas at protesters closest to the fence, the reporters might not have been injured. However, the police had decided to create a gas trap by shooting tear gas from the rear and sides of the crowd as well. This gas trap, by design, snared not only protesters agitating near the fence, but many other peaceful protesters far from the fence with no desire to get involved. And, of course, it also caught all four reporters, as well as Plaintiff Mahoney.
149. Because they had been inundated with tear gas, neither Ms. Zielinski nor Stenvick was able to report on the protests for the rest of the night. As the Mercury’s editor wrote that night: “Due to the dangerous situation and loss of control exhibited by the Portland Police, we have pulled our reporters off the street for the night. It’s simply too dangerous for them to be out there right now.”22
150. Portland police have a policy or practice of using indiscriminate killbox or kettling tactics against crowds including journalists and other neutrals. They have used the same tactic in at least November 2014, January 2017, and June 2017.23
11. The Police Have Intentionally Targeted Many Other Reporters and Neutrals
151. The police’s use of excessive force against neutral observers extends to all Plaintiff Class members and other neutrals.
22 Wm. Steven Humphrey, Live Updates: Protesting the Death of George Floyd in Downtown Portland, Night Five, Portland Mercury (June 2, 2020), https://www.portlandmercury.com/blogtown/2020/06/02/28499376/live-updates-protesting-thedeath-of-george-floyd-in-downtown-portland-night-five. 23 Maxine Bernstein, Portland police deny ‘kettling’ of protesters in response to ACLU lawsuit, The Oregonian (Jan. 19, 2019), https://www.oregonlive.com/portland/2018/01/portland_police_deny_kettling.html.
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152. On June 3, the police physically assaulted KBOO reporter Cory Elia because he was recording them. He had identified himself as press. As the bystander who recorded the interaction later recalled, “Hearing the screams from him in the background is truly terrifying.”24
153. On the night of June 5, a red truck flying an American flag drove through a crowd of protesters and nearly hit one of iHeartRadio podcaster Robert Evans’s staffers. When the staffer attempted to capture the license plate of the truck, the police aimed their crowd-control weapons at her and threatened to fire. They prevented her from recording the license plate of the truck. She no longer accompanies Mr. Evans to the protests in Portland.25
154. Also on June 6, Mr. Evans was filming the police arranged in a phalanx advancing on a crowd of protesters. He was holding his phone in one hand and his press pass in the other. Also, his helmet was clearly labeled “PRESS.” Police fired an impact munition at him, hitting him in the very hand that was holding the press pass.
155. June 7 was a banner day for Portland police’s campaign of violence against journalists:
a. The police brutally attacked Donovan Farley with a truncheon and tear gas. Farley, a reporter who has been published in Rolling Stone, VICE, and the Willamette Week, was recording the police, who were arresting a protester using exactly the same maneuver that had killed George Floyd. When they noticed him, they chased him away, beat him, and—even as he was retreating from the scene— sprayed him in the face with tear gas.26
24 @Billings29James, Twitter (June 3, 2020, 12:16 A.M.), https://twitter.com/Billings29James/status/1268079034321133570. 25 @IwriteOK, Twitter (June 6, 2020, 3:41 P.M.), https://twitter.com/IwriteOK/status/1269399061775306752. 26 @DonovanFarley, Twitter (June 7, 2020, 11:44 A.M.), https://twitter.com/DonovanFarley/status/1269701897377603584; @TVAyyyy, Twitter (June 7, 2020, 12:08 A.M.), https://twitter.com/TVAyyyy/status/1269526590456643584.
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b. The police also attacked Mr. Elia again—this time with tear gas rather than a truncheon—even though, as before, he was holding up his press pass and police knew he was press when they attacked him.27 c. The police threatened to arrest Plaintiff Tracy for recording them arresting two people hiding behind a car, as described above. d. The police also arrested one of Mr. Evans’s staff members for asking an officer his name. She did not provoke him in any other way or do anything to justify police action. Nevertheless, police arrested her and took her to the Justice Center, where they held her for several hours. 156. On June 11, the police confiscated medical supplies from an OHSU medic tent. They also arrested one of the medics, Michael Martinez, because he was recording them.28 157. On June 12, Plaintiff Sam Gehrke was taking photos near the Justice Center when the police shot him in the back with a rubber bullet. Mr. Gehrke was holding a large camera, wearing a press pass from the Willamette Week, and was obviously present as a journalist to record and report on the protests. Shortly after this, the police swarmed the crowd from behind, physically assaulting and beating people at random. 158. On June 13, the police beat reporter Beth Nakamura of The Oregonian with a truncheon, even though she was displaying her press pass and shouting “press, press.” The officer responded: “I don’t give a fuck.”29 159. Also on June 13, the police ordered reporter Zane Sparling of The Portland Tribune to leave an area where they were enforcing a dispersal order against protesters, shoved
27 @Human42LM, Twitter (June 7, 2020, 10:29 A.M.), https://twitter.com/Human42LM/status/1269683012515409921. 28 Lindsay Nadrich, OHSU student arrested handing medical supplies to protesters, KOIN (June 18, 2020), https://www.koin.com/news/protests/ohsu-student-arrested-handing-medical-suppliesto-protesters/. 29 @bethnakamura, Twitter (June 15, 2020, 8:27 A.M.), https://twitter.com/bethnakamura/status/1272551330184228864; @bethnakamura, Twitter (June 15, 2020, 8:54 A.M.), https://twitter.com/bethnakamura/status/1272558094870970368.
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him into a wall, and shot a crowd-control munition at his heel.30 When Mr. Sparling informed them that he was media, they responded that they didn’t “give a shit.”
160. On the night of June 15, OPB reporter Jonathan Levinson was reporting on the protests downtown. As Portland police issued orders to disperse, he continued reporting. Officers informed him that if he did not “run,” they would arrest him.31 They then violently arrested another individual and prevented Mr. Levinson from recording or reporting on the arrest.32
161. The day after this action was filed, the police set a new high-water mark for violence against journalists and legal observers:
a. The police confiscated Plaintiff Tracy’s camera as described above. b. The police arrested Plaintiff Yau as described above. c. The police assaulted Plaintiff Woodstock as described above. d. And finally, the police arrested two other journalists: Mr. Elia and his KBOO colleague Lesley McLam. Neither Mr. Elia nor Ms. McLam were engaging in any conduct that posed a threat to police, property, or the public. Both were simply reporting on the events of the evening.33 12. The Police Have Intentionally Targeted Reporters and Legal
Observers in the Past 162. In August 2018, Plaintiff Brown and Donovan Farley were reporting on protests in downtown Portland. Without warning, the police rushed protesters, shot rounds, and set off explosions. Then, they charged at and beat a group of journalists, including Mr. Brown and Mr.
30 @PDXzane, Twitter (June 13, 2020, 11:49 P.M.), https://twitter.com/PDXzane/status/1272058454799028226. 31 @MrOlmos, Twitter (June 16, 2020, 12:40 A.M.), https://twitter.com/MrOlmos/status/1272796206071087105. 32 @MrOlmos, Twitter (June 16, 2020, 12:48 A.M.), https://twitter.com/MrOlmos/status/1272798234809782272. 33 @TheRealCoryElia, Twitter (June 30, 2020, 11:14 P.M.), https://twitter.com/therealcoryelia/status/1278210455652061184, at 6:00; @mayorofbabytown, Twitter (July 1, 2020, 1:14 A.M.), https://twitter.com/mayorofbabytown/status/1278240587095785472.
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Farley, all of whom had press passes clearly displayed or were holding obviously professional cameras.34 Video here: https://tinyurl.com/BrownBeaten18.
163. At the same protest, police hit KATU reporter Ric Peavyhouse with a rubber bullet35 and documentary filmmaker Michelle Fawcett with a flash-bang grenade.36
164. During protests in 2017, Mr. Brown was attending as a journalist for the Portland Mercury. Police beat him with a truncheon and fired on him with flash-bangs.
165. Also during protests in 2017, the police beat Plaintiff Rudoff with a truncheon because he was not moving quickly enough for an officer’s liking.
E. The Police Announce an Unconstitutional Policy of Dispersing and Arresting Members of the Press Who Are Trying to Report on the Protests
166. On June 14, the police announced that they would enforce dispersal orders against media and neutral observers unless the members of the press had been handpicked by the police to be “imbed[ded]” with the police.37
167. The police subsequently warned reporters and neutral observers that they must obey the police’s dispersal orders to protesters if they wished to “stay safe and avoid arrest or altercation.” In the view of the police, “[t]he unlawful orders [sic] apply to everyone”—except those the police have permitted to be “imbedded” with them.38
34 Donovan Farley, In Portland, the Police Played Into the Hands of the Fascists and Attacked Their Own Citizens, Paste Magazine (Aug. 7, 2018), https://www.pastemagazine.com/politics/political-violence/in-portland-the-police-played-intothe-hands-of-th/. 35 @RPeavyhouse, Twitter (Aug. 5, 2018, 2:34 P.M.), https://twitter.com/RPeavyhouse/status/1026219809552224256. 36 Alex Zielinski, Portland Police Explain Why They Fired Munitions at Protesters on August 4, Portland Mercury (June 4, 2019), https://www.portlandmercury.com/blogtown/2019/06/04/26589682/portland-police-explain-whythey-fired-munitions-at-protesters-on-august-4. 37 @PortlandPolice, Twitter (June 14, 2020, 9:33 P.M.), https://twitter.com/PortlandPolice/status/1272386641462607872. 38 @PortlandPolice, Twitter (June 14, 2020, 9:33 P.M.), https://twitter.com/PortlandPolice/status/1272386738338410496.
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168. This proclamation was issued from the official Twitter account of the Portland police, @PortlandPolice, and is a written statement of the Bureau’s formal policy. It is also an accurate statement of the Portland police’s widespread custom and practice. Plaintiffs and Plaintiff Class have repeatedly been dispersed by the police when they were peacefully trying to record the protests and posed no danger to the public or law enforcement.
169. The police have not rescinded this proclamation or changed their practice. 170. This policy is an unlawful viewpoint-based restriction on speech. Once the police issue a dispersal order, this policy gives them unbridled discretion over which reporters may remain, and thus permits them to control the content of reporters’ coverage.39 It is designed to prevent reporters and legal observers from holding the police accountable precisely when accountability is most needed. No government interest can justify such a policy, especially because reporters are not a threat to the public, police, or property. Nor is there any alternative way for reporters not embedded with the police to report on the violence with which police enforce their dispersal order. F. The Police’s Intimidation Campaign Works 171. The police’s campaign of intimidation and fear has been effective. Plaintiff Woodstock’s experience is typical. 172. Plaintiff Woodstock has been a journalist for seven years. They have been published in the Washington Post, NPR, Portland Monthly, Travel Portland, and the Portland Mercury. They are a seasoned veteran of reporting in tense situations. 173. Plaintiff Woodstock is not a threat to the public or to law enforcement and has not engaged in any activities that would constitute such a threat. Plaintiff Woodstock does their best to avoid police violence but has been swept up in it anyway when the police assaulted
39 See, e.g., Elana J. Zeide, Note, In Bed with the Military: First Amendment Implications of Embedded Journalism, 80 N.Y.U. LAW REV. 1309, 1321 (“Embedding typically takes place in a constrained environment where journalists cannot afford to alienate the limited sources available. Accordingly, most reporters will be reluctant to publish anything that the officers and soldiers surrounding them might receive badly.”).
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individuals near them or ordered them to leave on pain of being assaulted or arrested. They have seen people next to them get shot in the head with rubber munitions. They have witnessed reporters getting shot with rubber bullets or maced in the face when they tried to gather evidence. The have been tackled by police in the course of their reporting through no fault of their own.
174. The Portland police’s indiscriminately violent conduct toward journalists and protesters alike has made it difficult—and at times, impossible—for Plaintiff Woodstock to report on the protests accurately and thoroughly.
175. For example, because police shoot rubber bullets at and otherwise use force against anyone who approaches gas canisters or spent rounds, including journalists, Plaintiff Woodstock is unable to verify whether tear gas was used at a particular location, or whether a particular round fired at a protester’s head was a rubber bullet or some other impact munition.
176. Similarly, Plaintiff Woodstock is unable to determine which agency’s officers are enforcing a dispersal order in a given location because police shoot anyone who approaches, including journalists.
177. Because the police threaten to arrest any journalist who remains in an area after a dispersal order, Plaintiff Woodstock generally complies and departs after a dispersal order is issued. The result, however, is that Plaintiff Woodstock is unable to document the violent tactics with which police enforce their dispersal order against protesters. On information and belief, at least one time after they complied with a dispersal order, the police severely attacked the group of protesters they were covering.
178. The police’s goal is to prevent the press from holding them accountable. It works. G. Plaintiffs Are Suffering Irreparable Harm 179. Plaintiffs fear for their safety from police violence. Reporters who attend and document the protests are at risk of being hit with tear gas, rubber bullets, police batons, arrests, and more. Even reporters who remain at the rear of the crowd cannot cover the protests without injury because the police use strategies like the “killbox” strategy they used on June 2.
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180. Plaintiffs and Plaintiff Class want to continue attending protests to gather news and observe and document how police are treating demonstrators, and whether demonstrators are actually provoking the outpouring of violence from the police, as the police claim, or whether police are engaging in indiscriminate unprovoked violence. They also want to be able to document how police are dispersing protesters. They are fearful, however, that they themselves will be targeted for the same violence police mete out against protesters. The police have prevented Plaintiffs and Plaintiff Class from documenting how police have dispersed protesters and have repeatedly told them that they will be similarly arrested and assaulted if they fail to stop recording these events.
181. On information and belief, countless others would report on the ongoing protests and volunteer to neutrally and peacefully observe them, but for fear that they would be subjected to police violence.
182. The police’s use of force against journalists has become so untenable, and their targeting of journalists so obvious, that even Mayor Wheeler admitted that the Bureau’s tactics are “extremely concerning” and that “[j]ournalists need to be able to cover the protests safely.”40
CLASS ALLEGATIONS 183. Plaintiffs bring this action under Rules 23(a) and 23(b)(1)-(3) of the Federal Rules of Civil procedure on behalf of themselves and a class of similarly situated people who, as journalists, reporters, photographers, and legal observers, have been subjected to violence, retaliation, arrest, or dispersal by the Portland police, or who will in the future report on protest activity or the conduct of law enforcement officers on duty within the City of Portland in traditional or designated public fora (the “Plaintiff Class”). The Plaintiff Class is defined as:
All reporters, journalists, photographers, and legal observers who on or after May 25, 2020, have been subjected to violence, arrested, or dispersed by the Portland police while covering a protest, or who intend to engage in newsgathering or reporting in
40 @tedwheeler, Twitter (June 15, 2020, 11:30 A.M.), https://twitter.com/tedwheeler/status/1272597259150999553.
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Portland related to protest activities and/or the law enforcement response to those protests. 184. The Plaintiff Class is so numerous that joinder of all the members would be impracticable. Hundreds of journalists and legal observers are in Portland to cover the protests that followed Mr. Floyd’s murder and the aftermath. 185. As a result of Defendants’ custom or policy of arresting members of the Plaintiff Class; targeting them with rubber bullets, chemical irritants, truncheons, and other uses of force; denying them freedom of movement to observe, record, and report on public demonstrations and law enforcement officers on duty; and intimidating them by threats of violence and arrest, the Plaintiff Class have been and will continue to be deprived of their constitutional rights under the First and Fourth Amendments. 186. Plaintiffs’ claims for prospective relief are typical of the members of the Plaintiff Class because protests are ongoing and Plaintiffs and Plaintiff Class have a reasonable fear that Defendants will continue to carry out their unconstitutional customs or policies. 187. Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. Plaintiffs have no conflicts involving other class members or Defendants. Plaintiffs understand their role as class representatives and their duties to the class in this litigation. Plaintiffs are represented by competent and skilled counsel whose interests are fully aligned with the interests of the class. 188. Questions of law or fact are common to the class. These legal and factual questions include but are not limited to: a. Whether targeting journalists and legal observers with violence and threats of violence violates the First Amendment; b. Whether targeting journalists and legal observers with violence and threats of violence violates the Fourth Amendment; c. Whether targeting journalists and legal observers with violence and threats of violence violates the Oregon Constitution, Art. I, § 8;
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d. Whether targeting journalists and legal observers with arrests and threats of arrest violates the First Amendment; e. Whether targeting journalists and legal observers with arrests and threats of arrest violates the Fourth Amendment; f. Whether targeting journalists and legal observers with arrests and threats of arrest violates the Oregon Constitution, Art. I, § 8; g. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists and legal observers constitute a viewpoint-based restriction on speech that violates the First Amendment; h. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists and legal observers constitute a viewpoint-based restriction on speech that violates the Oregon Constitution, Art. I, § 8; i. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists and legal observers constitute an overbroad restriction on speech that violates the First Amendment; j. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists and legal observers constitute an overbroad restriction on speech that violates the Oregon Constitution, Art. I, § 8; k. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists and legal observers serve any legitimate government interest; l. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists and legal observers are narrowly tailored; m. Whether Defendants’ policy of embedding select journalists vests unbridled discretion to permit or prohibit speech in City officials; n. Whether Defendants’ policy of embedding select journalists is an unlawful prior restraint in violation of the First Amendment;
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o. Whether Defendant City of Portland is liable for implementing a written or unwritten policy that violates the Fourth Amendment under principles of municipal liability; p. Whether Defendant City of Portland is liable for a custom or practice that violates the First Amendment under principles of municipal liability; q. Whether Defendant City of Portland is liable for a custom or practice that violates the Fourth Amendment under principles of municipal liability; r. Whether Defendant City of Portland has manifested a failure to properly train and supervise its agents and officers; s. Whether Defendant City of Portland has exhibited a deliberate indifference to the unconstitutional conduct alleged in this Complaint. 189. Maintaining individual actions would create a risk of “inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Multiple courts issuing multiple injunctions governing the engagement and use-of-force standards for law enforcement would be entirely untenable. Doing so would only contribute to a state of uncertainty and confusion that would allow the constitutional violations described in this Complaint to continue. 190. This case involves “adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications.” Fed. R. Civ. P. 23(b)(1)(B). A ruling with respect to a single Plaintiff in this case would arguably be strong stare decisis with respect to other putative class members and members of the law enforcement community. There is no benefit to litigating the overwhelmingly common issues in this case individually. The interests of both Plaintiff Class members and Defendants requires class-wide treatment. 191. Defendants have “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting
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the class as a whole.” Fed. R. Civ. P. 23(b)(2). Plaintiffs were targeted not because of anything unique to them as individuals, but because of their activities as journalists and legal observers. Defendants targeted Plaintiffs as part of a broader pattern and practice of unconstitutional conduct directed against the Plaintiff Class, including without limitation the police’s unlawful policy related to dispersing members of the press. Injunctive relief for the “class as a whole” is the only mechanism available to afford relief in light of conduct directed specifically to the class.
192. Common questions of law and fact “predominate over any questions affecting only individual members,” and a class action is “superior to other available methods for fairly and efficiently adjudicating” this controversy. Fed. R. Civ. P. 23(b)(3). The questions outlined in paragraph 188 above are the primary questions in this litigation, and no other method will adjudicate this controversy as fairly and efficiently as a class action.
CAUSES OF ACTION 193. “If a government agency restricts public access, the media’s only recourse is the court system. The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.” Leigh, 677 F.3d at 898.
First Cause of Action (Violation of the First Amendment) 194. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 195. Plaintiffs and Plaintiff Class are engaged in constitutionally protected acts of speech and expressive conduct. Defendants retaliated against Plaintiffs and Plaintiff Class for engaging in such constitutionally protected activity. Defendants have targeted journalists and legal observers for arrests, threats of arrests, and use of force. 196. Defendants’ policy of dispersing neutrals who are reporting on protests violates Plaintiffs’ First Amendment rights on its face and as applied. Journalists and observers engaged in newsgathering do not present public safety issues, and keeping them from newsgathering during a protest thus does not serve any legitimate government interest. Defendants know that
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reporters do not threaten public safety because they are willing to allow reporters and observers whom they handpick to attend the protests. Moreover, preventing journalists and observers from newsgathering during enforcement of an unlawful-assembly order does not provide alternative channels for newsgathering on police’s enforcement of that order.
197. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from reporting on the protests, including the very police brutality against which the protesters were demonstrating. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from monitoring, recording, and reporting on police misconduct.
198. Defendants’ acts would chill a reasonable person from continuing to engage in a constitutionally protected activity. These acts did, in fact, chill Plaintiffs and Plaintiff Class from continuing to support, observe, record, and report on some events of public interest, including constitutionally protected demonstrations and the conduct of law enforcement officers on duty in a public place. Plaintiffs and Plaintiff Class reasonably fear that if they continue to engage in such constitutionally protected activity, the police will continue to use tear gas, excessive force, flash-bang grenades, rubber bullets, riot batons, and other means to chill their right to free speech.
199. By retaliating against Plaintiffs and Plaintiff Class for engaging in constitutionally protected activity, and by adopting an unlawful policy that restricts activities protected by the First Amendment, Defendants, under color of state law, subjected or caused Plaintiffs and Plaintiff Class to be subjected to the deprivation of rights secured by the First Amendment of the Constitution.
200. It was the City’s policy, practice, or custom, as well as its failure to train and supervise its employees and agents and issue corrective instructions after violations were brought to light, that caused the First Amendment retaliation.
201. The City’s failure to supervise and train its employees and agents with respect to the First Amendment rights of Plaintiffs and Plaintiff Class, including a failure to investigate and
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discipline officers for First Amendment violations, amounts to deliberate indifference to the rights of Plaintiffs and Plaintiff Class.
202. The pattern of similar constitutional violations against Plaintiffs and Plaintiff Class that occurred during the George Floyd protests demonstrates the City’s deliberate indifference to Plaintiffs’ and Plaintiff Class’s First Amendment rights.
203. Given the multiple constitutional violations documented above, the need for more supervision or training was so obvious, and the inadequacy of the training and supervision so likely to result in the violation of constitutional rights, that the City demonstrated its deliberate indifference to the need for such training and supervision.
Second Cause of Action (Violation of the Fourth Amendment) 204. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 205. Plaintiffs and Plaintiff Class, who were present at the protests to observe and report committed no crime. Nor did they pose a threat to any of Defendants’ officers or agents or any other person. 206. Plaintiffs and Plaintiff Class were seized by Defendants when their officers intentionally, through threats of arrest, chemical agents, rubber bullets, and other uses of force, terminated their freedom of movement. 207. Using threats of arrest, riot batons, semi-lethal projectiles, and chemical weapons against neutral parties who are present to observe protests and report on them is an unconstitutionally excessive use of force. Defendants’ seizure of Plaintiffs and Plaintiff Class was thus objectively unreasonable. Defendants, under color of state law, subjected or caused Plaintiffs to be subjected to the deprivation of rights secured by the Fourth Amendment of the Constitution.
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208. It was the City’s policy, practice, or custom, as well as its failure to train and supervise its employees and agents and issue corrective instructions after violations were brought to light, that caused the Fourth Amendment violations.
209. The City’s failure to supervise and train its employees and agents with respect to the Fourth Amendment rights of Plaintiffs and Plaintiff Class, including a failure to investigate and discipline officers for Fourth Amendment violations, amounts to deliberate indifference to the rights of Plaintiffs and Plaintiff Class.
210. The pattern of similar constitutional violations against Plaintiffs and Plaintiff Class that occurred during the Floyd protests demonstrates the City’s deliberate indifference to Plaintiffs’ and Plaintiff Class’s Fourth Amendment rights.
211. Given the multiple constitutional violations documented above, the need for more supervision or training was so obvious, and the inadequacy of the training and supervision so likely to result in the violation of constitutional rights, that the City demonstrated its deliberate indifference to the need for such training and supervision.
212. Plaintiffs reasonably fear further retaliation in the future in violation of the Fourth Amendment if they continue to observe, record, or participate in constitutionally protected activity.
Third Cause of Action (Violation of the Oregon Constitution, Art. I, §§ 8, 26) 213. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 214. Article I, § 8, of the Oregon Constitution provides: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for abuse of this right.” Article I, § 26, provides: “No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from
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instructing their Representatives; nor from applying to the Legislature for redress of [grievances].”
215. “The difference in the language of the Oregon and federal constitutions may . . . be pointed to as indicating an intention to provide a larger measure of protection to free expression under the Oregon Constitution. The California Constitution, which contains language similar to Oregon Constitution, Art. I, § 8, was so construed in Wilson v. Superior Court of Los Angeles County, 532 P.2d 116, 120 (Cal. 1975), where the court said: ‘A protective provision more definitive and inclusive than the First Amendment is contained in our state constitutional guarantee of the right of free speech and press.’” Deras v. Myers, 272 Or. 47, 64 n.17 (Or. 1975); see also State v. Tusek, 52 Or. App. 997, 1000 n.2 (Or. Ct. App. 1981) (“[I]n some instances, Art I § 8 of the Oregon Constitution provides a larger measure of protection to citizens than does the First Amendment to the U.S. Constitution.”).
216. Plaintiffs and Plaintiff Class are engaged in constitutionally protected acts of speech and expressive conduct secured by the Oregon Constitution, Art. I, §§ 8 and 26. Defendants retaliated against Plaintiffs and Plaintiff Class for engaging in such constitutionally protected activity. Defendants have targeted journalists and legal observers for arrests, threats of arrests, and use of force.
217. Defendants’ policy of dispersing neutrals who are reporting on protests violates Plaintiffs’ constitutional right to free speech on its face and as applied. Journalists and observers engaged in newsgathering do not present public safety issues, and keeping them from newsgathering during a protest thus does not serve any legitimate government interest. Defendants know that reporters do not threaten public safety because they are willing to allow reporters and observers whom they handpick to attend the protests. Moreover, preventing journalists and observers from newsgathering during enforcement of an unlawful-assembly order does not provide alternative channels for newsgathering on police’s enforcement of that order.
218. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from reporting on the protests, including the very police brutality against which the protesters were
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demonstrating. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from monitoring, recording, and reporting on police misconduct.
219. Defendants’ acts would chill a reasonable person from continuing to engage in a constitutionally protected activity. These acts did, in fact, chill Plaintiffs and Plaintiff Class from continuing to support, observe, record, and report on some events of public interest, including constitutionally protected demonstrations and the conduct of law enforcement officers on duty in a public place. Plaintiffs and Plaintiff Class reasonably fear that if they continue to engage in such constitutionally protected activity, the police will continue to use tear gas, excessive force, flash-bang grenades, rubber bullets, riot batons, and other means to chill their right to free speech.
220. By retaliating against Plaintiffs and Plaintiff Class for engaging in constitutionally protected activity, Defendants subjected or caused Plaintiffs to be subjected to the deprivation of rights secured by the Oregon Constitution, Art. I, §§ 8 and 26.
Fourth Cause of Action (Declaratory Judgment) 221. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 222. Plaintiffs and Plaintiff Class intend to continue attending protests in Portland for the purpose of documenting, reporting on and observing the events. Plaintiffs are fearful, however, that they will be subjected to police violence or dispersed pursuant to the police’s illegal policy. Plaintiffs are also fearful that the police will continue to use kettling and killbox tactics against protesters that sweep in media and observers. 223. As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant issuing a declaratory judgment that threatening Plaintiffs and Plaintiff Class with arrest, arresting Plaintiffs and Plaintiff Class, and targeting Plaintiffs and Plaintiff Class for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including
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newsgathering, reporting, and documenting police interaction with protesters, violates the First Amendment.
224. As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant issuing a declaratory judgment that threatening Plaintiffs and Plaintiff Class with arrest, arresting Plaintiffs and Plaintiff Class, and targeting Plaintiffs and Plaintiff Class for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters, violates the Fourth Amendment.
225. As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant issuing a declaratory judgment that threatening Plaintiffs and Plaintiff Class with arrest, arresting Plaintiffs and Plaintiff Class, and targeting Plaintiffs and Plaintiff Class for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters, violates Article I, Section 8 of the Oregon Constitution.
226. A judicial declaration is necessary and appropriate so that Plaintiffs and Plaintiff Class may ascertain their rights to engage in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters.
227. Plaintiffs and Plaintiff Class are entitled to a declaratory judgment that Defendants may not threaten Plaintiffs and Plaintiff Class with arrest, arrest Plaintiffs and Plaintiff Class, or target Plaintiffs and Plaintiff Class for uses of force, while they are engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief: A. Declaratory relief; B. Injunctive relief; C. Compensatory damages; D. Punitive damages; E. An award of pre-judgment interest; F. An award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; G. Any other relief the Court deems proper.

Dated: July 10, 2020

Respectfully submitted,
By: /s/ Athul K. Acharya Athul K. Acharya, OSB No. 152436 Matthew Borden, pro hac vice pending J. Noah Hagey, pro hac vice pending Gunnar K. Martz, pro hac vice pending BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

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 Case 3:20-cv-01035-SI Document 42 Filed 07/14/20 Page 1 of 8

Matthew Borden, pro hac vice application pending borden@braunhagey.com J. Noah Hagey, pro hac vice application pending hagey@braunhagey.com Athul K. Acharya, OSB No. 152436 acharya@braunhagey.com Gunnar K. Martz, pro hac vice application pending martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND, a municipal corporation; and JOHN DOES 1-60, officers of Portland Police Bureau and other agencies working in concert,
Defendants.

Case No. 3:20-cv-1035-SI
EMERGENCY MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT EXPEDITED HEARING REQUESTED

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MOTION Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau, on behalf of themselves and those similarly situated, seek emergency leave to file a second amended complaint. A copy of the Proposed Second Amended Complaint (“Proposed SAC”) is attached to this motion as Exhibit 1, and a copy of the Proposed SAC with changes from the First Amended Complaint marked in redline is attached as Exhibit 2. In accordance with Local Rule 7-1(a), Plaintiffs conferred with Defendant City of Portland about this motion, and although the City did not consent to amendment, the City did not oppose Plaintiffs’ request for expedited relief. Plaintiffs and the City agreed to the following briefing schedule: The City’s response brief will be due by the close of business on Wednesday, July 15, 2020, with any reply from Plaintiffs due by 8:00 a.m. on Thursday, July 16. Plaintiffs and the City are both prepared to argue this motion on Thursday, July 16.
INTRODUCTION Plaintiffs respectfully seek emergency leave to amend their complaint to include the U.S. Department of Homeland Security (“DHS”) and the U.S. Marshals Service (“USMS”) (together, the “federal agents”) as defendants. Such relief is necessary because the federal agents have been shooting, tear-gassing, and threatening journalists and legal observers, and Plaintiffs intend immediately to seek a TRO against the federal agents that is identical to the one the Court issued on July 2, 2020 (Dkt. 33), which prohibits the Portland police from attacking media and legal observers. After the Court issued the TRO, journalists and legal observers enjoyed a brief respite from the violence and intimidation that gave rise to this lawsuit. Unfortunately, in the days that followed, President Trump sent federal forces to Portland to suppress protests, and to subject Portland to the same type of indiscriminate violence that he used to clear Lafayette Square of peaceful protesters. This campaign has included attacking media who dared to try to report what
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his minions are doing to demonstrators. Specifically, on July 12, 2020, federal agents shot at least two journalists and chased legal observers away from the scene with their batons. (Declaration of Mathieu Lewis-Rolland (“Lewis-Rolland Decl.”) ¶¶ 13-16; Declaration of Garrison Davis (“Davis Decl.”) ¶¶ 13-14, 17.)
As the Court has already ruled, such conduct raises “a serious threat to [Plaintiffs’] First Amendment rights,” and therefore poses “a likelihood of irreparable injury.” (Dkt. 33 at 7.) Journalists and legal observers thus need protection from federal agents as much as they need it from local police. Courts freely grant leave to amend, and leave should be expedited here so that Plaintiffs can seek an immediate TRO to prevent further assaults on journalists and legal observers.
FACTUAL BASIS FOR SEEKING EMERGENCY RELIEF A. Federal Agents Shoot Plaintiff Lewis-Rolland In the early hours of July 12, Mr. Lewis-Rolland was at the protests near the federal courthouse documenting the protesters and their interaction with federal officials. (LewisRolland Decl. ¶¶ 4, 6.) He was carrying bulky camera equipment, wearing a t-shirt that said “PRESS” in big block letters, and staying in well-lit areas to make sure officials could see that he was there in a journalistic capacity. (Id. ¶¶ 3-4.) Around 1:54 a.m., federal agents began rushing out of the Hatfield Courthouse and the Justice Center to eject protesters and neutrals alike from the area with tear gas, impact projectiles, and physical force. (Id. ¶¶ 5-8.) The agents were from “more than a half-dozen federal law enforcement agencies and departments” under the purview of DHS, including the Federal Protective Service.1 Mr. Lewis-Rolland shot the following video that documents much of what ensued: https://www.facebook.com/MathieuLewisRolland/videos/10218671503762415/. (Lewis-Rolland Decl. ¶ 5.)
1 Ben Fox & Gillian Flaccus, Homeland Security Deploys Officers In Portland Under Trump Monument Order, OPB (July 10, 2020), https://www.opb.org/news/article/portland-oregonhomeland-security-officers-protests-trump-monument-order/.
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Soon after the agents emerged from the courthouse, one agent shoved Mr. Lewis-Rolland, shouting “GET BACK! GET BACK!” (Id. ¶ 7.) About a minute later, an agent from the Federal Protective Service, Agent Doe, took aim at Mr. Lewis-Rolland but then lowered his weapon. (Id. ¶ 9.) Mr. Lewis-Rolland began moving west, complying with the agents’ orders. (Id. ¶ 10.) About three minutes after the agents began their offensive, Mr. Lewis-Rolland had moved almost all the way to SW 4th Avenue, well past the boundary of federal property. (Id. ¶ 11.) Nevertheless, federal agents, including Agent Doe, continued to chase him and the crowd. (Id.) A few seconds later, Agent Doe or other agents very near him shot Mr. Lewis-Rolland in the side and back ten times. (Id. ¶ 13.)
Mr. Lewis-Rolland posed no threat to federal agents or anyone else. (Id. ¶ 13.) He was only documenting what officers and protesters were doing. (Id.) He was performing an essential function of the Fourth Estate. For his trouble, federal agents shot him with hard plastic bullets, launched with enough force to rip his “PRESS” t-shirt and leave him with welts, lacerations, and contusions all over his body. (Id. ¶¶ 14-18 (with pictures).)
B. Federal Agents Shoot Journalist Garrison Davis Journalist Garrison Davis was also covering the protests on the night of July 11 and the early morning of July 12. (Davis Decl. ¶¶ 1, 3.) Like Mr. Lewis-Rolland, Mr. Davis was clearly there as press: He wore a helmet that said “PRESS” on it in big block letters, held his press pass in one hand and his iPhone in the other, and did not participate in protests. (Id. ¶¶ 4-5.) Shortly after midnight, the federal troops issued what they called a “last warning.” (Id. ¶ 12.) They then launched a tear-gas offensive, engulfing the entirety of the steps of the courthouse, SW 3rd Avenue, and Lownsdale Square in tear gas. (Id.) They also started shooting munitions into the crowd. (Id.) As Mr. Davis moved backward, one federal agent shot him in the back with a tear gas canister. (Id. ¶ 13.) It fell into Mr. Davis’s bag and inundated him with tear gas until people nearby helped him remove it. (Id.) Federal agents also shot directly at him with pepper bullets and other munitions, even though he was no threat to them or anyone else. (Id.
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¶ 14.) Mr. Davis also saw agents chase, batons swinging, after legal observers who were clearly affiliated with the National Lawyers’ Guild. (Id. ¶ 17.)
ARGUMENT I. EMERGENCY RELIEF IS NECESSARY
Plaintiffs seek leave to amend on an emergency basis because they intend immediately to seek a TRO to protect journalists and legal observers from the same violence and intimidation that the Court already addressed in its TRO against the police. The standard for emergency relief is easily met here because federal agents shot Plaintiff Lewis-Rolland in the back and side 10 times—all above the waist—when he was obviously present at protests only in a journalistic capacity to photograph and record what happened. (Lewis-Rolland Decl. ¶¶ 3-4, 13-16.) Federal agents similarly attacked and threatened other journalists and legal observers because they apparently believe they are not bound by the Court’s TRO—or the First Amendment. (Davis Decl. ¶¶ 4-5, 13-14, 16.) Thus, the same harms that the Court sought to redress in the TRO are recurring, Plaintiffs and their First Amendment rights are in peril, and emergency relief is necessary for the same reasons that the Court granted the TRO. II. PLAINTIFFS SHOULD BE GIVEN LEAVE TO AMEND THE COMPLAINT
Courts should “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (“Rule 15(a) declares that leave to amend ‘shall be freely given when justice so requires’; this mandate is to be heeded.”). A district court has discretion to deny leave only on account of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of the amendment.” Ni-Q, LLC v. Prolacta Bioscience, Inc., 407 F. Supp. 3d 1153, 1160 (D. Or. 2019) (quoting Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009)) (alteration omitted). Of these factors, the most important are prejudice to the opposing party and futility of amendment.
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Plaintiffs seek to amend the complaint to add the federal agents as defendants. Because this request comes just two days after a federal agent shot Plaintiff Lewis-Rolland, there is no undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies. (Lewis-Rolland Decl. ¶¶ 2, 13.) Nor would the City suffer any prejudice if Plaintiffs were to add a second wrongdoing party. Nor indeed would amendment be futile: the same First Amendment principles under which the Court enjoined the City’s conduct apply to federal officials’ substantially similar conduct. (Temporary Restraining Order, Dkt. 33, at 7-8); Gitlow v. New York, 268 U. S. 652, 666 (1925). III. PLAINTIFFS MAY JOIN THE FEDERAL AGENTS AS PARTIES TO THIS
ACTION The Federal Rules of Civil Procedure “strongly encourage[]” courts to entertain the “broadest possible scope of action consistent with fairness to the parties,” including “joinder of claims, parties and remedies.” Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966). “Permissive joinder is to be liberally construed to promote the expeditious determination of disputes, and to prevent multiple lawsuits.” Cuprite Mine Partners LLC v. Anderson, 809 F.3d 548, 552 (9th Cir. 2015). Plaintiffs may join the federal agents as defendants with the City because Plaintiffs’ right to relief against them arises out of the same “series of transactions or occurrences” and will involve common questions of law and fact. Fed. R. Civ. P. 20(a)(2). Plaintiffs’ claims against the City and the federal agents all arise out the recent protests in Portland in front of the government buildings downtown and the actions of Portland police and federal agents to protect government property and disperse crowds. (E.g., Lewis-Rolland Decl. ¶¶ 6-8; Davis Decl. ¶¶ 7-8, 19-20.) That is a single series of transactions and occurrences. Not only do all three entities—USMS, DHS, and the Portland police—use the same types of force against the same crowds, but they have worked together to disperse them, too. (E.g., Proposed SAC ¶ 186; Lewis-Rolland Decl.
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¶ 8; Davis Decl. ¶¶ 21-25.2) Thus, the proof in both cases will involve footage and testimony of the same events, where local and federal authorities are working together, in the same area, to address the same protests.
Further, the conduct by local and federal agents gives rise to common questions of law, including whether Plaintiffs have a right of access to record law-enforcement activities and whether local and federal officials may retaliate against Plaintiffs for recording their activities. Joinder is also necessary to effectuate complete relief in this case because without adding the federal agents, Plaintiffs and other journalists and observers will remain unsafe at protests, and the freedom of the press that the Court’s TRO protected will be chilled. Thus, there is at least the “logical relationship” necessary for permissive joinder of DHS and USMS. See Rutter Group, Federal Civil Procedure Before Trial ¶ 7:141 (Calif. & 9th Cir. eds. Apr. 2020). Moreover, “separate trials would require duplicative evidence and witness testimony,” so joinder would be “more efficient and make[] litigation less expensive for [all] parties.” Ames v. City of Novato, 2016 WL 6024587, at *3 (N.D. Cal. Oct. 14, 2016).
Generally, district courts must also examine whether permitting joinder would prejudice or be unfair to any party. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000). When a party seeks to join defendants by amendment, however, the Ninth Circuit has explained that courts should show “a strong liberality in allowing parties to amend their pleadings when such amendments have satisfied the explicit requirements of the rules.” Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980). That is because consideration of factors like prejudice and fairness is already part of the Rule 15 analysis, and so they need not be
2 See also, e.g., Conrad Wilson & Jonathan Levinson, President Trump Says Portland Police Are Incapable Of Managing Protests, OPB (July 10, 2020) (explaining that “local and federal agents . . . have at times operated side-by-side to clear Portland streets” and that a federal agent “works out of Portland’s command post during protests to communicate as needed”), https://www.opb.org/news/article/president-trump-portland-police-are-incapable-of-managingprotests/.
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considered anew in the Rule 20 context. Travelers Cas. & Sur. Co. of Am. v. Dunmore, 2010 WL 2546070, at *5 (E.D. Cal. June 23, 2010) (citing Desert Empire, 623 F.2d at 1375-76).
* * * Thus, there is no reason to deny Plaintiffs’ request. And “justice . . . requires” that the Court grant it. Fed. R. Civ. P. 15(a)(2).
CONCLUSION For the above reasons, the Court should grant Plaintiffs’ request to amend their complaint.

Dated: July 14, 2020

Respectfully submitted,
By: /s/ Athul K. Acharya Athul K. Acharya, OSB No. 152436 Matthew Borden, pro hac vice pending J. Noah Hagey, pro hac vice pending Gunnar K. Martz, pro hac vice pending BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

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 Case 3:20-cv-01035-SI Document 47 Filed 07/16/20 Page 1 of 7

Matthew Borden, pro hac vice application pending borden@braunhagey.com J. Noah Hagey, pro hac vice application pending hagey@braunhagey.com Athul K. Acharya, OSB No. 152436 acharya@braunhagey.com Gunnar K. Martz, pro hac vice application pending martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND, a municipal corporation; and JOHN DOES 1-60, officers of Portland Police Bureau and other agencies working in concert,
Defendants.

Case No. 3:20-cv-1035-SI
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF EMERGENCY MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
EXPEDITED HEARING REQUESTED

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Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau, on behalf of themselves and those similarly situated, respectfully submit this reply brief in support of their emergency motion for leave to file a second amended complaint (Dkt. 42).
INTRODUCTION This case is about how law enforcement is treating journalists and legal observers at the ongoing protests over George Floyd’s murder. The City’s reductionist Opposition portrays each night of protest as a discrete occurrence, rather than what is—part of an ongoing series of related interactions between the police and public, where members of the press and legal observers are being shot, tear-gassed, beaten, and intimidated. The City’s Opposition largely ignores the Ninth Circuit’s liberal standard for joinder, which makes joinder proper whenever the claims arise from the same events—here, the protests. See Cuprite Mine Partners LLC v. Anderson, 809 F.3d 548, 552 (9th Cir. 2015). It also ignores that local and federal law enforcement are now policing the protests together, using common staging areas, and obviously coordinating their activities. (Proposed Second Amended Complaint (“SAC”), Dkt. 42-1 ¶ 186.) These facts easily satisfy the legal standard for joinder, which seeks to create efficiency, ensure that the Court can render effective relief, and protect the plaintiff from an empty-chair defense (or, if the City’s view were adopted, two empty-chair defenses). While the City tries to distance itself from its federal counterparts, its arguments only reinforce the need for joinder and for immediate relief against federal agents. For example, it asserts that “The City’s position in this case is that its actions complied with the Constitution. The same cannot be said, however, about the Federal Entities’ use of force.” (Opp. at 7.) These contentions highlight the need for adding and enjoining the federal agents, because they show that the City intends to redirect blame to the very parties whom it hopes to exclude from the case. These are the precise circumstances that make joinder warranted.
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ARGUMENT
I. PLAINTIFFS’ RIGHT TO RELIEF AGAINST THE POLICE AND FEDERAL AGENTS ARISES OUT OF THE SAME SERIES OF TRANSACTIONS AND OCCURRENCES The City argues that it had no role in federal agents’ shooting Mr. Lewis-Rolland, did not
direct federal agents’ conduct, and is not liable for the federal agents’ constitutional violations. (Opp. at 3-6.) But the City’s liability for the events alleged in the pleading is a question of fact to be determined later. At the time federal agents shot Mr. Lewis-Rolland, they were coordinating their suppression of the protest with local authorities. (SAC ¶ 186.) That is enough for joinder.
The City also argues that some city officials have condemned the federal agents’ conduct in public.1 (Opp. at 5.) Leaving aside that several city and state officials have also criticized local police’s use of force during the protests,2 these facts have no legal import—as evinced by the City’s total failure to cite authority on this point. (Opp. at 3-6.)
Rule 20 does not require Plaintiffs to show that the City and the federal agents are jointly liable, as the City asserts. (Opp. at 3-4); Rutter Group, Federal Civil Procedure Before Trial ¶ 7:141.1 (Calif. & 9th Cir. eds. Apr. 2020). What the Rule states, in the disjunctive, is that joinder is proper when there is “any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2)(A). Thus, joinder is proper where joint and several liability is possible—such as when various law-enforcement officials are working together at the same protests. Joinder is equally proper where any one of the defendants could be liable—such as
1 But see Amanda Butt, Mayor asks Gov. Brown to activate National Guard in Portland, KATU (June 1, 2020), https://katu.com/news/local/mayor-asks-gov-brown-to-activate-national-guardin-portland. 2 See, e.g., Tess Riski, Portland Commissioner Jo Ann Hardesty to Police Chief Chuck Lovell: Immediately Discontinue Tear Gas, Close-Range Bullets, Willamette Week (July 2, 2020), https://www.wweek.com/news/city/2020/07/02/portland-commissioner-jo-ann-hardesty-topolice-chief-chuck-lovell-immediately-discontinue-tear-gas-close-range-bullets/; Fedor Zarkhin, Gov. Kate Brown urges Portland police to de-escalate protests to avoid ‘senseless cycle of violence’, OregonLive (July 3, 2020), https://www.oregonlive.com/portland/2020/07/gov-katebrown-urges-portland-police-to-de-escalate-protests-to-avoid-senseless-cycle-of-violence.html.
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when various law-enforcement officials are working together at the same protests. Cf. e.g., Girau v. Europower, Inc., 2017 WL 4124340, at *5 (S.D.N.Y. Sep. 14, 2017) (“alternative liability . . . requires joinder of all the parties who could have been responsible for a plaintiff's injuries to avoid unfairness to the potential defendants” (quotation marks omitted)).
The touchstone of Rule 20’s broad standard is whether the claims involve the same series of occurrences. “It is sufficient if there is a logical relationship between the claims joined[.]” Rutter Group, Federal Civil Procedure Before Trial ¶ 7:141. Plaintiffs’ allegations and evidence easily satisfy that standard:
• The federal agents and the police were doing the same thing—forcibly preventing legal observers and reporters from observing and reporting on their violent crowdcontrol tactics. (SAC ¶¶ 186-187; Davis Decl. ¶ 24.)
• They were doing it at the same time—on July 12, 2020, specifically, and during the George Floyd protests in Portland more generally. (SAC ¶¶ 1-2, 187; Davis Decl. ¶¶ 3, 12, 19-20; Lewis-Rolland Decl. ¶¶ 2, 6.)
• They were doing it against the same people, including Plaintiff Lewis-Rolland. (Lewis-Rolland Decl. ¶ 13; Declaration of Mathieu Lewis-Rolland in Support of Plaintiffs’ Motion for TRO, Dkt. 12 ¶ 9.)
• They were doing it from the same base of operations—the Justice Center, which houses the Portland police’s headquarters. (SAC ¶ 186; Lewis-Rolland Decl. ¶ 8; Davis Decl. ¶ 19.)
• And they were coordinating with each other. (SAC ¶ 186; Davis Decl. ¶¶ 19-25.) Thus, Plaintiffs’ claims against the City and the federal agents are at least logically related to one another, and it is entirely plausible that discovery will reveal much greater entanglement between police and federal agents. Moreover, this action seeks prospective injunctive relief against law enforcement’s abuse of journalists and legal observers at protests. The events at these ongoing protests vary each night. Police officers’ coordination with federal agents tomorrow could easily vitiate the City’s assertions today. Plaintiffs’ ability to obtain
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complete relief from the Court for their logically related claims against the City and federal agents thus depends on their being able to seek injunctive relief against both parties. For all these reasons, Plaintiffs satisfy Rule 20(a)(2)(A). Rutter Group, Federal Civil Procedure Before Trial ¶ 7:141; Ames v. City of Novato, 2016 WL 6024587, at *3 (N.D. Cal. Oct. 14, 2016) (explaining that joinder is proper to avoid “duplicative evidence and witness testimony”). II. PLAINTIFFS’ CLAIMS AGAINST THE CITY AND FEDERAL AGENTS
WILL INVOLVE COMMON QUESTIONS OF LAW AND FACT Rule 20’s second requirement is that there be at least one “question of law or fact common to all defendants.” Fed. R. Civ. P. 20(a)(2)(B). The City offers up a number of questions that will differ. (Opp. at 6-7.) But it ignores the obvious questions in common: • Are public streets and parks areas that have historically been open to the press and
general public? Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”), 478 U.S. 1, 8-9 (1986). • Will press scrutiny play a significant positive role in ensuring that police and federal conduct remains consistent with the constitution? Id. • Does using force against members of the media and legal observers chill their expressive conduct? Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 130001 (9th Cir. 1999). • Do Plaintiffs have “alternative observation opportunities” to remaining at the scene where police and federal agents are using violent force against the people? Reed v. Lieurance, 863 F.3d 1196, 1211-12 (9th Cir. 2017). Not only are these questions of law common to Plaintiffs’ claims against both sets of defendants, answering them will almost certainly involve common facts and common proof, such as videos of the same protests. That there may be other relevant questions that are specific to one set of defendants or the other is irrelevant. Fed. R. Civ. P. 20(a)(2)(B).
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III. PLAINTIFFS WILL BE SEVERELY PREJUDICED IF THEIR CLAIMS AGAINST THE CITY AND THE FEDERAL AGENTS MUST PROCEED SEPARATELY The City asserts that it will be prejudiced if the federal agents are joined to this action.
But to state the prejudice it will suffer, the City resorts to question-begging: “the inclusion of the Federal Entities’ constitutionally problematic behavior alongside the City’s lawful conduct presents an undue risk that the conduct of the Federal Entities will be attributed to the City in the mind of the jury[.]” (Opp. at 8 (emphasis added).) Whether the police’s conduct is “lawful” or “constitutionally problematic” is precisely the question to be answered in this lawsuit. So too with the federal agents’ substantially similar conduct. The City will suffer no prejudice if these logically related questions are decided together.
Plaintiffs, on the other hand, will suffer severe prejudice if they are decided separately. The City’s brief foreshadows its defense: The federal agents are the real bad actors here. And the federal agents will doubtless point fingers back at the police. If the two claims are decided separately, Plaintiffs will be forced to try two cases with conspicuously empty chairs. That would be an unfair—not to mention inefficient—result.
* * * The sotto voce core of the City’s objection is that it does not want to be on the same side of a lawsuit as the Trump administration. (See Opp. at 8.) That is no basis to separately try plainly related claims. Plaintiffs have satisfied the explicit requirements of Rules 15 and 20, and they have also shown that they will be prejudiced if the claims are tried separately. The Court should permit Plaintiffs to litigate their claims in a single case, as the Federal Rules contemplate and as justice requires.
CONCLUSION For the above reasons, the Court should grant Plaintiffs’ request to amend their complaint.
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Dated: July 16, 2020

Respectfully submitted,
By: /s/ Athul K. Acharya Athul K. Acharya, OSB No. 152436 Matthew Borden, pro hac vice pending J. Noah Hagey, pro hac vice pending Gunnar K. Martz, pro hac vice pending BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

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 Case 3:20-cv-01035-SI Document 49 Filed 07/16/20 Page 1 of 4

Matthew Borden, pro hac vice application pending borden@braunhagey.com J. Noah Hagey,pro hac vice application pending hagey@braunhagey.com Athol K. Acharya, OSB No. 152436 acharya@braunhagey.com Gunnar K. Martz, pro hac vice application pending martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRJCT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
V.
CITY OF PORTLAND, a municipal corporation; and JOHN DOES 1-60, officers of Pmtland Police Bureau and other agencies working in concert,
Defendants.

Case No. 3:20-cv-1035-SI
STIPULATED PRELIMINARY INJUNCTION

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Plaintiffs and defendant City of Portland ("the City") hereby jointly stipulate to the following preliminary injunction:
1. The City and its agents and employees, including but not limited to the Portland Police Bureau and all persons acting under the direction of the Portland Police Bureau (collectively, "the Police"), are enjoined from atTesting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), unless the Police have probable cause to believe that such individual has committed a crime. For purposes of this Order, such persons shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse. Such persons shall, however, remain bound by all other laws.
2. The Police are further enjoined from seizing any photographic equipment, audioor video-recording equipment, or press passes from any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), or ordering such person to stop photographing, recording, or observing a protest, unless the Police are also lawfully seizing that person consistent with this Order. Except as expressly provided in Paragraph 3 below, the Police must return any seized equipment or press passes immediately upon release of a person from custody.
3. Pursuant to ORS 133.623, if Police seize property from a Journalist or Legal Observer lawfully arrested under this Order, they shall, as soon thereafter as is reasonably possible, make a written list of things seized and furnish a copy to the Journalist or Legal Observer. If equipment seized in connection with an arrest of a Journalist or Legal Observer lawfully seized under this Order is needed for evidentiary purposes, Police shall promptly seek a search warrant, subpoena, or other court order for the same. If said search warrant, subpoena, or court order is denied, or equipment seized in connection with an arrest is not needed for evidentiary purposes, police shall immediately return it to its rightful possessor. Pursuant to ORS 133.633, Journalists or Legal Observers may seek return of property seized through a state-comt
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motion, through which the state court will make a determination whether the prope1ty can be returned prior to the conclusion of a criminal investigation or criminal proceeding.
4. To facilitate the Police's identification of Journalists protected under this Order, the following shall be considered indicia of being a Journalist: visual identification as a member of the press, such as by carrying a professional or authorized press pass or wearing a professional or authorized press badge or distinctive clothing that identifies the wearer as a member of the press. These indicia are not exclusive, and a person need not exhibit every indicium to be considered a Journalist under this Order. The Police shall not be liable for unintentional violations of this Order in the case of an individual who does not carry a press pass or wear a press badge or distinctive clothing that identifies the wearer as a member of the press.
5. To facilitate the Police's identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU issued or authorized Legal Observer vest.
6. The Police may issue otherwise lawful crowd-dispersal orders for a variety of lawful reasons. The Police shall not be liable for violating this Order if a Journalist or Legal Observer is incidentally exposed to crowd-control devices after remaining in the area where such devices were deployed after the issuance by the Police of an otherwise lawful dispersal order.
7. Plaintiffs need not provide any security. 8. This Order shall expire on Friday, October 30, 2020, unless otherwise extended by stipulation of the patties. 9. This stipulation is without prejudice to the respective legal positions of the parties and without any patty waiving any argument or the right to request modifications or clarifications of the injunction as circumstances may warrant. \\\ \\\ \\\
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Case 3:20-cv-01035-SI Document 49 Filed 07/16/20 Page 4 of 4

So stipulated: Dated: July 16, 2020

By: Isl Athul K. Acharya Athul K. Acharya, OSB No. 152436 Matthew Borden, pro hac vice pending J. Noah Hagey, pro hac vice pending Gunnar K. Martz, pro hac vice pending BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneysfor Plaintiffs
By: Isl Denis M Vannier DENIS M. VANNIER, OSB# 044406 Senior Deputy City Attorney NAOMI SHEFFIELD, OSB# 170601 Deputy City Attorney RYAN C. BAILEY, OSB# 130788 Deputy City Attorney YOUNGWOO JOH, OSB# 164105 Assistant Deputy City Attorney
Attorneys for Defendant City ofPortland

The Court adopts the above Stipulated Preliminary Injunction in this action.
IT IS SO ORDERED.
Dated: --x;!7 //,/ £,D '"bD

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 Case 3:20-cv-01035-SI Document 52 Filed 07/17/20 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

INDEX NEWSPAPERS LLC d/b/a PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND; and JOHN DOES 1-60,
Defendants.

Case No. 3:20-cv-1035-SI OPINION AND ORDER

Matthew Borden, J. Noah Hagey, Athul K. Acharya, and Gunnar K. Martz, BRAUNHAGEY & BORDEN LLP, 351 California Street, Tenth Floor, San Francisco, CA 94104; Kelly K. Simon, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON, P.O. Box 40585, Portland, OR 97240. Of Attorneys for Plaintiffs.
Denis M. Vannier and Naomi Sheffield, Senior Deputy City Attorneys; Ryan C. Bailey, Deputy City Attorney; and Youngwoo Joh, Assistant Deputy City Attorney, OFFICE OF THE CITY ATTORNEY, 1221 SW Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant City of Portland.

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Case 3:20-cv-01035-SI Document 52 Filed 07/17/20 Page 2 of 9
Michael H. Simon, District Judge. Before the Court is Plaintiffs’ Emergency Motion for Leave to File Second Amended
Complaint. Plaintiffs seek to add as defendants the U.S. Department of Homeland Security and the U.S. Marshals Service. Defendant City of Portland opposes Plaintiffs’ motion. For the reasons that follow, the Court grants Plaintiffs’ motion to amend.
STANDARDS “A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). “Persons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2).
BACKGROUND Plaintiffs Index Newspapers LLC doing business as Portland Mercury, Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau (collectively, “Plaintiffs”) bring this putative class action against the City of Portland (the “City”) and numerous as-of-yet unnamed
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individual and supervisory officers of the Portland Police Bureau (“PPB”) and other agencies allegedly working in concert with the PPB. As alleged in the First Amended Complaint (“FAC”), Plaintiffs seek “to stop the Portland police from assaulting news reporters, photographers, legal observers, and other neutrals who are documenting the police’s violent response to protests over the murder of George Floyd.” FAC, ¶ 1 (ECF 40) (footnote omitted). Plaintiffs assert that “[t]he police’s efforts to intimidate the press and suppress reporting on the police’s own misconduct offends fundamental constitutional protections and strikes at the core of our democracy.” Id. Plaintiffs allege violations of the First and Fourth Amendments of the United States Constitution and Article I, sections 8 and 26 of the Oregon Constitution. Plaintiffs request declaratory and injunctive relief and money damages.
Plaintiffs filed their original Complaint on June 28, 2020. On June 30th, Plaintiffs moved for a temporary restraining order (“TRO”) and preliminary injunction. On July 2nd, the Court entered a TRO against the City. On July 16th, the Court entered a stipulated preliminary injunction against the City.
On July 14th, Plaintiffs filed the pending motion for leave to file a proposed Second Amended Complaint (“Proposed SAC”) to add as defendants the U.S. Department Homeland Security (“DHS”) and the U.S. Marshals Service (“USMS”) (collectively, “Federal Entities”). Plaintiffs largely ground their motion on actions allegedly taken by DHS and USMS on July 12, 2020. In paragraphs 185-187 of Plaintiffs’ Proposed SAC, Plaintiffs allege:
185. Plaintiffs fear for their safety from police violence. Reporters who attend and document the protests are at risk of being hit with tear gas, rubber bullets, police batons, arrests, and more. Even reporters who remain at the rear of the crowd cannot cover the protests without injury because the police use strategies like the “killbox” strategy they used on June 2. 186. For the same reasons, Plaintiffs fear for their safety from federal agents’ violence. Since President Trump ordered federal
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agents to go to Portland to quell protests, federal agents have been working together with Portland police to violently disperse demonstrators and neutrals. Not only do federal agents use the same types of force—tear gas, rubber bullets, batons, arrests—in much the same way as the police, but they often coordinate with the police. For example, in the early hours of July 12, dozens of federal agents emerged from the Justice Center building, headquarters of the Portland Police Bureau, and began a campaign of wholesale violence against protesters and neutrals alike. At around 2:00 a.m., Portland police emerged from the same building and joined the federal agents, and the officers and agents worked together to push protesters and neutrals all the way to SW Broadway.
187. Plaintiffs and Plaintiff Class want to continue attending protests to gather news and observe and document how police are treating demonstrators, and whether demonstrators are actually provoking the outpouring of violence from the police, as the police claim, or whether police are engaging in indiscriminate unprovoked violence. They also want to be able to document how police are dispersing protesters. They are fearful, however, that they themselves will be targeted for the same violence police mete out against protesters. The police have prevented Plaintiffs and Plaintiff Class from documenting how police have dispersed protesters and have repeatedly told them that they will be similarly arrested and assaulted if they fail to stop recording these events.
ECF 42-1, at ¶¶ 185-187 (Proposed SAC) (emphasis added).
DISCUSSION
A district court should apply “Rule 15’s policy of favoring amendments . . . with extreme
liberality.” Price v. Kramer, 200 F.3d 1237, 1250 (9th Cir. 2000) (quotation marks omitted). A
district court may deny a motion to amend “due to undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of
the amendment.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009)
(alteration in original) (quoting Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th
Cir. 2008)). “Not all of the factors merit equal weight. As this circuit and others have held, it is
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Case 3:20-cv-01035-SI Document 52 Filed 07/17/20 Page 5 of 9
the consideration of prejudice to the opposing party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
The City opposes Plaintiffs’ motion to amend on two grounds. First, the City argues that joinder of the Federal Entities is not permissible under Rule 20 of the Federal Rules of Civil Procedure. Second, the City argues that joinder of the Federal Entities would unfairly prejudice the City in this lawsuit. The Court addresses each argument in turn. A. Whether Joinder of the Federal Entities Is Permissible Under Rule 20
The purpose of Rule 20 “is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits.” 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1652 (3d ed.) (“Wright, Miller & Kane”) (footnotes omitted). In its opposition to Plaintiffs’ motion, the City makes three subsidiary arguments under Rule 20. First, the City asserts that Plaintiffs have no “common right of relief” against both the City and the Federal Entities. ECF 46, at 3. Second, the City contends that Plaintiffs’ allegations against the Federal Entities do not arise “out of the same transaction, occurrence, or series of transactions or occurrences” as Plaintiffs’ allegations against the City. Id. at 6. Third, the City argues that Plaintiffs’ claims against the City and against the Federal Entities do not raise “common questions of law or fact.” Id.
Regarding the City’s first subsidiary argument, Rule 20 does not require Plaintiffs to show common liability among all named defendants. Rule 20(a)(2)(A) is written in the disjunctive and merely requires that any right to relief against the defendants be joint, several, or in the alternative. Thus, “several” liability would be enough to make joinder permissible. Further, “alternative liability” also would be enough under Rule 20(a)(2)(A). See generally Girau v. Europower, Inc., 2017 WL 4124340, at *5 (S.D.N.Y. Sept. 14, 2017) (“alternative liability . . . requires joinder of all the parties who could have been responsible for a plaintiff’s
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Case 3:20-cv-01035-SI Document 52 Filed 07/17/20 Page 6 of 9
injuries to avoid unfairness to the potential defendants”) (quotation marks omitted). Here,
Plaintiffs allege that the Federal Entities “often coordinate” with the Portland Police. Plaintiffs
offer the following as an example:
[I]n the early hours of July 12, dozens of federal agents emerged from the Justice Center building, headquarters of the Portland Police Bureau, and began a campaign of wholesale violence against protesters and neutrals alike. At around 2:00 a.m., Portland police emerged from the same building and joined the federal agents, and the officers and agents worked together to push protesters and neutrals all the way to SW Broadway.
ECF 42-1, at ¶ 186. This allegation satisfies the requirement in Rule 20(a)(2)(A) that Plaintiffs
assert a right to relief against Defendants severally or in the alternative.
Regarding the City’s second subsidiary argument, Rule 20(a)(2)(A) requires that the
assertion of joint, several, or alternative liability arise out of “the same transaction, occurrence,
or series of transactions or occurrences.” As also explained in the same leading treatise:
[A]ll logically related events entitling a person to institute a legal action against another typically are regarded as comprising a transaction or occurrence. The use of the logical-relationship test seems particularly consistent with the philosophy underlying the passage in Rule 20 that allows joinder of parties whenever the claims arise out of “the same series of transactions or occurrences.” Moreover, the flexibility of this standard enables the federal courts to promote judicial economy by permitting all reasonably related claims for relief by or against different parties to be tried in a single proceeding under the provisions of Rule 20. Illustrative of the liberal approach to the concept of same transaction or occurrence employed by many federal courts are cases in which the court permits an injured plaintiff to join both the original tortfeasor and a second tortfeasor whose subsequent negligence aggravated plaintiff’s original injuries.
Wright, Miller & Kane § 1653 (footnotes omitted).
The City argues that the actions Plaintiffs allege against the City occurred between June 2
and June 28, 2020, while the actions Plaintiffs allege against the Federal Entities occurred on
July 12, 2020. See ECF 42-2, at ¶¶ 4-16 (Proposed SAC). Thus, the City contends, these actions
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are not part of the same series of occurrences. Plaintiffs offer two responses. Plaintiffs begin by noting that they allege in ¶ 186 of the Proposed SAC that the Portland Police “often coordinate” with the Federal Entities, and Plaintiffs provide, as an “example,” the allegation that on July 12th the “federal agents emerged from the Justice Center building, headquarters of the Portland Police Bureau,” before engaging in their alleged violence “against protesters and neutrals alike.” Thus, according to Plaintiffs, the events of July 12th are a single occurrence.
Moreover, Plaintiffs state that the Portland protests at issue in this lawsuit have been occurring every evening just outside the Portland Police headquarters and the federal courthouse, which is located next door, since shortly after the killing of George Floyd on May 25, 2020. Thus, Plaintiffs are not attempting to bring disparate claims arising from events that are temporally or geographically remote. The Court is satisfied that there is an adequate logical relationship between the events occurring every night in June and the events occurring on July 12th to show they are part of the same series of occurrences for purposes of Rule 20.
Regarding the City’s third subsidiary argument, Rule 20(a)(2)(B) requires that Plaintiffs’ claims contain questions of law or fact common to all Defendants. As also explained in the same leading treatise, this rule “does not require that every question of law or fact in the action be common among the parties; rather, the rule permits party joinder whenever there will be at least one common question of law or fact.” Wright, Miller & Kane § 1653 (footnote omitted).1 Here, there are several questions of law or fact that are common in Plaintiffs’ claims against the City and the Federal Entities. Plaintiffs identify the following:
1 Indeed, as recognized by the Seventh Circuit, “[t]he common question need not predominate; that’s a requirement for class actions, not for permissive joinder.” Lee v. Cook Cty., Ill., 635 F.3d 969, 971 (7th Cir. 2011).
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● Are public streets and parks areas that have historically been open to the press and general public? ● Will press scrutiny play a significant positive role in ensuring that police and federal conduct remains consistent with the constitution? ● Does using force against members of the media and legal observers chill their expressive conduct? ● Do Plaintiffs have alternative observation opportunities to remaining at the scene where police and federal agents are using violent force against the people? ECF 47 at 5. These common questions suffice for purposes of Rule 20. Thus, Plaintiffs have satisfied Rule 20’s requirements for permissive joinder. B. Whether Joinder of the Federal Entities Would Unfairly Prejudice the City The City also argues that “[i]n the event these cases proceed to a jury, the inclusion of the Federal Entities in the same lawsuit with the City would result in the simultaneous litigation of two separate sets of incidents, governed by different legal standards, different directives, and involving separate damages claims (one for the damages attributed to the City, and another for the shooting of Plaintiff Lewis-Rolland by federal agents).” ECF 46 at 8. The City adds that “the inclusion of the Federal Entities’ constitutionally problematic behavior alongside the City’s lawful conduct presents an undue risk that the conduct of the Federal Entities will be attributed to the City in the mind of the jury, or that the Federal Entities’ fault would improperly be attributed or apportioned to the City.” Id. In theory, the City may be right. On the other hand, Plaintiffs argue that it would unfairly prejudice them if they had to go to separate trials with the City at one trial and the Federal Entities at another with each Defendant at trial pointing to an empty chair in an attempt to absolve that Defendant of responsibility. In theory, Plaintiffs may be right.
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It is too early in the life of this lawsuit for the Court to reach any firm conclusions on this issue. If, after discovery and any appropriate pretrial motions, the Court concludes that there is a serious risk of unfair prejudice to the City from having the claims alleged against the City decided by the same jury, in a single trial, that decides the claims against the Federal Entities, the Court can eliminate that risk by ordering separate trials. Rule 42(b) provides:
For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial. Fed. R. Civ. P. 42(b) (emphasis added). Separate trials, if appropriate, would suffice to cure any risk of unfair prejudice to the City. The Court will consider ordering separate trials of the City and the Federal Entities at the appropriate time, if necessary.
CONCLUSION The Court GRANTS Plaintiffs’ Emergency Motion for Leave to File Second Amended Complaint. ECF 42. IT IS SO ORDERED. DATED this 17th day of July, 2020.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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 Case 3:20-cv-01035-SI Document 53 Filed 07/17/20 Page 1 of 52

Matthew Borden, Admitted pro hac vice borden@braunhagey.com J. Noah Hagey, Admitted pro hac vice hagey@braunhagey.com Athul K. Acharya, OSB No. 152436 acharya@braunhagey.com Gunnar K. Martz, Admitted pro hac vice martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND, a municipal corporation; JOHN DOES 1-60, officers of Portland Police Bureau and other agencies working in concert; U.S. DEPARTMENT OF HOMELAND SECURITY; and U.S. MARSHALS SERVICE,
Defendants.

Case No. 3:20-cv-1035-SI
CLASS ACTION ALLEGATION SECOND AMENDED COMPLAINT DEMAND FOR JURY TRIAL

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Case 3:20-cv-01035-SI Document 53 Filed 07/17/20 Page 2 of 52
Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau, on behalf of themselves and those similarly situated, allege as follows:
INTRODUCTION 1. This case seeks to stop the Portland police,1 the U.S. Department of Homeland Security (“DHS”), and the U.S. Marshals Service (“USMS”) from assaulting news reporters, photographers, legal observers, and other neutrals who are documenting the police’s violent response to protests over the murder of George Floyd. The police’s efforts to intimidate the press and suppress reporting on the police’s own misconduct offends fundamental constitutional protections and strikes at the core of our democracy. 2. Plaintiffs are a newspaper, members of the media, and legal observers, who have a right to witness important public events and recount them to the world. Plaintiff Portland Mercury is a newspaper that has been reporting on critical events for the last two decades. Plaintiffs Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Sergio Olmos, John Rudoff, Alex Tracy, Tuck Woodstock, and Justin Yau are journalists whom the Portland police or federal agents attacked with flash-bang grenades, rubber bullets, and tear gas merely for seeking to cover the protests. Plaintiffs Kat Mahoney and Doug Brown are neutral legal observers whom the Portland police assaulted with batons, rubber bullets, and tear gas simply for watching how they were treating demonstrators. Plaintiff Class is comprised of all journalists and legal observers who have or will be attacked or forcefully dispersed by Defendants pursuant to their unlawful policy of targeting and dispersing neutrals.
1 For convenience, the term “Portland police” in this Complaint refers to officers of the Portland Police Bureau as well as any officers of other law enforcement agencies working in concert with the Portland Police Bureau within the City of Portland.
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3. The police retaliation against Plaintiffs is part of a broader pattern: The Portland police have repeatedly and intentionally shot, gassed, and beaten journalists and observers covering the George Floyd demonstrations.
4. On June 2, the police tear-gassed reporters Alex Zielinski and Blair Stenvick of Plaintiff Portland Mercury; Plaintiffs Gerhke, Mahoney, and Tracy; and many other journalists and legal observers.
5. On June 3, the police physically assaulted KBOO reporter Cory Elia, even though he identified himself as press, because he was recording them. Video here: https://tinyurl.com/EliaAssaulted.
6. On June 6, the police hit freelance journalist Plaintiff Sergio Olmos with a truncheon and threatened to tear gas him because he was recording them. His press pass was clearly visible. Video here: https://tinyurl.com/OlmosBeaten.
7. On June 7, the police attacked Donovan Farley with a wooden bat and sprayed him in the face with tear gas or pepper spray while he was trying to walk away from them. He had identified himself as press and was filming several police officers kneeling on a protester’s neck, Derek Chauvin-style. Video here: https://tinyurl.com/FarleyBeatenAndSprayed.
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Figure 1: Farley films the arrest (1); one officer approaches him, truncheon aloft (2); officer beats Farley as he retreats (3); officer sprays Farley as he retreats (4).
8. On June 7, the police attacked Mr. Elia again—this time with a blast of tear gas to the face. Mr. Elia was holding up his press pass, and police knew he was press when they attacked him. Video here: https://tinyurl.com/EliaSprayed.
9. On June 13, the police slammed reporter Beth Nakamura of The Oregonian in the back with a truncheon. She had her hands up, press pass in hand, and was saying “press, press.” The officer responded: “I don’t give a fuck.”
10. Also on June 13, the police ordered reporter Zane Sparling of The Portland Tribune to leave an area where they were enforcing a dispersal order against protesters. Sparling responded that he was media. The officer responded: “I don’t give a shit! Go!” He then shoved Mr. Sparling into a wall, and another officer shot a crowd-control munition at his heel. Video here: https://tinyurl.com/SparlingAssaulted.
11. On June 14, the police announced that they would use force to disperse reporters and protestors alike—except for select reporters that they allowed to “imbed” with police. This viewpoint-based restriction on speech violates the rights of the press to observe and report on
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important events. It is not narrowly tailored to achieve any legitimate government objective; rather, it is designed to prevent the press from exposing police violence. Nor could any law preventing coverage of protests pass constitutional muster because there is no compelling need to preclude the media from observing and reporting. Defendants’ policy remains in place, is being used to remove journalists and observers, and is chilling reporters and observers from monitoring and reporting on important events.
12. Thereafter, the police continued their attacks on journalists and legal observers. 13. On the night of June 15-16, the police noticed Plaintiff Conley using his camera and launched at least one flash-bang grenade directly at him. He was nowhere near any protesters and there was no other target at which the police could have been aiming. The police later charged at him, after telling him that it did not matter if he was media. Plaintiff Conley fell over while running away and only narrowly avoided a traumatic head injury. 14. On June 19, the police shot Plaintiff Rudoff with pepper balls. 15. The day after this lawsuit was filed, the police intensified their attacks on journalists and legal observers. They struck Plaintiff Mahoney with a truncheon across the back, where the words “ACLU LEGAL OBSERVER” are emblazoned on her vest; they arrested Plaintiff Yau; they assaulted Plaintiff Woodstock; and they arrested two other journalists, Cory Elia and Lesley McLam. 16. On July 12, federal agents shot Plaintiff Lewis-Rolland with impact munitions 10 times as he was filming and photographing them.
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17. Many other journalists have reported that they have been specifically targeted.2 Indeed, members of the Plaintiff Class have petitioned Portland Mayor Ted Wheeler “to ensure that the Portland Police Bureau ceases assaulting and intimidating reporters.”3
18. In addition to intentionally targeting reporters and observers, the police are using indiscriminate force to punish them along with demonstrators. For instance, on June 2, the police sprayed a large group of protesters with tear gas from all sides in what is known as a “kettling” or “killbox” military strategy. Killboxing protesters cannot disperse them. Its sole purpose is to inflict pain and suffering. The police gassed many journalists and observers in this operation, including Plaintiffs Gehrke, Mahoney, and Tracy, as well as reporters Alex Zielinski and Blair Stenvick of Plaintiff Portland Mercury.
19. Intimidating reporters is the craft of the world’s most oppressive regimes and has no place in Portland—or anywhere else in the world.4 As the Ninth Circuit has observed, “[w]hen wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.” Leigh v. Salazar, 677 F.3d 892, 898 (9th Cir. 2012).
20. Plaintiffs seek monetary damages and prospective injunctive relief so that they can report on police activities without fear of being targeted for punishment.
PARTIES 21. Plaintiff Portland Mercury is an alternative bi-weekly newspaper and media company founded in 2000 in Portland, Oregon. Its headquarters are at 115 SW Ash Street, Suite
2 Rebecca Ellis, Police Keep Injuring Journalists Covering Portland Protests, OPB (June 15, 2020), https://www.opb.org/news/article/portland-journalists-harmed-covering-george-floydblm-protests/. 3 Mayor Wheeler: Protect journalists and the First Amendment, Change.org, https://www.change.org/p/mayor-ted-wheeler-mayor-wheeler-protect-the-first-amendment (last visited June 24, 2020, 1:39 P.M.). 4 See, e.g., Syrian Forces Aimed to Kill Journalists, U.S. Court Is Told, N.Y. Times (Apr. 9, 2018), https://www.nytimes.com/2018/04/09/world/middleeast/syria-marie-colvin-death.html; Duterte Says Journalists in the Philippines ‘Are Not Exempt from Assassination’, Time (June 1, 2016), https://time.com/4353279/duterte-philippines-journalists-assassination/; Violence against Journalists Escalates in Hong Kong, Reporters Without Borders (Aug. 13, 2019), https://rsf.org/en/news/violence-against-journalists-escalates-hong-kong.
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600, Portland, OR 97204. It is published by Index Newspapers LLC, a Washington limitedliability company.
22. Plaintiff Doug Brown is an Oregon resident who lives in the City of Portland. He has attended protests in Portland every year since 2016, first as a journalist with the Portland Mercury and then as a volunteer legal observer with the ACLU. He has attended the George Floyd protests on several nights for the purpose of documenting police interaction with protesters.
23. Plaintiff Sam Gehrke is an Oregon resident who lives in the City of Portland. He is a freelance photojournalist whose work has been published in Pitchfork, Rolling Stone, Vortex Music, and Eleven PDX. He has attended the protests in Portland on several nights for the purpose of documenting and reporting on them.
24. Plaintiff Mathieu Lewis-Rolland is an Oregon resident who lives in the City of Portland. He is a photographer for Eleven PDX, and his work has also been featured in local news outlets and on the official website for the City of Portland. He attended protests in Portland on several nights for the purpose of documenting them.
25. Plaintiff Kat Mahoney is an Oregon resident who lives in the City of Portland. She is an independent attorney and volunteers as a legal observer with the ACLU. She has attended the protests nearly every night for the purpose of documenting police interaction with protesters.
26. Plaintiff Sergio Olmos is an Oregon resident who lives in the City of Portland. His work has been published in the Portland Tribune, the Willamette Week, Reveal: The Center for Investigative Reporting, Crosscut, The Columbian, and InvestigateWest. He has attended the protests as a freelance journalist on many nights for the purpose of documenting and reporting on them.
27. Plaintiff John Rudoff is an Oregon resident who lives in the City of Portland. He is a photojournalist whose work has been published internationally, including extensive reporting on the Syrian refugee crisis, the ‘Unite the Right’ events in Charlottesville, Virginia, the Paris
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‘Yellow Vest’ protests, and the Rohingya Genocide. He has covered protests (among other things) in Portland for more than five years, and his work has appeared in the New York Times, the Guardian, CBS, and ABC, among other sites. He has attended the protests in Portland on many nights for the purpose of documenting and reporting on them.
28. Plaintiff Alex Milan Tracy is an Oregon resident who lives in the City of Portland. He has published his work in local and national publications, including the Associated Press. He has attended the protests as a freelance journalist on many nights for the purpose of documenting and reporting on them.
29. Plaintiff Tuck Woodstock is an Oregon resident who lives in the City of Portland. They have been a journalist for seven years and their work has been published in the Washington Post, NPR, Portland Monthly, Travel Portland, and the Portland Mercury. They have attended the protests in Portland over the last six weeks over 20 times as a freelance and independent journalist for the purpose of documenting and reporting on them.
30. Plaintiff Justin Yau is an Oregon resident who lives in the City of Portland. He has covered protests in Hong Kong and Portland. He is a student at the University of Portland studying communications under the G.I. Bill, with a focus on journalism; before that, he served in the U.S. Army, where he was deployed to the Middle East in support of Operation Inherent Resolve. His work has been published in the Daily Mail, Reuters, and msn.com. He has attended the protests in Portland as a freelance and independent journalist for the purpose of documenting and reporting on them.
31. Defendant City of Portland is a municipality incorporated in the State of Oregon. As a local governmental entity, the City of Portland is a juridical entity under 42 U.S.C. § 1983. The Bureau is a department or division of the City.
32. Defendant John Does 1-20 are police officers employed by the City who directly assaulted Plaintiffs and members of the Plaintiff Class. They are sued in their individual capacity.
33. Defendant John Does 21-30 are supervisory officials whose liability could include their own culpable action or inaction in the training, supervision, or control of their subordinates,
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their acquiescence in the constitutional deprivations alleged here, or conduct showing a reckless or callous indifference to the rights of Plaintiffs. They are sued in their individual capacity.
34. Defendant John Does 31-60 are individual and supervisory officers of other law enforcement agencies, including but not limited to the Clackamas County Sheriff’s Office, Clark County Sheriff’s Office, Multnomah County Sheriff’s Office, Washington County Sheriff’s Office, Port of Portland Police, Gresham Police, Vancouver Police, Washougal Police, Oregon State Police, and the Oregon National Guard, who are working under the Portland Police Bureau’s direction and control pursuant to PPB Directive 635.10 § 7 (“The Bureau may request assistance from other law enforcement agencies . . . . The Bureau [Incident Commander] shall maintain the authority to determine tactical objectives; direct the overall police response (all agencies); and determine, when objectively reasonable, how and when force may be used and when to deploy less lethal munitions to address civil disturbance and/or disperse the crowd.”). Does 31-60 are acting in concert with and as agents of the City and Does 1-30.
35. The Doe Defendants have concealed their identities and their names or they are not yet fully known to Plaintiffs. On information and belief, Does 1-60 are responsible for the conduct alleged herein.
36. The rest of this Complaint refers to the City and the Doe Defendants collectively as the Municipal Defendants.
37. Defendant U.S. Department of Homeland Security is a federal agency of the United States.
38. Defendant U.S. Marshals Service is a federal agency of the United States. 39. The rest of this Complaint refers to DHS and USMS as the Federal Defendants.
JURISDICTION AND VENUE 40. This Court has subject matter jurisdiction over Plaintiffs’ claims of violation of federal constitutional rights under 28 U.S.C. §§ 1331 and 1343 because Plaintiffs’ causes of action arise under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202.
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41. Venue is proper in the District of Oregon under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in the District of Oregon and because Defendants are subject to personal jurisdiction in the District of Oregon.
FACTUAL ALLEGATIONS A. The Police Murdered George Floyd 42. On May 25, 2020, the police killed George Floyd in Minneapolis, Minnesota. 43. Mr. Floyd was the most recent in a long list of Black victims of police brutality, many of which caused protests across the nation. In Portland alone, the police have killed several Black people, including Quanice Hayes, Terrell Johnson, Keaton Otis, Aaron Campbell, Patrick Kimmons, Darris Johnson, and Kendra James. Some other well-known victims of lethal police force include Michael Brown, Breonna Taylor, Tamir Rice, Philando Castile, Freddie Gray, Walter Scott, Botham Jean, Atiana Jefferson, and, of course, Eric Garner, whose last words echoed those of Mr. Floyd: “I can’t breathe.” 44. Videos of Mr. Floyd’s murder were widely and rapidly disseminated around the world and catalyzed protests across the country in every major city. B. Portland Police Use Brutal Force Against Demonstrators Protesting Police
Brutality 45. In Portland, for over six weeks, thousands of people have gathered every night to protest and mourn Mr. Floyd’s murder and insist that our institutions start ensuring that Black lives matter. These protests continue to the present day. 46. One focal point for protesters has been the “Justice Center” in downtown Portland. The building houses the police’s central precinct, which includes offices for their command staff, a few county courtrooms, and a county jail where hundreds of people— disproportionately Black—are warehoused in small cage-like cells. Both Portland police arrest data and Multnomah County criminal justice data reveal that Black residents are disproportionately harmed by every part of the criminal justice system from arrest through
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prosecution and sentencing.5 The Justice Center is, in short, a perfect symbol of the iniquities protesters are demonstrating against.
47. With limited exceptions, these protests have been overwhelmingly peaceful. But nearly every night, the Portland police have used increasingly severe tactics to deter speech on this important issue.
48. Portland police have shot rubber bullets into crowds of protesters. Rubber bullets are 40mm-wide “pain compliance devices.” They are designed to “provide sufficient pain stimulus” to “incapacitat[e] … an aggressive, non-compliant subject.” But they can be lethal, especially if they hit someone in the head. Figure 2 depicts a round that an officer shot at one protester’s head as he was retreating with his hands up. Figure 3 depicts the severe type of injury such a round can inflict, even when it impacts only a large muscle group on a young, healthy individual.
Figure 2: Left, the manufacturer’s image of the 40mm eXact iMpact Sponge Round. Right, a rubber bullet that Portland police officers fired at a retreating, compliant protester.
5 W. Haywood Burns Institute for Justice Fairness and Equity, Racial and Ethnic Disparities in Multnomah County (Nov. 2019), https://multco.us/file/84525/download. PAGE 11 – SECOND AMENDED COMPLAINT

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Figure 3: An example of the severe injuries rubber bullets can inflict.
49. Portland police have also deployed multiple types of tear gas, including Agent CS, phenacyl chloride, and oleoresin capsicum. The use of tear gas is banned in warfare.6 It can cause inflammation, coughing, wheezing, vomiting, blistering, burns, and breathing difficulty or airway closure, especially in people with respiratory conditions.7 Its use is especially deadly during the current coronavirus pandemic, because it (1) “weaponizes” infected individuals to become “efficient transmitter[s] of infection”; (2) makes those not infected more likely to become infected; and (3) makes coronavirus more deadly to those it infects.8 Nevertheless, the police used tear gas indiscriminately against protesters nearly every night for the first week of protests and many nights since then.
6 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571. 7 Health Impacts of Crowd-Control Weapons: Chemical Irritants (Tear Gas and Pepper Spray), Physicians for Human Rights (Jan. 1, 2017), https://phr.org/our-work/resources/health-impactsof-crowd-control-weapons-chemical-irritants-tear-gas-and-pepper-spray/. 8 Expert Declaration of Peter Chin-Hong ¶¶ 6-7, Don’t Shoot Portland v. City of Portland, No. 3:20-cv-917-HZ (June 9, 2020), Dkt. 24.
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50. On June 6, Mayor Wheeler supposedly suspended the use of tear gas.9 On June 9, this Court enjoined the police from using tear gas unless “the lives or safety of the public or the police are at risk,” and specifically ordered the police not to use tear gas “to disperse crowds where there is no or little risk of injury.”10 Nevertheless—defying this Court’s Order—Portland police have continued to use tear gas.
51. The police have also beat protesters with truncheons and shot them with flashbang grenades with little or no warning, in the absence of any danger to the public, police, or property.
52. The police’s use of disproportionate force against demonstrations over police violence against people of color follows the Portland police’s prolific history of excessive force against people of color, including the shootings of Quanice Hayes in 2017, Denorris McClendon in 2015, Keaton Otis and Aaron Campbell in 2010, and Kendra James in 2003. In 2012, the U.S. Department of Justice filed suit against the City “to remedy a pattern or practice of unconstitutional uses of force by officers of the Portland Police Bureau,”11 which was settled by a consent decree in 2015.12 The decree has not resulted in a less brutal police force.13
C. Both the Protests and the Police’s Handling of Them Garner National Interest and Are Widely Discussed in the Press and Other Public Fora
53. Nationwide protests over the murder of George Floyd have garnered coverage in every major news outlet. They have been discussed in the New York Times, the Washington Post, the Los Angeles Times, and the Chicago Sun-Times. They have been featured on MSNBC, CNN, and Fox News. Every local paper has covered them.
9 Nicole Chavez, Portland is the latest city to suspend the use of tear gas on protesters, CNN (June 6, 2020), https://www.cnn.com/2020/06/06/us/portland-police-tear-gas-protests/index.html. 10 Order, Don’t Shoot Portland v. City of Portland, No. 3:20-cv-917-HZ (June 9, 2020), Dkt. 29. 11 Complaint, United States v. City of Portland, No. 3:12-cv-2265-SI (Dec. 17, 2012), Dkt. 1. 12 Amended Order Entering Settlement Agreement Conditionally Dismissing Litigation, id., Dkt. 99. 13 Alex Zielinski, Hall Monitor: Checking Boxes, Portland Mercury (Nov. 7, 2019), https://www.portlandmercury.com/opinion/2019/11/07/27438204/hall-monitor-checking-boxes.
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54. The police’s violent response to the protests has also been the subject of national attention. The New York Times wrote about the 99 U.S. cities where police used tear gas against protesters.14 The Washington Post covered police violence in Richmond, Virginia.15 The L.A. Times demanded an investigation of police violence in Los Angeles.16 In cities across the country, citizens have protested, police have overreacted—and the press has been there to document and report on everything.
55. Or nearly everything. In a brazen effort to suppress speech, Portland police have taken to beating, gassing, and arresting journalists and observers as well as protesters.
D. The Police’s Pattern of Intentionally Targeting and Retaliating Against Journalists and Observers
56. Since the protests began, the Portland police have been intentionally and indiscriminately attacking neutral members of the press and legal observers. This conduct has intimidated journalists and neutrals and reduced the number of media and observers willing to attend protests and to stay to document and observe the protests. The police’s conduct is part of a longstanding pattern of assaulting and threatening members of the press to prevent them from telling the public about the police’s conduct.
1. Police Threaten and Arrest Plaintiff Yau 57. Plaintiff Yau is a freelance journalist who has covered the ongoing Portland protests. He wears a black helmet that says “PRESS” in white letters on both sides, a glo-vest that says “PRESS” on the front and the back, and a press pass around his neck; he carries an SLR
14 K.K. Rebecca Lai et al., Here Are the 99 U.S. Cities Where Protesters Were Tear-Gassed, N.Y. Times (June 17, 2020), https://www.nytimes.com/interactive/2020/06/16/us/george-floyd-protests-police-tear-gas.html. 15 Gregory S. Schneider, Police fire chemical irritant, rubber bullets at Richmond protesters outside police headquarters, Wash. Post (June 15, 2020), https://www.washingtonpost.com/local/richmond-police-fire-pepper-spray-at-protesters-instandoff-near-police-headquarters/2020/06/14/be1ccb26-aeac-11ea-8f5663f38c990077_story.html. 16 Editorial: LAPD’s violence against protesters demands investigation, L.A. Times (June 9, 2020), https://www.latimes.com/opinion/story/2020-06-09/excessive-lapd-protest-response.
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camera around his neck and a gimbal video camera on his backpack. He is unmistakably present in a journalistic capacity. He attends the protests five to six nights per week in this capacity.
58. On June 5, Mr. Yau was covering the police’s dispersal of a crowd with two other journalists. They remained in front of the police skirmish line, but police yelled at them that “you have to pick up the pace—you’re interfering at this point and you will be arrested. Let’s go— FASTER!”
59. Mr. Yau and his colleagues informed the police that they were press. The police responded: “You’d better start running!”17
60. In the early hours of July 1, only a day after Plaintiffs filed this lawsuit, Mr. Yau was attending a protest in North Portland that the police had begun to disperse. He was 30-45 feet away from the police skirmish line, documenting a female protester walking slowly by herself, when he heard the leader of the skirmish line order her to “move to the sidewalk or you will be hurt.” He began filming.
61. Officers sprinted forward to tackle, mace, and arrest her. 62. A second later, as he was on the sidewalk, filming, Mr. Yau himself was tackled by several officers. All of his fragile equipment hit the ground at high speed. His phone flew out of his hands and his DSLR crashed to the ground with him, as did his gimbal camera. 63. At least two officers dogpiled on top of him, pushed him into the ground, removed his backpack, and put metal handcuffs on him. A third was also present. 64. Mr. Yau informed the arresting officers that he was a journalist. The officers looked at his press badge, said that they did not recognize the issuing organization, and asked what news stations he contributes to. Mr. Yau informed them that his work has been published in the Daily Mail, Reuters, and Spectee, a Japanese news outlet. The officers did not release Mr. Yau.
17 @PDocumentarians, Twitter (June 5, 2020, 3:51 A.M.), https://twitter.com/PDocumentarians/status/1268858091358924800.
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65. When the officers tackled Mr. Yau, he landed on his knee. It was so sore that he was unable to sleep.
66. This Court issued a TRO on July 2 ordering the police to “return any seized equipment or press passes immediately upon release of a person from custody.” Nevertheless, the police did not return Mr. Yau’s equipment until July 6.
67. On the night of the arrest, Mr. Yau was in contact with two news agencies, Reuters and Ruptly, to publish his footage from the night. Because officers confiscated his equipment, he was unable to complete the arrangement. He was deprived of licensing revenue and the public was deprived of his footage.
2. Police and Federal Agents Intentionally Shoot at and Tear Gas Plaintiff Lewis-Rolland
68. Plaintiff Lewis-Rolland is a freelance photographer and photojournalist who has covered the ongoing Portland protests. He carries a large Nikon D850 camera with a 70-200mm lens and a flash. He is unmistakably present in a journalistic capacity.
69. On the night of May 31, Mr. Lewis-Rolland was covering the protests. Around 10:40 p.m., he heard a loud bang and began proceeding toward the intersection it came from, SW Salmon Street and SW 3rd Street. The intersection was not crowded and was mostly clear of protesters. As he approached, he saw police marching in his direction. He began taking photographs. That is when he captured this image of an officer aiming a gun directly at him:
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Figure 4. Police take aim at Plaintiff Mathieu Lewis-Rolland.
70. Shortly after Mr. Lewis-Rolland captured that image, the officer fired upon him. The officer offered no warning, and Mr. Lewis-Rolland had done nothing to provoke the officer other than take a photograph. Mr. Lewis-Rolland was showered with shrapnel as the first round exploded at his feet. Several more followed, as well as canisters of tear gas. Mr. Lewis-Rolland was overcome by the effects of tear gas and was unable to continue documenting protests or police action at that location, but he attempted to continue operating his camera to the best of his PAGE 17 – SECOND AMENDED COMPLAINT

Case 3:20-cv-01035-SI Document 53 Filed 07/17/20 Page 18 of 52
ability while recovering from the effects of the tear gas. He was able to capture a visual cloud of gas hovering over the intersection he had just retreated from.
71. About an hour later, at the intersection of SW 4th Street and SW Taylor Street, Mr. Lewis-Rolland was documenting a tense interaction between police and protesters:
Figure 5: Plaintiff Lewis-Rolland (not pictured) documents a tense interaction between police and peaceful protesters.
72. This time, an officer popped open a crowd-control-sized canister of tear gas and threw it directly at Mr. Lewis-Rolland’s feet. Used at such close range, the canister delivered a full frontal blast of gas to Mr. Lewis-Rolland’s face and once again, he was overcome by its effects. Mr. Lewis-Rolland was completely incapacitated for at least 30 seconds and forced to stop documenting the scene until he could recover.
73. In the early hours of July 12, 2020, days after this Court issued its temporary restraining order against the Municipal Defendants, one or more federal agents employed by the
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Federal Defendants shot Mr. Lewis-Rolland with impact munitions 10 times, leaving severe lacerations, welts, and bruises all over his upper body.
3. The Police’s Repeated Attacks on Plaintiff Mahoney 74. On June 2, the police used tear gas of a different formulation or a stronger concentration on Plaintiff Mahoney. On June 10, they shot a rubber bullet at her to prevent her from recording an arrest. And the day after Plaintiffs filed this action, the police beat Plaintiff Mahoney—right across the back of her vest where it says “ACLU LEGAL OBSERVER” in big block letters.
a. Police Use Extra-Strong Tear Gas on Plaintiff Mahoney 75. Plaintiff Mahoney has been attending the protests nearly every night since they began. Nearly every night, from the beginning of the protests until this Court issued its injunction in Don’t Shoot Portland v. City of Portland, Ms. Mahoney was a victim of police’s tear gas. 76. Ms. Mahoney has served as a legal observer since 2017. She is no stranger to the police’s indiscriminate, excessive, and unlawful use of tear gas. 77. On June 2, however, she noticed that the police had begun to use a new form of tear gas. On that night, Ms. Mahoney was on her motorcycle. To avoid getting tear gas inside her helmet, she remained on a side street near the edges of the crowd. Nevertheless, the tear gas reached her and she sought to retreat. 78. Her first indication that this was a new type of gas was that it smelled different and felt stronger. She managed to drive her motorcycle only two blocks before losing her vision. In addition to the usual effects—profuse tears, profusely runny nose—her throat began to close and she had trouble breathing. She quickly sought medical attention. 79. Once she felt it was safe, she attempted to return home on her motorcycle. On the way home, however, she began involuntarily convulsing, shaking, and twitching. She was unable to concentrate on basic tasks like shifting gears. Fortunately, she was able to arrive home safely.
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80. Once home, however, she was disoriented and unable to function for several hours. She was barely able to open her door. She was unable to count past six. She was unable to open a tube of toothpaste. Although Ms. Mahoney has been the victim of Portland police’s tear gas many times, she has never suffered such symptoms. On information and belief, on June 2, Portland police used tear gas of a different formulation, or a stronger concentration, in order to inflict more severe injuries on neutrals and protesters. On information and belief, the police also used such tear gas in the “killbox” maneuver detailed below.
b. Police Shoot at Plaintiff Mahoney 81. On the night of June 10, Ms. Mahoney was attending the protests near the Justice Center as a legal observer volunteering with the ACLU. She was wearing a blue vest which clearly identified her as an ACLU legal observer. At all relevant times, she was well-lit by police floodlights. No police officer could have been confused as to the role in which she was attending. 82. Shortly after midnight, a woman who appeared to be mentally unstable wandered into the fenced-off area near the Justice Center. She walked back and forth for a moment, exited Ms. Mahoney’s field of view, and then returned having shed all of her clothing. At this point, Ms. Mahoney moved to the front of the crowd, because she knew that legal observation might become crucial. 83. Portland police officers began running at the woman. She began running away, but became confused and was unable to find the exit. She panicked. As she ran alongside the fence, a protester entered the fenced-off area to assist her. Together, they began running away from the police and toward the exit. 84. Most people who were at the fence, including Ms. Mahoney, were recording the events unfolding on their cameras and smartphones. Even though the two individuals inside the fenced-off area were retreating, Portland police officers opened fire on them. And, in an attempt to minimize video evidence, Portland police also opened fire on people recording the event near the fence, including Ms. Mahoney.
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85. One rubber bullet impacted a cement barrier a few inches from Ms. Mahoney’s face. It exploded and shrapnel from the detonation hit Ms. Mahoney’s hands, phone, and shoulders. Had Ms. Mahoney not been recording the event, shrapnel would have hit her directly in the face. As it was, Ms. Mahoney suffered severe injuries to her left hand, including her left ring finger, which swelled up to three times its normal size.
86. The police targeted Ms. Mahoney, even though she was clearly marked as a neutral legal observer by her blue vest, because she was recording an altercation between police and protesters.
c. The Police Intentionally Beat Plaintiff Mahoney the Day after Plaintiffs Filed this Action
87. The day after Plaintiffs filed this action, Ms. Mahoney attended the protests in North Portland as a legal observer. She wore her blue ACLU vest that clearly identified her as a legal observer with the words “ACLU LEGAL OBSERVER” in big block letters across the back and in smaller lettering on the front.
88. She had not intended to attend the protests that night, but another legal observer who was present informed her that only one ACLU observer was there, and that based on the police’s actions, more might be necessary.
89. She arrived at the intersection of N Lombard Street and N Denver Avenue a little before 9:30 p.m. When she arrived, the police had already declared an unlawful assembly and were pushing the crowd east.
90. Within minutes of Ms. Mahoney’s arrival, the police began firing pepper balls indiscriminately into the crowd. She began coughing and choking, and was forced to seek medical treatment. After she recovered from the pepper spray, she returned to continue observing.
91. Later, she became the target of a police dispersal maneuver. Officers began running toward her location yelling “MOVE!” Because there was a dense crowd in front of her,
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including a man on crutches whom several other protesters were helping, she could not get out of the way in time.
92. One officer slammed her in the back with a truncheon. He struck diagonally from the base of her right shoulder blade to her lower left side, across her spine and ribcage. Another officer ran up to her, yelled “MOVE,” and shoved her so hard she stumbled into a protester and had to be helped to her feet.
93. Because she was wearing her blue ACLU legal observer vest, both officers could plainly see the words “ACLU LEGAL OBSERVER” when they beat her and shoved her.
94. The same night, Ms. Mahoney also saw the police chase and attempt to beat two other legal observers who were clearly marked as legal observers.
95. The following morning, her back was extremely painful. She was unable to rotate her torso or sit up for periods of time without pain. It hurt her to breathe.
4. The Police’s Assaults on Plaintiff Brown 96. On June 12, police fired a flash-bang grenade directly at Plaintiff Brown, twice, and beat him with their bats. And on June 14, they threatened to arrest him, even though they knew he was an ACLU legal observer.
a. Police Shoot at and Beat Plaintiff Brown 97. On the night of June 12, legal observer Doug Brown was attending the protests as a volunteer with the ACLU. He was wearing a blue vest which clearly identified him as an ACLU legal observer. 98. Shortly after 12:30 a.m., the police decided to put an end to the protests. They declared the area between Naito Parkway and 13th Street, from SW Lincoln Street to NW Everett Street, off-limits to everyone—protesters, press, legal observers, and anyone else. This area contains the entirety of downtown Portland and parts of two Northwest Portland neighborhoods and comprises some 21 million square feet. 99. A video of the following events can be viewed here: https://tinyurl.com/BrownAttacked.
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100. At around 12:35 a.m., the police began firing flash-bang grenades into the crowd. A minute later, they fired a flash-bang grenade directly at Mr. Brown. Id. at 4:11-15.
101. Then, they began physically clearing people out of the park. Mr. Brown complied with their directive and moved with the crowd, but because he was present as an observer and not a protester, he continued filming and observing how the police enforced their order.
102. Around 12:39 a.m., the police had moved the crowd one block from their starting position. Then they began what is known as a “dynamic” maneuver. They halted and arranged in formation, truncheons and guns at the ready. Id. at 7:44. On command, they all began running at the crowd, yelling “MOVE!” and beating anyone in their way. Id. at 8:18.
103. This type of massed kinetic maneuver—a massed charge—is extremely dangerous. Strong, armored police, running full tilt at less-armored persons, frequently cause grave injury. And by design, they run over all things in their path—including journalists and legal observers.
104. Mr. Brown continued to observe and record. For that, the police beat him, too. Id. at 8:23-34. This still frame from his video shows police officers charging at him with their truncheons, shortly before they beat him:
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Figure 6: Police charge at an ACLU legal observer to beat him with their truncheons.
105. Mr. Brown was forced to flee and could no longer safely document the police’s violent enforcement tactics.
106. After a minute, the police halted and began firing flash-bang grenades directly at people. They scored a direct hit on Mr. Brown. Id. at 8:58-9:09.
107. As a result of the police’s firing two flash-bang grenades at him and beating him with their batons, Mr. Brown suffered temporary tinnitus for several hours and some contusions.
108. The police’s efforts to prevent Mr. Brown from recording and reporting on their violent tactics were successful. Shortly after the second flash-bang, he left the scene, even though the protests and the police’s violent dispersal of protesters continued.
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b. Police Threaten to Arrest Plaintiff Brown 109. On the night of June 14, Mr. Brown was again attending the protests as a volunteer with the ACLU. He was wearing a blue vest which clearly identified him as a legal observer. 110. Audio of the following events, together with some contemporaneous photos Mr. Brown took, is available here: https://tinyurl.com/BrownThreatened. 111. Around 10:40 p.m., Mr. Brown arrived at the intersection of SW 6th Street and SW Market Street, where Portland police officers were arresting a man undergoing a mentalhealth crisis. 112. As they had the previous night, the police had issued a dispersal order vacating downtown Portland. 113. Nevertheless, some five to seven people were at the scene, observing the arrest. Mr. Brown also began observing and recording the event. 114. For the first seven minutes Mr. Brown was present, the interaction between police and the individuals watching them was calm and uneventful. 115. At 10:47 p.m., the police decided to remove all observers from the scene. One officer, with a makeshift ID number 254047, ordered everyone to leave and threatened them with arrest if they did not comply. Id. at 7:00-7:50. 116. Mr. Brown continued to document the events. The officer heard his shutter clicking and turned on him: “You have plenty of pictures, okay? … We don’t want to make an arrest.” Id. at 7:58-8:20. 117. Three more officers walked up to Mr. Brown and put their hands on him. One of them said: “You should know better, you’re with the ACLU.” Id. at 8:35. 118. A minute later, a police SUV with a long-range acoustic system arrived. It, too, singled Mr. Brown out as an ACLU legal observer and threatened him with arrest: “You are all subject to arrest for trespassing. This area is closed. That includes the ACLU legal observer. You
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are trespassing. … You are failing to obey the direct order of a peace officer in the State of Oregon.” Id. at 9:52-10:15.
119. Again, the police’s efforts to eject Mr. Brown from the scene of an arrest were successful. Rather than be arrested himself, he left the scene and was no longer able to fulfill his role as a legal observer.
5. Police Assault Plaintiff Olmos 120. Plaintiff Olmos is a freelance journalist who has covered the ongoing Portland protests. He wears a press badge and a Kevlar vest that says “PRESS” on both sides. He also carries several cameras, including a film camera, in part so that it is unmistakable that he is present in a journalistic capacity as a member of the press. 121. On the night of June 6, Mr. Olmos was recording the way the police were enforcing their dispersal order. 122. He was also attempting to comply with the order, but found himself trapped behind a phalanx of police officers. To avoid giving surprise, he tried to inform them that he was approaching from behind. He had his press pass clearly visible. 123. Nevertheless, the police beat Plaintiff Olmos with a truncheon and threatened him with tear gas because he was recording them.18 124. Mr. Olmos has been subjected to physical harm by the Portland police on many other occasions during the protests. They have physically assaulted him to make him comply with a dispersal order, thrown a flash-bang grenade at his chest, and impacted him with flashbang grenades several other times.
6. Police Attack Plaintiff Tracy and Seize His Equipment after He Filed this Lawsuit
125. Plaintiff Tracy is a freelance journalist who has covered the ongoing Portland protests. He wears a helmet that reads “PRESS” on the front and back and a business card on his
18 @MrOlmos, Twitter (June 6, 2020, 1:27 A.M.), https://twitter.com/MrOlmos/status/1269184050314407936; @MrOlmos, Twitter (June 6, 2020, 4:15 A.M.), https://twitter.com/MrOlmos/status/1269226525020184577.
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chest that clearly identifies him as a photojournalist. He also carries two large, professional-grade cameras around his neck and over his shoulder. He is unmistakably present in a journalistic capacity.
126. On June 7, Mr. Tracy was documenting as protesters ran and hid from oncoming police vehicles as streets were cleared in the early hours of the day. As he was recording, the police arrested two people who were hiding behind a car because they had been “taking photos.” Another officer approached Mr. Tracy and offered to arrest him, too, if he did not leave. Mr. Tracy held up his credentials and one of his two cameras clearly stating that he was press, but also moved back and complied with the order. The police’s threats prevented Mr. Tracy from documenting how the police executed the arrest.19
127. Later that evening, the police hit Mr. Tracy on the lower left leg with a neon green police paint marker round.
19 @ AlexMilanTracy, Twitter (June 7, 2020, 3:29 A.M.), https://twitter.com/AlexMilanTracy/status/1269577129265524736. PAGE 27 – SECOND AMENDED COMPLAINT

Case 3:20-cv-01035-SI Document 53 Filed 07/17/20 Page 28 of 52 128. Just after midnight that same evening, Mr. Tracy witnessed the police arrest a member of the media with press credentials clearly visible. The following is a photograph he took of the incident, with a close-up of the press pass inset:
Figure 7: Police arrest a member of the press with his press pass clearly visible.
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129. On June 16, Plaintiff Tracy was documenting Portland police making arrests. One officer told him to “get out of here now,” or he was going to go to jail. “I don’t care if you’re press,” he repeated, “get out of here right now.”20 Mr. Tracy was unable to continue reporting on the arrest.
130. The day after this action was filed, the police confiscated Mr. Tracy’s camera, claiming it was “evidence.” They had repeatedly been executing “dynamic” maneuvers against crowds including journalists and observers. While running away from one such charge, a GoPro Hero 8 camera that Mr. Tracy used for newsgathering purposes fell out from a pouch on his waist. One officer told him that it would be seized “as evidence” because the police line had advanced in front of it. He tried to communicate with officers to be able to look for and retrieve his camera, but they prevented him from doing so.
7. Police Intimidate and Launch Flash-Bangs at Plaintiff Conley 131. Plaintiff Brian Conley has been a journalist for twenty years and has trained journalists in video production across a dozen countries internationally. He founded Small World News, a documentary and media company dedicated to providing tools to journalists and citizens around the world to tell their own stories. 132. On the night of June 15-16, the police launched one or more flash-bang grenades directly at Mr. Conley, who was standing at least ten feet away from any protesters in the area around the Justice Center. 133. Mr. Conley was wearing a photographer’s vest and carrying a micro four-thirds camera with a large telephoto lens, an off-camera flash, a streaming cellphone held aloft in one hand, and at times held a second video camera that he otherwise carried in his backpack. He was unmistakably present in a journalistic capacity.
20 @ AlexMilanTracy, Twitter (June 16, 2020, 1:16 A.M.), https://twitter.com/AlexMilanTracy/status/1272805156225048578.
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134. The police did not notice him until he activated the light on his camera. At that point, an officer who was about 5-10 feet away saw him, saw that he was using his camera, and threw a flash-bang at him.
135. Mr. Conley was isolated away from protesters. There was no other target in the immediate vicinity.
136. Despite having covered international protests and war zones for twenty years, this was the first time that Mr. Conley was hit with a flash-bang grenade. The impact left him shocked, stunned, and the closest individual to the advancing police line.
137. Later, Mr. Conley was documenting near the intersection of Broadway and Salmon Streets in downtown Portland when the police issued a dispersal order. When Mr. Conley activated the light on his bigger camera, he saw an officer point at him and signal other officers towards Mr. Conley’s position.
138. Another officer approached Mr. Conley and several fellow journalists and told them they had to leave, and that it did not matter if they were media. Two officers then pursued them down the street outside the Heathman Hotel. Plaintiff Conley fell over a statue of a bulldog outside the hotel while fleeing but narrowly avoided a traumatic head injury.
139. Mr. Conley has covered only a few protests since that day because the police’s actions that day made him fearful about covering the protests without someone else present, such as a friend or colleague, in case the police were to ultimately injure or arrest Mr. Conley.
8. Police Shoot Plaintiff Rudoff 140. Plaintiff Rudoff is an internationally renowned freelance journalist who has covered the ongoing Portland protests. Mr. Rudoff wears press identification from the National Press Photographers Association, carries large camera equipment, and wears a helmet clearly marked “press.” 141. Since he began covering protests in Portland, Mr. Rudoff has been tear-gassed many times and occasionally shot with pepper balls. Most recently, on June 19, the Portland
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police shot Plaintiff John Rudoff with pepper balls while he was documenting the protest at the Justice Center.
142. On the same day, Mr. Rudoff was documenting police action near the Justice Center when a line of police began pushing the crowd down the street. He showed them his press pass and camera equipment, and an officer responded that he “[didn’t] care if you’re media” and pushed him to move with the crowd.
143. Mr. Rudoff was prevented from further documenting the protests and violent police response at that time. Moreover, he did not attend protests from that day until this Court entered a temporary restraining order on July 2, because the police’s actions that day made him fearful that the police would ultimately injure him.
9. Police Assault Plaintiff Woodstock 144. Plaintiff Woodstock is a freelance journalist who has covered the ongoing Portland protests. They wear a press pass from the Portland Mercury that says “MEDIA” in large block letters. 145. On the evening of June 30, they attended the protests in North Portland to report on them. Around 11:00 p.m., after the police issued their dispersal order, they were walking with a group of protesters and journalists complying with the order and moving east. All of a sudden, the police arrayed themselves in a line and then started sprinting at the group. The police tackled and arrested people to either side of Plaintiff Woodstock. 146. Plaintiff Woodstock tried to film the arrests. Almost immediately, however, they felt a baton pressed into their back as an officer yelled “MOVE, MOVE, MOVE, MOVE,” directly in their ear. They informed the officer several times that they were media, but the officer did not care and continued to push them to the east. They were physically pushed at least four times by two officers during this incident. 147. Some time later, police conducted another sprint-and-arrest maneuver. Again, there were people being arrested all around Plaintiff Woodstock. They tried to film the arrests
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but, again, an officer removed them from the scene. The officer said that “[I] know you’re media but you have to leave.”
148. Because of the actions of the police, Plaintiff Woodstock was unable to film the arrests at all. Both times, the officers pushed Plaintiff Woodstock out of the area so fast that they could not even record over their shoulder—they had to put down their phone and run or risk falling over and getting arrested as well.
10. Police Deploy a Killbox Tactic against Portland Mercury Reporters, Plaintiffs Gehrke, Mahoney, and Tracy, and Other Journalists and Observers
149. Portland police use tear gas indiscriminately when confronted with crowds. Lt. Franz Schoening, commander of the Bureau’s Rapid Response Team, has stated as much: “[W]hen officers can’t see disrupters in a dense crowd because they’re four to five rows back from officers and they won’t comply with orders to leave the area,” the Bureau’s formal policy is to use tear gas against the crowd as a whole.21
150. Because tear gas is inherently an indiscriminate weapon, this policy necessarily means that Portland police shoot tear gas at neutral parties who are attending to document and report on protests. And indeed, many journalists and legal observers have found themselves caught in the police’s widespread use of tear gas during these protests.
151. One particularly egregious example took place on the night of June 2, when reporters employed by the Portland Mercury, as well as Plaintiffs Sam Gehrke, Kat Mahoney, and Alex Tracy, found themselves victims of a “killbox” action by Portland police.
152. Portland Mercury reporters Alex Zielinski and Blair Stenvick were covering the protests for the Mercury that night. Ms. Zielinski was in the middle of the crowd, while Stenvick was towards the back. Neither was near the fence surrounding the Justice Center. Plaintiffs Gehrke and Tracy were also in the crowd reporting on the protests.
21 Maxine Bernstein, Portland police, fire medics describe crowd control tactics, munitions, The Oregonian (June 4, 2020), https://www.oregonlive.com/portland/2020/06/portland-police-firemedics-describe-crowd-control-tactics-munitions.html.
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153. The police issued a warning to protesters to stay away from the fence. To underscore the point, officers on the other side of the fence shot tear gas at protesters near the fence.
154. Had officers merely shot gas at protesters closest to the fence, the reporters might not have been injured. However, the police had decided to create a gas trap by shooting tear gas from the rear and sides of the crowd as well. This gas trap, by design, snared not only protesters agitating near the fence, but many other peaceful protesters far from the fence with no desire to get involved. And, of course, it also caught all four reporters, as well as Plaintiff Mahoney.
155. Because they had been inundated with tear gas, neither Ms. Zielinski nor Stenvick was able to report on the protests for the rest of the night. As the Mercury’s editor wrote that night: “Due to the dangerous situation and loss of control exhibited by the Portland Police, we have pulled our reporters off the street for the night. It’s simply too dangerous for them to be out there right now.”22
156. Portland police have a policy or practice of using indiscriminate killbox or kettling tactics against crowds including journalists and other neutrals. They have used the same tactic in at least November 2014, January 2017, and June 2017.23
11. The Police Have Intentionally Targeted Many Other Reporters and Neutrals
157. The police’s use of excessive force against neutral observers extends to all Plaintiff Class members and other neutrals.
22 Wm. Steven Humphrey, Live Updates: Protesting the Death of George Floyd in Downtown Portland, Night Five, Portland Mercury (June 2, 2020), https://www.portlandmercury.com/blogtown/2020/06/02/28499376/live-updates-protesting-thedeath-of-george-floyd-in-downtown-portland-night-five. 23 Maxine Bernstein, Portland police deny ‘kettling’ of protesters in response to ACLU lawsuit, The Oregonian (Jan. 19, 2019), https://www.oregonlive.com/portland/2018/01/portland_police_deny_kettling.html.
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158. On June 3, the police physically assaulted KBOO reporter Cory Elia because he was recording them. He had identified himself as press. As the bystander who recorded the interaction later recalled, “Hearing the screams from him in the background is truly terrifying.”24
159. On the night of June 5, a red truck flying an American flag drove through a crowd of protesters and nearly hit one of iHeartRadio podcaster Robert Evans’s staffers. When the staffer attempted to capture the license plate of the truck, the police aimed their crowd-control weapons at her and threatened to fire. They prevented her from recording the license plate of the truck. She no longer accompanies Mr. Evans to the protests in Portland.25
160. Also on June 6, Mr. Evans was filming the police arranged in a phalanx advancing on a crowd of protesters. He was holding his phone in one hand and his press pass in the other. Also, his helmet was clearly labeled “PRESS.” Police fired an impact munition at him, hitting him in the very hand that was holding the press pass.
161. June 7 was a banner day for Portland police’s campaign of violence against journalists:
a. The police brutally attacked Donovan Farley with a truncheon and tear gas. Farley, a reporter who has been published in Rolling Stone, VICE, and the Willamette Week, was recording the police, who were arresting a protester using exactly the same maneuver that had killed George Floyd. When they noticed him, they chased him away, beat him, and—even as he was retreating from the scene— sprayed him in the face with tear gas.26
24 @Billings29James, Twitter (June 3, 2020, 12:16 A.M.), https://twitter.com/Billings29James/status/1268079034321133570. 25 @IwriteOK, Twitter (June 6, 2020, 3:41 P.M.), https://twitter.com/IwriteOK/status/1269399061775306752. 26 @DonovanFarley, Twitter (June 7, 2020, 11:44 A.M.), https://twitter.com/DonovanFarley/status/1269701897377603584; @TVAyyyy, Twitter (June 7, 2020, 12:08 A.M.), https://twitter.com/TVAyyyy/status/1269526590456643584.
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b. The police also attacked Mr. Elia again—this time with tear gas rather than a truncheon—even though, as before, he was holding up his press pass and police knew he was press when they attacked him.27 c. The police threatened to arrest Plaintiff Tracy for recording them arresting two people hiding behind a car, as described above. d. The police also arrested one of Mr. Evans’s staff members for asking an officer his name. She did not provoke him in any other way or do anything to justify police action. Nevertheless, police arrested her and took her to the Justice Center, where they held her for several hours. 162. On June 11, the police confiscated medical supplies from an OHSU medic tent. They also arrested one of the medics, Michael Martinez, because he was recording them.28 163. On June 12, Plaintiff Sam Gehrke was taking photos near the Justice Center when the police shot him in the back with a rubber bullet. Mr. Gehrke was holding a large camera, wearing a press pass from the Willamette Week, and was obviously present as a journalist to record and report on the protests. Shortly after this, the police swarmed the crowd from behind, physically assaulting and beating people at random. 164. On June 13, the police beat reporter Beth Nakamura of The Oregonian with a truncheon, even though she was displaying her press pass and shouting “press, press.” The officer responded: “I don’t give a fuck.”29 165. Also on June 13, the police ordered reporter Zane Sparling of The Portland Tribune to leave an area where they were enforcing a dispersal order against protesters, shoved
27 @Human42LM, Twitter (June 7, 2020, 10:29 A.M.), https://twitter.com/Human42LM/status/1269683012515409921. 28 Lindsay Nadrich, OHSU student arrested handing medical supplies to protesters, KOIN (June 18, 2020), https://www.koin.com/news/protests/ohsu-student-arrested-handing-medical-suppliesto-protesters/. 29 @bethnakamura, Twitter (June 15, 2020, 8:27 A.M.), https://twitter.com/bethnakamura/status/1272551330184228864; @bethnakamura, Twitter (June 15, 2020, 8:54 A.M.), https://twitter.com/bethnakamura/status/1272558094870970368.
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him into a wall, and shot a crowd-control munition at his heel.30 When Mr. Sparling informed them that he was media, they responded that they didn’t “give a shit.”
166. On the night of June 15, OPB reporter Jonathan Levinson was reporting on the protests downtown. As Portland police issued orders to disperse, he continued reporting. Officers informed him that if he did not “run,” they would arrest him.31 They then violently arrested another individual and prevented Mr. Levinson from recording or reporting on the arrest.32
167. The day after this action was filed, the police set a new high-water mark for violence against journalists and legal observers:
a. The police confiscated Plaintiff Tracy’s camera as described above. b. The police arrested Plaintiff Yau as described above. c. The police assaulted Plaintiff Woodstock as described above. d. And finally, the police arrested two other journalists: Mr. Elia and his KBOO colleague Lesley McLam. Neither Mr. Elia nor Ms. McLam were engaging in any conduct that posed a threat to police, property, or the public. Both were simply reporting on the events of the evening.33
12. The Police Have Intentionally Targeted Reporters and Legal Observers in the Past
168. In August 2018, Plaintiff Brown and Donovan Farley were reporting on protests in downtown Portland. Without warning, the police rushed protesters, shot rounds, and set off explosions. Then, they charged at and beat a group of journalists, including Mr. Brown and Mr.
30 @PDXzane, Twitter (June 13, 2020, 11:49 P.M.), https://twitter.com/PDXzane/status/1272058454799028226. 31 @MrOlmos, Twitter (June 16, 2020, 12:40 A.M.), https://twitter.com/MrOlmos/status/1272796206071087105. 32 @MrOlmos, Twitter (June 16, 2020, 12:48 A.M.), https://twitter.com/MrOlmos/status/1272798234809782272. 33 @TheRealCoryElia, Twitter (June 30, 2020, 11:14 P.M.), https://twitter.com/therealcoryelia/status/1278210455652061184, at 6:00; @mayorofbabytown, Twitter (July 1, 2020, 1:14 A.M.), https://twitter.com/mayorofbabytown/status/1278240587095785472.
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Farley, all of whom had press passes clearly displayed or were holding obviously professional cameras.34 Video here: https://tinyurl.com/BrownBeaten18.
169. At the same protest, police hit KATU reporter Ric Peavyhouse with a rubber bullet35 and documentary filmmaker Michelle Fawcett with a flash-bang grenade.36
170. During protests in 2017, Mr. Brown was attending as a journalist for the Portland Mercury. Police beat him with a truncheon and fired on him with flash-bangs.
171. Also during protests in 2017, the police beat Plaintiff Rudoff with a truncheon because he was not moving quickly enough for an officer’s liking.
E. The Police Announce an Unconstitutional Policy of Dispersing and Arresting Members of the Press Who Are Trying to Report on the Protests
172. On June 14, the police announced that they would enforce dispersal orders against media and neutral observers unless the members of the press had been handpicked by the police to be “imbed[ded]” with the police.37
173. The police subsequently warned reporters and neutral observers that they must obey the police’s dispersal orders to protesters if they wished to “stay safe and avoid arrest or altercation.” In the view of the police, “[t]he unlawful orders [sic] apply to everyone”—except those the police have permitted to be “imbedded” with them.38
34 Donovan Farley, In Portland, the Police Played Into the Hands of the Fascists and Attacked Their Own Citizens, Paste Magazine (Aug. 7, 2018), https://www.pastemagazine.com/politics/political-violence/in-portland-the-police-played-intothe-hands-of-th/. 35 @RPeavyhouse, Twitter (Aug. 5, 2018, 2:34 P.M.), https://twitter.com/RPeavyhouse/status/1026219809552224256. 36 Alex Zielinski, Portland Police Explain Why They Fired Munitions at Protesters on August 4, Portland Mercury (June 4, 2019), https://www.portlandmercury.com/blogtown/2019/06/04/26589682/portland-police-explain-whythey-fired-munitions-at-protesters-on-august-4. 37 @PortlandPolice, Twitter (June 14, 2020, 9:33 P.M.), https://twitter.com/PortlandPolice/status/1272386641462607872. 38 @PortlandPolice, Twitter (June 14, 2020, 9:33 P.M.), https://twitter.com/PortlandPolice/status/1272386738338410496.
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174. This proclamation was issued from the official Twitter account of the Portland police, @PortlandPolice, and is a written statement of the Bureau’s formal policy. It is also an accurate statement of the Portland police’s widespread custom and practice. Plaintiffs and Plaintiff Class have repeatedly been dispersed by the police when they were peacefully trying to record the protests and posed no danger to the public or law enforcement.
175. The police have not rescinded this proclamation or changed their practice. 176. This policy is an unlawful viewpoint-based restriction on speech. Once the police issue a dispersal order, this policy gives them unbridled discretion over which reporters may remain, and thus permits them to control the content of reporters’ coverage.39 It is designed to prevent reporters and legal observers from holding the police accountable precisely when accountability is most needed. No government interest can justify such a policy, especially because reporters are not a threat to the public, police, or property. Nor is there any alternative way for reporters not embedded with the police to report on the violence with which police enforce their dispersal order. F. The Police’s Intimidation Campaign Works 177. The police’s campaign of intimidation and fear has been effective. Plaintiff Woodstock’s experience is typical. 178. Plaintiff Woodstock has been a journalist for seven years. They have been published in the Washington Post, NPR, Portland Monthly, Travel Portland, and the Portland Mercury. They are a seasoned veteran of reporting in tense situations. 179. Plaintiff Woodstock is not a threat to the public or to law enforcement and has not engaged in any activities that would constitute such a threat. Plaintiff Woodstock does their best to avoid police violence but has been swept up in it anyway when the police assaulted
39 See, e.g., Elana J. Zeide, Note, In Bed with the Military: First Amendment Implications of Embedded Journalism, 80 N.Y.U. LAW REV. 1309, 1321 (“Embedding typically takes place in a constrained environment where journalists cannot afford to alienate the limited sources available. Accordingly, most reporters will be reluctant to publish anything that the officers and soldiers surrounding them might receive badly.”).
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individuals near them or ordered them to leave on pain of being assaulted or arrested. They have seen people next to them get shot in the head with rubber munitions. They have witnessed reporters getting shot with rubber bullets or maced in the face when they tried to gather evidence. The have been tackled by police in the course of their reporting through no fault of their own.
180. The Portland police’s indiscriminately violent conduct toward journalists and protesters alike has made it difficult—and at times, impossible—for Plaintiff Woodstock to report on the protests accurately and thoroughly.
181. For example, because police shoot rubber bullets at and otherwise use force against anyone who approaches gas canisters or spent rounds, including journalists, Plaintiff Woodstock is unable to verify whether tear gas was used at a particular location, or whether a particular round fired at a protester’s head was a rubber bullet or some other impact munition.
182. Similarly, Plaintiff Woodstock is unable to determine which agency’s officers are enforcing a dispersal order in a given location because police shoot anyone who approaches, including journalists.
183. Because the police threaten to arrest any journalist who remains in an area after a dispersal order, Plaintiff Woodstock generally complies and departs after a dispersal order is issued. The result, however, is that Plaintiff Woodstock is unable to document the violent tactics with which police enforce their dispersal order against protesters. On information and belief, at least one time after they complied with a dispersal order, the police severely attacked the group of protesters they were covering.
184. The police’s goal is to prevent the press from holding them accountable. It works. G. Plaintiffs Are Suffering Irreparable Harm 185. Plaintiffs fear for their safety from police violence. Reporters who attend and document the protests are at risk of being hit with tear gas, rubber bullets, police batons, arrests, and more. Even reporters who remain at the rear of the crowd cannot cover the protests without injury because the police use strategies like the “killbox” strategy they used on June 2.
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186. For the same reasons, Plaintiffs fear for their safety from federal agents’ violence. Since President Trump ordered federal agents to go to Portland to quell protests, federal agents have been working together with Portland police to violently disperse demonstrators and neutrals. Not only do federal agents use the same types of force—tear gas, rubber bullets, batons, arrests—in much the same way as the police, but they often coordinate with the police. For example, in the early hours of July 12, dozens of federal agents emerged from the Justice Center building, headquarters of the Portland Police Bureau, and began a campaign of wholesale violence against protesters and neutrals alike. At around 2:00 a.m., Portland police emerged from the same building and joined the federal agents, and the officers and agents worked together to push protesters and neutrals all the way to SW Broadway.
187. Plaintiffs and Plaintiff Class want to continue attending protests to gather news and observe and document how police are treating demonstrators, and whether demonstrators are actually provoking the outpouring of violence from the police, as the police claim, or whether police are engaging in indiscriminate unprovoked violence. They also want to be able to document how police are dispersing protesters. They are fearful, however, that they themselves will be targeted for the same violence police mete out against protesters. The police have prevented Plaintiffs and Plaintiff Class from documenting how police have dispersed protesters and have repeatedly told them that they will be similarly arrested and assaulted if they fail to stop recording these events.
188. On information and belief, countless others would report on the ongoing protests and volunteer to neutrally and peacefully observe them, but for fear that they would be subjected to police violence.
189. The police’s use of force against journalists has become so untenable, and their targeting of journalists so obvious, that even Mayor Wheeler admitted that the Bureau’s tactics are “extremely concerning” and that “[j]ournalists need to be able to cover the protests safely.”40
40 @tedwheeler, Twitter (June 15, 2020, 11:30 A.M.), https://twitter.com/tedwheeler/status/1272597259150999553.
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CLASS ALLEGATIONS 190. Plaintiffs bring this action under Rules 23(a) and 23(b)(1)-(3) of the Federal Rules of Civil procedure on behalf of themselves and a class of similarly situated people who, as journalists, reporters, photographers, and legal observers, have been subjected to violence, retaliation, arrest, or dispersal by the Portland police or federal agents, or who will in the future report on protest activity or the conduct of law enforcement officers or federal agents on duty within the City of Portland in traditional or designated public fora (the “Plaintiff Class”). The Plaintiff Class is defined as:
All reporters, journalists, photographers, and legal observers who on or after May 25, 2020, have been subjected to violence, arrested, or dispersed by the Portland police or federal agents while covering a protest, or who intend to engage in newsgathering or reporting in Portland related to protest activities and/or the law enforcement response to those protests. 191. The Plaintiff Class is so numerous that joinder of all the members would be impracticable. Hundreds of journalists and legal observers are in Portland to cover the protests that followed Mr. Floyd’s murder and the aftermath. 192. As a result of Defendants’ custom or policy of arresting members of the Plaintiff Class; targeting them with rubber bullets, chemical irritants, truncheons, and other uses of force; denying them freedom of movement to observe, record, and report on public demonstrations and law enforcement officers on duty; and intimidating them by threats of violence and arrest, the Plaintiff Class have been and will continue to be deprived of their constitutional rights under the First and Fourth Amendments. 193. Plaintiffs’ claims for prospective relief are typical of the members of the Plaintiff Class because protests are ongoing and Plaintiffs and Plaintiff Class have a reasonable fear that Defendants will continue to carry out their unconstitutional customs or policies. 194. Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. Plaintiffs have no conflicts involving other class members or Defendants. Plaintiffs understand their role as class representatives and their duties to the class in this litigation. Plaintiffs are
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represented by competent and skilled counsel whose interests are fully aligned with the interests of the class.
195. Questions of law or fact are common to the class. These legal and factual questions include but are not limited to:
a. Whether targeting journalists and legal observers with violence and threats of violence violates the First Amendment; b. Whether targeting journalists and legal observers with violence and threats of violence violates the Fourth Amendment; c. Whether targeting journalists and legal observers with violence and threats of violence violates the Oregon Constitution, Art. I, § 8; d. Whether targeting journalists and legal observers with arrests and threats of arrest violates the First Amendment; e. Whether targeting journalists and legal observers with arrests and threats of arrest violates the Fourth Amendment; f. Whether targeting journalists and legal observers with arrests and threats of arrest violates the Oregon Constitution, Art. I, § 8; g. Whether Defendant City of Portland’s or the Federal Defendants’ written or unwritten policies regarding dispersal of journalists and legal observers constitute a viewpoint-based restriction on speech that violates the First Amendment; h. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists and legal observers constitute a viewpoint-based restriction on speech that violates the Oregon Constitution, Art. I, § 8; i. Whether Defendant City of Portland’s or the Federal Defendants’ written or unwritten policies regarding dispersal of journalists and legal observers constitute an overbroad restriction on speech that violates the First Amendment;
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j. Whether Defendant City of Portland’s written or unwritten policies regarding dispersal of journalists and legal observers constitute an overbroad restriction on speech that violates the Oregon Constitution, Art. I, § 8; k. Whether Defendant City of Portland’s or the Federal Defendants’ written or unwritten policies regarding dispersal of journalists and legal observers serve any legitimate government interest; l. Whether Defendant City of Portland’s or the Federal Defendants’ written or unwritten policies regarding dispersal of journalists and legal observers are narrowly tailored; m. Whether the Municipal Defendants’ policy of embedding select journalists vests unbridled discretion to permit or prohibit speech in City officials; n. Whether the Municipal Defendants’ policy of embedding select journalists is an unlawful prior restraint in violation of the First Amendment; o. Whether Defendant City of Portland is liable for implementing a written or unwritten policy that violates the Fourth Amendment under principles of municipal liability; p. Whether Defendant City of Portland is liable for a custom or practice that violates the First Amendment under principles of municipal liability; q. Whether Defendant City of Portland is liable for a custom or practice that violates the Fourth Amendment under principles of municipal liability; r. Whether Defendant City of Portland or the Federal Defendants have manifested a failure to properly train and supervise their agents and officers; s. Whether Defendant City of Portland or the Federal Defendants have exhibited a deliberate indifference to the unconstitutional conduct alleged in this Complaint. 196. Maintaining individual actions would create a risk of “inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Multiple
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courts issuing multiple injunctions governing the engagement and use-of-force standards for law enforcement would be entirely untenable. Doing so would only contribute to a state of uncertainty and confusion that would allow the constitutional violations described in this Complaint to continue.
197. This case involves “adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications.” Fed. R. Civ. P. 23(b)(1)(B). A ruling with respect to a single Plaintiff in this case would arguably be strong stare decisis with respect to other putative class members and members of the law enforcement community. There is no benefit to litigating the overwhelmingly common issues in this case individually. The interests of both Plaintiff Class members and Defendants requires class-wide treatment.
198. Defendants have “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Plaintiffs were targeted not because of anything unique to them as individuals, but because of their activities as journalists and legal observers. Defendants targeted Plaintiffs as part of a broader pattern and practice of unconstitutional conduct directed against the Plaintiff Class, including without limitation the police’s unlawful policy related to dispersing members of the press. Injunctive relief for the “class as a whole” is the only mechanism available to afford relief in light of conduct directed specifically to the class.
199. Common questions of law and fact “predominate over any questions affecting only individual members,” and a class action is “superior to other available methods for fairly and efficiently adjudicating” this controversy. Fed. R. Civ. P. 23(b)(3). The questions outlined in paragraph 195 above are the primary questions in this litigation, and no other method will adjudicate this controversy as fairly and efficiently as a class action.
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CAUSES OF ACTION 200. “If a government agency restricts public access, the media’s only recourse is the court system. The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.” Leigh, 677 F.3d at 898.
First Cause of Action (Violation of the First Amendment) 201. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 202. Plaintiffs and Plaintiff Class are engaged in constitutionally protected acts of speech and expressive conduct. Defendants retaliated against Plaintiffs and Plaintiff Class for engaging in such constitutionally protected activity. Defendants have targeted journalists and legal observers for arrests, threats of arrests, and use of force. 203. Defendants’ policy of dispersing neutrals who are reporting on protests violates Plaintiffs’ First Amendment rights on its face and as applied. Journalists and observers engaged in newsgathering do not present public safety issues, and keeping them from newsgathering during a protest thus does not serve any legitimate government interest. Defendants know that reporters do not threaten public safety because they are willing to allow reporters and observers whom they handpick to attend the protests. Moreover, preventing journalists and observers from newsgathering during enforcement of an unlawful-assembly order does not provide alternative channels for newsgathering on police’s enforcement of that order. 204. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from reporting on the protests, including the very police brutality against which the protesters were demonstrating. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from monitoring, recording, and reporting on police misconduct. 205. Defendants’ acts would chill a reasonable person from continuing to engage in a constitutionally protected activity. These acts did, in fact, chill Plaintiffs and Plaintiff Class from continuing to support, observe, record, and report on some events of public interest, including
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constitutionally protected demonstrations and the conduct of law enforcement officers on duty in a public place. Plaintiffs and Plaintiff Class reasonably fear that if they continue to engage in such constitutionally protected activity, the police will continue to use tear gas, excessive force, flash-bang grenades, rubber bullets, riot batons, and other means to chill their right to free speech.
206. By retaliating against Plaintiffs and Plaintiff Class for engaging in constitutionally protected activity, and by adopting an unlawful policy that restricts activities protected by the First Amendment, Defendants, under color of state or federal law, subjected or caused Plaintiffs and Plaintiff Class to be subjected to the deprivation of rights secured by the First Amendment of the Constitution.
207. It was the City’s and the Federal Defendants’ policy, practice, or custom, as well as their failure to train and supervise their employees and agents and issue corrective instructions after violations were brought to light, that caused the First Amendment retaliation.
208. The City’s and the Federal Defendants’ failure to supervise and train their employees and agents with respect to the First Amendment rights of Plaintiffs and Plaintiff Class, including a failure to investigate and discipline officers for First Amendment violations, amounts to deliberate indifference to the rights of Plaintiffs and Plaintiff Class.
209. The pattern of similar constitutional violations against Plaintiffs and Plaintiff Class that occurred during the George Floyd protests demonstrates the City’s and the Federal Defendants’ deliberate indifference to Plaintiffs’ and Plaintiff Class’s First Amendment rights.
210. Given the multiple constitutional violations documented above, the need for more supervision or training was so obvious, and the inadequacy of the training and supervision so likely to result in the violation of constitutional rights, that the City and the Federal Defendants demonstrated their deliberate indifference to the need for such training and supervision.
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Second Cause of Action (Violation of the Fourth Amendment) 211. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 212. Plaintiffs and Plaintiff Class, who were present at the protests to observe and report committed no crime. Nor did they pose a threat to any of Defendants’ officers or agents or any other person. 213. Plaintiffs and Plaintiff Class were seized by Defendants when their officers intentionally, through threats of arrest, chemical agents, rubber bullets, and other uses of force, terminated their freedom of movement. 214. Using threats of arrest, riot batons, semi-lethal projectiles, and chemical weapons against neutral parties who are present to observe protests and report on them is an unconstitutionally excessive use of force. Defendants’ seizure of Plaintiffs and Plaintiff Class was thus objectively unreasonable. Defendants, under color of state or federal law, subjected or caused Plaintiffs to be subjected to the deprivation of rights secured by the Fourth Amendment of the Constitution. 215. It was the City’s and the Federal Defendants’ policy, practice, or custom, as well as their failure to train and supervise their employees and agents and issue corrective instructions after violations were brought to light, that caused the Fourth Amendment violations. 216. The City’s and the Federal Defendants’ failure to supervise and train their employees and agents with respect to the Fourth Amendment rights of Plaintiffs and Plaintiff Class, including a failure to investigate and discipline officers for Fourth Amendment violations, amounts to deliberate indifference to the rights of Plaintiffs and Plaintiff Class. 217. The pattern of similar constitutional violations against Plaintiffs and Plaintiff Class that occurred during the Floyd protests demonstrates the City’s and the Federal Defendants’ deliberate indifference to Plaintiffs’ and Plaintiff Class’s Fourth Amendment rights.
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218. Given the multiple constitutional violations documented above, the need for more supervision or training was so obvious, and the inadequacy of the training and supervision so likely to result in the violation of constitutional rights, that the City and the Federal Defendants demonstrated their deliberate indifference to the need for such training and supervision.
219. Plaintiffs reasonably fear further retaliation in the future in violation of the Fourth Amendment if they continue to observe, record, or participate in constitutionally protected activity.
Third Cause of Action (Violation of the Oregon Constitution, Art. I, §§ 8, 26) 220. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 221. Article I, § 8, of the Oregon Constitution provides: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for abuse of this right.” Article I, § 26, provides: “No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of [grievances].” 222. “The difference in the language of the Oregon and federal constitutions may . . . be pointed to as indicating an intention to provide a larger measure of protection to free expression under the Oregon Constitution. The California Constitution, which contains language similar to Oregon Constitution, Art. I, § 8, was so construed in Wilson v. Superior Court of Los Angeles County, 532 P.2d 116, 120 (Cal. 1975), where the court said: ‘A protective provision more definitive and inclusive than the First Amendment is contained in our state constitutional guarantee of the right of free speech and press.’” Deras v. Myers, 272 Or. 47, 64 n.17 (Or. 1975); see also State v. Tusek, 52 Or. App. 997, 1000 n.2 (Or. Ct. App. 1981) (“[I]n some instances, Art I
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§ 8 of the Oregon Constitution provides a larger measure of protection to citizens than does the First Amendment to the U.S. Constitution.”).
223. Plaintiffs and Plaintiff Class are engaged in constitutionally protected acts of speech and expressive conduct secured by the Oregon Constitution, Art. I, §§ 8 and 26. Defendants retaliated against Plaintiffs and Plaintiff Class for engaging in such constitutionally protected activity. Defendants have targeted journalists and legal observers for arrests, threats of arrests, and use of force.
224. Defendants’ policy of dispersing neutrals who are reporting on protests violates Plaintiffs’ constitutional right to free speech on its face and as applied. Journalists and observers engaged in newsgathering do not present public safety issues, and keeping them from newsgathering during a protest thus does not serve any legitimate government interest. Defendants know that reporters do not threaten public safety because they are willing to allow reporters and observers whom they handpick to attend the protests. Moreover, preventing journalists and observers from newsgathering during enforcement of an unlawful-assembly order does not provide alternative channels for newsgathering on police’s enforcement of that order.
225. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from reporting on the protests, including the very police brutality against which the protesters were demonstrating. Defendants directly prevented and deterred Plaintiffs and Plaintiff Class from monitoring, recording, and reporting on police misconduct.
226. Defendants’ acts would chill a reasonable person from continuing to engage in a constitutionally protected activity. These acts did, in fact, chill Plaintiffs and Plaintiff Class from continuing to support, observe, record, and report on some events of public interest, including constitutionally protected demonstrations and the conduct of law enforcement officers on duty in a public place. Plaintiffs and Plaintiff Class reasonably fear that if they continue to engage in such constitutionally protected activity, the police will continue to use tear gas, excessive force, flash-bang grenades, rubber bullets, riot batons, and other means to chill their right to free speech.
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227. By retaliating against Plaintiffs and Plaintiff Class for engaging in constitutionally protected activity, Defendants subjected or caused Plaintiffs to be subjected to the deprivation of rights secured by the Oregon Constitution, Art. I, §§ 8 and 26.
Fourth Cause of Action (Declaratory Judgment) 228. Plaintiffs and Plaintiff Class incorporate all paragraphs above by reference as if fully set forth herein. 229. Plaintiffs and Plaintiff Class intend to continue attending protests in Portland for the purpose of documenting, reporting on and observing the events. Plaintiffs are fearful, however, that they will be subjected to police violence or dispersed pursuant to the police’s illegal policy. Plaintiffs are also fearful that the police will continue to use kettling and killbox tactics against protesters that sweep in media and observers. 230. As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant issuing a declaratory judgment that threatening Plaintiffs and Plaintiff Class with arrest, arresting Plaintiffs and Plaintiff Class, and targeting Plaintiffs and Plaintiff Class for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters, violates the First Amendment. 231. As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant issuing a declaratory judgment that threatening Plaintiffs and Plaintiff Class with arrest, arresting Plaintiffs and Plaintiff Class, and targeting Plaintiffs and Plaintiff Class for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters, violates the Fourth Amendment.
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232. As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant issuing a declaratory judgment that threatening Plaintiffs and Plaintiff Class with arrest, arresting Plaintiffs and Plaintiff Class, and targeting Plaintiffs and Plaintiff Class for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters, violates Article I, Section 8 of the Oregon Constitution.
233. A judicial declaration is necessary and appropriate so that Plaintiffs and Plaintiff Class may ascertain their rights to engage in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters.
234. Plaintiffs and Plaintiff Class are entitled to a declaratory judgment that Defendants may not threaten Plaintiffs and Plaintiff Class with arrest, arrest Plaintiffs and Plaintiff Class, or target Plaintiffs and Plaintiff Class for uses of force, while they are engaged in constitutionally protected acts of speech and expressive conduct during protests, including newsgathering, reporting, and documenting police interaction with protesters.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief: A. Declaratory relief; B. Injunctive relief; C. Compensatory damages; D. Punitive damages; E. An award of pre-judgment interest; F. An award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; G. Any other relief the Court deems proper.
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Dated: July 17, 2020

Respectfully submitted,
By: /s/ Matthew Borden Matthew Borden, Admitted pro hac vice J. Noah Hagey, Admitted pro hac vice Athul K. Acharya, OSB No. 152436 Gunnar K. Martz, pro hac vice BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

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Matthew Borden, Admitted pro hac vice borden@braunhagey.com J. Noah Hagey, Admitted pro hac vice hagey@braunhagey.com Athul K. Acharya, OSB No. 152436 acharya@braunhagey.com Gunnar K. Martz, Admitted pro hac vice martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND, a municipal corporation; JOHN DOES 1-60, officers of Portland Police Bureau and other agencies working in concert; U.S. DEPARTMENT OF HOMELAND SECURITY; and U.S. MARSHALS SERVICE,
Defendants.

Case No. 3:20-cv-1035-SI
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AGAINST DEFENDANTS U.S. DEPARTMENT OF HOMELAND SECURITY AND U.S. MARSHALS SERVICE
EXPEDITED HEARING REQUESTED

MOTION FOR TRO & PRELIMINARY INJUNCTION AGAINST FEDERAL DEFENDANTS

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MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau hereby move for a temporary restraining order and preliminary injunction. This motion is based on Federal Rule of Civil Procedure 65 and the First and Fourth Amendments to the United States Constitution. Plaintiffs support this motion with the accompanying memorandum of law and the declarations of Mathieu Lewis-Rolland and Garrison Davis and others in the process of being collected and signed at the time of filing of this motion.
Plaintiffs specifically seek an order enjoining Defendant Department of Homeland Security (“DHS”), Defendant U.S. Marshals Service (“USMS”), and their agents and employees (collectively, the “federal agents”) as follows:
1. The federal agents are enjoined from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), unless the federal agents have probable cause to believe that such individual has committed a crime. For purposes of this injunction, such persons shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse. Such persons shall, however, remain bound by all other laws.
2. The federal agents are further enjoined from seizing any photographic equipment, audio- or video-recording equipment, or press passes from any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), or ordering such person to stop photographing, recording, or observing a protest, unless the federal agents are also lawfully seizing that person consistent with this injunction. The federal agents must return any seized equipment or press passes immediately upon release of a person from custody.
3. To facilitate the federal agents’ identification of Journalists protected under this injunction, the following shall be considered indicia of being a Journalist: visual identification as
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a member of the press, such as by carrying a professional or authorized press pass or wearing a professional or authorized press badge or distinctive clothing that identifies the wearer as a member of the press. These indicia are not exclusive, and a person need not exhibit every indicium to be considered a Journalist under this injunction. The federal agents shall not be liable for unintentional violations of this injunction in the case of an individual who does not carry a press pass or wear a press badge or distinctive clothing that identifies the wearer as a member of the press.
4. To facilitate the federal agents’ identification of Legal Observers protected under this injunction, the following shall be considered indicia of being a Legal Observer: wearing a National Lawyers’ Guild issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU issued or authorized Legal Observer vest.
5. The federal agents may issue otherwise lawful crowd-dispersal orders for a variety of lawful reasons. The federal agents shall not be liable for violating this injunction if a Journalist or Legal Observer is incidentally exposed to crowd-control devices after remaining in the area where such devices were deployed after the issuance of an otherwise lawful dispersal order.
The materials submitted in support of this motion demonstrate that “immediate and irreparable injury, loss, or damage will result to the movant[s] before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). They demonstrate a threat of irreparable harm to Plaintiffs and those similarly situated, that Plaintiffs are likely to succeed on the merits, that the balance of this harm against any harm the TRO may inflict on other parties weighs in favor of granting the TRO, and that the public interest favors issuing a TRO. If the Court grants the requested relief, Plaintiffs seek an expedited hearing under Federal Rule of Civil Procedure 65(b)(3). For the reasons argued in the memorandum of law, the Court should enter an order granting this relief.
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TABLE OF CONTENTS
MEMORANDUM OF LAW ...................................................................................................... 1 INTRODUCTION ..................................................................................................................... 1 FACTUAL BACKGROUND ..................................................................................................... 3
A. Portland’s Demonstrations Over the Murder of George Floyd ............................. 3 B. The Court Issues a TRO Against the Police ......................................................... 3 C. Federal Agents Attack Journalists and Legal Observers ....................................... 3
1. Federal Agents Shoot Plaintiff Lewis-Rolland ......................................... 4 2. Federal Agents Shoot Journalist Garrison Davis and Assault
Legal Observers....................................................................................... 6 3. Federal Agents’ Violent Attacks Continue Even as Legal
Action Is Threatened ............................................................................... 7 ARGUMENT............................................................................................................................. 7 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF
THEIR FIRST AMENDMENT CLAIMS ....................................................................... 8 A. Federal Agents Unlawfully Retaliated Against Plaintiff Lewis-
Rolland ............................................................................................................... 8 1. Mr. Lewis-Rolland Was Engaged in Constitutionally
Protected Activities.................................................................................. 8 2. Federal Agents’ Use of Violent Force Has Chilled Mr. Lewis-Rolland from
Exercising His First Amendment Rights .................................................10 3. Mr. Lewis-Rolland’s Newsgathering and Reporting Was a
Substantial Motivating Factor in Federal Agents’ Conduct......................11 B. For Reasons the Court has Already Explained, Federal Agents
Have Unlawfully Denied Access to Journalists and Legal Observers ...........................................................................................................12 C. The Court Can Grant Equitable Relief Against the Federal Government .......................................................................................................14 II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM WITHOUT THE COURT’S INTERVENTION.........................................................................................15
i
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Case 3:20-cv-01035-SI Document 54 Filed 07/17/20 Page 5 of 25 III. THE PUBLIC’S INTEREST AND BALANCE OF EQUITIES WEIGH
STRONGLY IN FAVOR OF PLAINTIFFS ...................................................................15 A. The Public Has an Unassailable Interest in a Free Press .....................................15 B. The Balance of Equities Weighs Strongly in Favor of Plaintiffs..........................17 CONCLUSION .........................................................................................................................17
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TABLE OF AUTHORITIES

Page(s)

Cases

Abudiab v. Georgopoulos, 586 F. App’x 685 (9th Cir. 2013) ...........................................................................................10
Adkins v. Limtiaco, 537 F. App’x 721 (9th Cir. 2013) .............................................................................................9
Ariz. Students’ Ass’n v. Ariz. Bd. Of Regents, 824 F.3d 858 (9th Cir. 2016)..................................................................................................11
Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012)..................................................................................................15
Barich v. City of Cotati, 2015 WL 6157488 (N.D. Cal. Oct. 20, 2015)............................................................... 9, 10, 15
Black Lives Matter Seattle—King Cty. v. City of Seattle, 2020 WL 3128299 (W.D. Wash. June 12, 2020)............................................................... 10, 15
Branzburg v. Hayes, 408 U.S. 665 (1972) ................................................................................................................9
Brown v. Entm’t Merch. Ass’n, 564 U.S. 786 (2011) ..............................................................................................................16
Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) ..............................................................................................................16
City of Houston v. Hill, 482 U.S. 451 (1987) ................................................................................................................9
Cmty. House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007)................................................................................................17
Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. 2020)..................................................................................................15
Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ..........................................................................................................9, 12
Doe v. Harris, 772 F.3d 563 (9th Cir. 2014)....................................................................................................8
E.V. v. Robinson, 906 F.3d 1082 (9th Cir. 2018)................................................................................................14
Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)................................................................................................9, 10
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) ..............................................................................................................16
Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733 (9th Cir. 2014)....................................................................................................7
Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994)....................................................................................................15
Hartman v. Moore, 547 U.S. 250 (2006) ................................................................................................................8

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Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) ..........................................................................................................16
Leigh v. Salazar, 677 F.3d 892 (9th Cir. 2012)...........................................................................................passim
McComas v. City of Rohnert Park, 2017 WL 1209934 (N.D. Cal. Apr. 3, 2017).............................................................................9
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012)..................................................................................................15
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283 (9th Cir. 1999)............................................................................................8, 10
New York Times Co. v. Sullivan, 376 U.S. 254 .........................................................................................................................16
Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”), 478 U.S. 1 (1986) ............................................................................................................ 12, 13
Reed v. Lieurance, 863 F.3d 1196 (9th Cir. 2017) ................................................................................................13
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ..............................................................................................................13
Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019)..................................................................................................14
Sierra Club v. Trump, 2020 WL 3478900 (9th Cir. June 26, 2020) ..................................................................... 14, 15
the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ..................................................................................................7
Ulrich v. City & Cty. of S.F., 308 F.3d 968 (9th Cir. 2002)..................................................................................................11
United States v. Sherman, 581 F.2d 1358 (9th Cir. 1978)..................................................................................................9
Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005)..............................................................................................7, 15
Statutes
5 U.S.C. § 702...........................................................................................................................14 U.S. Const. amend. I ...................................................................................................................8
Rules
Fed. R. Civ. P. 65(b)(1)(A) ..........................................................................................................3 Federal Rule of Civil Procedure 65..............................................................................................2 Federal Rule of Civil Procedure 65(b)(3).....................................................................................3
Other Authorities
H.R. Rep. No. 94-1656..............................................................................................................14 Newsgathering, Press Access, and the First Amendment,
44 Stan. L. Rev. 927 (1992)...................................................................................................13
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MEMORANDUM OF LAW Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau respectfully submit this memorandum in support of their motion for a temporary restraining order and preliminary injunction.
INTRODUCTION Plaintiffs respectfully seek to enjoin Defendant Department of Homeland Security (“DHS”), Defendant U.S. Marshals Service (“USMS”), and their agents and employees (collectively, “federal agents”) from assaulting news reporters, photographers, legal observers, and other neutrals who are documenting Defendants’ violent response to protests over the murder of George Floyd. The Court has issued an identical TRO enjoining the Portland police from engaging in identical conduct.1 The federal agents are aware of the Court’s TRO, but have taken the position that they need not comply, which has once again placed press and legal observers in peril. After the Court issued its TRO, journalists and legal observers enjoyed a respite from the violence and intimidation that gave rise to this lawsuit. Unfortunately, in the days that followed, President Trump sent federal agents into Portland to suppress protests and subject Portland to the same indiscriminate violence that he used to clear Lafayette Square of peaceful protesters, stating that “[t]he locals couldn’t handle it” because “[l]ocal law enforcement has been told not to do too much.”2 President Trump added that his shock troops were “handling it very nicely”—by which he meant, apparently, that they were successfully subjugating protesters and carrying out his longstanding vendetta against the press.
1 The Court’s TRO covered “Defendants and their agents and employees, including but not limited to the Portland Police Bureau and all persons acting under the direction of the Portland Police Bureau.” (Dkt. 33 at 8 ¶ 1.) 2 Conrad Wilson & Jonathan Levinson, President Trump Says Portland Police Are Incapable of Managing Protests, OPB (July 10, 2020), https://www.opb.org/news/article/president-trumpportland-police-are-incapable-of-managing-protests/.
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In the early hours of July 12, 2020, federal agents shot at least two journalists, including Plaintiff Mathieu Lewis-Rolland. (Declaration of Mathieu Lewis-Rolland (“Lewis-Rolland Decl.”), Dkt. 44 ¶¶ 13-16; Declaration of Garrison Davis (“Davis Decl.”), Dkt. 43 ¶¶ 13-14.) Mr. Lewis-Rolland wore a shirt stating “PRESS” on large letters on the front and back and was photographing the protests with professional camera equipment. Nevertheless, federal agents shot him 10 times in the back and side—all above the waist. (Lewis-Rolland Decl. ¶¶ 2-3, 13.) They also shot journalist Garrison Davis, even though he too was clearly marked as press and was prominently displaying his press pass. (Davis Decl. ¶¶ 4, 13-14.) They also chased away legal observers affiliated with the National Lawyers’ Guild by threatening to beat them with batons. (Davis Decl. ¶ 16.) The next day, the President announced: “We very much quelled it. If it starts again, we’ll quell it again, very easily. It’s not hard to do.”3 In the days that followed, federal agents have continued attacking journalists and legal observers and using indiscriminate military violence to chill Plaintiffs’ protected activities.
As the Court has already ruled, such conduct raises “a serious threat to [Plaintiffs’] First Amendment rights,” and therefore poses “a likelihood of irreparable injury.” (Dkt. 33 at 7.) As members of the media and legal observers, Plaintiffs have a right to witness important public events and recount them to the world. Their newsgathering, observing, and recording activities are at the core of what the First Amendment protects. Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012) (“The free press is the guardian of the public interest”). Federal agents’ efforts to intimidate and suppress reporting on their own misconduct violate clearly established First Amendment law and are causing irreparable harm to Plaintiffs and the public. Federal agents are not above the law. They cannot attack media and legal observers for trying to document and observe law-enforcement activities—that is the hallmark of a totalitarian regime. For the reasons the Court issued the TRO against the police, the Court should issue identical relief against
3 @keaton_thomas, Twitter (July 13, 2020, 11:47 A.M.), https://twitter.com/keaton_thomas/status/1282748500782899200. PAGE 2 - MOTION FOR TEMPORARY RESTRAINING ORDER & PRELIMINARY
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federal agents, prohibiting them from assaulting people they know or reasonably should know are journalists or legal observers.
FACTUAL BACKGROUND The factual background for this motion is largely the same as the background for the TRO the Court issued 15 days ago. What is new is that even as Portland police comply with the TRO, the federal government has begun attacking journalists and legal observers in their stead. These facts are detailed below. A. Portland’s Demonstrations Over the Murder of George Floyd The Minneapolis police murdered George Floyd on May 25, 2020. His killing prompted protests worldwide, including in Portland. Since his murder, thousands of people have gathered every night in Portland to protest and mourn Mr. Floyd’s murder and insist that our institutions start ensuring that Black lives matter. These protests continue to the present day. (Declaration of Doug Brown (“Brown Decl.”), Dkt. 9 ¶ 8.) B. The Court Issues a TRO Against the Police As detailed in Plaintiffs’ previous motion for a TRO, over a month of protests, the police had repeatedly retaliated against journalists and legal observers and forcibly prevented them from covering the protests. (Dkt. 7 at 3-6.) On June 30, Plaintiffs moved for a TRO. (Dkt. 7.) On July 2, the Court granted a TRO enjoining the police from “arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer,” along with certain indicia to facilitate the police’s identification of journalists and legal observers. (Dkt. 33 at 8-10.) C. Federal Agents Attack Journalists and Legal Observers After court issued TRO, journalists and legal observers enjoyed a brief respite and were able to report on protests without threat of reprisal. But then President Trump decided to move in federal agents to “quell” the protests.
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1. Federal Agents Shoot Plaintiff Lewis-Rolland In the early hours of July 12, Mr. Lewis-Rolland was at the protests near the federal courthouse, documenting the protesters and their interaction with federal officials. (LewisRolland Decl. ¶¶ 4, 6.) He was carrying bulky camera equipment, wearing a t-shirt that said “PRESS” in big block letters, and staying in well-lit areas to make sure officials could see that he was there in a journalistic capacity. (Id. ¶¶ 3-4.) Around 1:54 a.m., federal agents began rushing out of the federal courthouse to eject protesters and neutrals alike from the area with tear gas, impact projectiles, and physical force. (Id. ¶¶ 5-7.) The agents were from “more than a half-dozen federal law enforcement agencies and departments” under the purview of DHS, including the Federal Protective Service.4 Mr. Lewis-Rolland took the following video that documents much of what ensued: https://www.facebook.com/MathieuLewisRolland/videos/10218671503762415/. (Lewis-Rolland Decl. ¶ 5.) Soon after the federal agents emerged from the courthouse, one shoved Mr. LewisRolland, shouting “GET BACK! GET BACK!” (Id. ¶ 7.) About a minute later, an agent from the Federal Protective Service, Agent Doe, took aim at Mr. Lewis-Rolland but ultimately did not shoot at that time. (Id. ¶ 9.) Mr. Lewis-Rolland began moving west, complying with the agents’ orders. (Id. ¶ 10.) About three minutes after the agents began their offensive, Mr. Lewis-Rolland had moved almost all the way to SW 4th Avenue, well past the boundary of federal property. (Id. ¶ 11.) Nevertheless, federal agents, including Agent Doe, continued to chase him and the crowd. (Id.) A few seconds later, Agent Doe or other federal agents next to him shot Mr. Lewis-Rolland in the side and back ten times. (Id. ¶ 13.) They riddled him with hard plastic bullets launched with enough force to put bullet holes in his “PRESS” t-shirt (id. ¶ 18):
4 Ben Fox & Gillian Flaccus, Homeland Security Deploys Officers In Portland Under Trump Monument Order, OPB (July 10, 2020), https://www.opb.org/news/article/portland-oregonhomeland-security-officers-protests-trump-monument-order/. PAGE 4 - MOTION FOR TEMPORARY RESTRAINING ORDER & PRELIMINARY
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Figure 1: Federal agents' bullets ripped Mr. Lewis-Rolland's t-shirt at the bottom left and bottom right corners.
Mr. Lewis-Rolland posed no threat to any federal agent or anyone else. (Id.) He was only documenting what officers and protesters were doing. (Id.) He was performing an essential function of the Fourth Estate. For his trouble, he suffered several wounds, lacerations, and contusions (e.g., id. ¶ 15):
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Figure 2: Two of the ten times federal agents shot Mr. Lewis-Rolland. More pictures in Lewis-Rolland Decl. ¶¶ 14-16.
2. Federal Agents Shoot Journalist Garrison Davis and Assault Legal Observers
Journalist Garrison Davis was also covering the protests on the night of July 11 and the early morning of July 12. (Davis Decl. ¶¶ 1, 3.) Like Mr. Lewis-Rolland, Mr. Davis was clearly there as press: He wore a helmet that said “PRESS” on it in big block letters, held his press pass in one hand and his iPhone in the other, and did not participate in protests. (Id. ¶¶ 4-5.)
Shortly after midnight, the federal agents issued what they called a “last warning.” (Id. ¶ 12.) They then launched a tear-gas offensive, engulfing the entirety of the steps of the courthouse, SW 3rd Avenue, and Lownsdale Square in tear gas. (Id.) They also started shooting munitions into the crowd. (Id.) As Mr. Davis moved backward, one Government agent shot him in the back with a tear gas canister. (Id. ¶ 13.) The canister fell into Mr. Davis’s bag and PAGE 6 - MOTION FOR TEMPORARY RESTRAINING ORDER & PRELIMINARY
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inundated him with tear gas until people nearby helped him remove it. (Id.) Government agents also shot directly at him with pepper bullets and other munitions, even though he was no threat to them or anyone else. (Id. ¶ 14.) Mr. Davis also saw Government agents chase, truncheons swinging, after legal observers who were clearly affiliated with the National Lawyers’ Guild. (Id. ¶ 17.)
3. Federal Agents’ Violent Attacks Continue Even as Legal Action Is Threatened
After this Court issued a preliminary injunction preventing the police from retaliating against and dispersing journalists and legal observers, and even after Plaintiffs moved to add the federal officers as parties to this litigation, the federal agents continued their attacks on journalists and legal observers. (Declaration of Doug Brown (“Brown Decl.”) ¶¶ 11-15.) These attacks included indiscriminately shooting and tear-gassing them for no cause whatsoever. (Id.; Declaration of Justin Yau (“Yau Decl.”) ¶¶ 5-6.)
ARGUMENT Under the traditional four-factor test, plaintiffs may obtain a preliminary injunction if they show that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tip in their favor; and (4) an injunction is in the public interest. Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733, 738 (9th Cir. 2014). Alternatively, in the Ninth Circuit, plaintiffs who show that the balance of hardships tips “sharply” in their favor need only raise “serious questions” going to the merits. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011); see also Warsoldier v. Woodford, 418 F.3d 989, 993-94 (9th Cir. 2005) (“[T]he greater the relative hardship to [plaintiff], the less probability of success must be shown.” (quotation marks omitted)). Here, Plaintiffs easily meet either bar.
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I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR FIRST AMENDMENT CLAIMS The First Amendment prohibits any law “abridging the freedom of speech, or of the
press.” U.S. Const. amend. I. To obtain a preliminary injunction, Plaintiffs need only “mak[e] a colorable claim that [their] First Amendment rights have been infringed, or are threatened with infringement.” Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014). After that, the Government bears the burden of justifying the restriction on Plaintiffs’ speech. Id.
Federal agents retaliated against Plaintiff Lewis-Rolland and have illegally denied access to journalists and legal observers trying to document and record what Defendants are doing to protesters. The substantive First Amendment issues here are therefore essentially the same as those the Court decided in granting the TRO against the City. And there is no jurisdictional or procedural bar to granting Plaintiffs the same relief against the federal agents. Thus, Plaintiffs satisfy the likelihood-of-success prong and the Court should enjoin the federal agents from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a journalist or legal observer.
A. Federal Agents Unlawfully Retaliated Against Plaintiff Lewis-Rolland The First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). To state a First Amendment retaliation claim, a plaintiff must allege (1) that he or she was engaged in a constitutionally protected activity; (2) that the officers’ actions would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the protected activity was a substantial or motivating factor in the officers’ conduct. Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300-01 (9th Cir. 1999). These elements are easily satisfied here.
1. Mr. Lewis-Rolland Was Engaged in Constitutionally Protected Activities
Mr. Lewis-Rolland easily satisfies the first prong of a retaliation claim because he was engaged in the core First Amendment activities of newsgathering and recording federal agents at a protest.
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Because freedom of the press lies at the heart of the First Amendment, “newsgathering is an activity protected by the First Amendment.” United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978) (citing Branzburg v. Hayes, 408 U.S. 665, 681 (1972)). That principle applies with greater force when the media reports on “the proceedings of government,” because the media then acts as “surrogates for the public.” Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491-92 (1975); Leigh, 677 F.3d at 900 (quotation marks omitted). Here, at the time federal agents shot him, Mr. Lewis-Rolland was doing just that: reporting on protests against the government and government agents’ dispersal of the protesters. (Lewis-Rolland Decl. ¶¶ 2-4.)5
Mr. Lewis-Rolland’s activity was constitutionally protected for a separate and independent reason: For 25 years, the Ninth Circuit has recognized that people have the right to film “public officials performing their official duties in public.” Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). Fordyce itself involved facts remarkably similar to those here—a plaintiff who was “assaulted and battered by a Seattle police officer” in retaliation for videotaping and audio-recording a protest in the streets of Seattle. 55 F.3d at 439. In the decades since Fordyce, courts have continued to recognize this clearly established right. See, e.g., McComas v. City of Rohnert Park, 2017 WL 1209934, at *7 (N.D. Cal. Apr. 3, 2017) (holding that there is a clearly established right against retaliation for “peacefully filming [an] officer”); Barich v. City of Cotati, 2015 WL 6157488, at *1 (N.D. Cal. Oct. 20, 2015) (same); see also Adkins v. Limtiaco, 537 F. App’x 721, 722 (9th Cir. 2013) (allowing retaliation claim for photographing police officers to proceed even when plaintiff directed “a significant amount of verbal criticism and challenge” at officers (quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987))).
Here, Mr. Lewis-Rolland was gathering news, recording public demonstrations on the streets of Portland, and documenting protest activities and police conduct, just as Jerry Fordyce
5 As explained in Plaintiffs’ motion for a temporary restraining order, all of the Plaintiffs attend protests to record and observe events, not to protest. (Dkt. 7 at 8.) PAGE 9 - MOTION FOR TEMPORARY RESTRAINING ORDER & PRELIMINARY
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did 25 years ago on the streets of Seattle. (Lewis-Rolland Decl. ¶¶ 2-4.) For this reason, Mr. Lewis-Rolland was engaged in a constitutionally protected activity. Fordyce, 55 F.3d at 439.
2. Federal Agents’ Use of Violent Force Has Chilled Mr. Lewis-Rolland from Exercising His First Amendment Rights
Federal agents shot Mr. Lewis-Rolland ten times because he was filming them. (LewisRolland Decl. ¶¶ 13-16.) They shot him with hard plastic bullets that ripped his shirt and left him covered in bruises and lacerations. (Id. ¶¶ 13-18.) On the same night, they shot Mr. Davis with a tear gas canister, pepper bullets, and other munitions, and they threatened to beat legal observers. (Davis Decl. ¶¶ 13-14, 16.)
This is easily enough to chill a reasonable person’s speech. Mendocino, 192 F.3d at 130001. Courts have repeatedly held that similar uses of force would deter a person of ordinary firmness from exercising their constitutional rights. See, e.g., Black Lives Matter Seattle—King Cty. v. City of Seattle, 2020 WL 3128299, at *3 (W.D. Wash. June 12, 2020) (holding that using tear gas, pepper spray, and rubber bullets would “surely chill[] speech”); Abudiab v. Georgopoulos, 586 F. App’x 685, 686 (9th Cir. 2013) (denying qualified immunity for retaliation where officer pepper-sprayed and punched plaintiff); Barich v. City of Cotati, 2015 WL 6157488, at *1 (N.D. Cal. Oct. 20, 2015) (“No reasonable trier of fact could doubt that a person of ordinary firmness would be deterred by the threat of arrest.”).
Indeed, similar uses of force by PPB have actually deterred Plaintiffs from continuing to cover protests. (Dkt. 7 at 11-12.) Mr. Lewis-Rolland himself stated, before this Court’s first TRO, that he had “ceased covering the protests in part because the actions of the police ha[d] made [him] apprehensive about [his] safety.” (Declaration of Mathieu Lewis-Rolland in Support of Plaintiffs’ Motion for Temporary Restraining Order, Dkt. 12 ¶ 13.) Relying on the protection conferred by the Court’s TRO, Mr. Lewis-Rolland returned to his reporting. (Lewis-Rolland Decl. ¶ 1.) If federal agents can do what the Court has forbidden the police to do, he will be chilled once again.
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3. Mr. Lewis-Rolland’s Newsgathering and Reporting Was a Substantial Motivating Factor in Federal Agents’ Conduct
The last element of a retaliation claim is that a plaintiff’s protected activity must be “a substantial motivating factor” in federal agents’ conduct—that is, there must be some “nexus between [federal agents’] actions and an intent to chill speech.” Ariz. Students’ Ass’n v. Ariz. Bd. Of Regents, 824 F.3d 858, 867 (9th Cir. 2016). “As with proof of motive in other contexts, this element of a First Amendment retaliation suit may be met with either direct or circumstantial evidence.” Ulrich v. City & Cty. of S.F., 308 F.3d 968, 979 (9th Cir. 2002). Plaintiffs easily meet this standard here.
First, federal agents plainly knew Mr. Lewis-Rolland was newsgathering and reporting when they fired upon him. He was carrying a large, professional camera, with a long telephoto lens, and his phone was attached to the top via hotshoe. (Lewis-Rolland Decl. ¶ 3.) He was wearing a t-shirt that said “PRESS” in big block letters on both sides. (Id.) He was staying in well-lit areas so that it would be clear he was there only to document the protesters and their interaction with federal officials. (Id. ¶ 4.) He was not protesting. (Id.) Federal agents knew full well that he was reporting when they shot him.
Second, the agent who most likely shot Mr. Lewis-Rolland, Agent Doe, actually took aim at Mr. Lewis-Rolland a few minutes earlier, but he lowered his weapon when he realized Mr. Lewis-Rolland was capturing him on camera. (Id. ¶ 9.) Agent Doe then followed Mr. LewisRolland as he moved to stay ahead of the skirmish line, waited until Mr. Lewis-Rolland’s camera was turned away from him, and only then lit Mr. Lewis-Rolland up with a rapid succession of hard plastic bullets. (Id. ¶¶ 12-13.) This too shows that Agent Doe specifically targeted Mr. Lewis-Rolland for participating in protected First Amendment activity.
Third, the federal agents shot Mr. Lewis-Rolland in the back and side. (Id. ¶¶ 13-16.) He was not even facing them and therefore could not have been posing any risk to them. (Id. ¶ 13.) They also shot him multiple times, which was plainly excessive and not commensurate with any risk. Moreover, they shot him all ten times above the waist, risking damage to major organs,
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rather than take aim at the large muscle groups of the buttocks and thighs.6 All of these facts strongly suggest an intent to chill speech.
Finally, the federal agents’ attack on Mr. Lewis-Rolland took place against the backdrop of their attacking press and legal observers generally. On the same night, federal agents shot another journalist with a tear-gas canister, pepper bullets, and other munitions. (Davis Decl. ¶¶ 13-14.) They also prevented legal observers in green National Lawyers’ Guild hats from observing their activities by chasing them away with batons and threats of beatings. (Davis Decl. ¶ 16.) Taken together, all this is insurmountable proof that federal agents intended to deprive Mr. Lewis-Rolland of his constitutional rights.
B. For Reasons the Court has Already Explained, Federal Agents Have Unlawfully Denied Access to Journalists and Legal Observers
As the Court previously recognized, Plaintiffs seek a right of access. They assert the right to observe, record, and report on how Defendants enforce their dispersal orders. To vindicate that right, Plaintiffs must show (1) that the place and process to which they seek access have historically been open to the press and general public and (2) that public access plays a significant positive role in the functioning of the particular process in question. Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”), 478 U.S. 1, 8-9 (1986).
Both elements are met here: “[P]ublic streets historically have been open to the press and general public, and public observation of police activities in the streets plays a significant positive role in ensuring conduct remains consistent with the Constitution.” (Dkt. 33 at 7.) Permitting Plaintiffs to observe and report on how federal agents disperse crowds will have a salutary effect by facilitating federal agents’ accountability to the public. Cox Broad. Corp., 420 U.S. at 490-91 (“[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the
6 The same night, federal agents shot a protester in the head causing severe injuries. Jonathan Levinson, Federal Officers Shoot Portland Protester In Head With ‘Less Lethal’ Munitions, OPB (July 12, 2020), https://www.opb.org/news/article/federal-officers-portland-protester-shot-lesslethal-munitions/. PAGE 12 - MOTION FOR TEMPORARY RESTRAINING ORDER & PRELIMINARY
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press to bring to him in convenient form the facts of those operations.”). And Plaintiffs have no “alternative observation opportunities” other than remaining at the scene where federal agents are using violent force against the people. Reed v. Lieurance, 863 F.3d 1196, 1211-12 (9th Cir. 2017). Thus, Plaintiffs have a qualified right of access.
Defendants can defeat that right only if they show “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise II, 478 U.S. at 9. But Defendants have no legitimate interest, much less an “overriding interest,” in shooting people clearly marked as press or legal observers, who are committing no crime but simply documenting how federal agents interact with protesters. Federal agents might have a valid interest in protecting public safety, preventing vandalism or looting, or protecting themselves—but media and neutral observers present no such threat. To the contrary, as the Ninth Circuit explained in Leigh:
By reporting about the government, the media are “surrogates for the public.” When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate. If a government agency restricts public access, the media’s only recourse is the court system. The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press. Thus, courts have a duty to conduct a thorough and searching review of any attempt to restrict public access. 677 F.3d at 900 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980)); see also Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 Stan. L. Rev. 927, 949 (1992) (“[W]hen the government announces it is excluding the press for reasons such as administrative convenience, preservation of evidence, or protection of reporters’ safety, its real motive may be to prevent the gathering of information about government abuses or incompetence.”). As for narrow tailoring, the Court has already held that “there are at least serious questions” about whether it is narrowly tailored for law enforcement to exclude journalists and legal observers. (Dkt. 33 at 7.) Effecting that exclusion with the kind of extreme violence federal agents used against Mr. Lewis-Rolland can never be narrowly tailored. (Lewis-Rolland Decl.
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¶¶ 13-18.) Mr. Lewis-Rolland posed no threat to federal officers, so shooting him ten times at close range was not tailored at all.
C. The Court Can Grant Equitable Relief Against the Federal Government The Court has jurisdiction over Plaintiffs’ claim for injunctive relief against the federal agents because the federal government has waived its immunity against such claims:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. 5 U.S.C. § 702. In enacting that sentence, Congress “eliminate[d] the sovereign immunity defense in all equitable actions for specific relief against a Federal agency or officer acting in an official capacity.” E.V. v. Robinson, 906 F.3d 1082, 1092 (9th Cir. 2018) (quoting H.R. Rep. No. 94-1656, at 9 (1976)). Plaintiffs seek only equitable relief against the federal agents. Thus, sovereign immunity is no bar and the Court has jurisdiction over Plaintiffs’ claim. Plaintiffs plainly also have a cause of action to bring such a claim. When plaintiffs seek equitable relief under the First Amendment, courts often reach the merits without even “discussing whether a cause of action existed to challenge the alleged constitutional violation.” Sierra Club v. Trump, 929 F.3d 670, 694-95 (9th Cir. 2019) (citing Trump v. Hawaii, S. Ct. 2392, 2416-17 (2018)) (collecting cases); Sierra Club v. Trump, 2020 WL 3478900, at *11-12 (9th Cir. June 26, 2020) (explaining plaintiffs “ha[ve] a cause of action to enjoin the [federal government’s] unconstitutional actions” under courts’ “historic [power] of equitable review”). Because Plaintiffs seek to enjoin federal agents from violating their First Amendment rights, they have an equitable cause of action to seek relief. Thus, there is no jurisdictional or procedural bar to granting Plaintiffs the same relief as the Court granted against the federal agents. (See Dkt. 33 at 8-10.)
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II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM WITHOUT THE COURT’S INTERVENTION “[A]nytime there is a serious threat to First Amendment rights, there is a likelihood of
irreparable injury.” (Dkt. 33 at 7 (citing Warsoldier v. Woodford, 418 F.3d 989, 1001-02 (9th Cir. 2005)).) Because Plaintiffs have, at minimum, raised a colorable claim that the exercise of their constitutionally protected right to record Government activity in public has been infringed, they have satisfied the irreparable-injury requirement. (See id.) As long as the Government is free to shoot and arrest journalists and legal observers, Plaintiffs’ exercise of their First Amendment rights will “surely [be] chilled.” Black Lives Matter, 2020 WL 3128299, at *3; Barich v. City of Cotati, 2015 WL 6157488, at *1 (N.D. Cal. Oct. 20, 2015) (“No reasonable trier of fact could doubt that a person of ordinary firmness would be deterred by the threat of arrest.”).
What is more, in the newsgathering context. the Ninth Circuit has recognized that time is of the essence and that any delay or postponement “undermines the benefit of public scrutiny and may have the same result as complete suppression.” Courthouse News Serv. v. Planet, 947 F.3d 581, 594 (9th Cir. 2020) (quoting Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)). Thus, every minute that Plaintiffs are inhibited and intimidated from exercising their First Amendment rights, they suffer irreparable injury. (Dkt. 33 at 7.) III. THE PUBLIC’S INTEREST AND BALANCE OF EQUITIES WEIGH
STRONGLY IN FAVOR OF PLAINTIFFS A. The Public Has an Unassailable Interest in a Free Press “Courts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles.” Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (quotation marks omitted). Furthermore, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quotation marks omitted) (granting an injunction under Fourth Amendment). Plaintiffs are journalists and observers reporting on public demonstrations of worldwide interest. As members of the news media, they were given express permission by the Mayor’s
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curfew order to be at the protest sites so they could provide live, up-to-date coverage of the activities of protesters and demonstrators, and also monitor the conduct of law enforcement.7 This express permission is an acknowledgement of the uniquely significant public interest in press coverage in this case. In the context of the violent, destructive events of recent weeks, the public’s interest in having information of this nature in a timely manner is obvious and constitutionally unassailable.
It would be difficult to identify a situation in which the public has a greater interest in unbiased media coverage of police and Government conduct than this one. The protests are rooted in an incident of shocking police brutality, and how the police and Government agents respond to the protesters is of critical importance to how and whether the community will be able to move forward. Although the protests began in Minneapolis, they have now spread across the country and the globe. The public interest in press coverage of these events cannot reasonably be questioned.
“The Free Speech Clause exists principally to protect discourse on public matters.” Brown v. Entm’t Merch. Ass’n, 564 U.S. 786, 790 (2011). It reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen.” New York Times Co. v. Sullivan, 376 U.S. at 270. It is “[p]remised on mistrust of governmental power.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010). “[I]t furthers the search for truth,” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2464 (2018) (citation omitted), and “ensure[s] that . . . individual citizen[s] can effectively participate in and contribute to our republican system of self-government.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982). Unless the constitutional rights of journalists are protected, the public’s ability to participate meaningfully as citizens in a constitutional democracy will be severely diminished.
7 Emergency Executive Order Declaring an Emergency and Implementing a Temporary Nighttime Curfew in the City of Portland Oregon (May 30, 2020), https://www.portland.gov/sites/default/files/2020-05/5.30.20-mayors-state-of-emergency-.pdf. PAGE 16 - MOTION FOR TEMPORARY RESTRAINING ORDER & PRELIMINARY
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B. The Balance of Equities Weighs Strongly in Favor of Plaintiffs Because Plaintiffs have “raised serious First Amendment questions,” the balance of hardships “tips sharply in [Plaintiffs’] favor.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th Cir. 2007) (quotation marks omitted). Plaintiffs’ evidence—both video and testimony—shows that officers have exercised their discretion in an arbitrary and retaliatory fashion to punish journalists for recording Government conduct and that their unlawful policy is aimed toward the same end. In contrast to the substantial and irreparable injuries to Plaintiffs, any harm to the Government would be negligible. The Government no interest in preventing journalists from reporting on what it is doing to protesters. While the Government might have an interest in protecting federal buildings and property, that interest is not served by using force against individuals who are identified as journalists, or who are merely recording events and present no threat of harm to police or the public. The balance of equities weighs heavily in favor of Plaintiffs.
* * * The Government’s attempts to shield its violence against protesters from public scrutiny by targeting press and legal observers shows, once again, that “[w]hen wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.” Leigh, 677 F.3d at 900. But just as the “free press is the guardian of the public interest,” so “the independent judiciary is the guardian of the free press.” Id. To protect the press—and ultimately, the public’s power to govern its public servants—this Court should enjoin the police from dispersing and retaliating against press and legal observers.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Motion for a temporary injunction and preliminary injunction be granted.
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Dated: July 17, 2020

Respectfully Submitted,
By: /s/ Matthew Borden Matthew Borden, pro hac vice J. Noah Hagey, pro hac vice Athul K. Acharya, OSB No. 152436 Gunnar K. Martz, pro hac vice BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

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ETHAN P. DAVIS Acting Assistant Attorney General BILLY J. WILLIAMS United States Attorney DAVID M. MORRELL Deputy Assistant Attorney General ALEXANDER K. HAAS Director, Federal Programs Branch BRAD P. ROSENBERG Assistant Director, Federal Programs Branch ANDREW I. WARDEN (IN #23840-49) Senior Trial Counsel JEFFREY A. HALL JORDAN L. VON BOKERN Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington, D.C. 20530 Tel.: (202) 616-5084 Fax: (202) 616-8470
Attorneys for Defendants
UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS, LLC, et al., Plaintiffs.
v. CITY OF PORTLAND, et al.,
Defendants.

Case No. 3:20-cv-1035-SI
FEDERAL DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRATINING ORDER AND PRELIMINARY INJUNCTION

FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION

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TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2
I. Recent Destruction of Federal Property and Assaults on Federal Officers in Portland .............................................................................................................................2
II. Legal Authority to Protect Federal Property ....................................................................6 STANDARD FOR EMERGENCY RELIEF.................................................................................. 9 ARGUMENT ................................................................................................................................ 11
I. Plaintiffs Lack Standing to Obtain an Injunction Against Federal Defendants ..................11 II. Plaintiffs are Not Likely to Succeed on the Merits Because They Will Not Suffer a First
Amendment Violation and the Injunction They Seek is Legally Improper. .......................16 A. Plaintiffs Have Not Demonstrated that Federal Defendants Violated Their
Constitutional Rights, Much Less that They Will Continue To Do So ................ 16 B. The Legally Improper Injunction Plaintiffs Seek is Overbroad and
Unworkable........................................................................................................... 21 III. Plaintiffs Cannot Demonstrate Irreparable Harm................................................................24 IV. Both the Balance of Equities and Publice Intersts Weigh Against Granting an
Injunction .............................................................................................................................25 CONCLUSION............................................................................................................................. 28
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TABLE OF AUTHORITIES
Cases
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ................................................................................................ 10
Barney v. City of Eugene, 20 F. App’x 683 (9th Cir. 2001) ....................................................................................... 16-17
Bell v. Keating, 697 F.3d 445 (7th Cir. 2012) .................................................................................................. 26
Blair v. Shanahan, 38 F.3d 1514 (9th Cir. 1994) .................................................................................................. 13
Blum v. Yaretsky, 457 U.S. 991 (1982) ............................................................................................................... 12
Branzburg v. Hayes, 408 U.S. 665–85 (1972) ................................................................................................... 23, 27
Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999) .............................................................................................. 24
Califano v. Yamasaki, 442 U.S. 682 (1979) ............................................................................................................... 22
California First Amendment Coal. v. Calderon, 150 F.3d 976 (9th Cir. 1998) ............................................................................................ 19, 27
California v. Azar, 911 F.3d 558 (9th Cir. 2018) .................................................................................................. 10
Capp v. City of San Diego, 940 F.3d 1046 (9th Cir. 2019) ................................................................................................ 17
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ......................................................................................................... passim
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ............................................................................................................... 15
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) ............................................................................................................... 18
Curtis v. City of New Haven, 726 F.2d 65 (2d Cir. 1984) ..................................................................................................... 14
Cuviello v. City of Oakland, 2009 WL 734676 (N.D. Cal. Mar. 19, 2009) ................................................................... 23-24
FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – iii

Case 3:20-cv-01035-SI Document 67 Filed 07/21/20 Page 4 of 35
E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026 (9th Cir. 2019) ................................................................................................ 22
Eggar v. City of Livingston, 40 F.3d 312 (9th Cir. 1994) .................................................................................................... 14
Feiner v. New York, 340 U.S. 315 (1951) ......................................................................................................... 23, 25
Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) .................................................................................................. 10
Gill v. Whitford, 138 S. Ct. 1916 (2018) ............................................................................................................ 22
Graham v. Connor, 490 U.S. 386 (1989) ....................................................................................................... 7, 8, 22
Grayned v. City of Rockford, 408 U.S. 104 (1972) ............................................................................................................... 26
Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) ............................................................................................................... 26
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970 (9th Cir.1991) ................................................................................................... 22
Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012) .................................................................................................. 9
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ......................................................................................................... 11, 12
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283 (9th Cir. 1999) ................................................................................................ 16
Mims v. City of Eugene, 145 F. App’x 194 (9th Cir. 2005) ........................................................................................... 17
Munns v. Kerry, 782 F.3d 402 (9th Cir. 2015) .................................................................................................. 15
Murphy v. Kenops, 99 F. Supp. 2d 1255–60 (D. Or. 1999) ............................................................................. 14, 16
Nelsen v. King Cty., 895 F.2d 1248 (9th Cir. 1990) .................................................................................... 11, 12, 16
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Nken v. Holder, 556 U.S. 418 (2009) ............................................................................................................... 25
NLRB v. USPS, 486 F.3d 683 (10th Cir. 2007) ................................................................................................ 24
Occupy Sacramento v. City of Sacramento, 878 F. Supp. 2d 1110 (E.D. Cal. 2012) .................................................................................. 18
Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985) .................................................................................................. 24
O’Shea v. Littleton, 414 U.S. 488 (1974) ................................................................................................................ 13
Pac. Kidney & Hypertension, LLC v. Kassakian, 156 F. Supp. 3d 1219 (D. Or. 2016) ......................................................................................... 9
Perry v. Los Angeles Police Dep’t, 121 F.3d 1365 (9th Cir. 1997) ................................................................................................ 19
Press-Enterprise Co. v. Super. Ct. of Cal., 478 U.S. 1 (1986) ............................................................................................................. 18, 19
Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir. 1997) ................................................................................................ 24
Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057 (9th Cir. 2014) ................................................................................................ 26
Rizzo v. Goode, 423 U.S. 362 (1976) .......................................................................................................... 13-14
S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232 (2d Cir. 2001) ................................................................................................... 24
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) ................................................................................................................. 11
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) ............................................................................................................... 10
United Presbyterian Church v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) .............................................................................................. 11
United States v. Christopher, 700 F.2d 1253 (9th Cir. 1983) ...................................................................................... 7, 17-18
United States v. Doe, 870 F.3d 991 (9th Cir. 2017) .................................................................................................. 20
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United States v. Griefen, 200 F.3d 1256 (9th Cir. 2000) .................................................................................... 25-26, 26
United States v. Patane, 542 U.S. 630 (2004) ............................................................................................................... 21
United States v. Sharpe, 470 U.S. 675 (1985) ............................................................................................................... 24
Updike v. Multnomah Cty., 870 F.3d 939 (9th Cir. 2017) ...................................................................................... 12, 13, 16
Washington Mobilization Committee v. Cullinane, 566 F.2d 107 (D.C. Cir. 1977) .......................................................................................... 20, 22
Whitmore v. Arkansas, 495 U.S. 149 (1990) ......................................................................................................... 11, 12
Williams v. Birmingham Bd. of Educ., 904 F.3d 1248 (11th Cir. 2018) .............................................................................................. 14
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ................................................................................................................... 10
Constitution U.S. Const., amend. I ............................................................................................................ passim
Statutes 18 U.S.C § 111 ......................................................................................................................... 6, 26 18 U.S.C. § 1361 .......................................................................................................................... 26 28 U.S.C. § 566 .......................................................................................................................... 8, 9 40 U.S.C. § 1315 ........................................................................................................................ 6, 7
Regulations 41 C.F.R. § 102-74.390 .................................................................................................................. 7
Rules Fed. R. Civ. P. 65 ......................................................................................................................... 23
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INTRODUCTION Plaintiffs seek the extraordinary remedy of a temporary restraining order and preliminary injunction that would hinder the ability of federal law enforcement officers to protect federal property that has been repeatedly damaged after weeks of violent protests in Portland. Plaintiffs base their request for emergency injunctive relief on alleged violations of their First Amendment rights, including the freedom of the press. Their request fails for several reasons. First, Plaintiffs lack standing to seek emergency relief. It is well-established that a plaintiff lacks standing to obtain prospective injunctive relief for alleged future injuries based on allegations of prior harm. See City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Yet that is Plaintiffs’ gambit here—they seek to have the Court enter an emergency injunction based on alleged past encounters involving federal law enforcement officers, but have not demonstrated that similar incidents will take place in the future, much less that these particular plaintiffs will again experience the same alleged conduct by federal law enforcement officers. Because Plaintiffs cannot demonstrate a certainly impending injury, they lack standing to seek injunctive relief. For many of these same reasons, Plaintiffs also cannot show a likelihood of irreparable harm, a prerequisite for granting emergency injunctive relief. Second, the relief that Plaintiffs seek is entirely improper. Plaintiffs seek a sweeping injunction that would be unworkable in light of the split-second judgments that federal law enforcement officers have to make while protecting federal property and themselves during dynamic, chaotic situations. By granting immunity to journalists and observers from lawful orders to disperse, the injunction would effectively grant those individuals immunity from otherwise applicable legal requirements and would improperly bind the hands of law enforcement, including by preventing them from taking appropriate action when individuals are engaging in criminal conduct. The proposed injunction is also unworkable from a practical FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 1

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standpoint. It would require law enforcement officers responding to a violent situation threating public safety to draw fine distinctions among a crowd based on who is wearing press identification badges and different colored hats, all under the threat of potential contempt.
Third, and finally, the balance of the equities and the public interest counsel against granting Plaintiffs’ request. Freedom of the press is not being threatened by the actions of the federal defendants in protecting federal property. Equally important is the public interest in public safety, including protecting federal property, which has already been substantially damaged as a result of weeks of violent protests, as well the protection of officers and the general public against imminent threats of serious bodily injury. Simply put, the federal government has the legal obligation and right to protect federal property and federal officers, and the public has a compelling interest in the protection of that property and personnel. The press is free to observe and report on the destruction of that property, but it is not entitled to special, after-hours access to that property in the face of lawful order to disperse.

BACKGROUND

I.

Recent Destruction of Federal Property and Assaults on Federal Officers in

Portland

For nearly two months, Portland has witnessed daily protests in its downtown area. See

Declaration of Gabriel Russell ¶ 3, Federal Protective Service (FPS) Regional Director, (Exhibit

1). These daily protests have regularly been followed by nightly criminal activity in the form of

vandalism, destruction of property, looting, arson, and assault. See id.

Federal buildings and property have been the targets of many of these attacks, including

the Mark O. Hatfield Federal Courthouse, the Pioneer Federal Courthouse, the Gus Solomon

Federal Courthouse, the U.S. Immigration and Customs Enforcement (ICE) Building, and the

Edith Green Wendall Wyatt Federal Office Building. See Russell Decl. ¶ 4. For example, on

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May 28, 2020, the ICE Portland Field Office was targeted by a Molotov Cocktail. See Affidavit of Special Agent David Miller ¶ 5 (July 4, 2020), United States v. Olsen, 20-mj-00147 (D. Or) (Exhibit 2). The Mark O. Hatfield Courthouse has experienced significant damage to its façade and building fixtures, including the vandalism and theft of building security cameras and access control devices. Id. The most recent repair estimate for the damage at the Hatfield Courthouse is in excess of $50,000. Id.
Officers protecting these properties have also been subject to threats, rocks and ball bearings fired with wrist rockets, improvised explosives, aerial fireworks, commercial grade mortars, high intensity lasers targeting officers’ eyes, full and empty glass bottles, and balloons filled with paint and other substances such as feces. Russell Decl. ¶ 4. The most serious injury to an officer to date occurred when a protester wielding a two-pound sledgehammer struck an officer in the head and shoulder when the officer tried to prevent the protester from breaking down a door to the Hatfield Courthouse. Id. In addition, an officer was hit in the leg with a marble or ball bearing shot from a high-powered wrist rocket or air gun, resulting in a wound down to the bone. Id. To date, 28 federal law enforcement officers have experienced injuries during the rioting. Injuries include broken bones, hearing damage, eye damage, a dislocated shoulder, sprains, strains, and contusions. Id.; see Acting Secretary Wolf Condemns The Rampant Long-Lasting Violence in Portland (July 16, 2020) (Exhibit 3) (listing over 75 separate incidents of property destruction and assaults against federal officers between May 29, 2020 and July 15, 2020).
In response to the damage to federal property and assaults on federal law enforcement officers, DHS deployed federal officers to Portland for the purposes of protecting federal buildings and property. Russell Decl. ¶ 5. There are currently 114 federal law enforcement
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officers from the FPS, ICE, U.S. Customs and Border Protection (CBP), and the U.S. Marshals Service (USMS) protecting federal facilities in downtown Portland. Id. From May 27 until July 3, officers were stationed in a defensive posture intended to de-escalate tensions by remaining inside federal buildings and only responding to breach attempts or other serious crimes. Id. This attempt to de-escalate was unsuccessful and an increasingly violent series of attacks culminated in a brazen effort to break into and set fire to the Hatfield Courthouse in the early morning hours of July 3, 2020. Id. A group of individuals used teamwork and rehearsed tactics to breach the front entry of the Courthouse by smashing the glass entryway doors. Id. The individuals threw balloons containing an accelerant liquid into the lobby and fired powerful commercial fireworks towards the accelerant in an apparent attempt to start a fire. Id.
The violence against federal officers and federal property over the Fourth of July holiday weekend resulted in the necessity of arrests of multiple individuals:
• On July 2-3, 2020, Rowan Olsen used his body to push on and hold a glass door at the Hatfield Courthouse closed, preventing officers from exiting the building and causing the door to shatter. With the door broken, a mortar firework entered the courthouse, detonating near the officers. The officers used shields and their bodies to block the open doorway for approximately six hours until demonstrators dispersed.
• On July 4, 2020, Shat Singh Ahuja willfully destroyed a closed-circuit video camera mounted on the exterior of the Hatfield Courthouse.
• On July 5, 2020, Gretchen Blank assaulted a federal officer with a shield while the officer was attempting to arrest another protester.
• On July 5-6, 2020, four men assaulted federal officers with high intensity lasers. At the time of his arrest, one of the men also possessed a sheathed machete.
See Seven Arrested, Facing Federal Charges After Weekend Riots at Hatfield Federal Courthouse (July 7, 2020) (Exhibit 4). In response to the increasingly violent attacks, DHS implemented tactics intended to positively identify and arrest serious offenders for crimes such
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as assault, while protecting the rights of individuals engaged in protected free speech activity. Russell Decl. ¶ 5.
Plaintiffs’ motion primarily focuses on the response by federal officials to a violent protest near the Hatfield Courthouse that occurred on the evening of July 11 into the early morning of July 12. See Pls.’ Mot. at 4–7. During that time the crowd of protesters near the Hatfield Courthouse grew to approximately 300 people. Russell Decl. ¶ 6. A barrier of police tape was established across the front of the Hatfield Courthouse and protesters were ordered not to trespass on federal property but refused to comply with that command. Id. Commands were made using a long-range acoustic device that is audible even with loud crowd noises. Id. As a joint team of FPS, CBP, and USMS officers deployed and made an arrest for trespass, protesters swarmed the officers. Id. FPS officers deployed less-lethal projectile rounds to allow the arrest team to safely withdraw from federal property. Id. The protesters responded by throwing items that posed a risk of officer injury, including rocks, glass bottles, and mortar-style fireworks, and by pointing lasers at law enforcement personnel. Id. One protester encroached on a police barrier, refused to leave, and became combative while detained. Id. A crowd of protesters swarmed the officers and tear gas was deployed to protect officers as they withdrew to the Hatfield Courthouse. Id.
FPS gave protesters additional warnings to stay off federal property, and to cease unlawful activity. Russell Decl. ¶ 7. Tear gas was deployed again to push protesters back from the Hatfield Courthouse. Id. FPS contacted the Portland Police Bureau (PPB), who were preparing to declare an unlawful assembly. Id. By this time the size of the group had diminished to approximately 100 people. Id. Federal law enforcement teams from the Hatfield Courthouse and the Edith Green Federal Building pushed the crowd towards the park across from the
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building. Id. The PPB arrived and closed all roads in the vicinity of the facilities. Id. There were multiple attacks throughout the night involving hard objects including rocks and glass bottles and commercial-grade lasers directed at officers’ eyes. Id. Federal officers made seven arrests including three for assault on an officer and others for failure to comply with lawful orders. Id. The PPB declared an unlawful assembly and began making arrests for failure to disperse. Id. FPS also issued dispersal orders on federal property and cleared persons refusing to comply with these orders at the same time. Id.
II. Legal Authority to Protect Federal Property FPS, a component of the Department of Homeland Security, is the federal agency charged with protecting federal facilities across the country. 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:
(A) enforce Federal laws and regulations for the protection of persons and property; (B) carry firearms; (C) make arrests without a warrant for any offense against the United States committed in
the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony;1 (D) serve warrants and subpoenas issued under the authority of the United States; (E) conduct investigations, on and off the property in question, of offenses that may have been committed against property owned or occupied by the Federal Government or persons on the property; and
1 See, e.g., 18 U.S.C § 111 (assaulting a federal officer). FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 6

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(F) carry out such other activities for the promotion of homeland security as the Secretary may prescribe.
40 U.S.C. § 1315(b)(2). Additionally, the Secretary of Homeland Security may 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).
Congress also delegated authority to DHS to issue regulations “necessary for the protection and administration of property owned or occupied by the Federal Government and persons on the property.” 40 U.S.C. § 1315(c). Current regulations may include “reasonable penalties,” including fines and imprisonment for not more than 30 days. 40 U.S.C. § 1315(c)(2). The regulations cover many activities, including prohibiting disorderly conduct on federal property (41 C.F.R. § 102-74.390); failing to obey a lawful order (41 C.F.R. § 102-74.385); and creating a hazard on federal property (41 C.F.R. § 102-74.380(d)). See United States v. Christopher, 700 F.2d 1253 (9th Cir. 1983) (affirming convictions on charges of being present on federal property after normal work hours in violation of 41 C.F.R. §§ 101–20.302 and 101– 20.315).
In exercising its authority to protect federal property, FPS follows DHS policy on the use of force. See DHS Policy on the Use of Force (Sept. 7, 2018) (Exhibit 5). Consistent with guidance from the Supreme Court, see Graham v. Connor, 490 U.S. 386 (1989), DHS policy authorizes officers to “use only the force that is objectively reasonable in light of the facts and circumstances confronting him or her at the time force is applied,” recognizing that officers are “often forced to make split-second judgments, in circumstances that are tense, uncertain, and
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rapidly evolving.” DHS Policy at 1–2. The policy states that officers “should seek to employ tactics and techniques that effectively bring an incident under control while promoting the safety of [the officer] and the public, and that minimize the risk of unintended injury or serious property damage.” Id. at 3. DHS components must conduct training on “less-lethal use of force” at least every two years and incorporate decision-making and scenario-based situations. Id. at 5. Further, officers must demonstrate proficiency with less-lethal force devices, such as impact weapons or chemical agents, before using such devices. Id. DHS policy emphasizes “respect for human life,” “de-escalation,” and “use of safe tactics.” Id. at. 3.
DHS has also emphasized to its employees the importance of respecting activities protected by the First Amendment. See DHS Memo re: Information Regarding First Amendment Protected Activities (May 17, 2029) (Exhibit 6). “DHS does not profile, target, or discriminate against any individual for exercising his or her First Amendment rights.” Id. at 1.
In addition to DHS’s authority to protect federal property, the United States Marshals Service, a component of the Department of Justice, provides security inside federal courthouses in each of the 94 federal judicial districts and in the District of Columbia Superior Court. See U.S. Marshals Service, Court Security, at www.usmarshals.gov/duties/courts.htm/. The Marshals Service protects judges and other court officials at over 400 locations where courtrelated activities are conducted. Id. As set forth in 28 U.S.C. § 566(a), “[i]t is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals, the Court of International Trade, and the United States Tax Court, as provided by law.” The regulations governing the duties of the Marshals Service further authorize it to provide “assistance in the protection of Federal property and buildings.” 28 C.F.R. § 0.111(f); see also
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28 U.S.C. § 566(i) (requiring the Director of the United States Marshals Service to consult with the Judicial Conference of the United States concerning, inter alia, “the security of buildings housing the judiciary” and stating that the “United States Marshals Service retains final authority regarding security requirements for the judicial branch of the Federal Government.”).
The Marshals Service’s actions to protect the federal judiciary are guided by an agencywide use of force policy. See United States Marshals Service, Policy Directive 14.15, Use of Force (Sept. 24, 2018) (Exhibit 7). Pursuant to that policy, the use of force must be objectively reasonable and Deputy Marshals may use less-than-lethal force only in situations where reasonable force, based upon the totality of the circumstances at the time of the incident, is necessary to, among other things, protect themselves or others from physical harm or make an arrest. See id. Deputy Marshals are not authorized to use less-than-lethal devices if voice commands or physical control achieve the law enforcement objective. See id. Further, they must stop using less-than-lethal devices once they are no longer needed to achieve its law enforcement purpose. See id. And in all events, less-than-lethal weapons may not be used to punish, harass, taunt, or abuse a subject. See id.
STANDARD FOR EMERGENCY RELIEF The standard for a temporary restraining order is generally the same as for a preliminary injunction. Pac. Kidney & Hypertension, LLC v. Kassakian, 156 F. Supp. 3d 1219, 1222 (D. Or. 2016). A preliminary injunction is “an extraordinary and drastic remedy” that should not be granted “unless the movant, by a clear showing, carries the burden of persuasion.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012). A plaintiff must show that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest.
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Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).2 “Likelihood of success on the merits is the most important factor” and if a plaintiff fails to meet this “threshold inquiry,” the court “need not consider the other factors.” California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018). Because standing is a prerequisite to the Court’s exercise of jurisdiction, see Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014), the plaintiff’s claims on the merits have no likelihood of success if the plaintiffs cannot establish standing. Id. at 158 (“The party invoking federal jurisdiction bears the burden of establishing’ standing and must do so “the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”) (internal quotations and citations omitted).
Plaintiffs must meet an even higher standard in this case because they seek a mandatory injunction that would alter the status quo and impose affirmative requirements on law enforcement officers as they carry out their duties. See Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (mandatory injunctions are “particularly disfavored” and the “district court should deny such relief unless the facts and law clearly favor the moving party.”) (internal quotations omitted). As explained below, Plaintiffs cannot meet this demanding standard.
2 Alternatively, “serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (citation omitted). FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 10

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ARGUMENT I. PLAINTIFFS LACK STANDING TO OBTAIN AN INJUNCTION AGAINST
FEDERAL DEFENDANTS “[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). One of the “landmarks” that differentiates a constitutional case or controversy from more abstract disputes “is the doctrine of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). And the first requirement of standing is that “the plaintiff must have suffered an ‘injury in fact’ – an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) ‘actual or imminent, not “conjectural’ or “hypothetical.’” Id. at 560. Where, as here, a party seeks prospective equitable relief, the complaint must contain “allegations of future injury [that are] particular and concrete.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 109 (1998). While allegations of past injury might support a remedy at law, prospective equitable relief requires a claim of imminent future harm. Lyons, 461 U.S. at 105; see also Nelsen v. King Cty., 895 F.2d 1248, 1251 (9th Cir. 1990) (“[P]ast exposure to harm is largely irrelevant when analyzing claims of standing for injunctive relief that are predicated upon threats of future harm.”); United Presbyterian Church v. Reagan, 738 F.2d 1375, 1381 (D.C. Cir. 1984) (past harm suffered by plaintiff does not support declaratory and injunctive relief). It is therefore well-established that a plaintiff lacks standing to obtain prospective injunctive relief for alleged future injuries based on allegations of prior harm. Lyons, 461 U.S. at 101–02; Nelsen, 895 F.2d at 1251. As the Supreme Court held in Whitmore v. Arkansas, 495 U.S. 149 (1990), allegations of possible future injury do not satisfy the requirements of Article
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III. A threatened injury must be “certainly impending” to constitute injury in fact. 495 U.S. at 158 (quoting Babbitt v. United Farm Workers, 442 U.S. 289, 298 (1979)). As a result, in order to invoke Article III jurisdiction, a plaintiff in search of prospective equitable relief must show a significant likelihood and immediacy of sustaining some direct injury. Updike v. Multnomah Cty., 870 F.3d 939, 947 (9th Cir. 2017) (“[S]tanding for injunctive relief requires that a plaintiff show a ‘real and immediate threat of repeated injury.’” (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974))). And standing cannot be presumed or deferred just because this case is currently being considered on a TRO and preliminary injunction posture; standing is “an indispensable part of the plaintiff’s case” that “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561.
For a plaintiff to have standing, an alleged injury must be “concrete” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lyons, 461 U.S. at 101–02. Even where a plaintiff establishes that his rights were violated in past incidents, he nonetheless lacks standing to obtain prospective injunctive relief absent a “real and immediate threat” that he will suffer the same injury in the future. Id. at 105. “[P]ast wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.” Id. at 103 (citing O’Shea v. Littleton, 414 U.S. 488, 494 (1974) and Rizzo v. Goode, 423 U.S. 362, 372 (1976)). See also Nelsen, 895 F.2d at 1251. This “imminence requirement ensures that courts do not entertain suits based on speculative or hypothetical harms.” Lujan, 504 U.S. at 564. Thus, a plaintiff “who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.” Blum v. Yaretsky, 457 U.S. 991, 999 (1982).
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Moreover, the plaintiff seeking injunctive relief must show not just that the predicted injury will reoccur, but also that the plaintiff himself will suffer it. See, e.g., Updike, 870 F.3d at 948 (holding that the plaintiff lacked standing for injunctive relief because his evidence was “insufficient to establish that any such wrongful behavior is likely to recur against him”); Blair v. Shanahan, 38 F.3d 1514, 1519 (9th Cir. 1994) (holding that a plaintiff seeking declaratory or injunctive relief must “establish a personal stake” in the relief sought). In other words, plaintiffs cannot show an entitlement to injunctive relief unless they show that they themselves are likely to suffer injury from the allegedly unlawful activities. That other individuals might suffer future harm does nothing for a plaintiff’s own standing.
The facts and reasoning of Lyons are instructive. At issue in Lyons was a civil rights action against the City of Los Angeles and several police officers who allegedly stopped the plaintiff for a routine traffic violation and applied a chokehold without provocation. In addition to seeking damages, the plaintiff sought an injunction against future use of the chokehold unless deadly force was threatened. The Supreme Court held that plaintiff lacked standing to seek prospective relief because he could not show a real or immediate threat of future harm.
That Lyons may have been illegally choked by the police . . . , while presumably affording Lyons standing to claim damages . . . does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. Lyons, 461 U.S. at 104; see also O’Shea, 414 U.S. at 495-96 (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.”); Rizzo, 423 U.S. at 372 (holding that plaintiffs’ allegations that police had engaged in widespread unconstitutional conduct aimed
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at minority citizens was based on speculative fears as to what an unknown minority of individual police officers might do in the future).
Courts in this Circuit have applied Lyons and O’Shea in similar contexts to hold that plaintiffs lack standing to pursue prospective injunctive relief where they were subject to past law enforcement practices but could only speculate as to whether those practices would recur. See, e.g., Eggar v. City of Livingston, 40 F.3d 312, 317 (9th Cir. 1994) (plaintiff who had previously been repeatedly detained, charged, and convicted of offenses without court-appointed counsel despite her indigence lacked injunctive standing because whether she “will commit future crimes in the City, be indigent, plead guilty, and be sentenced to jail is speculative”); Murphy v. Kenops, 99 F. Supp. 2d 1255, 1259–60 (D. Or. 1999) (plaintiffs lacked standing because it was highly speculative “that the Forest Service will exercise its discretion to issue future closure orders, that the closure orders will violate the First Amendment, that plaintiffs will violate those closure orders, and that plaintiffs will be arrested because of those closure orders”). See also Curtis v. City of New Haven, 726 F.2d 65, 68 (2d Cir. 1984) (vacating an injunction that had been entered against police use of mace, because the plaintiffs had not shown a “likelihood that these plaintiffs will again be illegally assaulted with mace”); Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1267 (11th Cir. 2018) (plaintiff alleging that a school resource officer employed by the police unconstitutionally used an incapacitating chemical spray on her lacked standing to pursue injunctive relief, because she did not show that a likelihood that the resource officer would again unconstitutionally spray her).
Nor can plaintiffs create standing for injunctive relief by alleging that their own fear of future government action has “chilled” their willingness to engage in First Amendment activities. When a plaintiff contends that injunctive relief is supported by such an alleged “chilling effect,”
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the analysis is unchanged from the Lyons inquiry—the supposed chilling effect will not provide standing for injunctive relief if it is “based on a plaintiff’s fear of future injury that itself was too speculative to confer standing.” Munns v. Kerry, 782 F.3d 402, 410 (9th Cir. 2015); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending”). In other words, where a plaintiff’s request for injunctive relief lacks any non-speculative basis for finding a likelihood of future harm, the plaintiff cannot circumvent Article III merely by saying that he or she is afraid of future harm.
Plaintiffs’ motion fails under these standards. Plaintiffs’ support their requested relief is seven declarations from individual plaintiffs that focus entirely on past events. They recount episodes involving alleged conflicts between protesters and law enforcement officers on particular dates (July 11, 12, 16, and 19)—and describe injuries they or others allegedly suffered (e.g., bruising from a nonlethal plastic round). Dkt. 43 (Davis Decl.);3 Dkt. 44 (Lewis-Rolland Decl.); Dkt. 55 (Brown Decl.); Dkt. 56 (Yau Decl.); Dkt 58 (Howard Decl.); Dkt 59 (Rudoff Decl); Dkt. 60 (Tracy Decl.).4 But these threadbare accounts of isolated incidents fail to provide any basis for concluding that plaintiffs face certainly impending injury. Indeed, the declarations make no showing that Plaintiffs are in imminent danger of again being subjected to similar events in the future. For example, the Plaintiffs would need not only to establish that “they would have another encounter with the police but also to make the incredible assertion” that the same series of events would transpire again. See Lyons, 461 U.S. at 106 (stating that “[i]n order to establish an actual controversy in this case” Lyons would have to allege that “all police
3 Garrison Davis is not a plaintiff and thus cannot sustain standing in this case, but his declaration also fails to support a finding of imminent danger to any Plaintiff.
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officers in Los Angeles always choke any citizen with whom they happen to have an encounter”) (emphasis in original). They have not and cannot make such a showing. And since courts may not simply assume that the circumstances that gave rise to an alleged constitutional violation will recur, the absence of such evidence is fatal to their request for relief. See, e.g., Nelsen, 895 F.2d at 1251; Updike, 870 F.3d at 947; Murphy, 99 F. Supp. 2d at 1259–60.
II. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS BECAUSE THEY WILL NOT SUFFER A FIRST AMENDMENT VIOLATION AND THE INJUNCTION THEY SEEK IS LEGALLY IMPROPER.
A. Plaintiffs Have Not Demonstrated that Federal Defendants Violated Their Constitutional Rights, Much Less that They Will Continue To Do So.
Plaintiffs complain of two First Amendment violations. First, Plaintiffs seek an injunction based on a claim that Federal Defendants retaliated against Mr. Lewis-Rolland, a journalist, for engaging in newsgathering activities protected by the First Amendment. See Pls.’ Mot. at 8–12. Plaintiffs devote substantial attention to undisputed propositions of law that newsgathering is a protected First Amendment activity that may be exercised in public places, subject to reasonable time, place and manner restrictions. But the key question in a First Amendment retaliation claim is whether the plaintiff has established that “by his actions the defendant deterred or chilled the plaintiff’s political speech and such deterrence was a substantial or motivating factor in the defendant’s conduct.” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999).
Plaintiffs have not carried their burden to establish that the use of force was “anything other than the unintended consequence of an otherwise constitutional use of force under the circumstances.” Barney v. City of Eugene, 20 F. App’x 683, 685 (9th Cir. 2001) (rejecting First Amendment retaliation claim where “protesters were warned repeatedly to clear the street or tear
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gas would be deployed, and there is no dispute that a small group of the crowd became violent”); see also Mims v. City of Eugene, 145 F. App’x 194, 196 (9th Cir. 2005) (holding that use of a crowd control team “in full riot gear was not a disproportionate response and does not indicate preexisting hostility toward the protestors’ views”). Given the chaotic circumstances presented by the violent protests, Plaintiffs have not established that Defendants would not have used force “but for” a retaliatory motive. Capp v. City of San Diego, 940 F.3d 1046, 1059 (9th Cir. 2019). As the Ninth Circuit has recognized, the unlawful actions of a few may impair the ability of others to exercise their rights:
In balancing desired freedom of expression and the need for civic order, to accommodate both of these essential values, a measure of discretion necessarily must be permitted to a city, on the scene with direct knowledge, to fashion remedies to restore order once lost. It may be that a violent subset of protesters who disrupt civic order will by their actions impair the scope and manner of how law-abiding protesters are able to present their views. Menotti v Seattle, 409 F.3d 1113, 1155 (9th Cir. 2005) (declining “to hold unconstitutional the City’s implementation of procedures necessary to restore safety and security” when confronted by protesters with “violent and disruptive aims” that “substantially disrupt civic order”). Second, Plaintiffs also contend that Federal Defendants have denied Plaintiffs a right of access to observe how Federal Defendants enforce their dispersal orders. See Pls.’ Mot. at 12– 14. It is important to clarify at the outset, however, that Plaintiffs appear to be requesting only a right to observe from public streets. Thus, even under their proposed injunction, they still must not come so close as to trespass on federal property. Plaintiffs accordingly recognize from the beginning that they have no right to be wherever protesters are. The government may certainly prohibit a public presence on its property outside of its ordinary hours of operation—an interest rooted in part in protecting that property—and an interest in First Amendment activities does not permit violation of those rules. See Christopher, 700 F.2d at 1259-61 (upholding conviction for FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 17

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trespassing for soliciting signatures on government property outside of normal business hours). This is true even if the property functions as a traditional public forum during the hours when it is open. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 299 (1984) (upholding prohibition on overnight sleeping to prevent damage to park); Occupy Sacramento v. City of Sacramento, 878 F. Supp. 2d 1110, 1120 (E.D. Cal. 2012) (granting dismissal and rejecting injunction on claim against regulation closing park overnight in order to protect it).
Plaintiffs nevertheless argue that they have a right to continued presence on public streets surrounding the federal property, even if a lawful order to disperse has been given—indeed, they are pointedly seeking a right to ignore a lawful order to disperse and to remain in place. See Pls.’ Mot. at 1. Yet Plaintiffs provide absolutely no support whatsoever that the press has a special right to remain in or access a location that has been lawfully closed to the general public, and in particular a place that has been lawfully closed to protesters. They argue that cases supporting press access in other contexts, specifically the Supreme Court’s decision in Press-Enterprise Co. v. Super. Ct. of Cal., 478 U.S. 1 (1986) (“Press-Enterprise II”), support their right of access here. But that case is inapposite.
Press-Enterprise II involved a dispute over media access to a criminal judicial proceeding and that context framed the way in which the Supreme Court analyzed whether access was appropriate: whether there is a tradition of public access and whether that public access plays a significant positive role in the functioning of the particular process. Id. at 8-9 (noting the questions were specific to “this setting” of an in-court criminal judicial proceeding). Here, although public streets have been traditionally open to the public, the specific context is public property that has been lawfully closed to the public for the execution of law enforcement functions, including protecting against the destruction of federal property and making lawful
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arrests. There is no tradition of public access to a closed forum under such circumstances—and mandating public access under such circumstances would impede achieving the important public goals of protecting public property and the safety of law enforcement personnel. Cf. Perry v. Los Angeles Police Dep’t, 121 F.3d 1365, 1369 (9th Cir. 1997) (“A government interest in protecting the safety and convenience of persons using a public forum is a valid government objective.”). The press may have the rights of access of the general public, but they have no special rights of access to closed fora. See California First Amendment Coal. v. Calderon, 150 F.3d 976, 981 (9th Cir. 1998) (quoting Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (“[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”)).
Even assuming, however, that the Press-Enterprise II standard applies, it establishes only a qualified right of access that may be overcome where “closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press Enterprise II, 478 U.S. at 9. As an initial matter, it is not at all clear that Plaintiffs have even been denied sufficient “access.” Although they argue that they have no “alternative observation opportunities,” Pls.’ Mot. at 13, they have not provided any argument that the vantage points they have had, much less the ones they would have in the future absent the injunction, would be insufficient. No Plaintiff asserts that any press or legal observer was unable to observe any activities merely because of the dispersal order. And there are no allegations that federal agents advanced, in an attempt to disperse rioters, more than a few blocks away from federal property. Thus, it is not at all clear why reporters and observers could not see sufficiently even if moved by an order to disperse, except for the use of crowd control munitions that could still be used under the proposed injunction. See Pls’. Mot. at 3 (no liability “if a Journalist or Legal Observer is incidentally
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exposed to crowd-control devices after remaining in the area where such devices were deployed”).
Moreover, even if Plaintiffs could demonstrate that they have been denied sufficient “access” to a “particular proceeding,” United States v. Doe, 870 F.3d 991, 997 (9th Cir. 2017), they would fail the balancing test of Press Enterprise II. Preserving order, life, and property are important values that may be preserved consistent with the First Amendment. Police thus may, for example, impose restrictions to “contain or disperse demonstrations that have become violent or obstructive.” Washington Mobilization Committee v. Cullinane, 566 F.2d 107, 119 (D.C. Cir. 1977) (stating that it is “axiomatic” that “the police may, in conformance with the First Amendment, impose reasonable restraints upon demonstrations to assure that they be peaceful and not obstructive”); see also Madsen v Women’s Health Center, 512 U.S 753, 768 (1994) (finding the government “has a strong interest in ensuring the public safety and order, in promoting the free flow of traffic on public streets and sidewalks.”).
Requiring journalists and legal observers to disperse along with protesters and rioters is also narrowly tailored because allowing them to remain is not a practicable option. There is no dispute that protesters who do not disperse after a lawful order is given may be arrested. Having an unspecified number of people who lawfully may remain, however, will not only greatly complicate efforts to clear an area and restore order, it will also present a clear risk to safety. Under the proposed injunction, there is no consistent scheme for quickly identifying individuals authorized to be present. Plaintiffs propose a list of “indicia” that “are not exclusive,” which may be as small as a press pass displayed somewhere on their body and as vague as “visual identification” or “distinctive clothing” indicating that they are press. Pls.’ Mot. at 2-3. Additionally, the proposed injunction suggests that some of these, such as press passes, are only
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valid if “professional or authorized,” while other items, such as a shirt that simply says “press” somewhere, may be sufficient. Pls.’ Mot. at 3. Similarly, identifying “legal observers” by the color of their hats when they are comingled in a large crowd at night with many others wearing face and head coverings is impractical. Searching each person who does not disperse for such indicia will be difficult, if not impossible, under the conditions causing an order to disperse to be given (e.g., lasers, projectiles, and pyrotechnic mortars being used against federal officers), and such a search will also distract federal officers from protecting themselves against those same conditions. It would be even more impracticable to verify which of those remaining actually has “professional or authorized” credentials. Yet the risk of not verifying such individuals is grave—protesters have already attempted to interfere with arrests by federal officers, including by assaulting them, and federal officers cannot simply turn their backs to people who have “press” written somewhere on them. Leaving press and legal observers in place would present security risks to all and would severely distract from the critical mission of restoring order and protecting life and property. Accordingly, even under the inappropriate, stringent standard that Plaintiffs invoke, they are unlikely to succeed on any claim to have a right to remain in place.
B. The Legally Improper Injunction Plaintiffs Seek is Overbroad and Unworkable.
There is no basis for the Court to grant Plaintiffs’ request for an overbroad and unworkable injunction that would micromanage the manner in which federal law enforcement officers respond to dynamic and chaotic situations involving violent protesters seeking to damage federal property and harm federal officers. “It is not for this Court to impose its preferred police practices on either federal law enforcement officials or their state counterparts.” United States v. Patane, 542 U.S. 630, 642 (2004). Yet that is precisely what Plaintiffs’ requested injunction would do here. The federal officers protecting federal property in Portland
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are doing so under difficult circumstances and must make “split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 397. Those judgments should not be encumbered by the potential threat of contempt of court from a vague, overbroad, and—at bottom—legally improper injunction. Indeed, Plaintiffs identify no other case in which federal or state officers responding to large-scale, ongoing incidents by violent opportunists have been enjoined in the manner Plaintiffs propose here.
It is a basic principle of Article III that “a plaintiff’s remedy must be limited to the inadequacy that produced his injury in fact.” Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018) (quotation omitted). “An injunction must be narrowly tailored to remedy the specific harm shown.” E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029 (9th Cir. 2019) (internal quotations omitted); see Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir.1991). It “should be no more burdensome to the defendant than necessary to provide complete relief.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
Plaintiffs’ proposed injunction is legally improper in several respects. The injunction would exempt “Journalists” and “Legal Observers” from the requirements of following a lawful order to disperse, but Plaintiffs provide no authority that members of the press or legal observers are somehow immune from such a lawful order.5 The First Amendment allows the police to impose reasonable restrictions upon demonstrations, including the right to “contain or disperse demonstrations that have become violent or obstructive.” Cullinane, 566 F.2d at 119 (stating that it is “axiomatic” that “the police may, in conformance with the First Amendment, impose reasonable restraints upon demonstrations to assure that they be peaceful and not obstructive”);
5 Plaintiffs’ proposed injunction provides that “such persons shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse.” See Pls.’ Mot. at 1. FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 22

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see Feiner v. New York, 340 U.S. 315, 320 (1951) (“This Court respects, as it must, the interest of the community in maintaining peace and order on its streets.”); Cantwell v. Connecticut, 310 U.S. 296, 308 (1940) (“When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious.”). Members of the press and legal observers who choose to observe the violent activities of nearby protesters are not exempt from a lawful command to disperse. Cf. Branzburg v. Hayes, 408 U.S. 665, 684–85 (1972) (“Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded”); id. at 684 (“the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”).
The injunction would also prohibit law enforcement personnel from seizing any photographs or recordings from journalists or legal observers for any reason, even if probable cause exists to arrest them. See Pls.’ Mot. at 1. Further, the injunction would require that any such property be returned immediately upon release from custody, regardless of whether the individual has been charged with a crime. Plaintiffs cite no legal authority for such a provision and their motion does not even allege that federal officers have arrested any journalists, media members, or legal observers, let alone seized any equipment from them.
Additionally, Plaintiffs request that the Court enjoin federal officers from arresting or using physical force against a journalist or legal observer, unless probable cause exists to believe that such individual has committed a crime. See Pls.’ Mot. at 1. But that proposed remedy is the type of vague, “follow the law” injunction that is disfavored because it does not comply with Rule 65(d)’s specificity requirement. See Cuviello v. City of Oakland, 2009 WL 734676, at *3 (N.D. Cal. Mar. 19, 2009) (holding unenforceable an injunction that “basically states that
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Defendants are permitted to make only lawful arrests of Plaintiffs” and are “barred from interfering with Plaintiffs’ free speech rights”). As numerous courts have recognized, “[i]njunctions that broadly order the enjoined party simply to obey the law . . . are generally impermissible.” NLRB v. USPS, 486 F.3d 683, 691 (10th Cir. 2007); see Burton v. City of Belle Glade, 178 F.3d 1175, 1200-01 (11th Cir. 1999); S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240-41 (2d Cir. 2001).
Such an injunction is particularly inappropriate and unmanageable in this case where law enforcement officers are responding to a dynamic situation involving a consistent barrage of violent activity targeted against federal property and officers. DHS, the Marshals Service, and their officers should not potentially be subject to charges of contempt for violating a vague injunction in these circumstances. As the Supreme Court has emphasized, courts must “take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.” United States v. Sharpe, 470 U.S. 675, 686 (1985).
III. PLAINTIFFS CANNOT DEMONSTRATE IRREPARABLE HARM Plaintiffs argue that, because they have raised a First Amendment issue, they have
necessarily demonstrated the likelihood of irreparable injury. But the Ninth Circuit has held that “no presumption of irreparable harm arises in a First Amendment retaliation claim.” Rendish v. City of Tacoma, 123 F.3d 1216, 1226 (9th Cir. 1997). Regardless of the nature of the alleged injury, however, to be likely irreparable any harm must be likely to occur. Separate from any Article III standing concerns, where “there is no showing of any real or immediate threat that the plaintiff will be wronged again,” there is no irreparable injury supporting equitable relief. Lyons, 461 U.S. at 111; see Olagues v. Russoniello, 770 F.2d 791, 797 (9th Cir. 1985). As shown
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above, and for the same reasons that Plaintiffs lack standing to seek a an injunction in the first instance, Plaintiffs’ future injuries are speculative and, therefore, also insufficient to demonstrate the likelihood of irreparable injury.
IV. BOTH THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST WEIGH AGAINST GRANTING AN INJUNCTION
Plaintiffs argue that there is a strong public interest in First Amendment principles generally, and a free press in particular. Both are true. But Plaintiffs have not established any violation of these First Amendment rights and, in any event, they fail to explain how the many countervailing public interests involved in the federal response to the Portland protests must be weighed. Those interests in fact outweigh other First Amendment equities.6 Some of these interests are recognized in the merits of the First Amendment claims themselves, but there are many other interests weighing against the requested injunction.
Federal agents have deployed to protect various federal properties, including the Hatfield Federal Courthouse and the Edith Green Federal Building, in response to violent rioting. Rioters have vandalized and threatened to severely damage those buildings, and they have assaulted the responding federal officers. Plaintiffs all but concede that the government has “a valid interest in protecting public safety, preventing vandalism or looting, or protecting [federal officers].” Pls.’ Mot. at 13. All of these public interests are substantial and can outweigh First Amendment interests premised on access to public property. The government has a comprehensive interest in maintaining public order on public property. Feiner v. New York, 340 U.S. 315, 320 (1951) (“This Court respects, as it must, the interest of the community in maintaining peace and order on its streets.”). There is an even more pointed public interest when disorder threatens the
6 The balance of the equities and the public interest are analyzed together here because, when the government is a party, these last two factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009). FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 25

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integrity of that public property. See United States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000) (“The clear purpose of the order . . . was for reasons of health and safety, and for the protection of property . . . . These are compelling reasons . . . and certainly represent significant government interests.”). Congress has recognized such interests, including by making the destruction of federal property and the assault of federal officers felonies punishable by up to ten and twenty years of imprisonment respectively.. 18 U.S.C. §§ 111, 1361. Additionally, there is a fundamental First Amendment right of access to the courts, see, e.g., Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014), which is jeopardized by the breach and destruction of a federal court building; it is in the public interest to prevent the violation of these rights, too. Moreover, the federal government, just as any other property owner, has an interest in “preserv[ing] the property under its control for the use to which it is lawfully dedicated”; for government buildings, those uses are of course public uses that are in the public interest. Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679-680 (1992).
On balance, it is clearly in the public interest to allow federal officers, to disperse violent opportunists near courthouses and federal buildings when those events have turned and may continue to turn violent. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (“[W]here demonstrations turn violent, they lose their protected quality as expression under the First Amendment”); Griefen, 200 F.3d at 1260 (upholding the relocation of protesters who “had already shown by their destructive conduct that they presented a clear and present danger to the safe completion of the construction project, both to other persons as well as to themselves”); Bell v. Keating, 697 F.3d 445, 457-58 (7th Cir. 2012) (“[O]therwise protected speech may be curtailed when an assembly stokes—or is threatened by—imminent physical or property damage.”).
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Plaintiffs have not contested that the federal government has both the right and the obligation to restore order and protect federal property—an obligation that is all the more critical with respect to a federal courthouse, which must remain operational to ensure the rights of litigants including the very parties to this suit. Instead, Plaintiffs have held up the general public interest in a free press. Pls.’ Mot. at 16. Yet, as discussed in above, the courts have already thoroughly weighed the interest of public access to a free press and found it no greater than that of the public generally. See, e.g., Branzburg, 408 U.S. at 684–85 (“Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded”); Calderon, 150 F.3d at 981.
Plaintiffs provide no rationale for why their equities are any greater or more deserving of protection than those of any member of the public exercising their First Amendment rights. And Plaintiffs make no argument at all why special protection of legal observers is even in the public interest, much less how their interests are to be distinguished from anyone else. Plaintiffs do argue that covering the police response in Portland is of unique public interest and importance. Pls.’ Mot. at 16 (“It would be difficult to identify a situation in which the public has a greater interest in unbiased media coverage of police and Government conduct than this one.”). It is not at all clear that it is appropriate for the Court to weigh the importance of press coverage of this protest compared to others—or how one should weigh the importance of protesting versus newsgathering—but if it were, it would also be necessary to weigh the unique danger present here of over 50 nights of protests that have routinely descended into violence and the destruction of federal property and harm to federal law enforcement officers, including the attempted destruction of the interior of the federal courthouse.
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Additionally, the hardships the injunction would impose clearly weigh against granting it. As discussed above, Plaintiffs have failed to demonstrate that the injunction would tangibly benefit their newsgathering. By contrast, federal officers would be seriously distracted from defending themselves from attack and from restoring order and protecting property.
Accordingly, both the public interest and the balance of the equities weigh in favor of denying the injunction.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for a Temporary Restraining Order and Preliminary Injunction should be denied.

Dated: July 21, 2020

ETHAN P. DAVIS Acting Assistant Attorney General
BILLY J. WILLIAMS United States Attorney
DAVID M. MORRELL Deputy Assistant Attorney General
ALEXANDER K. HAAS Director, Federal Programs Branch
BRAD P. ROSENBERG Assistant Director, Federal Programs Branch
/S/ Andrew I. Warden ANDREW I. WARDEN (IN #23840-49) Senior Trial Counsel
JEFFREY A. HALL JORDAN L. VON BOKERN Trial Attorneys

FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 28

Case 3:20-cv-01035-SI Document 67 Filed 07/21/20 Page 35 of 35 U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington, D.C. 20530 Tel.: (202) 616-5084 Fax: (202) 616-8470 Attorneys for Defendants
FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 29

 
 Case 3:20-cv-01035-SI Document 70 Filed 07/22/20 Page 1 of 2

DENIS M. VANNIER, OSB #044406 Senior Deputy City Attorney denis.vannier@portlandoregon.gov NAOMI SHEFFIELD, OSB #170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov RYAN C. BAILEY, OSB #130788 Deputy City Attorney ryan.bailey@portlandoregon.gov YOUNGWOO JOH, OSB #164105 Assistant Deputy City Attorney youngwoo.joh@portlandoregon.gov Office of City Attorney 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
PLAINTIFFS,
v.
CITY OF PORTLAND, a municipal corporation; JOHN DOES 1-60, officers of Portland Police Bureau and other agencies working in concert; U.S. DEPARTMENT OF HOMELAND SECURITY; and U.S. MARSHALS SERVICE,
DEFENDANTS.

Case No. 3:20-cv-1035-SI
CITY MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST FEDERAL DEFENDANTS

Page 1 – CITY MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST FEDERAL DEFENDANTS

Case 3:20-cv-01035-SI Document 70 Filed 07/22/20 Page 2 of 2

The City of Portland hereby supports plaintiffs’ Motion for Temporary Restraining Order

(Dkt. No. 54) against defendants U.S. Department of Homeland Security and U.S. Marshals

Service (collectively, “federal defendants”), without prejudice to the City’s own legal position

and without waiving any of the City’s defenses or potential legal or factual arguments in the

present case.

Quite simply, the City objects to federal defendants targeting non-violent protesters,

reporters, and legal observers. The City also strongly objects to the continued unlawful presence

of heavily armed federal officers on Portland streets despite the City’s repeated requests to the

contrary. The actions of federal defendants are escalating violence, inflaming tensions in our

City, and harming Portlanders who seek to engage in non-violent protests in support of racial

justice. Serious and credible allegations have been made that the federal government has

effectively kidnapped people off Portland streets, among other abuses of power. The force used

by federal defendants has allegedly also resulted in at least one very serious injury to a person

shot in the head with an impact munition. The City rejects the unlawful actions of federal

defendants and believes that a temporary restraining order is necessary to prevent further abuses.

For those reasons, the City supports plaintiffs’ Motion for Temporary Restraining Order

against federal defendants.

Dated: July 22, 2020

Respectfully submitted,

/s/ Denis M. Vannier
DENIS M. VANNIER, OSB # 044406 Senior Deputy City Attorney denis.vannier@portlandoregon.gov NAOMI SHEFFIELD, OSB # 170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov RYAN C. BAILEY, OSB # 130788 Deputy City Attorney ryan.bailey@portlandoregon.gov YOUNGWOO JOH, OSB #164105 Assistant Deputy City Attorney youngwoo.joh@portlandoregon.gov Telephone: (503) 823-4047 Of Attorneys for Defendant City of Portland

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 Case 3:20-cv-01035-SI Document 79 Filed 07/22/20 Page 1 of 24

Matthew Borden, admitted pro hac vice borden@braunhagey.com J. Noah Hagey, admitted pro hac vice hagey@braunhagey.com Athul K. Acharya, OSB No. 152436 acharya@braunhagey.com Gunnar K. Martz, admitted pro hac vice martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND, a municipal corporation; JOHN DOES 1-60, officers of Portland Police Bureau and other agencies working in concert; U.S. DEPARTMENT OF HOMELAND SECURITY; and U.S. MARSHALS SERVICE,
Defendants.

Case No. 3:20-cv-1035-SI PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AGAINST DEFENDANTS U.S. DEPARTMENT OF HOMELAND SECURITY AND U.S. MARSHALS SERVICE

REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTION AGAINST FEDERAL DEFENDANTS

Case 3:20-cv-01035-SI Document 79 Filed 07/22/20 Page 2 of 24
TABLE OF CONTENTS Table of Contents ............................................................................................................................ ii Table of Authorities........................................................................................................................ iii Introduction..................................................................................................................................... 1 Argument ........................................................................................................................................ 3 I. Plaintiffs plainly have standing to obtain an injunction...................................................... 3
A. Plaintiffs Have Standing Because They Have Documented “Actual Repeated Incidents” of Federal Agents Targeting Journalists and Legal Observers ...................................................................................................... 3
B. Plaintiffs Have Standing Because Their Allegation of Future Harm Does Not Depend on an “Extended Chain of Highly Speculative Contingencies” ........................................................................................................ 6
II. The injunction is workable.................................................................................................. 8 III. Plaintiffs Are Likely to Succeed on the Merits of Their First Amendment
Claims ............................................................................................................................... 11 A. Plaintiffs Are Likely to Prevail on Their Retaliation Claim ................................. 11 B. Plaintiffs Are Likely to Prevail on Their Access Claim........................................ 12
1. Press and Legal Observers Are Engaged in Activities that Pose No Threat to the Public or Law Enforcement .................................. 13
2. Plaintiffs Have No Alternative Forum ...................................................... 17 II. The public’s interest and balance of equities weigh strongly in favor of
Plaintiffs ............................................................................................................................ 18 Conclusion .................................................................................................................................... 20
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CASES

TABLE OF AUTHORITIES

Page(s)

Associated Gen. Contractors of Ca., Inc. v. Coalition for Economic Equity, 950 F.2d 1401 (9th Cir. 1991) .............................................................................................. 12, 14
Barney v. City of Eugene, 20 F. App’x 683 (9th Cir. 2001) ................................................................................................. 16
Bd. of Airport Com’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987) ................................................................................................................... 20
Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) .................................................................................................... 20
Blum v. Yaretsky, 457 U.S. 991 (1982) ................................................................................................................... 10
Branzburg v. Hayes, 408 U.S. 665 (1972) ................................................................................................................... 22
California First Amendment Coalition v. Calderon, 150 F.3d 976 (9th Cir. 1998) ................................................................................................ 21, 22
Cantwell v. Connecticut, 310 U.S. 296 (1940) ................................................................................................................... 14
Capp v. City of San Diego, 940 F.3d 1046 (9th Cir. 2019) .................................................................................................... 17
Chavez v. United States, 226 F. App’x 732 (9th Cir. 2007) ............................................................................................... 10
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............................................................................................................... 10, 11
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) ................................................................................................................... 19
Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. 2020) ...................................................................................................... 22
Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) ...................................................................................................... 16
Eggar v. City of Livingston, 40 F.3d 312 (9th Cir. 1994) ........................................................................................................ 11
Feiner v. New York, 340 U.S. 315 (1951) ............................................................................................................. 23, 25
Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994) ........................................................................................................ 22
Leigh v. Salazar, 677 F.3d 892 (2012) ............................................................................................................ Passim
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) .......................................................................................... 8, 11, 19
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................................................................... 12
McCullen v. Coakley, 573 U.S. 464 (2014) ................................................................................................................... 19
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Case 3:20-cv-01035-SI Document 79 Filed 07/22/20 Page 4 of 24
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283 (9th Cir. 1999) .................................................................................................... 16
Menotti v. Seattle, 409 F.3d 1113 (9th Cir. 2005)..................................................................................................... 17
Mims v. City of Eugene, 145 F. App’x 194 (9th Cir. 2005) ............................................................................................... 16
Murphy v. Kenops, 99 F. Supp. 2d 1255 (D. Or. 1999) ....................................................................................... 11, 12
Nelsen v. King Cty., 895 F.2d 1248 (9th Cir. 1990) ........................................................................................ 10, 11, 12
Nicacio v. I.N.S., 797 F.2d 700 (9th Cir. 1985) ...................................................................................................... 10
Occupy Sacramento v. City of Sacramento, 878 F. Supp. 2d 1110 (E.D. Cal. 2012) ...................................................................................... 19
O’Shea v. Littleton, 414 U.S. 488 (1974) ............................................................................................................. 10, 11
Perry v. Los Angeles Police Department, 121 F.3d 1365 (9th Cir. 1997) .................................................................................................... 21
Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”), 478 U.S. 1 (1986) ........................................................................................................... 18, 19, 24
Thomas v. Cty. of Los Angeles, 978 F.2d 504 (9th Cir. 1992) .................................................................................................. 8, 10
United States v. Christopher, 700 F.2d 1253 (9th Cir. 1983) .................................................................................................... 19
Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013) ................................................................................................ 20, 21
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................................................................................................................... 20
Whitmore v. Arkansas, 495 U.S. 149 (1990) ................................................................................................................... 11
RULES
Ninth Circuit Rule 36-3 ................................................................................................................ 16
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Plaintiffs respectfully submit this Reply in support of their motion for a temporary restraining order.
INTRODUCTION The federal agents’ Opposition is an exercise in Trumpian argument—unburdened by citation to fact and contrary to the actual evidence. The federal agents argue that Plaintiffs lack standing, even though they admit that they do not intend to stop chilling Plaintiffs’ First Amendment rights in a hail of rubber bullets and billowing clouds of tear gas rained down from Washington, D.C. Their Opposition simply ignores the mountain of declarations showing that they have been intentionally shooting, beating, and tear-gassing clearly marked journalists and legal observers, who are standing far from protesters and who pose no threat or interruption to law enforcement’s unmitigated stream of violence—beyond exposing it to the world. The federal agents claim that they are trying to bring “law and order” to Portland by attacking (and disappearing, Pinochet-style) protesters. Yet the City, the Mayor, and the State have all condemned what they are doing. As this brief was in its final stages, the City informed the Court that “[t]he actions of federal defendants are escalating violence, inflaming tensions in our City, and harming Portlanders who seek to engage in non-violent protests in support of racial justice.” (City Memorandum in Support of Motion for TRO Against Federal Defendants, Dkt. 70 at 2.) Governor Kate Brown has similarly observed that “[t]his political theater from President Trump has nothing to do with public safety,” and that “[t]he president is failing to lead this nation. Now he is deploying federal officers to patrol the streets of Portland in a blatant abuse of power by the federal government.”1 Most tellingly, the federal agents are unable to cite a single instance of any journalist or legal observer attacking a federal monument, harming federal property, or interfering with any law-enforcement activities.
1 Aaron Mesh, Oregon Gov. Kate Brown Says President Trump Is Invading Portland as an Election Stunt, Willamette Week (July 16, 2020), https://www.wweek.com/news/2020/07/16/oregon-gov-kate-brown-says-president-trump-isinvading-portland-as-an-election-stunt/. PAGE 1 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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Most of the arguments mounted by the federal agents are ones this Court has already rejected. They claim that preventing reporters from documenting law enforcement’s dispersal of protesters does not implicate Plaintiffs’ First Amendment rights—even though the Court held that “public streets historically have been open to the press and the general public” and that “there are at least serious questions” whether violently expelling journalists and legal observers from them while enforcing a dispersal order is narrowly tailored. (Compare Opp. at 18-19 with Dkt. 33 (“TRO”) at 7.) They argue that Plaintiffs cannot demonstrate irreparable harm, even though the Court held that “anytime there is a serious threat to First Amendment rights, there is a likelihood of irreparable injury.” (Compare Opp. at 24-25 with TRO at 7.) They argue that “the balance of the equities and the public interest weigh against granting an injunction,” even though this Court has squarely held otherwise. (Compare Opp. at 25-28 with TRO at 8.) Indeed, with the escalating violence federal agents have imported into Portland, the public’s need for people to document and report these events has only intensified.
The federal agents also assert, without any evidentiary support, that Plaintiffs’ requested injunctive relief is “unworkable” (Opp. at 21-24) when it has already been working against the City for 21 days. As noted in the moving papers and as unrefuted by the federal agents, the only shortcoming in the Court’s extant Preliminary Injunction is that the federal agents rode into town and blatantly ignored its terms.
In a final counterfactual push, the federal agents claim that they have not retaliated against journalists and legal observers, even though multiple unrefuted declarations show that they have repeatedly targeted reporters and legal observers for gratuitous violence for no reason other than reporting and observing. In reality, after Plaintiffs moved for a TRO, federal agents ramped up their brutality against journalists and legal observers—which has resulted in the flood of declarations submitted over the last few days.
In sum, Plaintiffs have standing, seek a workable injunction, and are likely to succeed on the merits, and the public interest and balance of equities support their claim to relief. The Court should perfect its protection of Plaintiffs’ rights and extend its injunction to the federal agents. PAGE 2 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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ARGUMENT I. PLAINTIFFS PLAINLY HAVE STANDING TO OBTAIN AN INJUNCTION
To obtain prospective injunctive relief, Plaintiffs must show that they are threatened with “real and immediate” future injury. Thomas v. Cty. of Los Angeles, 978 F.2d 504, 507 (9th Cir. 1992), as amended (Feb. 12, 1993) (quotation marks omitted). In the First Amendment context, because they challenge the federal agents’ policy of violently dispersing journalists and legal observers, they need show only that “the challenged [policy] appl[ies] to [their] conduct.” Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1022 (9th Cir. 2009). Plaintiffs have supplied a mountain of evidence that easily makes the required showing.
A. Plaintiffs Have Standing Because They Have Documented “Actual Repeated Incidents” of Federal Agents Targeting Journalists and Legal Observers
Nearly every night since Plaintiffs moved to amend their complaint, federal agents have visited fresh horrors upon individual Plaintiffs and members of the plaintiff class:
 On July 15, federal agents shot a tear-gas canister at Plaintiff Yau. (Declaration of Justin Yau (“Yau Decl.”), Dkt. 56 ¶ 6.)
 On July 16, federal agents shot and threatened to shoot journalists. (Declaration of Doug Brown (“Doug Brown Decl. II”), Dkt. 55 ¶¶ 11-13.)
 On July 17, federal agents threw flashbang grenades at a journalist on two separate occasions. (Declaration of Elizabeth Binford-Ross (“Binford-Ross Decl.”), Dkt. 78 ¶¶ 6, 9.)
 On July 18, officers who may have been federal agents intimidated a female journalist, chasing her in a van and yelling “WE’RE GONNA GET YOU!” (Declaration of Karina Brown (“Karina Brown Decl.”), Dkt. 71 ¶¶ 6-8.)
 On July 19, federal agents shot Plaintiff Rudoff in the shoulder with a 40mm rubber bullet. (Declaration of John Rudoff (“Rudoff Decl.”), Dkt. 59 ¶ 7.)
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 Also on July 19, federal agents shot Plaintiff Tracy in the ankle with an impact munition, causing ligament damage, and in the elbow with pepper balls. (Declaration of Alex Milan Tracy (“Tracy Decl.”), Dkt. 60 ¶¶ 5, 8.)
 Also on July 19, federal agents shot a legal observer in the hand with an FN 303 riot gun. (Declaration of Nate Haberman-Ducey (“Haberman-Ducey Decl.”), Dkt. 61 ¶ 4.)
 Also on July 19, federal agents shot a journalist in the chest with a marker round. (Declaration of Jungho Kim (“Kim Decl.”), Dkt. 62 ¶ 7.)
 Also on July 19, federal agents shot a journalist in his camera lens and another legal observer in his hand. (Declaration of James Comstock (“Comstock Decl.”), Dkt. 63 ¶¶ 4-5.)
 Also on July 19, federal agents shot a journalist with a flashbang grenade and rolled a tear gas cannister at her. (Binford-Ross Decl. ¶ 15.)
 On July 19-20, federal agents told a journalist to stay where he was and then shot him. (Declaration of Nathan Howard (“Howard Decl.”), Dkt. 58 ¶¶ 6-7.)
 Also on July 19-20, federal agents shot a journalist in the stomach and the elbow, beat him with their batons, and pepper-sprayed him at point-blank range. (Declaration of Noah Berger (“Berger Decl.”), Dkt. 72 ¶¶ 4-11.)
 On July 20, federal agents shot a journalist in the stomach with a rubber bullet, only a few inches to the right of where his camera was hanging. (Declaration of Jake Johnson (“Johnson Decl.”), Dkt. 64 ¶¶ 6-7.)
 Also on July 20, federal agents shot a female journalist in the buttocks at near pointblank range. (Karina Brown Decl. ¶¶ 11-13.)
 Also on July 20, federal agents pepper-sprayed a journalist at point-blank range. (Declaration of Mike Bivins (“Bivins Decl.”), Dkt. 73 ¶¶ 4-6.)
 On July 21, federal agents shot pepper balls and threw a tear-gas grenade at Plaintiff Lewis-Rolland. (Declaration of Mathieu Lewis-Rolland (“Lewis-Rolland Decl.”), Dkt. 77 ¶ 10.)
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 On July 22, federal agents shot a flash-bang grenade at Plaintiff Tracy and another journalist, and shot a third journalist with an impact round. (Supp. Declaration of Alex Milan Tracy (“Supp. Tracy Decl.”), Dkt. 79 ¶¶ 7-9.)
 Also on July 22, federal agents fired three smoke grenades at Plaintiff Mahoney, striking her left knee and right foot. She managed to dodge the third. (Declaration of Kat Mahoney (“Mahoney Decl.”), Dkt 75 ¶¶ 12-13.)
Each night that protests continue, every Plaintiff and every member of the plaintiff class faces a real and immediate threat of similar violence from federal agents. Chavez v. United States, 226 F. App’x 732, 737 (9th Cir. 2007) (explaining that a threat of injury is sufficiently “immediate” when a plaintiff alleges that federal agents “have caused injury on numerous occasions and will continue to do so”). The possibility of recurring injury “ceases to be speculative” where “actual repeated incidents are documented.” Thomas, 978 F.2d at 507 (quoting Nicacio v. I.N.S., 797 F.2d 700, 702 (9th Cir. 1985)). Plaintiffs have documented repeated injuries, often to the same Plaintiff, night after night.
Despite this large and growing mountain of evidence, the federal agents argue that Plaintiffs “lack[] standing to obtain prospective injunctive relief for alleged future injuries based on allegations of prior harm.” (Opp. at 11 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 10102 (1983); Nelsen v. King Cty., 895 F.2d 1248, 1251 (9th Cir. 1990).) If that were true as a general matter, a plaintiff could support her request for injunctive relief only with sheer clairvoyance. But that is not the rule: While isolated past wrongs cannot support prospective injunctive relief on their own, a series of such wrongs is surely evidence that “there is a real and immediate threat of repeated injury.” O’Shea v. Littleton, 414 U.S. 488, 496 (1974); Lyons, 461 U.S. at 102 (same). Article III demands neither precognition nor the “consummation of threatened injury” before a plaintiff may obtain preventive relief. Blum v. Yaretsky, 457 U.S. 991, 1000 (1982) (quotation marks omitted).
In fact, federal agents have admitted in their Opposition that they intend to continue violently dispersing journalists and legal observers until the Court tells them otherwise. (Opp. at PAGE 5 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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20-21.) This is a policy that plainly applies to Plaintiffs’ conduct. So Plaintiffs have standing to challenge it. Long Beach Area Peace Network, 574 F.3d at 1022. Not only have Plaintiffs shown evidence of consummated injury, but federal agents have confirmed that the beatings will continue until press coverage improves. Article III demands no more of Plaintiffs than that.
B. Plaintiffs Have Standing Because Their Allegation of Future Harm Does Not Depend on an “Extended Chain of Highly Speculative Contingencies”
The federal agents cite a litany of cases in which plaintiffs alleged “extended chain[s] of highly speculative contingencies,” nearly all of which required plaintiffs to commit a future “violation of an unchallenged law” before they would suffer the injury alleged. Nelsen v. King Cty., 895 F.2d 1248, 1252 (9th Cir. 1990); see, e.g., Lyons, 461 U.S. at 105-06 (plaintiff would have to violate law, encounter police, be arrested, and either resist arrest or officers would have to disobey orders and put him in a chokehold); O’Shea, 414 U.S. at 496-97 (five steps including law violation); Whitmore v. Arkansas, 495 U.S. 149, 156-57 (1990) (five steps including obtaining federal habeas corpus relief); Nelsen, 895 F.2d at 1252 (ten steps including law violation); Eggar v. City of Livingston, 40 F.3d 312, 316-17 (9th Cir. 1994) (six steps including law violation); Murphy v. Kenops, 99 F. Supp. 2d 1255, 1259-60 (D. Or. 1999) (four steps including law violation). For sound policy reasons, federal courts refuse to assume that plaintiffs will violate a law they do not challenge. Nelsen, 895 F.2d at 1253 (“a claim of standing which is not only speculative, but is predicated upon the violation of an unchallenged law is insufficient”); Eggar, 40 F.3d at 316-17 (same).
Those cases are irrelevant here. This case involves neither an extended chain of contingencies nor Plaintiffs’ future violation of an unchallenged law. The chain of events for Plaintiffs to suffer the same injury again is merely two links long. First, Plaintiffs must return to cover the protests. Nearly all of them have declared their intention to do so. (Lewis-Rolland Decl. ¶ 12.; Declaration of Doug Brown (“Doug Brown Decl. I”), Dkt. 9 ¶ 27; Rudoff Decl. ¶ 9; Tracy Decl. ¶ 12; Declaration of Sam Gehrke (“Gehrke Decl.”), Dkt. 10 ¶ 10; Declaration of Steven Humphrey (“Humphrey Decl.”), Dkt. 11 ¶ 5; Mahoney Decl. ¶ 17; Declaration of Sergio
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Olmos (“Olmos Decl.”), Dkt. 15 ¶ 8; Declaration of Tuck Woodstock (“Woodstock Decl. I”), Dkt. 23 ¶ 11.) These are not “‘some day’ intentions”; they are “particularized future and imminent plans to [cover] protest[s].” Lujan v. Defenders of Wildlife, 504 U.S. 555, 563-64 (1992); Murphy, 99 F. Supp. 2d at 1259.
Second, federal agents must continue to target Plaintiffs for violent reprisal. In addition to the staggering evidence that they have targeted journalists and legal observers so far, see Part I.A, supra, they have stated on the record their intention to continue to do so. (Opp. at 20-21 (explaining that federal agents intend to continue using force against all persons, including journalists and legal observers)); see also Conrad Wilson & Jonathan Levinson, President Trump Says Portland Police Are Incapable of Managing Protests, OPB (July 10, 2020) (explaining that federal agents were sent to Portland to do—in President Trump’s own words—what “[l]ocal law enforcement has been told not to do”).2
This two-link chain of ironclad certainty is enough by itself to remove Plaintiffs’ claim from the ambit of Lyons and its progeny. In addition, to the extent Plaintiffs’ claim relies on their future violation of dispersal orders, those orders are not “unchallenged.” Cf. Nelsen, 895 F.2d at 1252-53. Plaintiffs do challenge dispersal orders’ application to them. (Mot. at 2 (seeking an order that Plaintiffs “shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse”).) Thus, there is ample indication here that Plaintiffs have “firm intentions to ‘take action that would trigger the challenged governmental action,’” and that when they do, they will be “subjected to the challenged governmental action,’” i.e., the unconstitutional use of targeted force to suppress their exercise of their First Amendment rights. Murphy, F. Supp. 2d at 1260 (quoting Associated Gen. Contractors of Ca., Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1407 (9th Cir. 1991)). They therefore have standing to seek preventive injunctive relief.
2 https://www.opb.org/news/article/president-trump-portland-police-are-incapable-of-managingprotests/. PAGE 7 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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II. THE INJUNCTION IS WORKABLE The federal agents claim that the injunction Plaintiffs seek is unworkable, would require
micromanagement, and would endanger officers. (Opp. at 20-22.) They cite no evidence for this proposition, and ignore the evidence against it—including that the Court has already issued a TRO and preliminary injunction embodying these exact terms, and that the City has been living under the same terms for 21 days of protests now. (TRO; Dkt. 49 (“Stipulated PI”).3) The City has even asked the Court to impose similar relief against the federal agents to protect journalists, legal observers, and the First Amendment. (City Memo at 2.)
For the 21 days, the City of Portland and the Portland police have been bound by the same injunction that Plaintiffs ask the Court to issue against the federal agents, the Portland police have largely been able to identify people they knew or should have known were press and legal observers from protesters and to avoid using force on them. For example, as recounted by Plaintiff Woodstock:
Portland police began walking the crowd east, then suddenly executed a massed charge against the group I was covering. I was wearing a large red press badge on a lanyard and a helmet that said “PRESS” on three sides. I also yelled “PRESS” over and over and over again. As I did this, the police officers sprinted past me, going around me to chase and tackle protesters. They did not shove me or shout at me specifically. Because of this action, I was left standing behind most of the police officers. I was allowed to film from behind the group. When I was done filming from that angle, I said “I’m behind you” and came around to walk and film alongside the officers. At no point did the officers yell at me to move or attempt to prevent me from filming. (Declaration of Tuck Woodstock (“Woodstock Decl. II”), Dkt. 76 ¶¶ 2-4.) Plaintiff LewisRolland has also had a similar experience: After the Court issued an injunction against the City, Portland police officers’ conduct towards me improved markedly. For
3 The preliminary injunction to which Plaintiffs and the City stipulated includes an additional paragraph concerning property seized pursuant to lawful arrest. (Stipulated PI ¶ 3.) Plaintiffs do not object to the inclusion of a substantively identical provision in the injunction against the federal agents. This should alleviate their complaints in this regard. (Cf. Opp. at 23.) PAGE 8 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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example, on the night of July 4, a police officer ran at me, yelling at me to disperse. I yelled, “I’m press! I’m press! There’s a restraining order! I have a right to be here!” and stood my ground. The officer asked me to move 10 feet away, but let me do my job: observing, recording, and reporting on the protesters and police. I have been able to do this multiple times. Also, I have on occasion been allowed to get behind Portland police’s skirmish line, because what I was doing was not a threat to them. (Lewis-Rolland Decl. ¶ 11.) The federal agents argue that they cannot turn their backs on journalists and legal observers because it would present security risks “and would severely distract from the critical mission of restoring order and protecting life and property.” (Opp. at 21.) But they cite no evidence in support of this proposition. In fact, their own internal memo admits that they are not even trained in crowd control.4 Moreover, as seen above, the Portland police have allowed Plaintiffs and other journalists and legal observers to remain behind the police skirmish line during dispersal orders without incident. (Lewis-Rolland Decl. ¶ 11; Woodstock Decl. II ¶¶ 2-5.) Both were successfully able to assert their identity as press to avoid being harmed by the police, and their presence behind police lines did not impair police operations. (Id.) The federal agents cite Cantwell v. Connecticut, 310 U.S. 296, 308 (1940), for the proposition that “[w]hen clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious.” (Opp. at 23.) But nothing in the proposed injunction prevents federal agents from acting against any “threat to public safety, peace, or order.” (See Stipulated PI ¶ 1 (permitting police to arrest journalists of legal observers if they “have probable cause to believe that such individual has committed a crime”).) The federal agents have failed to show what they are legitimately seeking to “prevent or punish” by pushing, beating, and shooting
4 Sergio Olmos, Mike Baker, & Zolan Kanno-Youngs, Federal Officers Deployed in Portland Didn’t Have Proper Training, D.H.S. Memo Said, N.Y. Times (July 18, 2020), https://www.nytimes.com/2020/07/18/us/portland-protests.html; see also https://int.nyt.com/data/documenttools/dh-stacticalagent-memo2/bcc35f3303958cac/full.pdf (admitting that DHS officers assigned to Portland “do not specifically have training in riot control or mass demonstrations”). PAGE 9 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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journalists and legal observers who have committed no crime other than documenting protests and law enforcement.
Contrary to the federal agents’ contention, Plaintiffs can point to recent cases in this District and others, “in which federal or state officers responding to large-scale, ongoing incidents by violent opportunists have been enjoined in the manner Plaintiffs propose here.” (Opp. at 22.) In at least three cases, courts have enjoined law-enforcement officers responding to this same series of nationwide protests following the murder of George Floyd:
 the TRO already issued in this case (Dkt. 33);  Judge Hernandez’s order in the Don’t Shoot Portland case (Don’t Shoot Portland v.
City of Portland, No. 3:20-cv-00917-HZ (D. Or. June 9, 2020), Dkt. 29 at 9-10 (ordering that “PPB be restricted from using tear gas or its equivalent except as provided by its own rules generally,” “tear gas use shall be limited to situations in which the lives or safety of the public or the police are at risk,” and “[t]ear gas shall not be used to disperse crowds where there is no or little risk of injury”)); and  the U.S. District Court for the District of Colorado’s order granting a wide-ranging temporary restraining order against the police as well (Abay v. City of Denver, No. 1:20-cv-01616-RBJ (D. Colo. June 5, 2020), Dkt. 16 at 10-11 (enjoining “Denver Police Department and officers from other jurisdictions working with Denver Police Department officers from using chemical weapons or projectiles unless an on-scene supervisor at the rank of Captain or above specifically authorizes [it]”; ordering that “all other non- or less-lethal projectiles may never be discharged to target the head, pelvis, or back” and “shall not be shot indiscriminately into a crowd”; that “all orders to disperse must be followed with adequate time for the intended audience to comply, and officers must leave room for safe egress,” and more)). Not only is the injunction Plaintiffs seek workable, it has worked. And it has worked in other jurisdictions as well. The federal agents’ assertion that it would unduly restrict their activity has no basis in reality. PAGE 10 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTION AGAINST FEDERAL DEFENDANTS

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III. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR FIRST AMENDMENT CLAIMS The federal agents ignore the Ninth Circuit’s legal framework set forth in the moving
papers: To obtain a preliminary injunction, Plaintiffs need only “mak[e] a colorable claim that [their] First Amendment rights have been infringed, or are threatened with infringement.” Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014). After that, the Government bears the burden of justifying its restriction on Plaintiffs’ speech. Id. It has not done so.
A. Plaintiffs Are Likely to Prevail on Their Retaliation Claim The federal agents argue that Plaintiffs have not shown a likelihood of establishing intent for their retaliation claim. (Opp. at 16-17.) But as the federal agents’ own authority points out (Opp. at 16), Plaintiffs can establish intent through circumstantial evidence, including evidence that the federal agents engaged in conduct that would chill a reasonable person’s speech without a sufficient non-retaliatory reason for doing so. Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300-01 (9th Cir. 1999) (quotation marks omitted). That standard is easily met here. The federal agents assert that Plaintiffs have not shown “anything other than the unintended consequence of an otherwise constitutional use of force under the circumstances.” (Opp. at 16 (quoting Barney v. City of Eugene, 20 F. App’x 683, 685 (9th Cir. 2001).) Leaving aside that the federal agents are asking the Court to rely on uncitable authority,5 this argument simply ignores the evidence. Plaintiffs have submitted multiple declarations from journalists and observers, all of whom were attacked by federal agents even though they were separate from protesters, clearly marked press, and in some instances, had not even been asked to leave. (E.g., Bivins Decl. ¶¶ 2, 4, 6; Berger Decl. ¶¶ 3-4; Johnson Decl. ¶¶ 3, 6; Rudoff Decl. ¶¶ 3-7; BinfordRoss Decl. ¶ 15.) In two cases, federal agents deliberately shot the reporters even after they had alerted the federal agents that they were press and complied with federal agents’ directives. (Howard Decl. ¶¶ 2, 5-7; Berger Decl. ¶¶ 7-9.) Several were shot above the waist, which is not how such munitions should be used. (Rudoff Decl. ¶ 7; Johnson Decl. ¶ 6.) Plaintiff Lewis-
5 Ninth Circuit Rule 36-3. The federal agents also ask the Court to rely on Mims v. City of Eugene, 145 F. App’x 194, 196 (9th Cir. 2005), which is also not citable under C.R. 36-3. PAGE 11 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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Rolland was shot 10 times! (Declaration of Mathieu Lewis-Rolland re: July 12, Dkt. 44 ¶¶ 1315.) Courthouse News reporter Karina Brown was shot twice in the buttocks at close range. (Karina Brown Decl. ¶ 11.) Jungho Kim was shot in the chest. (Kim Decl. ¶ 7.) These are repeated, targeted, and gratuitous attacks. There is no explanation other than intimidation and retaliation, and the federal agents offer none.
The federal agents also cite Capp v. City of San Diego, 940 F.3d 1046, 1059 (9th Cir. 2019) (Opp. at 17), but it does not aid them. There, plaintiff alleged that the county had retaliated against his criticism by threatening to terminate his child custody, and the Ninth Circuit reversed dismissal of his claim because he had alleged animus. Id. (“Because Plaintiffs have alleged that retaliatory animus was the but-for cause of Firth’s conduct, Firth is not entitled to qualified immunity.”).) Plaintiffs have made at least the same showing here. Finally, the federal agents’ reliance on Menotti v. Seattle, 409 F.3d 1113 (9th Cir. 2005), is also unavailing. (Opp. at 17.) It may be impractical to distinguish between “law-abiding protesters” and “a violent subset of protesters who disrupt civic order,” id. at 1155, but the Court has here specifically provided indicia to “facilitate the Police’s identification” of journalists and legal observers. (TRO at 9.) Those indicia have worked for the Portland police. (City of Portland’s Opposition to Plaintiff’s Emergency Motion for Leave to File SAC (“City Opp.”), Dkt. 46 at 4 (asserting that Portland police have “complied in good faith with this court’s Temporary Restraining Order”).) The same indicia will work for federal agents.
B. Plaintiffs Are Likely to Prevail on Their Access Claim Plaintiffs are also likely to prevail on their access claims. In their moving papers, Plaintiffs established a prima facie case for their right of access. (Mot. at 12-13.) As the Court has already held, “public streets historically have been open to the press and the general public” and “there are at least serious questions” whether violently expelling journalists and legal observers while enforcing a dispersal order is narrowly tailored. (TRO at 7.) In response to Plaintiffs’ showing and the Court’s TRO, the federal agents cite no evidence that would support denying access to members of the press and legal observers. The decisions they cite are also PAGE 12 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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inapposite, and do not address the situation where the government unnecessarily punishes protected activities.
1. Press and Legal Observers Are Engaged in Activities that Pose No Threat to the Public or Law Enforcement
The federal agents essentially argue that journalists and legal observers have no greater rights of access than the public, that the government may deny protesters access to the City streets or federal property, and that they may therefore shoot, tear gas, and beat members of the press with impunity once they unilaterally decide to disperse protesters. This is a false syllogism. Press and protesters are engaged in different activities. Even assuming that the federal agents had a valid reason to use violence against people exercising their right to protest, it does not follow that the same purported justifications for using violence apply to journalists and legal observers.
The federal agents argue that “the press has [no] special right to remain in or access a location that has been lawfully closed . . . to protesters.” (Opp at 18.) But this misses the point: Journalists and legal observers are engaged in different conduct than protesters, and so their claims are evaluated under different standards. Protesters seek a right to speak and assemble. Plaintiffs, however, seek a right of access—a right to “observe government activities.” Leigh v. Salazar, 677 F.3d 892, 898 (2012). Their claims are thus evaluated under the two-part test of Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”), 478 U.S. 1 (1986). Leigh, 677 F.3d at 898. But this test for a right of access has no bearing on others’ right to speak—even if at the same time and in the same place. Thus, Press-Enterprise II established a right to access criminal proceedings in some circumstances, but it did not establish any right to heckle the judge. See 478 U.S. at 8-9.
Under Press-Enterprise II, Plaintiffs must show (1) that the place and process to which they seek access have historically been open to the press and general public and (2) that public access plays a significant positive role in the functioning of the particular process in question. Id. This Court has already decided both questions in Plaintiffs’ favor for purposes of a TRO, and that
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Plaintiffs raised serious questions whether any infringement of their qualified right of access was narrowly tailored. (TRO at 7-8.)
In response, the federal agents’ first argument is that Plaintiffs are “trespass[ing] on federal property.” (Opp. at 17.) This is a non sequitur. Public streets are by definition public property—i.e., government property—and that has never prevented courts from recognizing that they are traditional public fora, even when a government purports to “close” it. See, e.g., McCullen v. Coakley, 573 U.S. 464, 490 (2014) (closure of sidewalks adjacent to abortion clinics was overbroad). This applies with equal force to “[p]ublic open spaces” such as parks, because they are “uniquely suitable for public gatherings and the expression of political or social opinion.” Long Beach Area Peace Network, 574 F.3d at 1022 (quotation marks omitted).
As against these bedrock First Amendment principles, the federal agents cite the government’s power to stop protesters from occupying federal property for 17 days and its power to prevent overnight camping in Lafayette Park. United States v. Christopher, 700 F.2d 1253, 1259-61 (9th Cir. 1983); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 298-99 (1984); (Opp. at 17-18). But those cases did not involve denying the press access to critical events of world importance. They all involved legitimate reasons for restricting access, such as lack of adequate toilet facilities to support overnight camping, and they left open viable alternative channels for the activity at issue, such as allowing the public to protest at the park during daytime hours. Clark, 468 U.S. at 297-99; Christopher, 700 F.2d at 1259-60.6
Here, in contrast, there is no legitimate justification for excluding members of the media and legal observers. The federal agents have submitted no evidence that any journalist or legal observer was involved in any of the unlawful acts discussed in the government’s papers, or that
6 See also Occupy Sacramento v. City of Sacramento, 878 F. Supp. 2d 1110, 1119 (E.D. Cal. 2012) (upholding regulation “intended to ensure the ability of the general public to enjoy the park facilities, to ensure the viability and maintenance of those facilities, to protect the public's health, safety and welfare, and to protect the City’s parks and public property from overuse and unsanitary conditions, including but not limited to, camping and overnight sleeping activities in City parks not specifically designed for those purposes”); (Opp. at 18). PAGE 14 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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they pose a danger that would provide a compelling basis for excluding them, and “a court cannot rubber-stamp an access restriction simply because the government says it is necessary.” Leigh, 677 F..3d at 900. A policy that directs violence at anyone who does not leave when ordered to do, sweeping in journalists and legal observers who pose no threat to safety or law enforcement, is overbroad and thus not narrowly tailored. See, e.g., Bd. of Airport Com’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574-75 (1987) (striking down ordinance that prohibited expressive activity in airport terminal because it unnecessarily swept in in protected activities such as “wearing of campaign buttons or symbolic clothing” in addition to activities that might cause congestion, such as canvassing). “Laws . . . that restrict more protected speech than is necessary violate the First Amendment.” Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 814 (9th Cir. 2013) (striking down as wildly overbroad a purported traffic-safety law that restricted hiring day laborers on the for the supposed reason that “day labor solicitation that blocks traffic”).
Not only is such a policy overbroad, it fails to significantly advance the federal agents’ stated goal of protecting officer safety and federal property. Excluding press and legal observers does not protect officer safety and federal property because journalists and legal observers pose no threat to officer safety and federal property. (Opp. at 20-21 (failing to identify a single instance in which a journalist or legal observer actually posed a threat).) That “a substantial portion of the [policy’s] burden on speech does not serve to advance its goals” is a second and “particularly compelling” reason why it fails the narrow tailoring requirement. Berger v. City of Seattle, 569 F.3d 1029, 1045-46 (9th Cir. 2009) (en banc) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)).
Finally, a policy of blanket exclusion is also not the least restrictive means of protecting public safety. When federal agents exclude press and legal observers, they have no viable way to cover federal agents’ use of force against protesters, and the only reporting becomes that of the government itself, which is the very evil that the First Amendment prevents. Leigh v. Salazar,
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677 F.3d 892, 900 (9th Cir. 2012).7 Meanwhile, Portland police have been able to protect public safety at least as well as federal agents without excluding press and legal observers. (City Opp. at 4.) Thus, there exist less restrictive means of protecting public safety, which is a third reason why the government’s view that it can simply attack journalists and legal observers is not narrowly tailored and does not satisfy the First Amendment. See Valle Del Sol, 709 F.3d at 826 (“because restricting speech should be the government’s tool of last resort, the availability of obvious lessrestrictive alternatives renders a speech restriction overinclusive”).
The cases cited by the federal agents do not hold otherwise. They cite Perry v. Los Angeles Police Department, 121 F.3d 1365 (9th Cir. 1997). (Opp. at 19.) But that case underscores that the government has not met its burden here. In Perry, the Ninth Circuit struck down as not narrowly tailored an ordinance that prevented selling goods and soliciting money on the Venice Beach Boardwalk, except for non-profits. The Court reasoned: “There is no evidence that those without nonprofit status are any more cumbersome upon fair competition or free traffic flow than those with nonprofit status.” Similarly here, the government has not presented any evidence that would support excluding the press.
Defendants also cite California First Amendment Coalition v. Calderon, 150 F.3d 976 (9th Cir. 1998), in which San Quentin only allowed witnesses at executions to begin viewing the execution after the inmate was strapped to the gurney and the IV was inserted. (Opp. at 19.) The regulation was justified because it was necessary to protect the anonymity of the executioners, and it still allowed access to observing and documenting the execution. The Court reasoned that the press had no greater right than the public to document and observe the execution—because they were engaged in the exact same activity. Here, in contrast, the press is documenting and observing the protests, while protesters are engaged in a different activity. Branzburg v. Hayes, 408 U.S. 665 (1972), cited in Calderon, simply held that reporters do not have a constitutional
7 The federal agents’ assertion that press and legal observers could do the same job from several “blocks away from federal property” defies not only federal constitutional law but the laws of physics. (Opp. at 19.) PAGE 16 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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right to refuse to testify before a grand jury. It does not support allowing a regulation that sweeps in protected activity when it need not do so.
2. Plaintiffs Have No Alternative Forum Plaintiffs are likely to prevail for the separate and independent reason that if they are excluded from observing and reporting on the government’s dispersal of protesters, they have no alternative means of doing so. “The newsworthiness of a particular story is often fleeting. To delay or postpone disclosure undermines the benefit of public scrutiny and may have the same result as complete suppression.” Courthouse News Serv. v. Planet, 947 F.3d 581, 594 (9th Cir. 2020) (quoting Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)). The federal agents argue that “[n]o Plaintiff asserts that any press or legal observer was unable to observe any activities merely because of the dispersal order. And there are no allegations that federal agents advanced, in an attempt to disperse rioters, more than a few blocks away from federal property. Thus, it is not at all clear why reporters and observers could not see sufficiently even if moved by an order to disperse, except for the use of crowd control munitions that could still be used under the proposed injunction.” (Opp. at 19.) These arguments make no sense. As stated in the declarations submitted with this motion, journalists and legal observers have had to stop reporting due to the severity and nature of the injuries (such as tear gas in the eyes) that federal agents have intentionally inflicted on them. (E.g., Karina Brown Decl. ¶ 13; Mahoney Decl. ¶¶ 14-15.) If they are to document events, they cannot be dispersed—especially at the very time federal agents are choosing to inflict violence on protesters. Finally, Defendants claim that the injunction against the City is unworkable and would endanger officers. (Opp. at 20.) Defendants cite no evidence for this proposition—including evidence from the City, which has been living under the injunction for 21 days of protest now. Indeed, the City has explained that Defendants’ conduct is “unconstitutional.” (City Opp. at 4.) Similarly, nobody from Washington has even provided a speculative, self-serving declaration to support Defendants’ theory. That is telling and fails to meet Defendants’ burden of proof. PAGE 17 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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II. THE PUBLIC’S INTEREST AND BALANCE OF EQUITIES WEIGH STRONGLY IN FAVOR OF PLAINTIFFS In granting the TRO against the City, the Court already held that the balance of equities
and public interest favored Plaintiffs. Nothing in the federal agents’ briefing changes this analysis.
The federal agents argue that “[t]he government has a comprehensive interest in maintaining public order on public property.” (Opp. at 25 (citing Feiner v. New York, 340 U.S. 315, 320 (1951).) But that is no basis for excluding the press, who have not posed any such threat. It is against the public’s interest to prevent journalists and legal observers from documenting how law enforcement is treating protesters. As the Ninth Circuit has observed, the “free press is the guardian of the public interest,” and “the independent judiciary is the guardian of the free press.” Leigh, 677 F.3d at 900.
Moreover, the federal agents have only escalated violence against protesters, rather than aided law and order. For this reason, Portland Mayor Ted Wheeler called “for immediate removal of the President’s ‘Rapid Deployment Unit’ squads and for a congressional investigation of their unconstitutional terror tactics,”8 and many other state and local leaders have condemned the federal agents’ conduct and noted that their presence in Portland is a cynical political ploy.9 Even DHS agents have decried the federal agents’ conduct in Portland as unconstitutional.10
As the City told the Court, “the City’s position with respect to the Federal Entities’ conduct on and about July 12, 2020, as publicly expressed by its Mayor and commissioners, has been one of strong condemnation.”11 (City Opp. at 5; see also id. at 7 (“City officials have
8 Twitter, July 20, 2020 at 3:27. 9 See, e.g., Mesh, supra note 1. 10 Rhea Mahbubani, DHS employees say Trump deploying federal agents to Portland is a ‘blatantly unconstitutional’ ‘embarrassment’, Business Insider (July 22, 2020), https://www.businessinsider.com/dhs-employees-portland-response-tarnishes-reputationunconstitutional-2020-7. 11 For example, Mayor Wheeler publicly condemned “the violence federal officers brought to our streets in recent days, and the life-threatening tactics [federal] agents use,” and added, “We do not need or want their help.” Earlier, Mayor Wheeler had publicly called for the federal government to follow the same crowd-control rules and follow the same restrictions on crowdPAGE 18 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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publicly condemned the actions of the Federal Entities in pointedly strong terms.”); id. (“The City’s position in this case is that its actions complied with the Constitution. The same cannot be said, however, about the Federal Entities’ use of force.”).) Governor Brown has likewise noted that “[t]his political theater from President Trump has nothing to do with public safety.”12
On July 17, 2020, the Oregon Attorney General filed a lawsuit against the United States Marshals Service, the United States Department of Homeland Security, the United States Customs and Border Protection, and the Federal Protective Service, alleging that they have “violate[d] the state’s sovereign interests in enforcing its laws and in protecting people within its borders from kidnap and false arrest, without serving any legitimate federal law enforcement purpose” (Rosenblum v. John Does 1-10 et al., No. 3:20-cv-01161-HZ (D. Or. July 17, 2020), Complaint, Dkt. 1, at 3 ¶ 20.)13 The complaint alleges that “one or more federal defendants have engaged in actions endangering Oregon’s citizens and the people walking Portland’s streets.” (Id. at 7 ¶ 32). It further alleges: “Citizens peacefully gathering on the streets of Portland to protest racial inequality have the right to gather and express themselves under the First Amendment to the United States Constitution. Defendants’ actions are undertaken with the intent of discouraging lawful protest and therefore constitute an illegal prior restraint on the First Amendment right of Oregonians to peacefully protest racial inequality.” (Id. ¶¶ 22-23.)
In sum, Defendants fail to represent “the interest of the community in maintaining peace and order on its streets.” Feiner, 340 U.S. at 320. Whereas journalists and legal observers serve a critical public purpose of reporting the abuses perpetrated by the federal agents and decried by
control devices as had been placed on the City. City commissioners Hardesty and Eudaly have similarly publicly condemned the Federal Entities’ “escalation of violence” and “reckless and aggressive behavior.” (City Opp. at 5 (citations omitted).) 12 See n.1, supra. 13 The Oregon Attorney General also moved for a TRO restraining Defendants from “detaining, arresting, or holding individuals without probable cause or a warrant” and requiring them to “[i]dentify themselves and their agency before detaining or arresting any person” and “[e]xplain to any person detained or arrested that the person is being detained or arrested and explain the basis for that action.” Rosenblum, Motion for Temporary Restraining Order, Dkt. 5, at 1. PAGE 19 - REPLY ISO MOTION FOR TEMPORARY RESTRAINING ORDER &
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public officials. The balance of equities and the public’s interest weigh heavily in favor of Plaintiffs.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this motion for a temporary restraining order and preliminary injunction be granted.

Dated: July 22, 2020

Respectfully Submitted,
By: s/Matthew Borden Matthew Borden J. Noah Hagey Athul K. Acharya, OSB No. 152436 Gunnar K. Martz BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

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 Case 3:20-cv-01035-SI Document 84 Filed 07/23/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

INDEX NEWSPAPERS LLC d/b/a PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and . those similarly situated,
Plaintiffs,
V.
CITY OF PORTLAND; JOHN DOES 1-60; U.S. DEPARTMENT OF HOMELAND SECURITY; and U.S. MARSHALS SERVICE,
Defendants.

Case No. 3:20-cv-1035-SI
TEMPORARY RESTRAINING ORDER ENJOINING FEDERAL DEFENDANTS

Matthew Borden, J. Noah Hagey, Athul K. Acharya, and Gunnar K. Martz, BRAUNHAGEY & BORDEN LLP, 351 California Street, Tenth Floor, San Francisco, CA 94104; Kelly K. Simon, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON, P.O. Box 40585, Portland, OR 97240. Of Attorneys for Plaintiffs.
Denis M. Vannier and Naomi Sheffield, Senior Deputy City Attorneys; Ryan C. Bailey, Deputy City Attorney; and Youngwoo Joh, Assistant Deputy City Attorney, OFFICE OF THE CITY ATTORNEY, 1221 SW Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant City of Portland.

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Ethan P. Davis, Acting Assistant Attorney General; Billy J. Williams, United States Attorney for the District of Oregon; David M. Morrell, Deputy Assistant Attorney General; Alexander K. Hass, Director, Federal Programs Branch; Andrew I. Warden, Senior Trial Counsel; Jeffrey A. Hall and Jordan L. Von Bokern, Trial Attorneys; U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, FEDERAL PROGRAMS BRANCH, 1100 L. Street, NW, Washington, D.C . 20530. Of Attorneys for Defendants U.S. Department of Homeland Security and U.S. Marshals Service. Michael H. Simon, District Judge.
" Open government has been a hallmark of our democracy since our nation' s founding." Leigh v. Salazar, 677 F.3d 892, 897 (9th Cir. 2012). "When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate." Id. at 900. "The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press." Id. This lawsuit tests whether these principles are merely hollow words.
Plaintiffs Index Newspapers LLC doing business as Portland Mercury, Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau (collectively, "Plaintiffs") bring this putative class action against: (1) the City of Portland (the "City"); (2) numerous as-of-yet unnamed individual and supervisory officers of the Portland Police Bureau ("PPB") and other agencies allegedly working in concert with the PPB , (3) the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS"). The Court refers to DHS and USMS collectively as the "Federal Defendants."
As alleged in the Second Amended Complaint ("SAC"), Plaintiffs seek to stop Defendants "from assaulting news reporters, photographers, legal observers, and other neutrals who are documenting the police ' s violent response to protests over the murder of George Floyd. The police' s efforts to intimidate the press and suppress reporting on the police' s own misconduct offends fundamental constitutional protections and strikes at the core of our
democracy." SAC, 1 1(ECF 53). Plaintiffs allege violations of the First and Fourth Amendments
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of the United States Constitution and Article I, sections 8 and 26 of the Oregon Constitution. Plaintiffs request declaratory and injunctive relief and money damages.
Plaintiffs filed their original Complaint on June 28, 2020. ECF 1. On June 30th, Plaintiffs moved for a temporary restraining order ("TRO") and preliminary injunction. ECF 7. On July 2nd, the Court entered a TRO against the City. ECF 33. On July 14th, Plaintiffs moved to add the Federal Defendants to this lawsuit. ECF 42. On July 16th, the Court entered a stipulated preliminary injunction against the City. ECF 49. On July 17th, the Court granted Plaintiffs' motion to file the SAC, which added the Federal Defendants. ECF 52. Later that day, Plaintiffs filed the SAC (ECF 53) and a motion for TRO against the Federal Defendants. ECF 54. On July 22nd, the City filed a memorandum supporting Plaintiffs' motion for TRO against the Federal Defendants. ECF 70.
The Court has reviewed Plaintiffs' motion (ECF 54) and supporting declarations, the Federal Defendants' opposition memorandum and related exhibits (ECF 67), Plaintiffs' reply memorandum (ECF 79) and additional declarations, a memorandum filed by amicus curiae National Police Association (ECF 65), and the memorandum filed by the City in support of Plaintiffs' motion (ECF 70). On July 23, 2020, the Court heard oral argument. For the reasons that follow, Plaintiffs' motion for TRO against the Federal Defendants is GRANTED.
STANDARDS In deciding whether to grant a motion for TRO, courts look to substantially the same factors that apply to a court's decision on whether to issue a preliminary injunction. See Stuhlbarg Int'! Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show
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that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit's earlier rule that the mere "possibility" of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).
The Supreme Court' s decision in Winter, however, did not disturb the Ninth Circuit's alternative "serious questions" test. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, '" serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met. " Id. at 1132. Thus, a preliminary injunction may be granted "if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest." MR. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).
DISCUSSION A. Plaintiffs
Plaintiff Index Newspapers LLC doing business as Portland Mercury ("Portland Mercury") is an alternative bi-weekly newspaper and media company. It was founded in 2000 and is based in Portland, Oregon. ECF 53 , 121.
Plaintiff Doug Brown has attended many protests in Portland, first as a journalist with the Portland Mercury and later as a volunteer legal observer with the ACLU. He has attended the George Floyd protests on several nights, wearing a blue vest issued by the ACLU that clearly identifies him as a legal observer, for the purpose of documenting police interactions with
protesters. ECF 9, 111-2; ECF 53 , 1122, 97; ECF 55 , 12.
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Plaintiff Brian Conley has been a journalist for twenty years and has trained journalists in video production across a dozen countries internationally. He founded Small World News, a documentary and media company dedicated to providing tools to journalists and citizens around
the world to tell their own stories. ECF 53 , 1 131.
Plaintiff Sam Gehrke has been a journalist for four years. He previously was on the staff of the Willamette Week as a contractor. He is now a freelance journalist. His work has been published in Pitchfork, Rolling Stone, Vortex Music, and Eleven PDX, a Portland music magazine. He has attended the protests in Portland for the purpose of documenting and reporting on them, and he wears a press pass from the Willamette Week. ECF 10, 111-3; ECF 53,123.
Plaintiff Mathieu Lewis-Rolland is a freelance photographer and photojournalist who has covered the ongoing Portland protests. He has been a freelance photographer and photojournalist for three years and is a regular contributor to Eleven PDX and listed on its masthead. After the Court issued its first TRO directed against the City, he began wearing a shirt that said "PRESS" in block letters on both sides. He also wears a helmet that says "PRESS" on several sides, and placed reflective tape on his camera and on wrist bands. ECF 12, 111-2; ECF 53124; ECF 77, 11, 3.
Plaintiff Kat Mahoney is an independent attorney and unpaid legal observer. She has attended the Portland protests nearly every night for the purpose of documenting police interactions with protesters. She wears a blue vest issued by the ACLU that clearly identifies her as an "ACLU LEGAL OBSERVER." ECF 26, 13; ECF 75, 111-2.
Plaintiff Sergio Olmos has been a journalist since 2014, when he began covering the protests in Hong Kong. He has worked for Investigate West, for Underscore Media Collaboration, and as a freelancer. His work has been published in the Portland Tribune, the
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Willamette Week, Reveal: The Center for Investigative Reporting, Crosscut, The Columbian, and Investigate West. He has attended the protests in Portland as a freelance journalist for the purpose of documenting and reporting on them. When he covers the protests, he wears a press badge and a Kevlar vest that says "PRESS" on both sides. He carries several cameras, including a film camera, in part so that it is unmistakable that he is present in a journalistic capacity as a member
of the press. ECF 15, 111-3;ECF 53 , 1 26.
Plaintiff John Rudoff is a photojournalist. His work has been published internationally, including reporting on the Syrian refugee crises, the "Unite the Right" events in Charlottesville, Virginia, the Paris "Yellow Vest" protests, and the Rohingya Genocide. He has attended the protests in Portland during the past two months for the purpose of documenting and reporting on them. Since this lawsuit began, he has been published in Rolling Stone , The Nation, and on the front page of the New York Times. While attending the Portland protests, he carries and displays around his neck press identification from the National Press Photographers Association, of which he has been a member for approximately ten years. He also wears a helmet and vest that is
clearly marked "PRESS." ECF 17, 111-3; ECF 53 , 1 27; ECF 59, 111 , 3.
Plaintiff Alex Milan Tracy is a journalist with a master' s degree in photojournalism. His photographs have been published by CNN, ABC, CBS, People Magazine , Mother Jones , and Slate , among others. He has covered a many of the recent protests in Portland over George Floyd and police brutality. He carries a press badge and three cameras, and wears a helmet that is
marked "PRESS" on the front and back. ECF 60, 11 1, 3.
Plaintiff Tuck Woodstock has been a journalist for seven years. Their work has been published in the Washington Post, NPR, Portland Monthly , Travel Portland, and the Portland Mercury . They have attended the George Floyd protests several times as a freelancer for the
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Portland Mercury and more times as an independent journalist. When they attended these protests, they wear a press pass from the Portland Mercury that states "MEDIA" in large block letters. They also wear a helmet that is marked "PRESS" on three sides. At all times during
police-ordered dispersals, they hold a media badge over their head. ECF 23, ,r,r 2-3; ECF 76,
,r,r 1, 3.
Plaintiff Justin Yau is a student at the University of Portland studying communications with a focus on journalism. He previously served in the U.S. Army, where he was deployed to the Middle East. He has covered protests in Hong Kong and Portland. His work has been published in the Daily Mail, Reuters, Yahoo! News, The Sun, Spectee (a Japanese news outlet), and msn.com. He has attended the protests in Portland as a freelance and independent journalist for the purpose of documenting and reporting on them. He wears a neon yellow vest marked with reflective tape and a helmet that are marked "PRESS," and carries his press pass around his neck. He carries a large camera, a camera gimbal (a device that allows a camera to smoothly rotate),
and his cellphone for recording. ECF 56, ,r,r 1-2.
Plaintiffs and other declarants have submitted evidence of employees, agents, or officers of the Federal Defendants targeting journalists. They provide many examples in the materials submitted to the Court, involving Plaintiffs and other journalists. The Court highlights only a few examples below.
On July 15, 2020, Plaintiff Justin Yau, while carrying photojournalist gear and wearing clothing clearly identifying him as press, asserts that he was targeted by a federal agent and had a
tear-gas canister shot directly at him. ECF 56, ,r 3-6. At the time he was fired upon, he was
taking pictures with his camera and recording with his cell phone while standing 40 feet away
from protesters to make it clear that he was not part of the protests. Id. ,r 5. In addition, late July
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19th or early July 20th, Declarant Nathan Howard, a photojournalist who has been published in Willamette Week, Mother Jones, Bloomberg Images, Reuters, and the Associated Press, was
covering the Portland protests. ECF 58, 11 1, 4. He was standing by other journalists, and no protesters, as federal agents went by. Id. 14. The nearest protester was a block away. Id. Mr. Yau held up his press pass and repeatedly identified himself as press. Id. 15. A federal agent stated
words to the effect of "okay, okay, stay where you are, don' t come closer. " Id. 16. Mr. Yau states that another federal agent, who was standing immediately to the left of the agent who gave Mr. Yau the "okay," aimed directly at Mr. Yau and fired at least two pepper balls at him at close
range. Id. 1 7.
Declarant Jungho Kim is a photojournalist whose work has been published in the San
Francisco Chronicle and Ca/Matters, among others. ECF 62, 1 1. He wears a neon yellow vest
marked "PRESS" and a white helmet marked "PRESS" in the front and rear. Id. 12. He has covered protests in Hong Kong and California. He has experience with staying out of the way of officers and with distinguishing himself from a protester, such as by never chanting or
participating in protest activity. Id. 13. He had never been shot at by authorities until covering
the Portland protests on July 19, 2020. Id. During the protest, federal agents pushed protesters away from the area where Mr. Kim was recording. He was around 30 feet away from federal
agents, standing still, taking pictures, with no one around him. Id. 11 5-7. He asserts that
suddenly and without warning, he was shot in the chest just below his heart with a less lethal munition. Id. 17. Because he was wearing a ballistic vest, he was uninjured. He also witnessed, and photographed, federal agents firing munitions into a group of press and legal observers. Id.
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Declarant Noah Berger has been a photojournalist for more than 25 years. ECF 72, 1 1. He has been published nationally and internationally, including for coverage of protests in San Francisco and Oakland. Id. He anived in Portland on July 19, 2020, to cover the protests on assignment for the Associated Press. He notes that the response he has seen and documented from the federal agents in Portland is markedly different from even the most explosive protests he has covered in the past. Id. 12. He carries two large professional cameras and two press
passes. Id. 1 3. He states that without any warning he was shot twice by federal agents using less lethal munitions. Id. 14. Later, as federal agents "rushed" an area he was photographing, he held
up his press pass, identified himself as press, stated he was leaving, and moved away from the area. Id. 17. While holding his press pass and identifying himself as press, he was hit with a
baton by one federal agent. Id. 18. Two others joined and sunounded him, and he was hit with
batons three or four times. Id. One agent then deployed pepper spray against Mr. Berger from about one foot away. Id. 19. He was given no warning. Id. 111. He states that he was not
demonstrating or protesting, was leaving the area, and was clearly acting as a journalist. Id. 113 ,
11. B. Standing
The Federal Defendants argue that Plaintiffs lack standing to seek a TRO that requests prospective injunctive relief because Plaintiffs rely on past illegal conduct and have other remedies available at law. To establish Article III standing to seek prospective injunctive relief, a plaintiff must "allege either 'continuing, present adverse effects"' of a defendant's past illegal conduct, "or 'a sufficient likelihood that [they] will again be wronged in a similar way."' Villa v. Maricopa Cty., 865 F.3d 1224, 1229 (9th Cir. 2017) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974), and City ofL.A. v. Lyons, 461 U.S. 95, 111 (1983)); see also Thomas v. Cty. of Los Angeles, 978 F.2d 504, 507 (9th Cir. 1992), as amended (Feb. 12, 1993) (requiring "real and
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immediate" threat of future injury). Although a single injury in the past is not enough to create standing, the threat of future injury may become actionable when "actual repeated incidents are documented." Thomas , 978 F.2d at 507 (quotation marks omitted). Additionally, as explained by the Ninth Circuit:
A plaintiff seeking prospective injunctive relief must demonstrate that he is realistically threatened by a repetition of the violation. A threat of repetition can be shown at least two ways. First, a plaintiff may show that the defendant had, at the time of the injury, a written policy, and that the injury stems from that policy. Second, the plaintiff may demonstrate that the harm is part of a pattern of officially sanctioned behavior, violative of the plaintiffs' federal rights. Nordstrom v. Ryan, 762 F.3d 903 , 911 (9th Cir. 2014) (emphasis in original) (simplified). The threat ofrepeated future injury, however, may not be "conjectural or hypothetical." O 'Shea, 414 U.S. at 494 (quotation marks omitted). Standing to seek equitable relief also requires "a showing of an inadequate remedy at law and ... a serious risk of irreparable harm. " Pulliam v. Allen, 466 U.S. 522, 537 (1984); see also O 'Shea, 414 U.S. at 499. Plaintiffs have been covering or observing the protests and they all have documented incidents of violence, threats, or intimidation by federal agents during their coverage or observation. Federal agents have, among other acts, thrown flashbang grenades at Plaintiff Tracy, shot smoke grenades at Plaintiff Mahoney, and shot Plaintiff Rudoff with a 40mm rubber bullet. See ECF 79117-9, ECF 7511 12-13, ECF 5917. Plaintiffs intend to continue covering and observing the protests. See, e.g. , ECF 53 , 1 229; ECF 59, 19; ECF 60, 11 2, ECF 75, 1 17; ECF 80, 111. The Federal Defendants intend to keep dispersing journalists and legal observers. See ECF 67 at 20 (arguing that allowing journalists and legal observers to remain "is not a practicable option"). The actions by the federal agents described by Plaintiffs are part of a pattern of officially sanctioned conduct. The Federal Defendants argue that such conduct is necessary to
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protect federal property. Absent an injunction, the Federal Defendants will continue to target journalists and legal observers and require them to disperse or face force and vioience by federal officers, even when the journalists and legal observers are not engaged in any harmful or illegal conduct. The combination of the Federal Defendants' repeated past conduct, Plaintiffs' stated intentions, and the Federal Defendants' stated intentions establish the "real and immediate threat ofrepeated injury" sufficient to create standing. Lyons, 461 U.S. at 102. The threatened future harm is not speculative or hypothetical.
The cases cited by the Federal Defendants arguing against standing are distinguishable for two reasons. First, the causal chain is far longer and more speculative. As discussed above, the conduct and declared intentions of Plaintiffs and the Federal Defendants make future injury all but inevitable. Second, many of the cited cases involve government action triggered by illegal conduct. See, e.g. O'Shea, 414 U.S. at 496-97; Lyons, 461 U.S. at 105-06. Plaintiffs, however, are not breaking any laws-to the contrary, they are engaging in constitutionally protected First Amendment activity. It is one thing to ask citizens to obey the law in the future to avoid future alleged harm. But it is quite another for the Federal Defendants to insist that Plaintiffs must forgo constitutionally protected activity if they wish to avoid government force and interference.
The Federal Defendants also argue that Plaintiffs have legal remedies available, such as bringing a civil rights action or a lawsuit under the Federal Tort Claims Act, and thus a forwardlooking equitable remedy is not appropriate. Backward-looking claims for money damages, however, would not provide the relief Plaintiffs are seeking. Plaintiffs desire access and the ability to exercise their First Amendment rights to observe and report on government misconduct. Plaintiffs and other journalists submitted evidence that they have been injured and unable to continue reporting, sometimes for a short period of time and sometimes for longer.
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They also state that the fear of even worse injury makes them hesitant to continue reporting, and one national journalist stated that he will no longer cover the Portland protests because of the attacks against him by federal agents. This chilling of First Amendment rights is not adequately compensable with money damages. Cf Otter, 682 F.3d at 826 (noting that the loss of First Amendment rights "unquestionably constitutes irreparable injury"). C. TRO Factors
1. Likelihood of Success on the Merits a. Claim for First Amendment Retaliation
The Federal Defendants argue that Plaintiffs fail to show a likelihood of success on the merits of their claim for First Amendment retaliation because they fail to show that any of the violence against Plaintiffs was substantially motivated by the intent to deter or chill First Amendment rights. At oral argument, counsel for the Federal Defendants argued that "direct evidence" was needed to show retaliatory motive and no such evidence was in the record. Retaliatory intent under the First Amendment, however, "can be demonstrated either through direct or circumstantial evidence." Mendocino Envtl. Ctr. v. Mendocino Cty. , 192 F.3d 1283, 1301 (9th Cir. 1999) (emphasis added)).
Plaintiffs provide sufficient circumstantial evidence of retaliatory intent to show, at the minimum, serious questions going to the merits. Plaintiffs' declarations describe situations including that they were identifiable as press, were not engaging in unlawful activity or protesting, were not standing near protesters, and yet were subject to violence by federal agents. Contrary to the Federal Defendants' arguments, this evidence does not support that the force used on Plaintiffs were "unintended consequences" of crowd control.
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b. Claim for Right of Access The First Amendment prohibits any law "abridging the freedom of speech, or of the press[.]" U.S. Const., amend. I. Although the First Amendment does not enumerate special rights for observing government activities, "[t]he Supreme Court has recognized that newsgathering is an activity protected by the First Amendment." United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978); see Branzburg v. Hayes, 408 U.S . 665, 681 (1972) ("[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated."). As the Ninth Circuit has explained: "the Supreme Court has long recognized a qualified right of access for the press and public to observe government activities." Leigh, 677 F.3d at 898. By reporting about the government, the media are "surrogates for the public." Richmond Newspapers, Inc. v. Virginia, 448 U.S . 555, 573 (1980) (Burger, C.J., announcing judgment); see also Cox Broad. Corp. v. Cohn, 420 U.S. 469, 490-91 (1975) ("[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations."). As further described by the Ninth Circuit, " [w]hen wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate." Leigh, 677 F.3d at 900 (quoting Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 STAN. L. REV. 927, 949 (1992) ("[W]hen the government announces it is excluding the press for reasons such as administrative convenience, preservation of evidence, or protection ofreporters' safety, its real motive may be to prevent the gathering of information about government abuses or incompetence.")). The Federal Defendants argue that journalists have no right to stay, observe, and document when the government "closes" public streets. This circular logic does not help the Federal Defendants. First, the Federal Defendants are not the entities that "close" state public
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streets and parks; that is a local police function. Second, the point ofjournalists observing and documenting government action is to record whether the "closing" of public streets (e.g. , declaring a riot) is lawfully originated and carried out. Without journalists and legal observers, there is only the government's side of the story to explain why a "riot" was declared and the public streets were "closed" and whether law enforcement acted properly in effectuating that order. Third, the Federal Defendants conceded at oral argument that there is no evidence that any journalist or legal observer has damaged any federal property or harmed any federal officer. Thus, the stated need to protect federal property and the safety of federal officers is not directly affected by allowing journalists and legal observers to stay, observe, and record events.
The Federal Defendants argue that Plaintiffs improperly rely on Press-Enterprise Co. v. Superior Court ("Press-Enterprise IF') , 478 U.S. 1 (1986), to articulate the standard to apply in evaluating likelihood of success in Plaintiffs' right of access claim. The Federal Defendants argue that Press-Enterprise II applies only to right of access to judicial proceedings. The Ninth Circuit, however, has rejected this precise argument and applied the Press-Enterprise II framework to journalists requesting access to cover a government event (a horse roundup) . Leigh, 677 F.3d at 899 ("The government argues that the Press-Enterprise II framework is limited to attempts to access criminal trials. We disagree."). The Government did even mention Leigh in its response, despite Plaintiffs' heavy reliance on Leigh in their motion and the Court's citation to Leigh in the previous TRO directed against the City. The Court finds that PressEnterprise II applies.
In Press-Enterprise II, the Supreme Court established a two-part test for right of access claims. First, the court must determine whether a right of access attaches to the government proceeding or activity by considering (1) whether the place and process have historically been
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open to the press and general public and (2) whether public access plays a significant positive role in the functioning of the particular process in question. Press-Enterprise II, 478 U.S. at 8-9. Second, if the court determines that a qualified right applies, the government may overcome that right only by demonstrating "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 9 (citation omitted); see also Leigh, 677 F.3d at 898 (discussing Press-Enterprise II). The public streets, sidewalks, and parks historically have been open to the press and general public, and public observation of law enforcement activities in these public fora plays a significant positive role in ensuring conduct remains consistent with the Constitution.
The Federal Defendants argue that Plaintiffs have an alternative location, because they can watch from a few blocks away. This argument is without merit. Federal agents are using tear gas, which decreases visibility, and the protests are at night. Reporting from a few blocks away is not a viable alternative location.
The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable. When asked at oral argument why it could be workable for City police but not federal
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officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland. There is no evidence that the previous 21 nights were any less chaotic. Indeed, the Federal Defendants ' describe chaotic events over the Fourth of July weekend through July 7th, including involving Portland police, and the previous TRO was issued on July 2nd and was in effect at that time. The workability of the previous TRO also shows that there is a less restrictive means than exclusion or force that is available.
At this stage, there are at least serious questions regarding Plaintiffs' right to access, whether the government will be able to meet its burden to overcome that right to access, the federal officers' tactics directed toward journalists and other legal observers, and whether restrictions placed upon them by the Federal Defendants are narrowly tailored. Thus, Plaintiffs' meet this TRO factor for their claim for right to access.
2. Irreparable Harm The Federal Defendants argue that because there is no threat of immediate injury, there is no threat of irreparable harm, relying on their standing arguments. Because the Court rejected their standing arguments, the Court rejects this argument. The Federal Defendants also argue that because Plaintiffs allege First Amendment retaliation, there is no presumption of irreparable injury. Plaintiffs' claims, however, allege a serious threat to First Amendment rights. Under these types of claims, there is a likelihood of irreparable injury. "[U]nder the law of this circuit, a party seeking preliminary injunctive relief in a First Amendment context can establish irreparable injury sufficient to merit the grant of relief by demonstrating the existence of a colorable First Amendment claim." Warsoldier v. Woodford, 418 F.3d 989, 1001-02 (9th Cir. 2005) (quotation marks omitted); see also Otter, 682 F.3d at 826 (9th Cir. 2012) ("The loss
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Case 3:20-cv-01035-SI Document 84 Filed 07/23/20 Page 17 of 22
of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes iITeparable injury."); l lA Charles Alan WRIGHT, FEDERAL PRACTICE & PROCEDURE, § 2948. l (2d ed. 2004) ("When an alleged deprivation of a constitutional right is involved, most comis hold that no further showing of iITeparable injury is necessary.").
3. Public Interest and Balance of the Equities The third and fourth factors also weigh in favor of granting the TRO. As for the public interest, " [c]ourts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles." Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (quotation marks omitted). Further, "it is always in the public interest to prevent the violation of a party's constitutional rights." Melendres v. Arpaio , 695 F.3d 990, 1002 (9th Cir. 2012) (quotation marks omitted) (granting an injunction under the Fourth Amendment). The Federal Defendants argue that the government's countervailing interest in maintaining public order on public property outweighs Plaintiffs' First Amendment concerns. The Federal Defendants allegedly deployed agents to protect the federal courthouse and the nearby federal building. Although the Federal Defendants assert their right to disperse "violent opportunists," there is no evidence that any journalist or legal observer-let alone any of the named Plaintiffs-has damaged federal property or acted violently towards federal officers. At oral argument, Defendants conceded that they have no such evidence. Indeed, the evidence before the Court shows that journalists and legal observers attend the protests as "guardians of the public interest," not as vandals. Leigh, 677 F.3d at 900. Nor is there any evidence that allowing journalists and legal observers to stay despite a dispersal order or not to be subject to violence used against protesters causes others to harm property or law enforcement or interferes
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with law enforcement's ability to perform. The City' s stipulation to the preliminary injunction is evidence of this workability.
The Federal Defendants' second argument, that the government's interest in preserving physical access to courts counterbalances Plaintiffs' interests, also is without merit. Additionally, the relevant protests are happening after business hours, and there is no indication that allowing journalists and legal observers to stay despite a dispersal order interferes with the public ' s access. None of the government's proffered interests outweigh the public' s interest in accurate and timely information about how law enforcement is treating protestors. Finally, because Plaintiffs have "raised serious First Amendment questions, " the balance of hardships "tips sharply in [Plaintiffs'] favor. " Cmry. House, Inc. v. Ciry ofBoise, 490 F.3d 1041, 1059 (9th Cir. 2007) (quotation marks omitted).
4. Conclusion Accordingly, the Court grants Plaintiffs' motion for TRO against the Federal Defendants (ECF 54) and Orders as follows :
TEMPORARY RESTRAINING ORDER 1. The Federal Defendants, their agents and employees, and all persons acting under their direction are enjoined from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), unless the Federal Defendants have probable cause to believe that such individual has committed a crime. For purposes of this Order, such persons shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse. Such persons shall, however, remain bound by all other laws.
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2. The Federal Defendants, their agents and employees, and all persons acting under their direction are further enjoined from seizing any photographic equipment, audio- or videorecording equipment, or press passes from any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), or ordering such person to stop photographing, recording, or observing a protest, unless the Federal Defendants are also lawfully seizing that person consistent with this Order. Except as expressly provided in Paragraph 3 below, the Federal Defendants must return any seized equipment or press passes immediately upon release of a person from custody.
3. If any Federal Defendant, their agent or employee, or any person acting under their direction seize property from a Journalist or Legal Observer who is lawfully arrested consistent with this Order, such Federal Defendant shall, as soon thereafter as is reasonably possible, make a written list of things seized and shall provide a copy of that list to the Journalist or Legal Observer. If equipment seized in connection with an arrest of a Journalist or Legal Observer lawfully seized under this Order is needed for evidentiary purposes, the Federal Defendants shall promptly seek a search warrant, subpoena, or other court order for that purpose. If such a search warrant, subpoena, or other court order is denied, or equipment seized in connection with an arrest is not needed for evidentiary purposes, the Federal Defendants shall immediately return it to its rightful possessor.
4. To facilitate the Federal Defendants' identification of Journalists protected under this Order, the following shall be considered indicia of being a Journalist: visual identification as a member of the press, such as by carrying a professional or authorized press pass or wearing a professional or authorized press badge or other official press credentials or distinctive clothing that identifies the wearer as a member of the press. These indicia are not exclusive, and a person
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need not exhibit every indicium to be considered a Journalist under this Order. The Federal Defendants shall not be liable for unintentional violations of this Order in the case of an individual who does not carry or wear a press pass, badge, or other official press credential or distinctive clothing that identifies the wearer as a member of the press.
5. To facilitate the Federal Defendants' identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest.
6. The Federal Defendants are not precluded by the Order from issuing otherwise lawful crowd-dispersal orders for a variety of lawful reasons. The Federal Defendants shall not be liable for violating this injunction if a Journalist or Legal Observer is incidentally exposed to crowd-control devices after remaining in the area where such devices were deployed after the issuance of an otherwise lawful dispersal order.
7. Because the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity in any action brought against any individual employee, officer, or agent of the Federal Defendants under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), notice of this Order must be widely disseminated. Accordingly, the Federal Defendants are ordered to provide copies of this Order, in either electronic or paper form, within 24 hours, to: (a) all employees, officers, and agents of the Federal Defendants currently deployed in Portland, Oregon (or who later become deployed in Portland, Oregon while this Order is in force), including but not limited to all personnel in Portland, Oregon who are part of Operation Diligent Valor, Operation Legend, or
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any equivalent; (b) all employees, officers, and agents of the Federal Defendants with any supervisory or command authority over any person in group (a) above; and (c) the U.S. Attorney General and the Secretary (or Acting Secretary) of the U.S. Department of Homeland Security.
8. Plaintiffs need not provide any security, and all requirements under Rule 65(c) of the Federal Rules of Civil Procedure are waived.
9. The Court authorizes mutual expedited discovery so that the paiiies can be fully prepared to present all relevant facts and legal issues at a preliminary injunction hearing. The parties shall confer and propose to the Comi a schedule for briefing and hearing on whether the Court should issue a preliminary injunction against the Federal Defendants.
10. This Order shall expire fourteen (14) days after entry, unless otherwise extended by stipulation of the parties or by further order of the Court.
IT IS SO ORDERED. DATED this 23rd of July, 2020 at 5:00 p.m.
~~ United States District Judge
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 Case 3:20-cv-01035-SI Document 161 Filed 08/28/20 Page 1 of 3

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

AUG 27 2020

INDEX NEWSPAPERS LLC, DBA

No. 20-35739

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Portland Mercury; et al.,

D.C. No. 3:20-cv-01035-SI

Plaintiffs-Appellees,

District of Oregon,

v.
UNITED STATES MARSHALS SERVICE; U.S. DEPARTMENT OF HOMELAND SECURITY,

Portland ORDER

Defendants-Appellants,

and

CITY OF PORTLAND, a municipal corporation; et al.,

Defendants.

Before: McKEOWN, MILLER, and BRESS, Circuit Judges. Order by Judges MILLER and BRESS, Dissent by Judge McKEOWN
We have received appellants’ emergency motion at Docket Entry No. 7 seeking to stay the district court’s August 20, 2020 order pending resolution of this appeal. Appellants’ request for an immediate administrative stay of the district court’s August 20, 2020 order pending resolution of the emergency motion is granted. See Nken v. Holder, 556 U.S. 418, 426 (2009). Based on our preliminary review, appellants have made a strong showing of likely success on the merits that

LAB/MOATT

Case 3:20-cv-01035-SI Document 161 Filed 08/28/20 Page 2 of 3
the district court’s injunction exempting “Journalists” and “Legal Observers” from generally applicable dispersal orders is without adequate legal basis. Given the order’s breadth and lack of clarity, particularly in its non-exclusive indicia of who qualifies as “Journalists” and “Legal Observers,” appellants have also demonstrated that, in the absence of a stay, the order will cause irreparable harm to law enforcement efforts and personnel. The August 20, 2020 order is stayed, temporarily, pending resolution of the emergency motion. This administrative stay preserves the status quo as it existed before the district court’s preliminary injunction and temporary restraining order.
This order does not disturb the portion of the district court’s August 20, 2020 order directing the parties to confer regarding identifying markings and directing that the parties submit proposals to the district court within 14 days if the parties cannot reach an agreement. However, the district court shall not issue a final order regarding identifying markings pending this court’s resolution of the emergency motion.
Appellees’ response to the emergency motion is due by 9:00 a.m. PDT September 2, 2020. Appellants’ optional reply is due by 5:00 p.m. PDT September 3, 2020.

LAB/MOATT

2

Case 3:20-cv-01035-SI Document 161 Filed 08/28/20 Page 3 of 3
McKEOWN, Circuit Judge, dissenting: I respectfully dissent and would deny the Federal Defendants’ request for an
administrative stay. The factual conclusions underlying the entry of a preliminary injunction are reviewed for clear error. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In light of the deferential review accorded to the district court’s factual finding at this stage, the district court’s extensive factual findings with respect to journalists and legal observers, including the finding that the injunction would not impair law enforcement operations to protect federal property and personnel, and the fact that a temporary restraining order has been in place since July 23, 2020, the government has failed to meet its burden to demonstrate either an emergency or irreparable harm to support an immediate administrative stay. I concur in the order with respect to the markings.

LAB/MOATT

3

 
 Case 3:20-cv-01035-SI Document 183 Filed 09/23/20 Page 1 of 4

NAOMI SHEFFIELD, OSB #170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov DENIS M. VANNIER, OSB #044406 Senior Deputy City Attorney denis.vannier@portlandoregon.gov RYAN C. BAILEY, OSB #130788 Deputy City Attorney ryan.bailey@portlandoregon.gov YOUNGWOO JOH, OSB #164105 Assistant Deputy City Attorney youngwoo.joh@portlandoregon.gov Portland City Attorney’s Office 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,

3:20-cv-01035-SI
AMENDED STIPULATED PRELIMINARY INJUNCTION

Plaintiffs,

v.

CITY OF PORTLAND, a municipal corporation; JOHN DOES 1-60, officers of Portland Police Bureau and other agencies
working in concert; U.S. DEPARTMENT OF HOMELAND SECURITY; and U.S. MARSHALS SERVICE,

Defendants.

Because of the October 31, 2020 expiration for the existing amended stipulated preliminary injunction, Plaintiffs and Defendant City of Portland (“the City”) respectfully submit

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this revised stipulated preliminary injunction, extending the duration until a decision is reached, for the Court’s consideration. We have changed the language in paragraphs 8 and 9. The amended stipulated preliminary injunction otherwise remains unchanged.
Plaintiffs and Defendant City hereby jointly stipulate to the following preliminary injunction, replacing the preliminary injunction entered on September 4, 2020 (ECF 169):
1. The City and its agents and employees, including but not limited to the Portland Police Bureau and all persons acting under the direction of the Portland Police Bureau (collectively, “the Police”), are enjoined from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), unless the Police have probable cause to believe that such individual has committed a crime. For purposes of this Order, such persons shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse. Such persons shall, however, remain bound by all other laws. No Journalist or Legal Observer protected under this Order may impede, block, or physically prevent the lawful activities of the Police.
2. The Police are further enjoined from seizing any photographic equipment, audioor video-recording equipment, or press passes from any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), or ordering such person to stop photographing, recording, or observing a protest, unless the Police are also lawfully seizing that person consistent with this Order. Except as expressly provided in Paragraph 3 below, the Police must return any seized equipment or press passes immediately upon release of a person from custody.
3. Pursuant to ORS 133.623, if Police seize property from a Journalist or Legal Observer lawfully arrested under this Order, they shall, as soon thereafter as is reasonably possible, make a written list of things seized and furnish a copy to the Journalist or Legal Observer. If equipment seized in connection with an arrest of a Journalist or Legal Observer lawfully seized under this Order is needed for evidentiary purposes, Police shall promptly seek a
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search warrant, subpoena, or other court order for the same. If said search warrant, subpoena, or court order is denied, or equipment seized in connection with an arrest is not needed for evidentiary purposes, police shall immediately return it to its rightful possessor. Pursuant to ORS 133.633, Journalists or Legal Observers may seek return of property seized through a state-court motion, through which the state court will make a determination whether the property can be returned prior to the conclusion of a criminal investigation or criminal proceeding.
4. To facilitate the Police’s identification of Journalists protected under this Order, the following shall be considered indicia of being a Journalist: visual identification as a member of the press, such as by carrying a professional or authorized press pass or wearing a professional or authorized press badge or distinctive clothing that identifies the wearer as a member of the press. These indicia are not exclusive, and a person need not exhibit every indicium to be considered a Journalist under this Order. The Police shall not be liable for unintentional violations of this Order in the case of an individual who does not carry a press pass or wear a press badge or distinctive clothing that identifies the wearer as a member of the press.
5. To facilitate the Police’s identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers’ Guild issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU issued or authorized Legal Observer vest.
6. The Police may issue otherwise lawful crowd-dispersal orders for a variety of lawful reasons. The Police shall not be liable for violating this Order if a Journalist or Legal Observer is incidentally exposed to crowd-control devices after remaining in the area where such devices were deployed after the issuance by the Police of an otherwise lawful dispersal order.
7. Plaintiffs need not provide any security. 8. This Order shall remain in effect until this Court issues a final decision on the legal issues underlying this preliminary injunction, unless otherwise modified or rescinded as provided in Paragraph 9 below.
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Case 3:20-cv-01035-SI Document 183 Filed 09/23/20 Page 4 of 4

9. This stipulation is without prejudice to the respective legal positions of the parties
and without any party waiving any argument or the right to request modifications, clarifications,
or rescission of this injunction as circumstances may warrant.
So stipulated:
Dated: September 23, 2020
By: /s/ Naomi Sheffield DENIS M. VANNIER, OSB# 044406 Senior Deputy City Attorney NAOMI SHEFFIELD, OSB# 170601 Deputy City Attorney RYAN C. BAILEY, OSB# 130788 Deputy City Attorney YOUNGWOO JOH, OSB# 164105 Assistant Deputy City Attorney
Attorneys for Defendant City of Portland

By: /s/ Matthew Borden Matthew Borden, pro hac vice J. Noah Hagey, pro hac vice Athul K. Acharya, OSB No. 152436 Gunnar K. Martz, pro hac vice BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

The Court adopts the above Amended Stipulated Preliminary Injunction in this action.

IT IS SO ORDERED.

Dated: _____________

Honorable Michael H. Simon

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 Case 3:20-cv-01035-SI Document 169 Filed 09/04/20 Page 1 of 4

Case 3:20-cv-01035-SI Document 169 Filed 09/04/20 Page 2 of 4

Case 3:20-cv-01035-SI Document 169 Filed 09/04/20 Page 3 of 4

Case 3:20-cv-01035-SI Document 169 Filed 09/04/20 Page 4 of 4

 
 Case 3:20-cv-01035-SI Document 157 Filed 08/20/20 Page 1 of 61

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

INDEX NEWSPAPERS LLC d/b/a PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND; JOHN DOES 1-60; U.S. DEPARTMENT OF HOMELAND SECURITY; and U.S. MARSHALS SERVICE,
Defendants.

Case No. 3:20-cv-1035-SI
OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION AGAINST FEDERAL DEFENDANTS

Matthew Borden, J. Noah Hagey, Athul K. Acharya, and Gunnar K. Martz, BRAUNHAGEY & BORDEN LLP, 351 California Street, Tenth Floor, San Francisco, CA 94104; Kelly K. Simon, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON, P.O. Box 40585, Portland, OR 97240. Of Attorneys for Plaintiffs.
Denis M. Vannier and Naomi Sheffield, Senior Deputy City Attorneys; Ryan C. Bailey, Deputy City Attorney; and Youngwoo Joh, Assistant Deputy City Attorney, OFFICE OF THE CITY ATTORNEY, 1221 SW Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant City of Portland.

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Case 3:20-cv-01035-SI Document 157 Filed 08/20/20 Page 2 of 61
Ethan P. Davis, Acting Assistant Attorney General, Civil Division; Billy J. Williams, United States Attorney for the District of Oregon; David M. Morrell, Deputy Assistant Attorney General, Civil Division; Alexander K. Hass, Director, Federal Programs Branch; Brigham J. Bowen, Assistant Director, Federal Programs Branch; Joshua E. Gardner, Special Counsel, Federal Programs Branch; Andrew I. Warden, Senior Trial Counsel; Jeffrey A. Hall, Jordan L. Von Bokern, and Keri L. Berman, Trial Attorneys; U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, FEDERAL PROGRAMS BRANCH, 1100 L. Street, NW, Washington, D.C. 20530. Of Attorneys for Defendants U.S. Department of Homeland Security and U.S. Marshals Service. James L. Buchal, MURPHY & BUCHAL LLP, 3425 SE Yamhill Street, Suite 100, Portland, OR 97214. Of Attorney for Amicus Curiae National Police Aassociation. Duane A. Bosworth, DAVIS WRIGHT TREMAINE LLP, 1300 SW Fifth Avenue, Suite 2400, Portland, OR 97201; Katie Townsend, Gabe Rottman, and Adam A. Marshall, THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, 1156 15th Street NW, Suite 1020, Washington, D.C. 20005. Of Attorneys for Amici Curiae Reporters Committee for Freedom of the Press and 16 News Media Organizations. Michael H. Simon, District Judge.
“Open government has been a hallmark of our democracy since our nation’s founding.” Leigh v. Salazar, 677 F.3d 892, 897 (9th Cir. 2012). “When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.” Id. at 900. “The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.” Id. This lawsuit tests whether these principles are merely hollow words.
Plaintiffs Index Newspapers LLC doing business as Portland Mercury, Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau (collectively, “Plaintiffs”) bring this putative class action against: (1) the City of Portland (the “City”); (2) numerous as-of-yet unnamed individual and supervisory officers of the Portland Police Bureau (“PPB”) and other agencies allegedly working in concert with the PPB; (3) the U.S. Department of Homeland Security (“DHS”); and (4) the U.S. Marshals Service (“USMS”). The Court refers to DHS and USMS collectively as the “Federal Defendants.” Plaintiffs are journalists and authorized legal
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observers. They allege violations of the First and Fourth Amendments of the United States Constitution and Article I, sections 8 and 26 of the Oregon Constitution. Plaintiffs seek declaratory and injunctive relief and money damages.
Before the Court is Plaintiffs’ motion for preliminary injunction against the Federal Defendants. Plaintiffs allege that agents of the Federal Defendants from around the United States, specially deployed to Portland, Oregon to protect the federal courthouse, have repeatedly targeted and used physical force against journalists and authorized legal observers who have been documenting the daily Black Lives Matter protests in this city. These federal agents include special tactical units from U.S. Customs and Border Protection under the U.S. Department of Homeland Security (“BORTAC”) and other special tactical units from the U.S. Marshals Service under the U.S. Department of Justice (“Special Operations Group” or “SOG”).
Although these federal agents are highly trained in some areas of law enforcement, Plaintiffs contend that neither these agents nor their commanders have any special training or experience in civilian crowd control. Plaintiffs allege that some of these officers have intentionally targeted and used physical force and other forms of intimidation against journalists and authorized legal observers for the purpose of preventing or deterring them from observing and reporting on unreasonably aggressive treatment of lawful protesters. In response, the Federal Defendants argue that they are merely protecting the federal courthouse and its personnel from potential or actual violence and that any interference with protected First Amendment activity is merely incidental.
The Ninth Circuit has stated: Demonstrations can be expected when the government acts in highly controversial ways, or other events occur that excite or arouse the passions of the citizenry. The more controversial the occurrence, the more likely people are to demonstrate. Some of
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these demonstrations may become violent. The courts have held that the proper response to potential and actual violence is for the government to ensure an adequate police presence and to arrest those who actually engage in such conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure. Collins v. Jordan, 110 F.3d 1363, 1372 (9th Cir. 1996) (citation omitted). Here, the actions of the Federal Defendants, or at least some of their officers, prevent, deter, or otherwise chill the constitutionally protected newsgathering, documenting, and observing work of journalists and authorized legal observers, who peacefully stand or walk on city streets and sidewalks during a protest. As further explained by the Ninth Circuit in Collins: It has been clearly established since time immemorial that city streets and sidewalks are public fora. Restrictions on First Amendment activities in public fora are subject to a particularly high degree of scrutiny. Id. at 1371 (citations and quotation marks omitted). The Federal Defendants also argue that Plaintiffs are seeking special protections for journalists and legal observers under the First Amendment but that journalists and legal observers are entitled to no greater rights than those afforded to the public generally. In support, the Federal Defendants cite Branzburg v. Hayes, 408 U.S. 665, 680-82 (1972), which held that although the First Amendment protects news gathering, it does not provide a reporter’s privilege against testifying before a grand jury. In that case, the Supreme Court noted: “It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” Id. at 684; see also Cal. First Amendment Coal. v. Calderon, 150 F.3d 976, 981 (9th Cir. 1998) (same). The Federal
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Defendants argue, in essence, that Plaintiffs’ requested preliminary injunction violates the
traditional “nondiscrimination” interpretation of the First Amendment’s Press Clause.1
At first glance, one might think that the journalists and legal observers here are seeking
protection against having to comply with an otherwise lawful order to disperse from city streets
after a riot has been declared, when the public generally does not have that protection. When
local law enforcement lawfully declares a riot and orders people to disperse from city streets,
generally they must comply or risk arrest. The question of whether journalists have any greater
rights than the public generally, however, is not actually presented in the pending motion for
preliminary injunction. That is because the Federal Defendants are not asserting that they have
the legal authority to declare a riot and order persons to disperse from the city streets in Portland;
nor does the authority they cite for their presence and actions in Portland so provide.2 It is only
1 This traditional interpretation may be undergoing a reevaluation. See, e.g., Sonja R. West, Favoring the Press, 106 CAL. L. REV. 91, 94 (2018) (“The nondiscrimination view of the Press Clause is deeply flawed for the simple reason that the press is different and has always been recognized as such.”). “Barring the government from recognizing the differences between press and non-press speakers threatens to undermine the vital role of the Fourth Estate.” Id. (footnote omitted). “It is, therefore, entirely in keeping with the text, history, and spirit of the First Amendment’s Press Clause for the government to, at times, treat press speakers differently.” Id. at 95. “Rather than lump the press together with other speakers, the Supreme Court has historically done just the opposite.” Id.
2 The Federal Defendants cite 40 U.S.C. § 1315 and its implementing regulations. That statute authorizes DHS to “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government.” § 1315(a). The governing regulations prohibit, as relevant here: (1) disorderly conduct for persons “entering in or on Federal property,” 41 C.F.R. § 102-74.390; (2) persons “entering in or on Federal property” from improperly disposing of rubbish on property, willfully damaging property, creating a hazard on property, or throwing articles at a building or climbing on any part of a building, 41 C.F.R. § 102-74.380; and (3) requiring that “[p]ersons in and on property” must obey “the lawful direction of federal police officers and other authorized individuals.” 41 C.F.R. § 102-74.385. This latter regulation, although not specifically stating on “federal” property, has been construed as including this requirement, that the persons be on federal property. See United States v. Baldwin, 745 F.3d 1027, 1029 (10th Cir. 2014) (then-Circuit Judge, now Justice Gorsuch) (“The first says ‘[p]ersons in and on [Federal] property must at all times comply . . . with the lawful direction of Federal police officers and other authorized individuals.’” (alterations in original) (quoting 41
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state and local law enforcement that may lawfully issue an order declaring a riot or unlawful
assembly on city streets. That is simply part of a state or city’s traditional police power.
Here, Plaintiffs and the City have already stipulated to a preliminary injunction that
provides that the Portland Police will not arrest any journalist or authorized legal observer for
failing to obey a lawful order to disperse. Thus, the question of whether an otherwise peaceful
and law-abiding journalist or authorized legal observer has a First Amendment right not to
disperse when faced with a general dispersal order issued by state or local authorities does not
arise in this motion.3
C.F.R. § 102-74.385); see also United States v. Estrada-Iglesias, 425 F. Supp. 3d 1265, 1270 (D. Nev. 2019). Thus, 40 U.S.C. § 1315 and its regulations give federal officers broad authority on federal property. They do not, however, give federal officers broad authority off federal property. The authority granted off federal property is limited—to perform authorized duties “outside the property to the extent necessary to protect the property and persons on the property.” § 1315(b)(1). These authorized duties include enforcing federal laws (which as relevant here are laws limited to persons on federal property), making arrests if federal crimes are committed in the presence of an officer, and conducting investigations on and off the property for crimes against the property or persons on the property. § 1315(b)(2). None of these powers include declaring a riot or an unlawful assembly on the streets of Portland, closing the streets of Portland, or otherwise dispersing people off the streets of Portland (versus dispersing people off federal property).
The Federal Defendants appear to acknowledge this limitation in their powers. DHS Operation Diligent Valor commander Gabriel Russell states in his declaration that in response to violent protests, Federal Protective Services (“FPS”) officers warned protesters to “stay off federal property,” used tear gas to “push protesters back from the [federal] courthouse,” contacted the PPB who were about to declare an unlawful assembly, the Portland Police “arrived and closed all roads in the vicinity of the facilities[,] . . . . declared an unlawful assembly and began making arrests for failure to disperse,” and the FPS only “made dispersal orders on federal property and cleared persons refusing to comply with these orders.” ECF 67-1 at 2. He also testified at deposition that generally FPS does not have authority to enforce a dispersal order against an unlawful assembly on Fourth Street, one block from the federal courthouse. ECF 1361 at 22 (63:12-18). The Federal Defendants also cite to statutes and regulations that authorize the USMS to protect federal courthouses and other federal property, including 28 U.S.C. § 566(a), 28 U.S.C. § 566(i), 28 C.F.R. § 0.111(f). As with the statutes and regulations governing DHS’s authority, these authorities focus on federal property, not on city streets or state or local property.
3 Someday, a court may need to decide whether the First Amendment protects journalists and authorized legal observers, as distinct from the public generally, from having to comply with
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Plaintiffs and the Federal Defendants have stipulated that an evidentiary hearing with live witness testimony is unnecessary and that the Court may base its decision on the written record and oral argument of counsel. For the reasons that follow, the Court GRANTS Plaintiffs’ motion for preliminary injunction against the Federal Defendants.
STANDARDS A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit’s earlier rule that the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction). The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s alternative “serious questions” test. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).
an otherwise lawful order to disperse from city streets when journalists and legal observers seek to observe, document, and report the conduct of law enforcement personnel; but today is not that day.
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BACKGROUND A. Procedural History
Plaintiffs filed their original Complaint against the City on June 28, 2020. On June 30th, Plaintiffs moved for a TRO. On July 2nd, the Court entered a TRO against the City. On July 14th, Plaintiffs moved to file a Second Amended Complaint (“SAC”), adding the Federal Defendants to this lawsuit. On July 16th, the Court entered a stipulated preliminary injunction against the City. On July 17th, the Court granted Plaintiffs’ motion to file the SAC. Later that day, Plaintiffs filed their SAC and moved for a TRO against the Federal Defendants, which the City supported shortly thereafter. On July 23rd, the Court granted Plaintiffs’ motion for a TRO against the Federal Defendants, including many of the same terms contained in the TRO and stipulated preliminary injunction entered against the City. The TRO against the Federal Defendants was set to expire by its own terms on August 6th. On July 28th, Plaintiffs moved for a finding of contempt and imposition of sanctions against the Federal Defendants, alleging several violations of the Court’s TRO. On July 30th the Federal Defendants moved for reconsideration of the TRO, requesting that it be dissolved. On July 31st the Court stayed briefing on Plaintiffs’ contempt motion. On August 4th, Plaintiffs moved to extend the TRO against the Federal Defendants for an additional 14 days. On August 6th, after finding good cause, the Court granted Plaintiffs’ motion and extended the TRO against the Federal Defendants through August 20th and denied the Federal Defendants’ motion for reconsideration. B. Plaintiffs
Plaintiff Index Newspapers LLC doing business as Portland Mercury (“Portland Mercury”) is an alternative bi-weekly newspaper and media company. It was founded in 2000 and is based in Portland, Oregon. ECF 53, ¶ 21.
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Plaintiff Doug Brown has attended many protests in Portland, first as a journalist with the Portland Mercury and later as a volunteer legal observer with the ACLU. He has attended the George Floyd protests on several nights, wearing a blue vest issued by the ACLU that clearly identifies him as a legal observer, for the purpose of documenting police interactions with protesters. ECF 9, ¶¶ 1-2; ECF 53, ¶¶ 22, 97; ECF 55, ¶ 2.
Plaintiff Brian Conley has been a journalist for twenty years and has trained journalists in video production across a dozen countries internationally. He founded Small World News, a documentary and media company dedicated to providing tools to journalists and citizens around the world to tell their own stories. ECF 53, ¶ 131.
Plaintiff Sam Gehrke has been a journalist for four years. He previously was on the staff of the Willamette Week as a contractor. He is now a freelance journalist. His work has been published in Pitchfork, Rolling Stone, Vortex Music, and Eleven PDX, a Portland music magazine. He has attended the protests in Portland for the purpose of documenting and reporting on them, and he wears a press pass from the Willamette Week. ECF 10, ¶¶ 1-3; ECF 53, ¶ 23.
Plaintiff Mathieu Lewis-Rolland is a freelance photographer and photojournalist who has covered the ongoing Portland protests. He has been a freelance photographer and photojournalist for three years and is a contributor to Eleven PDX and listed on its masthead. After the Court issued its TRO directed against the City, he began wearing a shirt that said “PRESS” in block letters on both sides. He also wears a helmet that says “PRESS” on several sides, and placed reflective tape on his camera and wrist bands. ECF 12, ¶¶ 1-2; ECF 53 ¶ 24; ECF 77, ¶ 1, 3.
Plaintiff Kat Mahoney is an independent attorney and unpaid legal observer. She has attended the Portland protests nearly every night for the purpose of documenting police
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interactions with protesters. She wears a blue vest issued by the ACLU that clearly identifies her as an “ACLU LEGAL OBSERVER.” ECF 26, ¶ 3; ECF 75, ¶¶ 1-2.
Plaintiff Sergio Olmos has been a journalist since 2014, when he began covering protests in Hong Kong. He has worked for InvestigateWest and Underscore Media Collaboration, and as a freelancer. His work has been published in the Portland Tribune, Willamette Week, Reveal: The Center for Investigative Reporting, Crosscut, The Columbian, and InvestigateWest. He has attended the protests in Portland as a freelance journalist for the purpose of documenting and reporting on them. He wears a press badge and a Kevlar vest that says “PRESS” on both sides. He carries several cameras, including a film camera, in part so that it is unmistakable that he is present in a journalistic capacity as a member of the press. ECF 15, ¶¶1-3; ECF 53, ¶ 26.
Plaintiff John Rudoff is a photojournalist. His work has been published internationally, including reporting on the Syrian refugee crises, the “Unite the Right” events in Charlottesville, Virginia, the Paris “Yellow Vest” protests, and the Rohingya Genocide. He has attended the protests in Portland during the past two months for the purpose of documenting and reporting on them. Since this lawsuit began, he has been published in Rolling Stone, The Nation, and on the front page of the New York Times. While attending the Portland protests, he carries and displays around his neck press identification from the National Press Photographers Association, of which he has been a member for approximately ten years. He also wears a helmet and vest that is clearly marked “PRESS.” ECF 17, ¶¶ 1-3; ECF 53, ¶ 27; ECF 59, ¶¶ 1, 3.
Plaintiff Alex Milan Tracy is a journalist with a master’s degree in photojournalism. His photographs have been published by CNN, ABC, CBS, People Magazine, Mother Jones, and Slate, among others. He has covered many of the recent protests in Portland over George Floyd
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and police brutality. He carries a press badge and three cameras, and wears a helmet that is marked “PRESS” on the front and back. ECF 60, ¶¶ 1, 3.
Plaintiff Tuck Woodstock has been a journalist for seven years. Their work has been published in the Washington Post, NPR, Portland Monthly, Travel Portland, and the Portland Mercury. They have attended the George Floyd protests several times as a freelancer for the Portland Mercury and more times as an independent journalist. When they attended these protests, they wear a press pass from the Portland Mercury that states “MEDIA” in large block letters and a helmet that is marked “PRESS” on three sides. At all times during police-ordered dispersals, they hold a media badge over their head. ECF 23, ¶¶ 2-3; ECF 76, ¶¶ 1, 3.
Plaintiff Justin Yau is a student at the University of Portland studying communications with a focus on journalism. He previously served in the U.S. Army, where he was deployed to the Middle East. He has covered protests in Hong Kong and Portland. His work has been published in the Daily Mail, Reuters, Yahoo! News, The Sun, Spectee (a Japanese news outlet), and msn.com. He has attended the protests in Portland as a freelance and independent journalist for the purpose of documenting and reporting on them. He wears a neon yellow vest marked with reflective tape and a helmet that are marked “PRESS,” and carries his press pass around his neck. He carries a large camera, a camera gimbal (a device that allows a camera to smoothly rotate), and his cellphone for recording. ECF 56, ¶¶ 1-3. C. Plaintiffs’ Alleged Harm
Plaintiffs and other declarants have provided numerous declarations describing events in which they assert that employees, agents, or officers of the Federal Defendants targeted journalists and legal observers and interfered with their ability to engage in First Amendmentprotected activities. As discussed below, Plaintiffs provide many compelling examples in the record, some from before the Court entered the TRO against the Federal Defendants and some
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after. The following are just several examples selected by the Court from the extensive evidence provided by Plaintiffs. There are more.
1. Before the TRO was Issued On July 15, 2020, Plaintiff Justin Yau asserts that, while carrying photojournalist gear and wearing reflective, professional-looking clothing clearly identifying him as press, he was targeted by a federal agent and had a tear gas canister shot directly at him. ECF 56, ¶¶ 3-6. Two burning fragments of the canister hit him. Id. ¶ 6. At the time he was fired upon, he was taking pictures with his camera and recording with his cell phone while standing 40 feet away from protesters to make it clear that he was not part of the protests. Id. ¶ 5. Mr. Yau notes that from his experience covering protests in Hong Kong, “Even Hong Kong police, however, were generally conscientious about differentiating between press and protesters—as opposed to police and federal agents in Portland.” Id. ¶ 7. Declarant Noah Berger has been a photojournalist for more than 25 years. ECF 72, ¶ 1. He has been published nationally and internationally, including for coverage of protests in San Francisco and Oakland. Id. On July 19, 2020, he covered the protests on assignment for the Associated Press. He notes that the response he has seen and documented from the federal agents in Portland is markedly different from even the most explosive protests he has covered. Id. ¶ 3. He carries two large professional cameras and two press passes. Id. He states that without any warning he was shot twice by federal agents using less lethal munitions. Id. ¶ 4. Later, as federal agents “rushed” an area he was photographing, he held up his press pass, identified himself as press, stated he was leaving, and moved away from the area. Id. ¶ 7. While holding his press pass and identifying himself as press, he was hit with a baton by one federal agent. Id. ¶ 8. Two others joined and surrounded him, and he was hit with batons three or four times. Id. One agent then deployed pepper spray against Mr. Berger from about one foot away. Id. ¶ 9. He was given no
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warning. Id. ¶ 11. He states that he was not demonstrating or protesting, was leaving the area, and was clearly acting as a journalist. Id. ¶¶ 3, 11.
Late July 19th or early July 20th, Declarant Nathan Howard, a photojournalist who has been published in Willamette Week, Mother Jones, Bloomberg Images, Reuters, and the Associated Press, was covering the Portland protests. ECF 58, ¶¶ 1, 4. He was standing by other journalists, and no protesters, as federal agents went by. Id. ¶ 4. The nearest protester was a block away. Id. Mr. Howard held up his press pass and repeatedly identified himself as press. Id. ¶ 5. A federal agent stated words to the effect of “okay, okay, stay where you are, don’t come closer.” Id. ¶ 6. Mr. Howard states that another federal agent, who was standing immediately to the left of the agent who gave Mr. Howard the “okay,” aimed directly at Mr. Howard and fired at least two pepper balls at him at close range. Id. ¶ 7.
Declarant Jungho Kim is a photojournalist whose work has been published in the San Francisco Chronicle and CalMatters, among others. ECF 62, ¶ 1. He wears a neon yellow vest marked “PRESS” and a white helmet marked “PRESS” in the front and rear. Id. ¶ 2. He has covered protests in Hong Kong and California. He has experience with staying out of the way of officers and with distinguishing himself from a protester, such as by not chanting or participating in protest activity. Id. ¶ 3. He had never been shot at by authorities until covering the Portland protests on July 19, 2020. Id. During the protest, federal agents pushed protesters away from the area where Mr. Kim was recording. He was around 30 feet away from federal agents, standing still, taking pictures, with no one around him. Id. ¶¶ 5-7. He asserts that suddenly and without warning, he was shot in the chest just below his heart with a less lethal munition. Id. ¶ 7. Because he was wearing a ballistic vest, he was uninjured. He also witnessed, and photographed, federal agents firing munitions into a group of press and legal observers. Id. ¶ 9.
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Declarant Nate Haberman-Ducey is a law student at Lewis and Clark Law School. ECF 61, ¶ 1. He completed training with the National Lawyers Guild (“NLG”) and attended the protests several times as a legal observer. Id. He states that on July 19, 2020, while wearing his green, NLG-issued authorized legal observer hat, he was shot in the hand with a paint-marking round by a federal agent, while walking his bicycle through the park across from the federal courthouse. Id. ¶¶ 3-4. At the time, there were no other protestors or other people around Mr. Haberman-Ducey at whom the federal agent might have been aiming. Id. ¶ 5. The pain from injury to Mr. Haberman-Ducey’s right hand was so severe that he had to stop observing the protests and go to the emergency room, where doctors put his broken hand in a splint. Id. ¶¶ 7-8. He would like to keep observing the protests but is concerned that residue from tear gas fired by the federal agents will contaminate his splint, which he has to wear for four to six weeks. Id. ¶ 9.
Declarant Amy Katz is a photojournalist whose work has been published in the Wall Street Journal, the New York Daily News, the Guardian, TIME, Mother Jones, the Independent, the New York Times, and has been featured on Good Morning America and ABC News. ECF 117, ¶ 1. While covering the protests, she wears a hat and tank top marked with “PRESS” in bold letters and carries a camera with a telephoto lens. Id. ¶ 2. Early in the morning of July 21st, she was filming from the side while federal agents dispersed protestors. Id. ¶ 4-6. Several agents tried to disperse her, but she displayed her press pass and they left her alone. Id. ¶ 6. She asserts that a federal agent approached and motioned for her to disperse again a few minutes later. Id. ¶ 7. Ms. Katz again held up her press pass, but before she could process what was happening another agent fired pepper balls or similar munitions at her. Id. The first agent then dropped a tear gas grenade directly at her feet as Ms. Katz ran away, yelling that she was press. Id. She notes that there were no protestors the agents could have been aiming at because the protesters
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had already dispersed. Id. ¶ 8. The effects of the tear gas forced her to stop reporting and return to her hotel. Id. ¶ 9. The next day her eyes and lips burned, sunlight hurt her eyes, her tongue was swollen, and she had diarrhea. Id.
Declarant Sarah Jeong is an attorney, a columnist for The Verge, and a contributing writer to the New York Times Opinion section. ECF 116, ¶ 1. She attended the protests solely as a journalist, wore her press badge, and wore a helmet with “PRESS” in black letters on a white background on three sides. Id. ¶ 4. On the night of July 21st, Ms. Jeong was covering the protests from the steps of the courthouse when federal agents emerged from the building and charged the crowd. Id. ¶ 5. Ms. Jeong walked slowly backward, holding her press pass up in one hand and her phone in the other. Id. ¶ 6. With no warning and for no apparent reason, a federal agent shoved Ms. Jeong so forcefully that both her feet left the ground. Id. ¶ 7. She kept reporting that night but left much earlier than she had planned. Id. ¶ 8. Although she plans to keep covering the protests, she is fearful for her safety. Id.
Declarant James Comstock is a legal observer with the NLG. ECF 63, ¶ 1. On July 19th, a few minutes before midnight, he was watching the protests from the park across the street from the protests. Id. ¶ 2-3. He was wearing the standard NLG-issued green hat provided to legal observers. Id. ¶ 2. As protestors started to push the fence, he put on his gas mask and started to move away from the courthouse because he did not want to get tear gassed. Id. ¶ 3. He stopped on the opposite side of 4th Avenue, about 375 feet away from the front door of the courthouse. Id. He went to speak to a press member standing on the intersection of SW 4th and Main. Id. ¶ 4. After finishing his conversation with the press member, Mr. Comstock was standing in the same location alone with his back up against the wall. Id. Without warning, a federal agent shot Mr. Comstock in the hand with an impact munition while he was making notes on his phone. Id. ¶ 5.
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There were no protestors around and he was at least 6 feet from the reporter with whom he had just been speaking. Id. ¶ 6. Mr. Comstock states that he would like to keep attending the protests as a legal observer but that he is afraid of injury and fearful that he will be wrongfully arrested, endangering his job as a criminal defense investigator. Id. ¶¶ 8-9.
Early morning on July 22nd, Plaintiff Alex Milan Tracy was standing in the street and filming a group of federal officers who were standing on the sidewalk in front of the courthouse. ECF 74, Id. ¶ 4. Two of the officers from that group waved their batons at him and gestured for him to move back. Id. He retreated, and one of the officers briefly charged at him. Mr. Tracy then moved back farther into the middle of the street. Id. A few minutes later, he was filming the same group of federal officers from the same spot in the middle of the street. Id. ¶ 6. Agents from that same group raised their weapons and launched a flashbang at Mr. Tracy and another journalist, hitting them both. Id. ¶ 7. Mr. Tracy continued documenting the scene but finally left because the federal officers kept looking and pointing directly at him. Id. ¶¶ 7, 10. He was “genuinely terrified” of standing in front of the federal officers. Id. ¶ 10.
2. After the TRO was Issued Plaintiff Brian Conley has worked in war zones such as Iraq, Afghanistan, Libya, and Burundi. ECF 87, ¶ 1. He also has covered protests for many years in places such as Beijing, New York, Washington, D.C., Miami, Quebec City, and Oaxaca, Mexico. Id. He has encountered agents of the Federal Defendants in Portland on multiple days. At all times he was wearing a photographer’s vest with “PRESS” written on it and a helmet that said “PRESS” in large block letters across the front. Id. ¶ 2. He was also carrying a large camera with an attached LED light and telephoto lens. Id. Early in the morning of July 24th, Mr. Conley filmed federal agents seizing a woman who was dancing with flowers in front of the officers. Id. ¶ 3-4. At that point, the crowd was
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mostly press and a few individual protestors. Id. ¶ 3. Federal agents launched tear gas into the streets, and Mr. Conley yelled that he was press to avoid being further tear gassed. Id. ¶ 6. Mr. Conley was then shot with impact munitions in the chest and foot. Id. ¶ 7. Video of this event shows that the situation grew tense as a protester attempted to interfere with the agents’ seizure of the woman. As the agents finalized the seizure of the woman and the interfering protester and retreated into the federal courthouse with the woman and the interfering protester, they laid sweeping cover fire into the remaining crowd, which included Mr. Conley and other press members, even though no protester was near Mr. Conley at the time. After the officers were safely within the building, Mr. Conley continued recording. The video shows that Mr. Conley was outside next to another photographer. A medic and his protector were behind a shield on one side several yards away and a protester yelling taunts was on the other side several yards away. As Mr. Conley was filming, a federal agent on the other side of the courthouse fence shone a bright light at Mr. Conley. Shortly thereafter, without warning, a federal agent shot a tear gas canister above Mr. Conley’s head. Mr. Conley also describes this in his declaration. Id. ¶ 9.
Mr. Conley took the next two nights off and returned to cover the protests the night of July 27th. Id. ¶¶ 17, 18. He was documenting a line of federal agents advancing on a group of six protestors with shields who were standing behind him. Id. ¶ 18. He yelled that he was press, but the federal agents unleashed a barrage of munitions at him. Id. ¶ 19. He moved to the side, away from the protestors, and continued to yell that he was press. Id. ¶ 20. The federal agents briefly stopped firing, one shone a flashlight at him, and resumed fire directly at him, striking him multiple times—although by this point there was nobody else near him. Id. Another federal agent threw a flashbang grenade directly at him. Id. Mr. Conley could “barely walk” after the events of July 27-28. Id. ¶ 25.
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Mr. Conley was covering the protests again just before midnight on July 29th. ECF 115, ¶ 4. He had replaced the “PRESS” lettering on his helmet because the concussion and flashbang grenades thrown at him the night before had blown off one of the letters. Id. ¶ 2. He was filming federal agents on SW Salmon Street between SW 2nd and SW 3rd Avenue. Id. ¶ 4. There was one other photographer between him and the small group of agents. Id. One of the agents shone a light on Mr. Conley and fired a munition just beside him. Id. Another federal agent with an assault rifle approached Mr. Conley and told him to stay on the sidewalk. Id. ¶ 5. Later that night, without warning, federal agents pepper sprayed Mr. Conley at point blank range. Id. ¶ 6. Video of this event shows that while Mr. Conley was filming a line of federal officers moving down the street pepper spraying peaceful protesters, including spraying a woman in the face at point blank range who was on her knees with her hands up in the middle of the street, an officer pepper sprayed Mr. Conley at point blank range along with indiscriminately pepper spraying other press and the protesters. Mr. Conley states that he fears for his safety but plans to keep covering the protests because he believes “it is critically important to do so.” Id. ¶ 11.
Declarant Amy Katz again covered the protests on the early morning of July 27th. ECF 117, ¶ 10. She witnessed a federal agent push a man down a flight of stairs while arresting him and photographed the incident. Id. An agent physically blocked her and tried to stop her from photographing the arrest. Id. When she stepped to the side to get another angle, the federal agent physically shoved her away. Id. Later that night, she approached a group of federal officers with a group of press, all of whom had their press badges up and their hands in the air. Id. ¶ 12. The video of this event shows that many of the group were calling out “press.” Ms. Katz describes that she and the group of press were at least 75 feet away from most of the protestors when federal agents bombarded their group with munitions, hitting her in the side and causing a
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large contusion. Id. The video shows the group of press moving together off to the far side of the sidewalk, holding their passes up along with cameras, shouting press and saying “hold your passes up.” The group is moving toward the federal officers, recording events, when they are fired upon with various munitions. Ms. Katz stopped covering the Portland protests after that incident because of how the federal agents treated her. Id. ¶ 15.
Declarant Rebecca Ellis is a staff reporter for Oregon Public Broadcasting (“OPB”). ECF 88, ¶ 1. She attended the protests the night of July 23rd wearing her OPB press pass, which shows her name, her photograph, and the OPB logo. Id. ¶ 2-3. Around 1:30 a.m. she was in a small group of press members filming federal agents exiting the federal courthouse. Id. ¶ 3. One agent fired a munition directly at her, hitting her in the hand. Id. Video of this incident shows that she is hit when agents advance in a group and fire multiple munitions. Ms. Ellis appears to be in the middle of the street when she is hit. There are also persons crossing in front of Ms. Ellis, who appear also to be press, at the time she is shot. It is unclear who is behind her when she is hit. Ten minutes later, however, federal agents forced her and other press to disperse from near the courthouse. Id. ¶ 5. One agent walked towards them shouting “MOVE, MOVE” and “WALK FASTER” in their faces while another agent kept pace next to him, holding his gun. Id. Video of this dispersal shows that it is directed at press, in an intimidating manner, despite a press person stating, “You can’t do that.” The video does not seem to support that the press were in the way or otherwise impeding law enforcement actions. Ms. Ellis states that the federal agents prevented her from doing her job and reporting on what was going on behind them. She intends to keep covering the protests but is fearful for her safety. Id. ¶ 6.
Declarant Kathryn Elsesser is a freelance photographer whose photographs of the Portland protests have been published by Bloomberg, CBS News, and Yahoo, among others,
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including many international publications. ECF 89, ¶ 1. She covered the protests the night of July 24th on assignment from a French news agency. Id. ¶ 2. She carried a large camera, wore a press pass from the American Society of Media Photographers, and wore a helmet with “PRESS” written in big letters across the front. Id. Around 2 a.m. on July 25th, Ms. Elsesser decided to end her coverage early because she did not have a bullet-proof vest and was afraid federal agents would hurt her. Id. ¶ 4. She was standing by herself, across the street from the courthouse, at the edge of the park. Id. There was nobody else near her. Id. A federal agent shot her in the arm with an impact munition as she was walking away. Id. ¶ 5. She believes that the federal agents targeted her because she was taking photographs. Id. ¶ 6. Ms. Elsesser states that she would refuse to cover the protests again unless she had a bullet-proof vest because she is afraid that federal agents will injure her or worse. Id. ¶ 13.
Declarant Emily Molli is a freelance photojournalist whose photographs have been published in the New York Times, the Wall Street Journal, the Guardian, ProPublica, and others. ECF 118, ¶ 1. She is experienced in covering civil unrest, riots, and other dangerous situations. She has reported on the protests in Hong Kong over the course of six months, the “Yellow Vests” in France over the course of a year, the Catalan independence movement, and the protests and riots in Greece. Id. ¶ 2. She understands the risk of getting hit by less lethal munitions while standing with protesters, but she objects to federal officers targeting press, which she states she has witnessed happening in Portland. Id. She wears a helmet with “PRESS” in big block letters and carries two press passes and a large professional-grade video camera. Id. ¶ 3. Early in the morning of July 27, 2020, after getting shot and injured when she had been approximately 75 yards from protesters, Ms. Molli decided to stick with a group of only journalists. Id. ¶¶ 7-8. The video of this event shows that they were holding their press passes up, mostly staying together as
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a group, and staying toward the side of a street that appears otherwise empty. Federal officers fired munitions at the group of journalists. Id. ¶ 8. On July 29, 2020 and into the early morning of July 30th, Ms. Molli recorded another encounter between journalists and federal officers on SW Main Street. Id. ¶ 10. Video of this event shows that there were numerous law enforcement personnel, several journalists, and no protesters on that section of the street. Journalists are taking pictures and video of a tear gas canister that had been fired by federal agents when a federal agent fires another tear gas round at the journalists. Ms. Molli intends to keep covering the protests, but she fears for her safety because she has seen the federal agents disobey a court order. Id. ¶ 11.
Declarant Daniel Hollis is a videographer for VICE News. ECF 91, ¶ 1. He has covered many chaotic and dangerous situations, including conflict zones in Iraq and Syria, former Taliban areas in Pakistan, child sex-trafficking raids in the Philippines, Iranian militias, gangs, mafia, domestic terrorism, and armed militias. Id. He covered the Portland protests for two nights. Id. ¶ 2. During the protests, he carried a VICE press pass and a helmet with “PRESS” on it in bright orange tape. Id. He also carried a large, professional video-recording camera. Id. On July 26th, Mr. Hollis was filming wide-angle footage of a mass of protestors in front of the courthouse. Id. ¶ 4. The people closest to him were press and legal observers—the nearest protestors were several yards behind him. Id. ¶ 7. He then turned to record a group of federal agents massed outside the courthouse. Id. ¶ 5. Almost immediately, the agents shot at him, striking him just to the left of his groin. Id. He turned to run away, and another munition hit him in the lower back. Id. ¶ 6. Video of this event shows that Mr. Hollis was positioned between the federal agents and those few protesters (not the mass of protesters who were around the building), but the video does not reflect any violent or riotous behavior by anyone near Mr.
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Hollis. After the federal agents shot him, Mr. Hollis went back to his hotel. Id. ¶ 8. He states that he is more concerned for his personal safety than he was during the month he spent covering ISIS sleeper cells in Northern Syria. Id. ¶ 9. He states: “I have been around heavily armed soldiers, militias, and gangs countless times, but have never had weapons aimed or discharged directly at me. The federal agents I have seen in Portland have been less willing to distinguish between press and putative enemies than any armed combatants I have seen elsewhere.” Id.
Declarant Jonathan Levinson is an Oregon resident who lives in Portland. ECF 93, ¶ 1. He is a staff reporter for OPB. His work also has appeared on NPR and ESPN, and in the Washington Post, the Wall Street Journal, and Al Jazeera. Id. He has experience in conflict zones. He spent five years as an infantry officer in the U.S. Army, with two deployments to Iraq. Id. ¶ 2. As a reporter, he has covered the Libyan civil war and done work in Afghanistan, Yemen, Gaza, and the West Bank. Id. He has covered the Portland protests for a majority of the nights. When covering the protests, he wears his press pass issued by OPB, which contains his name, photograph, the OPB logo, and the word “MEDIA.” Id. ¶ 3. He also wears a helmet that says “PRESS” in large letters on the front and back and carries two professional cameras. Id. At around 1:00 a.m. on July 24th, the federal agents had cleared the area next to the courthouse so he decided to take pictures of the agents through the courthouse fence. Id. ¶ 4. There were very few protesters anywhere nearby. As he was trying to focus his professional camera, he could see a federal agent raise and aim his weapon and fire several rounds directly at Mr. Levinson. Id. ¶ 5. His camera and lens were covered in paint from the agent’s rounds. Mr. Levinson states that he intends to continue covering the protests because he believes they are of historic significance, but that he is fearful for his safety because within hours of the Court issuing its restraining order, he “saw federal agents brazenly violate it.” Id. ¶ 7.
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D. Declarations of Plaintiffs’ Expert Witness Gil Kerlikowske4 Plaintiffs submitted two declarations from Mr. Gil Kerlikowske, whom the Court finds to
be a qualified, credible, and persuasive expert witness. ECF 135, 145. Mr. Kerlikowske is a former Commissioner of U.S. Customs and Border Protection, and he was confirmed by the U.S. Senate. Mr. Kerlikowske also served as the Chief of Police in Seattle, Washington from 2000 through 2009, and the Police Commissioner in Buffalo, New York. He has worked in law enforcement for 47 years. He served in the United States Army and Military Police from 1970 through 1972, where he began training in crowd control, riots, and civil disturbances. He also has served as the Director of the Office of National Drug Control Policy and as Deputy Director of the U.S. Department of Justice, Office of Community Oriented Policing Services. He has been an IOP Fellow at Harvard Kennedy School of Government and teaches as a distinguished visiting fellow and professor of the Practice in Criminology and Criminal Justice at Northeastern University. During his tenure as Chief of Police in Seattle, Mr. Kerlikowske led and orchestrated the policing of hundreds of large and potentially volatile protests, many of which were considerably larger than the recent protests in Portland. He did the same thing when he was Police Commissioner in Buffalo. Mr. Kerlikowske has had substantial training and experience with crowd control and civil unrest in the context of protests, use of force in that context, and use of force generally.
4 After oral argument, the Federal Defendants filed the Declaration of Chris A. Bishop, the “Acting Director/Deputy Director,” for the U.S. Department of Homeland Security, U.S. Customs and Border Protection (CBP). ECF 152. The Federal Defendants offer this declaration as an expert rebuttal to the two declarations of Mr. Kerlikowske. Plaintiffs have moved to strike Mr. Bishop’s declaration as untimely. ECF 154. The Court denies Plaintiffs’ motion to strike. The Court finds the declaration of Mr. Kerlikowske to be more persuasive than the declaration of Mr. Bishop.
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Plaintiffs asked Mr. Kerlikowske to evaluate whether the relief stated in the TRO against the Federal Defendants is both safe and workable from a law enforcement perspective, whether the force that federal authorities used against journalists and legal observer complainants was reasonable, and whether it is advisable to prominently mark federal agents with unique identifying letters or numbers. First, Mr. Kerlikowske opined that the prohibitions contained in the TRO are safe for law enforcement personnel. Defending the federal courthouse in Portland mainly involves establishing a perimeter around the building, and there is no reason to target or disperse journalists from that position. Additionally, to the extent officers leave federal property, the TRO is also safe for federal law enforcement officers, according to Mr. Kerlikowske.
Second, Mr. Kerlikowske stated his expert opinion that the TRO is workable. He states that trained and experienced law enforcement personnel are able to protect public safety without dispersing journalists and legal observers and can differentiate press from protesters, even in the heat of crowd control. He adds that any difficulties that may be faced by federal authorities arise from their lack of training, experience, and leadership with experience in civil disturbances and unrest.
Third, Mr. Kerlikowske explains that based on his review of the record evidence virtually all the injuries suffered by the complaining journalists were the result of improper use of force, including shooting people who were not engaged in threatening acts and misuse of crowd-control munitions by federal law enforcement personnel. For example, Mr. Kerlikowske opines that tear gas canisters and pepper balls should not be fired directly at people. He also opines that rubber bullets should not be shot above the waist, and certainly not near the head. He further opines that in these circumstances, it is inappropriate to shoot someone in the back because at that point they are not a threat.
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Finally, Mr. Kerlikowske asserts that in his expert opinion a key duty and responsibility of law enforcement is to be properly and easily identifiable specific to the organization and the individual. He notes that if a decision is made to remove a name tag, it must be replaced with some other identifying label, badge, or shield number. Mr. Kerlikowske explains that such markings increase accountability and act as a check and deterrent against misconduct. He adds that camouflage uniforms are inappropriate for urban settings.
As noted, the Court finds Mr. Kerlikowske to be a well-qualified expert whose opinions are relevant, helpful, and persuasive. E. The Situation Faced by Law Enforcement
After the killing of George Floyd on Memorial Day, there have been consistent protests against racial injustice and police brutality in Portland. ECF 67-1, Russell Decl. ¶ 3. The protesters generally are peaceful, particularly during the day and early evening. See ECF 113-3, Jones Decl. ¶ 7. Late at night, however, there are incidents of vandalism, destruction of property, looting, arson, and assault. ECF 67-1, ¶ 3. While protestors originally gathered outside the Justice Center (PPB headquarters), some protestors soon directed their attention to the Mark O. Hatfield Federal Courthouse, across the street from the Justice Center. After additional federal officers were deployed to Portland to support existing Federal Protective Service (“FPS”) and USMS personnel, the protests grew larger and more intense, and the federal courthouse became a focus of attention. Id. at ¶ 5.
In early July, a group of people broke the glass doors at the entryway of the federal courthouse. Id. Members of this group used accelerant and commercial fireworks in an apparent attempt to start a fire inside the courthouse. Id. On other nights in July, various objects were thrown at law enforcement, such as rocks, glass bottles, and frozen water bottles. Id. at ¶ 6; ECF 101-6, CBP NZ-1 Decl. ¶ 8. Assistant Director for the Tactical Operations Division of the
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USMS Andrew Smith describes the environment of the protests as “extremely chaotic and dynamic” and emphasizes that law enforcement must make split-second decisions. ECF 101-1, Smith Decl., ¶ 6. A DHS Public Affairs Specialist identified as CBP PAO #1 states that he observed a person holding a Molotov cocktail. ECF 101-2, ¶ 7. Officers have had to extinguish fires and flaming debris, some of which has been thrown over the fence in officers’ direction. See ECF 106-1, Smith Am. Decl. ¶ 15; ECF 101-3, FPS No. 824 Decl. ¶ 5.
The situation has been dangerous for federal agents, in addition to protesters, journalists, and legal observers. Gabriel Russell, FPS Regional Director for Region 10 and commander of DHS’s Rapid Deployment force for Operation Diligent Valor in Portland, notes that as of his declaration submitted on July 29th, 120 federal officers had experienced some kind of injury, including broken bones, hearing damage, eye damage, a dislocated shoulder, sprains, strains and contusions. ECF 101-5, ¶ 4. The Patrol Agent in Charge of Customs and Border Protection, U.S. Border Patrol, identified as CBP NZ-1, describes agents being hit with rocks and ball bearings from sling shots, improvised explosives, commercial grade aerial fireworks, high intensity lasers targeting officer’s eyes, thrown rocks, full and empty glass bottles, frozen water bottles, and balloons filled with paint and feces. ECF 101-6, ¶ 8. He notes that one officer was hit by a projectile that caused a wound that required multiple stitches and one officer was struck in the head and shoulder by a protester wielding a sledgehammer when the officer tried to prevent the protester from breaking down the courthouse door. Id. Another federal officer states that he has suffered numerous injuries during the protests, including being struck in the shins by tear gas canisters, suffering temporary hearing loss from commercial fireworks, and suffering temporary blindness from lasers. ECF 101-3, FPS No. 824 Decl. ¶ 6. The Federal Defendants do not assert
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that journalists or legal observers caused these injuries. See, e.g., ECF 136-3 at 10-11, CBP NZ-1 Dep. Tr. 72:10-73:1.
The Federal Defendants, however, do assert that some persons wearing the indicia of press have engaged in violent or unlawful behavior. Mr. Smith states that USMS personnel witnessed a person with a helmet marked “press” use a grinder to attempt to breach the fence surrounding the courthouse. ECF 106-1, ¶ 10. Another person wearing a press helmet entered courthouse property, either by climbing the perimeter fence or crossing when the fence was breached. Id. ¶ 11. A different person with press clothing helped a protestor climb the perimeter fence. Id. at ¶ 14. Mr. Smith also received a report that a staff member was kicked by someone wearing clothing marked “press.” Id. at ¶ 15.
Mr. Russell submitted links to several videos purporting to show improper conduct by persons with indicia of press. ECF 101-5, ¶ 8. The Court reviewed those videos and did not find persuasive evidence of any wrongdoing related to persons wearing indicia of press with two exceptions. The first are the videos of Mr. Brandon Paape, who admits that he is not press but is wearing clothing marked “press” because he was assaulted by federal agents and hoped wearing clothing that indicates he is press would protect him from further violence. Id. ¶ 8(e), (f). The videos, however, do not provide evidence that Mr. Paape did anything unlawful. He masqueraded as press for personal protection. Additionally, shortly thereafter, he posted on Twitter that he will no longer wear indicia of press. See ECF 123 at 12. The videos of Mr. Paape do show, however, that persons other than actual journalists have worn indicia of press. The second is the video of a person wearing a “press” helmet who entered courthouse property and encouraged others to join. ECF 101-5, ¶ 8(h). He states: “They can’t arrest us all.” This, however, is the same person from Mr. Smith’s photograph, ECF 106-1 ¶ 11 (Exhibits B and C).
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The Federal Defendants also provide additional declarations describing further conduct. A man wearing a vest stating “press” threw a hard object toward police. ECF 101-3, FPS No. 824 Decl., ¶ 5. Another such person shielded from police a woman who was shining strobe lights into the eyes of an officer. Id. One person with handwritten markings reading “PRESS” directed a powerful flashlight at a law enforcement helicopter overhead but was not filming or taking photos or notes. ECF 101-2, CBP PAO #1 Decl. ¶ 9. A photo of this man depicts him standing very close to another man holding a camera. Id. It is unclear if the man with the powerful light was lighting for the cameraman or was masquerading as press to use light as a law enforcement irritant. Another federal officer states that on one occasion he witnessed persons wearing press indicia shield other persons who were throwing objects at law enforcement. ECF 101-4, FPS No. 882 Decl. ¶ 5. Finally, CBP PAO #1 notes that people self-identified as press are frequently in the midst of crowds near individuals breaking laws, which makes it difficult to disperse protestors without dispersing journalists as well. ECF 101-2, ¶ 12. The Federal Defendants also consistently note that press intermingle with protesters and stand by (or perhaps record) when protesters engage in purportedly wrongful conduct.
DISCUSSION A. Standing
The Federal Defendants argue that Plaintiffs do not have standing to request injunctive relief. The Federal Defendants concede that “the standing inquiry is focused on the filing of the lawsuit” but then assert that standing must be proven at “successive stages of the litigation” and make the same standing arguments that they made during the TRO. In issuing the Temporary Restraining Order Enjoining Federal Defendants, the Court rejected the Federal Defendants’ arguments regarding standing and found that Plaintiffs had Article III standing. See Index Newspapers LLC v. City of Portland, --- F.3d ---, 2020 WL 4220820, at *4-5 (D. Or. July 23,
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2020). To the extent the Federal Defendants request reconsideration of that decision, arguing that based on facts as they existed at the time of the filing of the Complaint Plaintiffs do not have standing, reconsideration is denied.5 The Federal Defendants provide no compelling basis for the Court to modify its previous determination.
To the extent the Federal Defendants argue that Plaintiffs must continue to prove standing as this lawsuit continues and the facts evolve, the Federal Defendants misunderstand the doctrines of standing and mootness. Article III standing is evaluated by considering the facts as they existed at the time of the commencement of the action. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (noting that “we have an obligation to assure ourselves that FOE had Article III standing at the outset of the litigation”); Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007) (“The existence of standing turns on the facts as they existed at the time the plaintiff filed the complaint.”).
Whether standing and the other requirements for a live case or controversy exists throughout the entirety of a case is considered under the doctrine of mootness. See Barry v. Lyon, 834 F.3d 706, 714 (6th Cir. 2016) (“To uphold the constitutional requirement that federal courts hear only active cases or controversies, as required by Article III, section 2 of the federal constitution, a plaintiff must have a personal interest at the commencement of the litigation (standing) that continues throughout the litigation (lack of mootness).”); Vasquez v. Los Angeles
5 The Federal Defendants offer no authority for the notion that this Court must repeatedly litigate the same issue. The Federal Defendants are bound by the “law of the case” doctrine for determinations made by this Court, absent reconsideration or changed circumstances such as if new Plaintiffs were added who the Federal Defendants contended did not have standing. At any appeal stage of this litigation, however, “the standing requirement therefore must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (simplified).
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Cty., 487 F.3d 1246, 1253 (9th Cir. 2007) (noting that mootness is the doctrine under which courts ensure that “a live controversy [exists] at all stages of the litigation, not simply at the time plaintiff filed the complaint”); Becker v. Fed. Election Comm’n, 230 F.3d 381, 386 n.3 (1st Cir. 2000) (noting that Lujan “clearly indicat[es] that standing is to be ‘assessed under the facts existing when the complaint is filed’” and that evaluating standing thereafter “conflates questions of standing with questions of mootness: while it is true that a plaintiff must have a personal interest at stake throughout the litigation of a case, such interest is to be assessed under the rubric of standing at the commencement of the case, and under the rubric of mootness thereafter”); McFalls v. Purdue, 2018 WL 785866, at *8-10 (D. Or. Feb. 8, 2018) (discussing the difference between standing and mootness). Therefore, the Federal Defendants’ arguments that Plaintiffs must demonstrate standing at “all stages of the litigation,” fail to do so now, and thus fail to present a case or controversy are more appropriately raised under the doctrine of mootness, to which the Court now turns. See, e.g., Barry, 834 F.3d at 714; Vasquez, 487 F.3d at 1253; Becker, 230 F.3d at 386 n.3; Tellis v. LeBlanc, 2020 WL 1249378, at *5 (W.D. La. Mar. 13, 2020); Rhone v. Med. Bus. Bureau, LLC, 2019 WL 2568539, at *3 (N.D. Ill. June 21, 2019); Fancaster, Inc. v. Comcast Corp., 2012 WL 815124, at *5 (D.N.J. Mar. 9, 2012). B. Mootness
The Federal Defendants do not specifically argue that Plaintiffs’ claims are moot based on any new facts or circumstances. Because the Federal Defendants appear to argue that Plaintiffs now lack standing based on changed circumstances, the Court considers whether the Federal Defendants’ voluntary change in enforcement tactics moots Plaintiffs’ claims. The augmented force of federal enforcement officers currently remain in Portland, ready to deploy whenever ordered, but have recently deployed only in limited circumstances and have not
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recently engaged in the crowd control tactics that supported the Court’s original TRO in this case.
For a short time, the Oregon State Police took the lead in enforcing crowd control in Portland. That appears to have ended, and the Portland Police have now resumed performing that role. The out-of-town agents and officers of the Federal Defendants who have been deployed to Portland, however, and whose actions were the basis of the Court’s TRO, remain in Portland. Further, they have no scheduled date of departure.
To determine mootness, “the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.” Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988) (emphasis in original) (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir. 1986)). If a course of action is mostly completed but modifications can be made that could alleviate the harm suffered by the plaintiff’s injury, the issue is not moot. Tyler v. Cuomo, 236 F.3d 1124, 1137 (9th Cir. 2000). A case becomes moot “only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quotation marks omitted). The party alleging mootness bears a “heavy burden” to establish that a court can provide no effective relief. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (quoting Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006)).
Further, voluntary cessation of conduct moots a claim only in limited and narrow circumstances. As explained by the Supreme Court:
The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free to return to his old ways. A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to
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recur. Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. This is a matter for the trial judge. But this case is not technically moot, an appeal has been properly taken, and we have no choice but to decide it. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982) (simplified); see also F.T.C. v. Affordable Media, 179 F.3d 1228, 1238 (9th Cir. 1999) (“A case may become moot as a result of voluntary cessation of wrongful conduct only if ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’” (quoting Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 854 (9th Cir. 1985))). The Ninth Circuit has noted that “an executive action that is not governed by any clear or codified procedures cannot moot a claim.” McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015). The Ninth Circuit also advises courts to be “less inclined to find mootness where the new policy could be easily abandoned or altered in the future.” Rosebrock v. Mathis, 745 F.3d 963, 972 (9th Cir. 2014) (simplified). The Federal Defendants’ voluntary change in enforcement tactics does not moot Plaintiffs’ claims. There remains effective relief that the Court can provide for Plaintiffs. Further, the change in enforcement tactics is not part of any clear or codified procedures. It could easily be abandoned or altered in the future. Indeed, the Federal Defendants have stated that they specifically intend to abandon or alter in the future the current posture and become actively involved again if local police do not perform in a manner acceptable to the Federal Defendants or are otherwise unable to secure the federal courthouse in Portland in a manner acceptable to the Federal Defendants.6 Whether this current and potentially temporary change in enforcement tactics affects Plaintiffs’ likelihood of irreparable harm is addressed in Section D.2 below.
6 See, e.g., ECF 147-1 at 3 (USMS responding to a Request for Admission that it would no longer police Portland protests by stating: “USMS cannot know whether state law
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C. Factors for Preliminary Injunctive Relief
1. Likelihood of Success on the Merits
Plaintiffs allege both First Amendment retaliation and a violation of their First
Amendment right of access.7 Plaintiffs must show a likelihood of success on the merits (or at
least substantial questions going to the merits) on at least one of these two claims. Plaintiffs
satisfy this requirement.
a. First Amendment Retaliation
To establish a claim of First Amendment retaliation, Plaintiffs must show that: (1) they
were engaged in a constitutionally protected activity; (2) the Federal Defendants’ actions would
chill a person of ordinary firmness from continuing to engage in the protected activity; and
enforcement efforts will continue or whether those efforts will sufficiently protect federal property” and providing a nearly identical response in denying a request for admission that USMS would not engage with journalists or legal observers at a Portland protest); ECF 147-2 at 3 (USMS responding to an interrogatory regarding its plans to remove the additional support personnel sent to Portland: “With respect to the withdrawal of additional personnel deployed to Portland, their withdrawal will depend on unknown future circumstances in Portland and presence of any threat to the federal judiciary or property.”); ECF 147-3 at 3 (DHS providing nearly identical responses to the similar Requests for Admission); ECF 147-4 at 4 (DHS responding that the “cessation of Operation Diligent Valor will depend on unknown future circumstances in Portland. . . . The other DHS officers and agents deployed to Portland to assist FPS in the protection of the Hatfield U.S. Courthouse and federal facilities in Portland will remain in Portland until the Department makes an operational security determination that their presence is no longer required to protect federal facilities there.”); ECF 147-4 at 3 (DHS affirming as truthful the statements in the press release filed with the Court in ECF 124-1, including the statement from Acting Secretary Chad Wolf that “the increased federal presence in Portland will remain until [DHS] is certain the federal property is safe and a change in posture will not hinder DHS’s Congressionally mandated duty to protect it. While the violence in Portland is much improved, the situation remains dynamic and volatile, with acts of violence still ongoing, and no determination of timetables for reduction of protective forces has yet been made. Evaluations remain ongoing.”).
7 Plaintiffs also allege claims under the Fourth Amendment and Oregon’s state Constitution, but did not argue those claims in their motion for preliminary injunction. Thus, the Court only considers Plaintiffs’ likelihood of success on their First Amendment claims.
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(3) the protected activity was a substantial or motivating factor in the Federal Defendants’ conduct. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006). For the first factor, Plaintiffs have shown that they are engaged in constitutionally protected activity under the First Amendment. Plaintiffs are engaged in newsgathering, documenting, and recording government conduct. See, e.g., Leigh, 677 F.3d at 898 (recognizing First Amendment protection for “the press and public to observe government activities”); United States v. Sherman, 581 F.2d 1358, 1360 (9th Cir. 1978) (noting that the “ability to gather the news” is “clearly within the ambit of the First Amendment”). The Federal Defendants do not dispute this factor.
Regarding the second factor, the Federal Defendants argue that Plaintiffs’ assertion that they intend to continue to cover the protests in Portland or that they have a continuing fear of future physical force or threat by the Federal Defendants is subjective and insufficient. The Court rejects that argument. The enforcement tactics of the Federal Defendants would chill a person of ordinary firmness from continuing to engage in the protected activity. “Ordinary firmness” is an objective standard that will not “allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity.” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999). Before the TRO was in place, Plaintiffs submitted numerous declarations, photographs, and videos describing and depicting instances when journalists and legal observers were targeted. This includes Mr. Howard being shot at close range despite complying with a federal officer’s order to stay where he was. It also includes Mr. Kim and Mr. Yau being shot when they were not near protesters. It further includes Mr. Berger being beaten with a baton.
The Court also has reviewed all of the testimony and videos submitted by Plaintiffs after the Court issued its TRO. Although some of that evidence is ambiguous or less persuasive, some
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of it describes or shows conduct that appears to target journalists and legal observers, as opposed to incidentally or inadvertently reaching them as part of reasonable crowd control or enforcement against violent offenders. This evidence includes a federal officer forcing reporter Ms. Ellis to disperse on July 24, 2020 in a manner that would be intimidating to a reasonable person, despite the Court’s TRO providing that press shall not be required to disperse. It also includes a federal officer spraying mace or pepper spray directly into the faces of clearly marked legal observers from only a few feet away. The evidence further includes a federal officer shooting a less lethal munition on July 23rd directly at Mr. Conley and another photographer, both clearly identifiable as press, after shining a bright light on them to identify them, and when the person nearest to them was a clearly identified medic standing behind a shield several feet away. It also includes video from Ms. Molli in the early morning of July 30, 2020, one week after the TRO was issued, showing law enforcement agents firing on a group of journalists when only other law enforcement agents were nearby.
The declarations submitted both before and after the TRO also describe that because of the Federal Defendants’ conduct, journalists and legal observers were forced to stop newsgathering, documenting, and observing for minutes, hours, or days due to injury and trauma. This includes Mr. Haberman-Ducey being unable to observe due to his broken hand, Mr. Rudoff being unable to return for two days due to being shot in the leg, Mr. Conley having to take some time away because he could “barely walk” after his injuries, Ms. Elsesser stating that she would refuse further assignments in Portland unless she was provided with a bullet proof vest because of her injuries, Mr. Hollis leaving early after he was shot, and Ms. Jeong leaving earlier than she had planned.
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Indeed, some journalists decided never to return because of fear for their personal safety. See, e.g., ECF 81 at 4 (Mr. Steve Hickey stating: “I do not intend to continue covering the protests in Portland after tonight, in part because I am fearful that federal agents will injure me even more severely than they did on the night of July 19 and morning of July 20 when they intentionally shot at my face, twice, when I was not even near any protestors.”); ECF 117 at 5 (Ms. Katz stating: “Because of how federal agents treated me, I have stopped covering the Portland protests.”). Most of the declarants, however, emphasize that they intend to continue covering or observing the protests despite their fear of continued injury or targeting by the Federal Defendants. This fear is not unreasonable or speculative. Plaintiffs and the other declarants were repeatedly subject to violent encounters with federal officers when covering the Portland protests. It is not hypothetical or mere conjecture. Instead, it is likely that they and other journalists and legal observers will face such treatment again if they cover protests in Portland policed by agents of the Federal Defendants. Moreover, the mere threat of harm, without further action, can have a chilling effect. Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009).
The Court recognizes that that there are some violent individuals at these protests, including some who throw dangerous items at law enforcement officers, such as rocks, frozen water bottles, fireworks, and Molotov cocktail-type devices. Law enforcement also face arson events, including in dumpsters and debris being piled and set on fire. The situation can be dangerous and difficult for law enforcement. The fact that there are some violent offenders, however, does not give the Federal Defendants carte blanche to attack journalists and legal observers and infringe their First Amendment rights. See Black Lives Matter Seattle-King Cty. v. City of Seattle, Seattle Police Dep’t, 2020 WL 3128299, at *3 (W.D. Wash. June 12, 2020). Further, many declarants note that they have covered protests in war zones around the world and
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in areas with riotous protests such as Hong Kong, Oakland, and Seattle, and have never been subjected to the type of egregious and violent attacks by law enforcement personnel as they have suffered in Portland. If military and law enforcement personnel can engage around the world without attacking journalists, the Federal Defendants can respect Plaintiffs’ First Amendment rights in Portland, Oregon.
In addition, the change in enforcement tactics does not serve to remove the chilling effect of the Federal Defendants’ conduct for the same reason it does not moot Plaintiffs’ claims. It is subject to change without notice and whenever the Federal Defendants assert that it is needed. It also has been the subject of conflicting public statements, which would not give a person of ordinary firmness confidence that the Federal Defendants are not poised and ready to return to the streets of Portland at any moment and to continue with the previous modus operandi.
Regarding the third factor, the Federal Defendants argue that Plaintiffs fail to show that any protected activity was a substantial or motivating factor in any purported conduct. The Federal Defendants assert that in every video submitted by Plaintiffs after the TRO went into effect, every journalist or authorized legal observer who was purportedly targeted was standing between law enforcement officers and protesters and sometimes also standing next to or behind protesters. Thus, argue the Federal Defendants, legal observers and journalists were not being intentionally targeted but merely were “inadvertently” hit. The Federal Defendants conclude that the circumstantial evidence does not support any retaliatory intent, and Plaintiffs have not shown a likelihood of success on the merits.
The Court reaches a different conclusion from the evidence. The issue is not as simple as whether a legal observer is standing “between” law enforcement personnel and protesters. For example, the Court’s view of the two videos showing the pepper spray or mace attack on the
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legal observers reveals that this evidence supports the finding that journalists or legal observers were targeted and not inadvertently hit. They were standing together along the fence protecting the courthouse. There may have been protesters at some point standing behind them, although not close behind them, based on the video. Thus, the journalists or legal observers may have been “between” the law enforcement at the fence and some set of protesters further back from the fence. But based on the video, it is clear that the pepper spray was not aimed at protesters standing further back from the fence. The spray appears to have been intentionally directed at close range into the faces and eyes of the journalists or legal observers.
Additionally, from the Court’s review, there are videos showing journalists not standing in between law enforcement and protesters, yet they also appear to have been targeted by agents of the Federal Defendants. For example, the video from Mr. Conley from July 24, 2020, from the time count of approximately 6:30 to 7:40, supports the finding that he was targeted. Federal agents fired on him when he was not near protesters, after he had repeatedly identified himself as press, after many federal officers had returned to the courthouse and were safe from the volatile situation of apprehending the woman and the man who had attempted to interfere with the woman’s apprehension, and after the pan of Mr. Conley’s camera showed that the nearest person was another photographer. The next two nearest people were yards away and were on one side a medic behind a shield and on the other side a single protester yelling taunts. A federal officer shone a bright light at Mr. Conley, making his and his neighboring photographer’s press status even more identifiable, and then fired at Mr. Conley.
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The Court also finds it to be a reasonable interpretation8 that Ms. Ellis and another journalist were targeted when on July 24, 2020, they were forced to disperse, despite the TRO and their clearly identifiable status as press. Further, the Court finds that the video posted by Ms. Molli from early morning on July 30th supports a finding of targeting. This video shows journalists taking video and pictures of a munition that had been fired by federal officers. There were only a handful of journalists and many law enforcement officers, no protesters. Suddenly, one officer fired a less-lethal munition directly at the journalists recording the events.
Moreover, there are declarations that do not have video. The Federal Defendants do not address these. For example, Ms. Elsesser states that on July 25th she was standing by herself, across the street from the courthouse, with no protesters around when she was shot with a munition in the back of her arm. Ms. Katz states that on July 27th she was attempting to photograph the arrest of a protester when a federal agent physically blocked her. When she took a step to the side to get another angle, he physically shoved her away. These videos and declarations are all circumstantial evidence supporting retaliatory animus.
The Federal Defendants cite two unpublished Ninth Circuit decisions in support of their argument that in responding to some violent offenders in protesting crowds, any incidental burden on the First Amendment rights of journalists and legal observers is acceptable. These unpublished—and thus non-precedential—cases are unpersuasive. The Court follows published Ninth Circuit precedent, including Collins, which instructs that the proper response to violence is to arrest the violent offenders, not prophylactically suppress First Amendment rights. See Collins, 110 F.3d at 1372.
8 The Court makes no determination regarding clear and convincing evidence needed for a finding of contempt.
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The Federal Defendants also argue that they have a formal policy of supporting First Amendment rights and contend that Plaintiffs fail to show otherwise. The Federal Defendants may not, however, hide behind a formal policy if in practice they do not conform to that policy. See Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075 n.10 (9th Cir. 2016) (en banc) (noting that a defendant cannot escape its “actual routine practices” by “pointing to a pristine set of policies”). At this stage of the litigation, the Court is persuaded by the number of alleged acts and the expert testimony of Mr. Kerlikowske that the conduct of the federal officers has not been reflective of a policy or practice of respecting First Amendment rights. Mr. Kerlikowske opines that the federal officers repeatedly have engaged in excessive force against journalists and legal observers, have not used appropriate crowd control tactics, and improperly have fired at the head, heart, and backs of journalists and legal observers when such conduct is generally not permitted. Even the Federal Defendants’ own witnesses have conceded that shooting persons in such a manner is inappropriate. See, e.g., ECF 136-2 at 13, FPS 824 Dep. Tr. 34:14-21 (testifying that shooting a person in the back who is not doing anything violent is not appropriate); ECF 136-3 at 8, CBP NZ-1 Dep. Tr. 37:18-25 (testifying that shooting a person in the back is not something that an agent or officer should do). Mr. Kerlikowske also opines that the augmented federal force deployed in Portland does not have the appropriate training for policing urban protests and crowd control and does not have the appropriate supervision and leadership. The Court finds these opinions persuasive, and they provide further circumstantial evidence of retaliatory intent.
In sum, Plaintiffs provide substantial circumstantial evidence of retaliatory intent to show, at the minimum, serious questions going to the merits. Plaintiffs submit numerous declarations and other video evidence describing and showing situations in which the declarants
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were identifiable as press, were not engaging in unlawful activity or even protesting, were not standing near protesters, and yet were subjected to violence by federal agents under circumstances that appear to indicate intentional targeting. Contrary to the Federal Defendants’ arguments, this evidence does not show that the force used on Plaintiffs was merely an “inadvertent” consequence of otherwise lawful crowd control. Also, Plaintiffs submit expert testimony opining about repeated instances of excessive force being used against journalists and legal observers and failures of training and leadership with the augmented federal force sent to Portland, which is further circumstantial evidence supporting Plaintiffs’ claim. Thus, Plaintiffs’ have shown the elements of First Amendment retaliation.
b. Right of Access to Public Streets and Sidewalks The First Amendment prohibits any law “abridging the freedom of speech, or of the press[.]” U.S. Const., amend. I. Although the First Amendment does not enumerate special rights for observing government activities, “[t]he Supreme Court has recognized that newsgathering is an activity protected by the First Amendment.” United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978); see Branzburg, 408 U.S. at 681 (“[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated.”). As the Ninth Circuit has explained: “the Supreme Court has long recognized a qualified right of access for the press and public to observe government activities.” Leigh, 677 F.3d at 898. By reporting about the government, the media are “surrogates for the public.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (Burger, C.J., announcing judgment); see also Cox Broad. Corp. v. Cohn, 420 U.S. 469, 91 (1975) (“[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations.”). As further described by the Ninth Circuit, “[w]hen wrongdoing is
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underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.” Leigh, 677 F.3d at 900 (quoting Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 STAN. L. REV. 927, 949 (1992) (alteration in original) (“[W]hen the government announces it is excluding the press for reasons such as administrative convenience, preservation of evidence, or protection of reporters’ safety, its real motive may be to prevent the gathering of information about government abuses or incompetence.”)).
The Federal Defendants argue that journalists have no right to stay, observe, and document when the government “closes” public streets. This argument is not persuasive. First, the Federal Defendants are not the entities that “close” state and local public streets and parks; that is a local police function.9 Second, the point of a journalist observing and documenting government action is to record whether the “closing” of public streets (e.g., declaring a riot) is lawfully originated and lawfully carried out. Without journalists and legal observers, there is only the government’s side of the story to explain why a “riot” was declared and the public streets were “closed” and whether law enforcement acted properly in effectuating that order. Third, the Federal Defendants have not shown that any journalist or legal observer has harmed any federal officer or damaged any federal property, and if any journalist, legal observer, or person masquerading as a journalist or legal observer were to attempt to do so, the preliminary injunction would not protect them. Thus, the stated need to protect federal property and the safety of federal officers is not directly affected by allowing journalists and legal observers to stay, observe, and record events.
The Federal Defendants argue that Plaintiffs improperly rely on Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”), 478 U.S. 1 (1986), to articulate the standard to apply in
9 See n.2, supra.
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evaluating likelihood of success in Plaintiffs’ claim of right of access. The Court rejects this aregument.
In Press-Enterprise II, the Supreme Court established a two-part test for a claim of violation of the right of access. First, the court must determine whether a right of access attaches to the government proceeding or activity by considering whether the place and process have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question. Press-Enterprise II, 478 U.S. at 8-9. Second, if the court determines that a qualified right applies, the government may overcome that right only by demonstrating “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id. at 9 (citation omitted); see also Leigh, 677 F.3d at 898 (discussing Press-Enterprise II). The public streets, sidewalks, and parks historically have been open to the press and general public,10 and public observation of law enforcement activities in these public fora plays a significant positive role in ensuring conduct remains consistent with the Constitution.
The Federal Defendants argue that they have a strong and overriding government interest in protecting federal property. The Court agrees that protecting federal property is a strong
10 The Federal Defendants argue that the proper question is whether there historically was access after the closure order that is at issue—the unlawful assembly declaration and dispersal order. The Court disagrees that access is evaluated after the closure that is challenged. Access is considered before the closure that is challenged to determine whether the closure is unduly burdening First Amendment rights. For example, the Supreme Court in Press-Enterprises II did not evaluate whether the press and public had access to preliminary criminal proceedings that were subject to a legitimate closure order, but whether they had access to preliminary criminal proceedings generally. 478 U.S. at 10. Even if the Federal Defendants’ assertion of how to frame the first question in Press-Enterprises II is correct, however, as noted above, it is not at issue in this motion because the City previously has stipulated that even after it has declared an unlawful assembly and issued a lawful dispersal order on state and local property, journalists and authorized legal observers may remain.
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government interest, but the Federal Defendants must craft a narrowly tailored response to achieve that government interest without unreasonably burdening First Amendment rights. The Federal Defendants simply assert that dispersing everyone is as narrowly tailored as possible and to allow anyone to stay after a dispersal order is not practicable or workable. The record, however, belies this assertion.
The City, by stipulated preliminary injunction, does not require journalists and authorized legal observers to disperse, even when there has been an otherwise lawful general order of dispersal. After issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working or to address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City did not ask for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable.11 Moreover, the City supports Plaintiffs’ request for an injunction against the Federal Defendants, both the TRO and this preliminary injunction. Additionally, as discussed previously, Plaintiffs’ expert witness Mr. Kerlikowske provides qualified, relevant, and persuasive testimony
11 At oral argument, counsel for the City noted that the City might request from Plaintiffs a possible modification to the stipulated preliminary injunction. The City noted it had encountered some issues with persons with “press” markings intermingling with protesters and interfering with law enforcement. The Federal Defendants argue that this is “proof” that the preliminary injunction is “unworkable.” Whether the City might request a modification at some point in the future, however, is not evidence of unworkability. Additionally, the City’s stipulated preliminary injunction does not contain the indicia of journalists and legal observers that they “stay to the side” and not intermix with protesters, which is included in the preliminary injunction below, and does not contain the express prohibition on press and legal observers impeding, blocking, or interfering with law enforcement activities, which also is included below. Further, the fact that there might be room for improvement of a preliminary injunction does not make it unworkable. The Court is mindful not to let the perfect be the enemy of the good.
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showing that the relief provided in the TRO against the Federal Defendants is workable. He also explains that during his tenure in Seattle, law enforcement did not target or disperse journalists and there were no adverse consequences. Numerous declarants also testified that they were not dispersed during protests in other locations. Thus, it is workable and feasible to disperse protesters generally but not require the dispersal of journalists and authorized legal observers. The Federal Defendants’ blanket assertion that federal officers must disperse everyone is rejected.
Further, the Federal Defendants’ objections to the workability of the TRO primarily focus on concerns regarding when journalists and legal observers “intermingle” with protesters. The first concern is that federal officers will violate the injunction if a journalist or legal observer is subject to crowd control tactics when mixed with the crowd. The preliminary injunction contains protections for this scenario. It adds, different from the TRO, the indicia of a journalist and legal observer that they stay to the side of the protest and not intermix with protesters. It also retains the protection for law enforcement that the incidental exposure of journalists and legal observers to crowd control devices is not a violation of the injunction.
The Federal Defendants’ second concern with the intermingling of journalists and legal observers and protesters is that journalists and legal observers may interfere with law enforcement, particularly if allowed to stay after dispersal order. The preliminary injunction, however, retains the TRO’s instruction that journalists and legal observers must comply with all laws other than general dispersal orders. For further clarity, the preliminary injunction expressly adds the provision that journalists and legal observers may not impede, block, or otherwise interfere with the lawful conduct of the federal officers.
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The Federal Defendants also express concern that persons may disguise themselves as press and commit violent or illegal acts. The preliminary injunction, however, does not protect anyone who commits an unlawful act. The Federal Defendants have the same authority to arrest or otherwise engage with persons who commit unlawful acts, regardless of their clothing. Moreover, most of this concern expressed by the Federal Defendants focuses on persons selfidentifying as press who are mixed with protesters or interfering with law enforcement. The preliminary injunction’s addition of the indicia of press as staying to the side and not intermixing with protesters and express prohibition on interfering with law enforcement further addresses this concern. Further, Mr. Kerlikowske’s declarations containing his expert opinions are persuasive in discounting this possibility.
The Federal Defendants also argue that requiring federal officers to wear larger unique identifying markings is not workable and is not connected to Plaintiffs’ claims in this case. The Federal Defendants assert that such markings will interfere with an officer’s ability to reach necessary equipment and are unnecessary because most officers already wear some unique identifying number somewhere on their uniform. The Federal Defendants were unable, however, to identify specific officers from videos when asked to do so by the Court. The current identifying markings are not of sufficient visibility. The Court does not find it credible that there is no possible location on the helmet or uniforms on which more visible markings can be placed. The Court is persuaded by Mr. Kelikowske’s expert opinion that unique identifying markings are feasible, important, and will not interfere with the federal officers’ ability to perform their duties. The Court also finds that such a requirement is related to Plaintiffs’ claims because, as noted by Mr. Kerlikowske, these markings would deter the very conduct against which Plaintiffs have filed suit.
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At this stage of the lawsuit, there are at least serious questions regarding Plaintiffs’ right of access, whether the government will be able to meet its burden to overcome that right of access, the federal officers’ tactics directed toward journalists and other legal observers, and whether restrictions placed upon them by the Federal Defendants are narrowly tailored. Thus, Plaintiffs’ meet this factor for their claim alleging a violation of their right of access.
2. Irreparable Harm Plaintiffs also must show that they are “likely to suffer irreparable harm in the absence of preliminary relief.” See Winter, 555 U.S. at 20. The Ninth Circuit has explained that “speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction. A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.” Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1022 (9th Cir. 2016) (emphasis in original) (simplified). The Federal Defendants argue that Plaintiffs face no threat of immediate injury, particularly because of the changed enforcement tactics. The Federal Defendants assert that Plaintiffs have provided no evidence that the chances of encountering a federal officer at a protest is higher in August 2020 than it was in August 2019 or August 2018. The Federal Defendants’ latter assertion is without merit. The Federal Defendants have sent numerous additional federal officers to Portland with the stated mission to protect federal property and persons. Plaintiffs provide evidence that these officers routinely have left federal property and engaged in crowd control and other enforcement on the streets, sidewalks, and parks of the City of Portland. Plaintiffs’ expert Mr. Kerlikowske opines that the federal officers and supervisors have insufficient and improper experience and leadership to handle the conditions during the Portland protests. Additionally, Plaintiffs provide evidence that the
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augmented federal police force has remained in Portland, that it will stay in Portland ready to deploy at any moment, and that there are no plans for any officers to withdraw from Portland, at least not until it is “certain” that federal property is “safe.” This provides significant evidence that journalists and legal observers are more likely to encounter a federal officer during a protest in August 2020 than in 2019 or 2018, when there was no augmented federal police force or Operation Diligent Valor.
Regarding the Federal Defendants’ argument that the voluntary change in tactics has decreased the immediacy of any claim of injury, thereby mitigating irreparable harm, the Ninth Circuit has rejected a similar argument. In Boardman, the defendants argued that there was no immediate danger of harm because the defendants had voluntarily ceased certain conduct. 822 F.3d at 1023. The defendants had voluntarily terminated a disputed merger and entered into a stipulation not to enter into a purchase transaction while the Oregon Attorney General’s investigation was ongoing. Id. The stipulation was terminable upon 60-days’ notice to the District Court and the Oregon Attorney General. The Ninth Circuit concluded that the District Court did not abuse its discretion in finding irreparable harm. Id.
The Ninth Circuit focused on the fact that the voluntarily stipulation was terminable with 60-days’ notice, the defendants had a history of negotiating in secret, the stipulation was limited to a “purchase transaction” and the transaction could take other contractual forms, and the exclusive marketing agreement between the two defendants had expired (thereby incentivizing a merger). Id. The Ninth Circuit noted: “A threat of irreparable harm is sufficiently immediate to warrant preliminary injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a decision on the merits can be rendered.’” Id. (quoting Winter, 555 U.S. at 22). For the plaintiff to be injured in Boardman, the defendants would have had to give 60-days’ notice and then not
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have the district court otherwise intervene, or negotiate in secret and reach a form of deal not
considered a “purchase agreement,” or other steps that arguably were attenuated or provided the
plaintiffs some opportunity to request emergency relief. Nonetheless, the Ninth Circuit agreed
that the potential injury was immediate and irreparable for purposes of preliminary injunctive
relief.
Plaintiffs’ irreparable injury here is not nearly as attenuated as Boardman and indeed is
much more immediate because it could happen without any prior notice to the Court. The Court
has already found that Plaintiffs face irreparable harm from the Federal Defendants’ conduct.12
12 The Federal Defendants cite Rendish v. City of Tacoma, 123 F.3d 1216, 1226 (9th Cir. 1997), for the proposition that claims alleging First Amendment retaliation are not entitled to a presumption of irreparable harm. Rendish involved a public employee who was terminated and alleged First Amendment retaliation. Id. at 1218. The district court found that the plaintiff was not likely to succeed on the merits of her claim. Id. at 1226. The Ninth Circuit concluded: “Because the district court’s assessment that Rendish did not show a likelihood of success was accurate, it did not abuse its discretion in finding no irreparable harm based on a loss of her constitutional rights.” Id. The court rejected the plaintiff’s argument that despite the district court’s conclusion that the plaintiff would not have succeeded on the merits, the district court was required to presume irreparable harm, noting that there is no such presumption. Id.
Rendish provides no support for the contention that when a court concludes that plaintiffs are likely to succeed on the merits of a claim that their constitutional rights have been violated, the plaintiffs are not entitled to a presumption of irreparable harm. Indeed, the opposite is true. See, e.g., Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014) (“A ‘colorable First Amendment claim’ is ‘irreparable injury sufficient to merit the grant of relief.’” (quoting Warsoldier v. Woodford, 418 F.3d 989, 1001 (9th Cir. 2005)) (affirming grant of preliminary injunction)); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); Assoc. Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (noting that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury” and reversing and remanding for entry of preliminary injunction (alteration in original) (quoting Elrod)); Klein v. City of San Clemente, 584 F.3d 1196, 1207-08 (9th Cir. 2009) (“Both this court and the Supreme Court have repeatedly held that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” (simplified) (reversing and remanding for entry of preliminary injunction)); Black Lives Matter Seattle-King Cty. v. City of Seattle, Seattle Police Dep’t, 2020 WL 3128299, at *4 (W.D. Wash. June 12, 2020) (citing Melendres and Otter and finding irreparable harm for First Amendment retaliation claims because “[t]he use of less-lethal, crowd control weapons has
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After the Court’s initial finding of irreparable harm to support the TRO, Plaintiffs provided even more evidence that journalists’ First Amendment rights have been chilled, including declarations in which journalists describe being subject to less lethal munitions that required the journalist to stop covering the protests for the night or for some period of time, or chilled the journalist from returning to cover the protests in the future. See, e.g., ECF 88 at 2 (Ellis Decl. ¶ 6, “Federal agents prevented me from doing my job twice on the night of July 23-24.”); ECF 89 at 4 (Elsesser Decl. ¶ 13, “If I am asked to cover the protests again, I would refuse unless I had a bulletproof vest (which are in short supply in Portland at the moment) to wear because I am fearful that federal agents would injure me or worse.”); ECF 91 at 3 (Hollis Decl. ¶ 8, “After the federal agents shot me, I turned and ran and returned to my hotel.”); ECF 116 at 3 (Jeong Decl. ¶¶ 7-8, noting that because she was shoved down to the ground by a federal officer she “ultimately left much earlier than I had planned” with respect to covering that night’s protest); ECF 117 at 5 (Katz Decl. ¶ 15, “Because of how federal agents treated me, I have stopped covering the Portland protests.”).
already stifled some speech even if momentarily”); Freedom for Immigrants v. U.S. Dep’t of Homeland Sec., 2020 WL 2095787, at *5 (C.D. Cal. Feb. 11, 2020) (“Because FFI has demonstrated that DHS’s conduct likely contravenes its First Amendment rights, FFI satisfies the irreparable harm requirement for preliminary injunctive relief.”); Nat’l Rifle Ass’n of Am. v. City of Los Angeles, 441 F. Supp. 3d 915, 938-39 (C.D. Cal. 2019) (“In this case, Plaintiffs have sufficiently demonstrated that they are likely to be deprived of their First Amendment rights— the deprivation of which is ‘well established’ to constitute irreparable harm. Defendants’ primary argument to the contrary is that Plaintiffs have not provided admissible evidence of irreparable harm. But Plaintiffs have provided ample evidence of a likely First Amendment violation, which is enough to satisfy the Winter standard.” (citations omitted) (granting preliminary injunction)); see also 11A Charles Alan Wright, FEDERAL PRACTICE & PROCEDURE, § 2948.1 (2d ed. 2004) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). Plaintiffs have demonstrated that they are likely to be deprived of their First Amendment rights and that is sufficient to show irreparable harm.
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The only change is the Federal Defendants’ “agreement” with Oregon Governor Kate Brown and voluntarily cessation of certain enforcement tactics. This change in enforcement is replete with caveats. It is terminable at any time and without any notice to this Court or Plaintiffs if the Federal Defendants believe that federal property or persons are not secure. See n. 6, supra. It is also subject to the federal officers being able to leave the building at any time for a specific incident of enforcement, even if the agreement itself has not changed. For example, although the federal officers’ modified enforcement role was announced on July 29, 2020, to begin the next day, Plaintiffs have submitted testimony and video evidence from that night (to be precise, from the early morning on July 30, 2020), of federal officers firing tear gas and flash bang munitions at journalists. See ECF 118 at 4. There was no one nearby on the street but numerous federal enforcement officers and six journalists when the munitions were deployed.
Moreover, the Federal Defendants have emphatically and repeatedly denied that they have engaged in any wrongful or unlawful conduct. Thus, there is no indication that their crowd control tactics, which the Court has already found to support both a finding of success on the merits and likelihood of irreparable harm, and which Plaintiffs’ expert has characterized as including excessive force, would change if they re-engage in crowd control enforcement and the Court’s injunctive relief is no longer in place.
Indeed, the Court has serious concerns that the Federal Defendants have not fully complied with the Court’s original TRO. The Court has reviewed all of the testimony and videos submitted by Plaintiffs after the Court issued its TRO, and although some of the evidence is ambiguous or less persuasive, some of the evidence describes and shows at least some conduct that appears to target journalists and legal observers, as opposed to incidentally or inadvertently reaching them as part of crowd control or enforcement against violent offenders.
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Further, the Court does not agree with the Federal Defendants that given the magnitude of irreparable injury at stake in this case, the Court is required to wait until new and additional irreparable injury is inflicted on Plaintiffs to issue prospective injunctive relief. As the Ninth Circuit emphasized in Boardman, a threat of irreparable injury is sufficiently immediate if it is likely to occur before a decision on the merits can be issued. Boardman, 822 F.3d at 1023. Given the Federal Defendants’ public statements and discovery responses relating to Operation Diligent Valor, the current situation relating to the protests in Portland, and the current situation regarding the local police presence in Portland, the Court finds that it is sufficiently likely that federal officers will re-engage in “protecting federal property and persons” and will return to enforcement tactics before a decision on the merits in this case can be issued. Thus, Plaintiffs have sufficiently shown irreparable injury.
Moreover, the Court takes guidance from the Supreme Court and Ninth Circuit’s discussions regarding the Court’s authority relating to issuing injunctions generally and predicting future violations in this context. The Supreme Court has noted that in addition to a court retaining the ability to hear a case after voluntarily cessation (considerations of mootness), “the court’s power to grant injunctive relief survives discontinuance of the illegal conduct.” United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953). “The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” Id. In making this determination, the district court’s “discretion is necessarily broad and a strong showing of abuse must be made to reverse it. To be considered are the bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of the past violations.” Id. The Ninth Circuit has
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discussed “the factors that are important in predicting the likelihood of future violations” as
follows:
the degree of scienter involved; the isolated or recurrent nature of the infraction; the defendant’s recognition of the wrongful nature of his conduct; the extent to which the defendant’s professional and personal characteristics might enable or tempt him to commit future violations; and the sincerity of any assurances against future violations. Fed. Election Comm’n v. Furgatch, 869 F.2d 1256, 1263 n.5 (9th Cir. 1989). These factors are in
addition to “the commission of past illegal conduct, [which] is highly suggestive of the
likelihood of future violations.” Id.
Considering these factors, whether as articulated by the Supreme Court in W.T. Grant or the Ninth Circuit in Furgatch, the Federal Defendants’ voluntary cessation of conduct13 does not
demonstrate effective discontinuance and serious questions remain with respect to the likelihood
of Plaintiffs’ future injury. In addition, under the W.T. Grace factors, there has been no expressed
intent by the Federal Defendants to comply with the Court’s TRO. To the contrary, the Federal
Defendants have stated that the order is “offensive” and that it “shouldn’t affect anything [the
Federal Defendants are ] doing” in Portland. ECF 147-6 at 3 (statement by Acting Deputy
13 The Federal Defendants argue that they have not voluntarily ceased conduct because they dispute that they have engaged in any unlawful conduct. Regardless of how they characterize the lawfulness of their conduct, however, their argument is that because of the changed circumstances, Plaintiffs can no longer show irreparable injury. The changed circumstances on which the Federal Defendants rely, however, is the agreement between state and federal authorities that the federal officers would “stay in the building” and state and local police would take over more direct policing. The specifics of this agreement have been redacted by the Federal Defendants. See ECF 147-8 at 2. According to White House Senior Advisor Stephen Miller, however, the agreement does not include a “phased withdrawal.” ECF 147-5 at 2. Nonetheless, this agreement and the Federal Defendants’ voluntary change in enforcement as a result of the agreement is the voluntary cessation triggering the changed circumstances on which the Federal Defendants rely. Thus, the Court must analyze whether it supports the Federal Defendants’ assertion that there no longer exists a cognizable risk of recurrent violations.
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Secretary Ken Cuccinelli). Also, as reflected in Plaintiffs’ motion for contempt, despite the issuance of the TRO, the Federal Defendants appear to have engaged in at least some conduct that continues to target journalists and legal observers in violation of the Court’s TRO. This raises concerns regarding future conduct if there is no injunction in place, because even with a Court order in place, improper conduct appears to have continued. Regarding the effectiveness of the Federal Defendants’ stated discontinuance, as discussed above, it is not very effective while the out-of-town federal agents remain in Portland because the discontinuance is terminable at will by the Federal Defendants and, thus, only temporary. Finally, the character of the recent past violations by the Federal Defendants in Portland is particularly egregious.
Considering the Ninth Circuit’s Furgatch factors, first, the Federal Defendants’ past violations are highly suggestive of future harm. Second, the degree of scienter involved is high for violations triggering the requested injunctive relief, because it relates to targeting of journalists and legal observers and not merely incidental harm to them during crowd control. Further, because Plaintiffs agreed to the modification to the injunction that journalists and legal observers stay to the side, the risk of incidental targeting is diminished. Third, the occurrences were not isolated—Plaintiffs provided significant evidence of numerous journalists and legal observers who were targeted by the Federal Defendants. Indeed, several of the witnesses have experience reporting in war zones around the world and at violent protests in Hong Kong, Oakland, and Seattle. They emphasize how they have never been shot at or tear gassed until coming to Portland. Fourth, the Federal Defendants have not recognized the wrongful nature of their conduct but instead assert that they have only engaged in lawful conduct. They have not disciplined any federal agent or officer for any conduct. They moved to dissolve the TRO after Plaintiffs moved for contempt. The Federal Defendants, unlike the City of Portland, also did not
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stipulate to preliminary injunctive relief. Fifth, given the disdainful comments publicly made by the highest officials at the Federal Defendants with respect to journalists, legal observers, Plaintiffs, protesters, and the City of Portland, the professional and personal characteristics of the Federal Defendants show that they are likely to be enabled or tempted to engage in future violations. Finally, there have not been sincere assurances given against future violations. Accordingly, considering these factors, the Court finds that Plaintiffs have made a sufficient showing of threatened future violations by the Federal Defendants causing sufficiently likely irreparable injury to Plaintiffs before a decision on the merits can be issued.
3. Public Interest and Balance of the Equities When the government is a party, the last two factors of the injunction analysis merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). Regarding the public interest, “[c]ourts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles.” Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (quotation marks omitted). Further, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quotation marks omitted) (granting an injunction under the Fourth Amendment). Regarding balancing the equities, when a plaintiff has “raised serious First Amendment questions,” the balance of hardships “tips sharply in [the plaintiffs’] favor.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th Cir. 2007) (alterations in original) (quotation marks omitted). The Federal Defendants argue that the normal evaluation of these factors in favor of a plaintiff who is likely to succeed on a First Amendment claim does not apply in this case because the government’s countervailing interests outweigh Plaintiffs’ First Amendment concerns. The Federal Defendants assert the government’s interest in protecting federal property, ensuring the
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safety of federal officers and other personnel, maintaining public order on federal property, and securing the federal courthouse so that it remains open and accessible to the public. The first three relate to protecting the courthouse and federal officers, and the final interest relates to providing access to the public.
Regarding protection of the courthouse and officers, the Federal Defendants rely on evidence that persons self-identifying as press have engaged in purported misconduct. The Court has reviewed all the video and other evidence submitted by the Federal Defendants in support of their contentions relating to alleged misconduct of persons self-identifying as press after the issuance of the TRO on July 23, 2020. Much of this evidence is ambiguous or shows that persons self-identifying as press have intermixed with protesters, have run toward the fence around the federal courthouse and stopped, have not actually been press but merely donned clothing (for one night) marked “press” hoping to avoid violence by federal officers, or simply have stood by while unlawful conduct was engaged in by others. This is not unlawful conduct.
There is evidence, however, that a few individual persons wearing press indicia on their clothing or hats or helmets (often handwritten), who generally are described by the Federal Defendant declarants as not otherwise engaging in any conduct such as reporting, notetaking, photographing, or recording, have engaged in the following activities: entering courthouse property after the fence was breached and encouraging others to do the same; helping another person to breach the fence; shining a flashlight at a police helicopter; kicking a police officer; shielding protesters from law enforcement; and throwing an object at law enforcement. This is inappropriate conduct, and much of it may be unlawful. The Court shares the Federal Defendants’ concerns for the safety of federal officers, particularly considering the more than 100 injuries that have been sustained by federal offices to date. But as discussed above in the
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context of workability, the preliminary injunction does not protect unlawful conduct, and federal officers may arrest anyone, even persons with indicia of press, who are engaging in such conduct.
Further, the preliminary injunction has provisions that expressly address these concerns, including providing that one indicia of press or authorized legal observer status is that they stay to the side and do not intermix with protesters and that press and legal observers may not impede, block, or interfere with law enforcement. Concern over potential unlawful conduct thus does not alter the analysis of traditional public interest factors or the balance of equities.
Moreover, the Court must balance and weigh the equities and public interest. The fact that a few people may have engaged in some unlawful conduct does not outweigh the important First Amendment rights of journalists and legal observers and the public for whom they act as surrogates. Further, there is no evidence that any of the named Plaintiffs engaged in any of the purported unlawful conduct described by the Federal Defendants.
The Federal Defendants’ final argument is that the government’s interest in preserving physical access to courts outweighs Plaintiffs’ interests. That argument also is without merit. The relevant protests are happening after business hours, and there is no indication that allowing journalists and legal observers to stay despite a general dispersal order interferes with public access. Thus, none of the government’s proffered interests outweigh the public’s interest in receiving accurate and timely reporting, video, and photographic information about the protests and how law enforcement is treating protestors. There also is no need to alter the traditional analysis recognizing the significant public interest in First Amendment rights and that in such cases the balance of the equities tips sharply in favor of the plaintiff. See Otter, 682 F.3d at 826; Cmty. House, 490 F.3d at 1059.
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4. Conclusion The Court GRANTS Plaintiffs’ motion for preliminary injunction against the Federal Defendants (ECF 134) and Orders as follows:
PRELIMINARY INJUNCTION 1. The Federal Defendants, their agents and employees, and all persons acting under their direction are enjoined from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), unless the Federal Defendants have probable cause to believe that such individual has committed a crime. For purposes of this Order, such persons shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse. Such persons shall, however, remain bound by all other laws. No Journalist or Legal Observer protected order this Order, however, may impede, block, or otherwise physically interfere with the lawful activities of the Federal Defendants. 2. The Federal Defendants, their agents and employees, and all persons acting under their direction are further enjoined from seizing any photographic equipment, audio- or videorecording equipment, or press passes from any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), or ordering such person to stop photographing, recording, or observing a protest, unless the Federal Defendants are also lawfully seizing that person consistent with this Order. Except as expressly provided in Paragraph 3 below, the Federal Defendants must return any seized equipment or press passes immediately upon release of a person from custody. 3. If any Federal Defendant, their agent or employee, or any person acting under their direction seize property from a Journalist or Legal Observer who is lawfully arrested
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consistent with this Order, such Federal Defendant shall, as soon thereafter as is reasonably possible, make a written list of things seized and shall provide a copy of that list to the Journalist or Legal Observer. If equipment seized in connection with an arrest of a Journalist or Legal Observer lawfully seized under this Order is needed for evidentiary purposes, the Federal Defendants shall promptly seek a search warrant, subpoena, or other court order for that purpose. If such a search warrant, subpoena, or other court order is denied, or equipment seized in connection with an arrest is not needed for evidentiary purposes, the Federal Defendants shall immediately return it to its rightful possessor.
4. To facilitate the Federal Defendants’ identification of Journalists protected under this Order, the following shall be considered indicia of being a Journalist: visual identification as a member of the press, such as by carrying a professional or authorized press pass, carrying professional gear such as professional photographic equipment, or wearing a professional or authorized press badge or other official press credentials, or distinctive clothing, that identifies the wearer as a member of the press. It also shall be an indicium of being a Journalist under this Order that the person is standing off to the side of a protest, not engaging in protest activities, and not intermixed with persons engaged in protest activities, although these are not requirements. These indicia are not exclusive, and a person need not exhibit every indicium to be considered a Journalist under this Order. The Federal Defendants shall not be liable for unintentional violations of this Order in the case of an individual who does not carry or wear a press pass, badge, or other official press credential, professional gear, or distinctive clothing that identifies the person as a member of the press.
5. To facilitate the Federal Defendants’ identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a
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green National Lawyers Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest. It also shall be an indicium of being a Legal Observer protected under this Order that the person is standing off to the side of a protest, not engaging in protest activities, and not intermixed with persons engaged in protest activities, although these are not requirements.
6. The Federal Defendants are not precluded by the Order from issuing otherwise lawful crowd-dispersal orders for a variety of lawful reasons. The Federal Defendants shall not be liable for violating this injunction if a Journalist or Legal Observer is incidentally exposed to crowd-control devices after remaining in the area where such devices were deployed after the issuance of an otherwise lawful dispersal order.
7. Plaintiffs and the Federal Defendants shall promptly confer regarding how the Federal Defendants can place unique identifying markings (using numbers and/or letters) on the uniforms and/or helmets of the officers and agents of the Federal Defendants who are specially deployed to Portland so that they can be identified at a reasonable distance and without unreasonably interfering with the needs of these personnel. Based on the Court’s understanding that Deputy U.S. Marshals and Courtroom Security Officers stationed in Portland who are under the direction of the U.S. Marshal for the District of Oregon are not part of the force that has given rise to events at issue in the lawsuit, they are exempt from this requirement. Agents wearing plain clothes and assigned to undercover duties also are exempt from this requirement. If the parties agree on a method of marking, they shall submit the terms of their agreement in writing to the Court, and the Court will then issue a modified preliminary injunction that incorporates the parties’ agreement. If the parties cannot reach agreement within 14 days, each party may submit its own proposal, and each side may respond to any other party’s proposal
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within seven days thereafter. The Court will resolve any disputes on this issue and modify this preliminary injunction appropriately.
8. To promote compliance with this Preliminary Injunction, the Federal Defendants are ordered to provide copies of the verbatim text of the first seven provisions of this Preliminary Injunction, in either electronic or paper form, within 14 calendar days to: (a) all employees, officers, and agents of the Federal Defendants currently deployed in Portland, Oregon (or who later become deployed in Portland, Oregon while this Preliminary Injunction is in force), including but not limited to all personnel in Portland, Oregon who are part of Operation Diligent Valor, Operation Legend, or any equivalent; and (b) all employees, officers, and agents of the Federal Defendants with any supervisory or command authority over any person in group (a) above.
9. Plaintiffs need not provide any security, and all requirements under Rule 65(c) of the Federal Rules of Civil Procedure are waived.
10. The Court denies the oral motion by the Federal Defendants to stay this preliminary injunction.
IT IS SO ORDERED. DATED this 20th day of August, 2020.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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Matthew Borden, admitted pro hac vice borden@braunhagey.com J. Noah Hagey, admitted pro hac vice hagey@braunhagey.com Athul K. Acharya, OSB No. 152436 acharya@braunhagey.com Gunnar K. Martz, admitted pro hac vice martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND, a municipal corporation; JOHN DOES 1-60, officers of Portland Police Bureau and other agencies working in concert; U.S. DEPARTMENT OF HOMELAND SECURITY; and U.S. MARSHALS SERVICE,
Defendants.

Case No. 3:20-cv-1035-SI PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST FEDERAL DEFENDANTS

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST FEDERAL DEFENDANTS

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TABLE OF CONTENTS
Table of Contents ............................................................................................................................. i Table of Authorities........................................................................................................................ iii Motion for Preliminary Injunction.................................................................................................. 1 Memorandum of Law ..................................................................................................................... 5 Introduction..................................................................................................................................... 5 Factual Background ........................................................................................................................ 6 Argument ...................................................................................................................................... 12 I. Plaintiffs Are Likely to Succeed on the Merits of Their First Amendment
Claims ............................................................................................................................... 12 A. Federal Agents Unlawfully Retaliated Against Journalists and
Legal Observers .................................................................................................... 13 1. Plaintiffs Were Engaged in Constitutionally Protected
Activities ................................................................................................... 13 2. Federal Agents’ Use of Violent Force Has Chilled Plaintiffs
from Exercising Their First Amendment Rights....................................... 14 3. Plaintiffs’ Protected Activities Were a Substantial
Motivating Factor in the Federal Agents’ Conduct ................................... 15 B. Plaintiffs Are Likely to Prevail on Their Access Claim........................................ 18
1. Plaintiffs Have a Right to Observe and Report on Protests ...................... 18 2. The Federal Agents Have No Legitimate Interest in
Denying Plaintiffs Access ......................................................................... 20 3. Denying Plaintiffs Access is Not Narrowly Tailored ................................ 21 4. Denying Plaintiffs Access Leaves Them No Alternative
Observation Opportunities ........................................................................ 23 II. Plaintiffs Will Suffer Irreparable Harm Without the Court’s Intervention ....................... 23 III. The Public’s Interest and Balance of Equities Weigh Strongly in Favor of
Plaintiffs ............................................................................................................................ 26
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Case 3:20-cv-01035-SI Document 133 Filed 08/10/20 Page 3 of 39 A. The Public Has an Unassailable Interest in a Free Press ...................................... 26 B. A Preliminary Injunction Would Be Workable ..................................................... 27 C. The Court Should Require That Federal Agents Be Marked With
Large Identifying Codes ....................................................................................... 30 D. The Court Should Prohibit Federal Agents from Leaving Federal
Property While Carrying or Using Any Crowd-Control Device........................... 31 E. Plaintiffs Do Not Object to Adding an Indicium That Journalists
Stand to One Side.................................................................................................. 31 F. The Balance of Equities Weighs Strongly in Favor of Plaintiffs .......................... 32 Conclusion .................................................................................................................................... 33
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CASES

TABLE OF AUTHORITIES

Page(s)

Abudiab v. Georgopoulos, 586 F. App’x 685 (9th Cir. 2013) ............................................................................................... 15
Adkins v. Limtiaco, 537 F. App’x 721 (9th Cir. 2013) ............................................................................................... 14
Ariz. Students’ Ass’n v. Ariz. Bd. Of Regents, 824 F.3d 858 (9th Cir. 2016) ...................................................................................................... 15
Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012) ...................................................................................................... 26
Barich v. City of Cotati, 2015 WL 6157488 (N.D. Cal. Oct. 20, 2015) ............................................................................ 24
Bay Area Peace Navy v. United States, 914 F.2d 1224 (9th Cir. 1990) .................................................................................................... 23
Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) .................................................................................................... 23
Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971) ..................................................................................................................... 3
Black Lives Matter Seattle—King Cty. v. City of Seattle, 2020 WL 3128299 (W.D. Wash. June 12, 2020) .................................................................. 15, 24
Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987) ................................................................................................................... 21
Branzburg v. Hayes, 408 U.S. 665 (1972) ................................................................................................................... 13
Brown v. Entm’t Merch. Ass’n, 564 U.S. 786 (2011) ................................................................................................................... 27
California First Amendment Coalition v. Calderon, 150 F.3d 976 (9th Cir. 1998) ...................................................................................................... 20
Capp v. City of San Diego, 940 F.3d 1046 (9th Cir. 2019) .................................................................................................... 17
Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) ................................................................................................................... 27
City of Houston v. Hill, 482 U.S. 451 (1987) ................................................................................................................... 14
Cmty. House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007) .................................................................................................... 32
Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. 2020) ...................................................................................................... 24
Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ............................................................................................................. 14, 19
Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) ...................................................................................................... 13

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F.T.C. v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999) .................................................................................................... 26
Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017) ....................................................................................................... 14
Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) ........................................................................................................ 14
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) ............................................................................................. 14, 19, 22
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) ................................................................................................................... 27
Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733 (9th Cir. 2014) ...................................................................................................... 12
Grosjean v. Am. Press Co., 297 U.S. 233 (1936) ................................................................................................................... 26
Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994) ........................................................................................................ 24
Hartman v. Moore, 547 U.S. 250 (2006) ................................................................................................................... 13
Jamison v. McClendon, 2020 WL 4497723 .................................................................................................................... 6, 7
Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) ............................................................................................................... 27
Knox v. Serv. Employees Int’l Union, Local, 567 U.S. 298 (2012) ................................................................................................................... 26
Leigh v. Salazar, 677 F.3d 892 (9th Cir. 2012) ............................................................................................... Passim
Lemon v. Kurtzman, 411 U.S. 192 (1973) ................................................................................................................... 31
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) .................................................................................................... 19
McComas v. City of Rohnert Park, 2017 WL 1209934 (N.D. Cal. Apr. 3, 2017) .............................................................................. 14
McCullen v. Coakley, 573 U.S. 464 (2014) ................................................................................................................... 18
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ...................................................................................................... 27
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283 (9th Cir. 1999) ........................................................................................ 13, 15, 16
Menotti v. Seattle, 409 F.3d 1113 (9th Cir. 2005)..................................................................................................... 17
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ................................................................................................................... 27
New York Times Co. v. United States, 403 U.S. 713 (1971) ................................................................................................................... 27
Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”), 478 U.S. 1 (1986) ................................................................................................................. 18, 20
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Reed v. Lieurance, 863 F.3d 1196 (9th Cir. 2017) .................................................................................... 5, 19, 23, 24
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ................................................................................................................... 21
Stephens v. Union Pac. R.R. Co., 935 F.3d 852 (9th Cir. 2019) ...................................................................................................... 17
the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)..................................................................................................... 12
Ulrich v. City & Cty. of S.F., 308 F.3d 968 (9th Cir. 2002) ...................................................................................................... 16
United States v. Sherman, 581 F.2d 1358 (9th Cir. 1978) .................................................................................................... 13
Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013) ................................................................................................ 21, 22
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................................................................................................................... 23
Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ................................................................................................ 12, 23
STATUTES U.S. Const. amend. I ..................................................................................................................... 12 RULES Federal Rule of Civil Procedure 65 ................................................................................................ 1 OTHER AUTHORITIES Newsgathering, Press Access, and the First Amendment,
44 Stan. L. Rev. 927 (1992) ....................................................................................................... 21
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MOTION FOR PRELIMINARY INJUNCTION Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau hereby move for a preliminary injunction. This motion is based on Federal Rule of Civil Procedure 65 and the First and Fourth Amendments to the United States Constitution. Plaintiffs support this motion with the accompanying memorandum of law and declarations. Plaintiffs specifically seek an order enjoining Defendant Department of Homeland Security (“DHS”), Defendant U.S. Marshals Service (“USMS”), and their agents and employees (collectively, the “federal agents”) as follows: 1. The federal agents are enjoined from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), unless the federal agents have probable cause to believe that such individual has committed a crime. For purposes of this injunction, such persons shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse. Such persons shall, however, remain bound by all other laws. 2. The federal agents are further enjoined from seizing any photographic equipment, audio- or video-recording equipment, or press passes from any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), unless the federal agents are also lawfully seizing that person consistent with this injunction. Except as expressly provided in paragraph 4 below, the federal agents must return any seized equipment or press passes immediately upon release of a person from custody. 3. The federal agents are further enjoined from ordering any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below) to stop photographing, recording, or observing a protest or law-enforcement action, or to move to a
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location or distance from which that person cannot reasonably photograph, record, or observe a protest or law-enforcement action.
4. If any federal agent seizes property from a Journalist or Legal Observer who is lawfully arrested consistent with this injunction, such federal agent shall, as soon thereafter as is reasonably possible, make a written list of things seized and shall provide a copy of that list to the Journalist or Legal Observer. If equipment seized in connection with an arrest of a Journalist or Legal Observer lawfully seized under this injunction is needed for evidentiary purposes, the federal agents shall promptly seek a search warrant, subpoena, or other court order for that purpose. If such a search warrant, subpoena, or other court order is denied, or equipment seized in connection with an arrest is not needed for evidentiary purposes, the federal agents shall immediately return it to its rightful possessor.
5. To facilitate the federal agents’ identification of Journalists protected under this injunction, the following shall be considered indicia of being a Journalist: visual identification as a member of the press, such as by carrying a professional or authorized press pass or wearing a professional or authorized press badge or other official press credentials or distinctive clothing that identifies the wearer as a member of the press. In addition, some degree of physical separation from protesters is an indicium of being a Journalist under this injunction, but Journalists are not required to maintain such distance. These indicia are not exclusive, a person need not exhibit every indicium to be considered a Journalist under this injunction, and no one indicium is dispositive. The federal agents shall not be liable for unintentional violations of this injunction in the case of an individual who does not carry a press pass or wear a press badge or other official press credentials or distinctive clothing that identifies the wearer as a member of the press.
6. To facilitate the federal agents’ identification of Legal Observers protected under this injunction, the following shall be considered indicia of being a Legal Observer: wearing a National Lawyers’ Guild issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU issued or authorized Legal Observer vest. PAGE 2 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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7. Any federal agent who leaves the interior of a federal building during a protest while carrying or using any crowd-control device must wear a clearly visible unique identifying code on the front and back of the outside of his or her clothing (with white numbers or letters not less than eight inches in height against a dark background). Counsel for the federal agents shall maintain a list matching each unique identifying code to the name and unit of that person. The contents of this list need not be disclosed absent further court order after an opportunity to be heard.
8. The federal agents are prohibited from leaving federal property while carrying or using any crowd-control device.
9. The federal agents are not precluded by this injunction from issuing otherwise lawful crowd-dispersal orders for a variety of lawful reasons. The federal agents shall not be liable for violating this injunction if a Journalist or Legal Observer is incidentally exposed to crowd-control devices after remaining in the area where such devices were deployed after the issuance of an otherwise lawful dispersal order.
10. Because any willful violation of this injunction, or any express direction by a supervisor or commander to disregard or violate this injunction, shall be considered a violation of a clearly established constitutional right and thus not subject to qualified immunity in any action brought against any individual employee, officer, or agent of the federal agents under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), notice of this injunction must be widely disseminated. Accordingly, the federal agents are ordered to provide copies of this injunction, in either electronic or paper form, within 24 hours, to: (a) all federal agents currently deployed in Portland, Oregon (or who later become deployed in Portland, Oregon, while this injunction is in force), including but not limited to all personnel in Portland, Oregon, who are part of Operation Diligent Valor, Operation Legend, or any equivalent; (b) all employees, officers, and agents of the federal agents with any supervisory or command authority over any person in group (a) above; and (c) the U.S. Attorney General and the Secretary (or Acting Secretary) of the U.S. Department of Homeland Security. PAGE 3 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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Case 3:20-cv-01035-SI Document 133 Filed 08/10/20 Page 10 of 39 The materials submitted in support of this motion demonstrate that Plaintiffs and those similarly situated are threatened with irreparable harm, that they are likely to succeed on the merits, that the balance of this harm against any harm an injunction may inflict on other parties weighs in favor of granting it, and that the public interest favors issuing an injunction. For the reasons argued in the memorandum of law, the Court should enter an order granting this relief.
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MEMORANDUM OF LAW Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau respectfully submit this memorandum in support of their motion for a preliminary injunction.
INTRODUCTION Federal agents have repeatedly targeted journalists and legal observers for trying to document the Black Lives Matter protests in Portland. They admittedly have a policy of violently dispersing journalists and legal observers when they decide to break up protests. Through guns, tear gas, grenades, truncheons, and intimidation, the federal agents seek to create a governmentcontrolled narrative about the protests. Using paramilitary troops to throttle newsgathering like this shatters the foundations of our democracy and strikes at the core of the First Amendment. Plaintiffs are likely to prevail on the merits. The federal agents’ complete shutdown of any First Amendment activity on their say-so is not narrowly tailored to achieve any legitimate government interest because journalists and legal observers pose no threat to public safety or law enforcement. It infringes Plaintiffs’ right of access and leaves them no alternative forum for their protected activities. Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012); Reed v. Lieurance, 863 F.3d 1196, 1212 (9th Cir. 2017). For the reasons already found by the Court, the balance of equities and public interest strongly weigh in favor of protecting journalists and legal observers. Every second that Plaintiffs are prevented from recording, reporting and observing, both they and the public suffer irreparable harm. (Order Granting Temporary Restraining Order, Dkt. 84 at 16-17 (collecting authorities).) Accordingly, the Court should issue a preliminary injunction similar to the TRO it has already put in place with two modifications. First, the federal agents should be required to wear visible, unique identification so that they are accountable to the Court and to the public. Second, the federal agents should be precluded from leaving federal property while carrying or using any PAGE 5 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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crowd-control device. Such relief is necessary given their lack of proper training and history of mayhem in the streets of Portland.
The federal agents have argued that injunctive relief is unnecessary because state police have recently been patrolling the area outside the courthouse, and also claim that an injunction is “unworkable.” The evidence shows otherwise. The Department of Homeland Security has issued a press release calling it a “myth” that “[s]tate and local police are replacing federal officers as DHS forces are standing down and withdrawing.” (Dkt. 124-1 at 1.) And the terms of the injunction have proven workable in Portland and in other cities with civil unrest. That is because workability turns on a commitment to facilitating First Amendment activity, not suppressing it.
For all these reasons and those below, the Court should issue a preliminary injunction. FACTUAL BACKGROUND
On May 25, 2020, Minneapolis police killed George Floyd. He was but one of many Black people unjustly killed by the police. See, e.g., Jamison v. McClendon, 2020 WL 4497723, at *1-2 & nn.1-19 (S.D. Miss. Aug. 4, 2020) (listing 19 such killings in the last five years). His murder prompted protests nationwide.
Every night since May 28, Portlanders have gathered around the city to protest against police brutality and insist that Black lives matter.1 These protests have often been met with even more police violence. (Dkt. 9 ¶ 9.) To avoid accountability and prevent them from reporting on what the police were doing, the Portland police began targeting and dispersing journalists and legal observers with tear gas, munitions, truncheons, threats, and arrests. (E.g., id. ¶¶ 13, 15-16, 18; Dkt. 12 ¶¶ 8-12; Dkt. 15 ¶ 5; Dkt. 22 ¶¶ 8-12.) Plaintiffs, who are a newspaper, journalists, and legal observers, filed this action to protect their right to record, document and observe these important events.
On June 30, Plaintiffs moved for a temporary restraining order against Defendant City of Portland. (Dkt. 7.) On July 2, the Court entered an order forbidding the police from “arresting,
1 Dave Killen, Portland protests continue for 72nd night, The Oregonian (Aug. 8, 2020), https://www.oregonlive.com/galleries/VPE2KCL2UBG4LHDEMYZJXA24YU/. PAGE 6 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer.” (Dkt. 33 at 2.) Two weeks later, the City stipulated to a preliminary injunction containing materially identical terms. (Dkt. 49.)
Almost as soon as the protests began, President Trump deployed troops to Portland from Immigrations and Customs Enforcement, Customs and Border Patrol, the Federal Protective Service, and the U.S. Marshals Service to, in his words, “dominate” the protesters and “quell” the Black Lives Matter protests. He called this operation “Diligent Valor.” (Declaration of Gabriel Russell (“Russell Decl.”), Dkt. 101-5 ¶¶ 2, 5.)
On July 4, federal agents began policing the protests, unleashing toxic clouds of tear gas and countless munitions on the streets of Portland. (See id.) They were aware of the Court’s injunction, but took the position that they need not comply, and began targeting and dispersing journalists and legal observers to prevent them from reporting on what the federal agents were doing. After Plaintiffs added the federal agents as defendants and moved for a temporary restraining order, they redoubled their assaults on the media and legal observers. (Dkt. 79 at 6-9.) Examples of their violence before the TRO hearing include:
 Federal agents shot Plaintiff Mathieu Lewis-Rolland ten times in the back and side, all above the waist, even though he was marked “PRESS” from head to toe and snapping photos in a lighted area so that they could see that he was press. (Declaration of Mathieu Lewis-Rolland (“Lewis-Rolland July 13 Decl.”), Dkt. 44 ¶¶ 13-16.)
 They shot journalist Garrison Davis in the back with a tear-gas canister and sprayed him with pepper bullets even though he was wearing a helmet marked “PRESS” and displaying his press pass. (Declaration of Garrison Davis (“Davis Decl.”), Dkt. 43 ¶¶ 4, 13-14.)
 They chased legal observers wearing green NLG hats away from the courthouse, threatening to beat them. (Id. ¶ 16.)
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 They shot a tear-gas canister at Plaintiff Justin Yau, even though he was also marked “press” all over. (Declaration of Justin Yau (“Yau July 17 Decl.”), Dkt. 56 ¶¶ 3, 6.)
 They shot and threatened to shoot Plaintiff Doug Brown, an ACLU legal observer, and several journalists. (Declaration of Doug Brown (“Doug Brown July 17 Decl.”), Dkt. 55 ¶¶ 11-13.)
 They threw flashbang grenades at journalist Eddy Binford-Ross on three separate occasions and rolled a tear-gas canister at her. (Declaration of Elizabeth Binford-Ross (“Binford-Ross Decl.”), Dkt. 78 ¶¶ 6, 9, 15.)
 They shot Plaintiff John Rudoff near the neck with a 40mm rubber bullet, barely missing his head, even though he too was marked “PRESS” all over. (Declaration of John Rudoff (“Rudoff July 20 Decl.”), Dkt. 59 ¶¶ 3-7.)
 They shot Plaintiff Alex Milan Tracy in the ankle with an impact munition, causing ligament damage, and in the elbow with pepper balls. (Declaration of Alex Milan Tracy (“Tracy July 20 Decl.”), Dkt. 60 ¶¶ 5, 8.)
 They shot NLG legal observer Nate Haberman-Ducey in the hand with an FN 303 riot gun. (Declaration of Nate Haberman-Ducey (“Haberman-Ducey Decl.”), Dkt. 61 ¶ 4.)
 They shot clearly marked journalist Jungho Kim in the chest with a marker round. (Declaration of Jungho Kim (“Kim Decl.”), Dkt. 62 ¶¶ 2, 7.)
 They shot legal observer James Comstock in his hand and a journalist in his camera lens. (Declaration of James Comstock (“Comstock Decl.”), Dkt. 63 ¶¶ 4-5.)
 They told journalist Nathan Howard to stay where he was, and then shot him. (Declaration of Nathan Howard (“Howard Decl.”), Dkt. 58 ¶¶ 6-7.)
 They shot journalist Noah Berger in the stomach and the elbow, beat him with their batons, and pepper-sprayed him at point-blank range. (Declaration of Noah Berger (“Berger Decl.”), Dkt. 72 ¶¶ 4-11.)
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 They shot journalist Jake Johnson in the stomach with a rubber bullet, only a few inches to the right of where his camera was hanging. (Declaration of Jake Johnson (“Johnson Decl.”), Dkt. 64 ¶¶ 6-7.)
 They shot a female journalist in the buttocks at near point-blank range. (Declaration of Karina Brown (“Karina Brown Decl.”), Dkt. 71 ¶¶ 11-13.)
 They pepper-sprayed journalist Mike Bivins at point-blank range. (Declaration of Mike Bivins (“Bivins Decl.”), Dkt. 73 ¶¶ 4-6.)
 They shot pepper balls and threw a tear-gas grenade at Plaintiff Lewis-Rolland. (Declaration of Mathieu Lewis-Rolland (“Lewis-Rolland July 22 Decl.”), Dkt. 77 ¶ 10.)
 They shot a flash-bang grenade at Plaintiff Tracy and another journalist, and shot a third journalist with an impact round. (Supp. Declaration of Alex Milan Tracy (“Tracy July 22 Decl.”), Dkt. 79 ¶¶ 7-9.)
 They fired three smoke grenades at Plaintiff Mahoney, striking her left knee and right foot. She managed to dodge the third. (Declaration of Kat Mahoney (“Mahoney July 22 Decl.”), Dkt 75 ¶¶ 12-13.)
 They shot journalist Steve Hickey in the head, twice. The first time, he managed to block it with his arm. The second time, he wasn’t so lucky. (Declaration of Steve Hickey (“Hickey Decl.”), Dkt. 81 ¶¶ 5-13.)
 They shot Plaintiff Rudoff again, this time in the shin. (Declaration of John Rudoff (“Rudoff July 22 Decl.”), Dkt. 80 ¶¶ 5-7.)
 They shot journalist Gabriel Trumbly in the hand. (Declaration of Gabriel Trumbly (“Trumbly Decl.”), Dkt. 82 ¶ 5.)
Based on these incidents, Plaintiffs sought, and the Court granted, a TRO against the federal agents. (Dkt. 84.) But the federal agents’ campaign of violence and intimidation against journalists continued unabated:
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 They shot Ms. Mahoney and Rachelle Collins in the head with paint bullets. Both were wearing blue ACLU vests. (Declaration of Kat Mahoney (“Mahoney July 26 Decl.”), Dkt. 94 ¶¶ 5-8.)
 They maced Ms. Mahoney and Bruce Knivila, who were again wearing blue ACLU vests, along with two other legal observers wearing green NLG hats. (Mahoney July 26 Decl. ¶¶ 9-12; Declaration of Bruce Knivila (“Knivila Decl.”), Dkt. 92 ¶¶ 3-10.)
 They tear-gassed a whole section of press and legal observers. (Knivila Decl. ¶ 8.)  They shot OPB reporter Rebecca Ellis and forced her away from the scene of
enforcement actions. (Declaration of Rebecca Ellis (“Ellis Decl.”), Dkt. 88 ¶¶ 3-5.)  They shot Brian Conley in the chest and foot when there were no protesters near him;
threw a tear-gas canister at his head; and on a different night, shot him up again and threw multiple flash-bang grenades at him. (Declaration of Brian Conley (“Conley July 28 Decl.”), Dkt. 87 ¶¶ 6-10, 18-24.)  They shot OPB reporter Jonathan Levinson while there was almost no one else around. (Declaration of Jonathan Levinson (“Levinson Decl.”), Dkt. 92 ¶¶ 4-6.)  They shot Agence France-Presse Kathryn Elsesser when there was no one else around at all. (Declaration of Kathryn Elsesser (“Elsesser Decl.”), Dkt. 89 ¶¶ 4-6.)  They shot VICE reporter Daniel Hollis while he was with a group of press and several yards from the nearest group of protesters, who were themselves neither threatening nor doing anything illegal. (Declaration of Daniel Hollis (“Hollis Decl.”), Dkt. 91 ¶¶ 4-7.)  They shot NLG legal observer Haley Nicholson in the chest from four feet away. (Declaration of Haley Nicholson (“Nicholson Decl.”), Dkt. 95 ¶¶ 3-7.)  They kicked a flash-bang grenade and shot tear gas at PSU Vanguard managing editor Justin Grinnell. Both times, he was among only journalists, with no protesters around. (Declaration of Justin Grinnell (“Grinnell Decl.”), Dkt. 90 ¶¶ 3-8.)
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Plaintiffs accordingly moved for a finding of contempt and sanctions. (Dkt. 85.) The federal agents, meanwhile, argued that the Court should lift the TRO. (Dkt. 101.) At a status conference, the Court suspended briefing on Plaintiffs’ motion for findings of contempt, authorized expedited discovery, and ordered the parties to focus on briefing whether the TRO should be extended. Plaintiffs submitted declarations evincing still more violations of the TRO:
 Federal agents shot and tear-gassed journalist Amy Katz with no protesters nearby. (Declaration of Amy Katz (“Katz Decl.”), Dkt. 117 ¶¶ 5-9.)
 They shoved New York Times and New Republic reporter Sarah Jeong down the courthouse steps. (Declaration of Sarah Jeong (“Jeong Decl.”), Dkt. 116 ¶¶ 5-7.)
 They pepper-sprayed Plaintiff Brian Conley at point-blank range not long after recognizing him as press. (Declaration of Brian Conley (“Conley Aug. 4 Decl.”), Dkt. 115 ¶¶ 5-7.)
 They shot journalist Emily Molli in the arm while she was recording them. (Declaration of Emily Molli (“Molli Decl.”), Dkt. 118 ¶¶ 5-7.)
 They shot a group of clearly marked journalists—all of whom were holding up their press passes, yelling that they were press, and taking pictures—with a barrage of impact munitions and tear gas. (Katz Decl. ¶¶ 11-12; Molli Decl. ¶¶ 8-9.)
 And they shot tear gas at a group of journalists three times on July 29, the evening after the federal government supposedly reached its deal with the State of Oregon. (Molli Decl. ¶ 10; Declaration of Andrew Jones (“Jones Aug. 4 Decl.”), Dkt. 113-3 ¶ 8.)
In addition, Plaintiffs brought to the Court’s attention official DHS guidance that federal agents need treat as journalists only those wearing a “press pass, press badge, or a shirt that says ‘press’”—a definition significantly narrower than the TRO’s, guaranteeing that agents would violate the TRO. (Dkt. 120-1 at 2; cf. Dkt. 84 at 19-20 ¶ 4.) The federal agents argued that they were on the verge of leaving Portland, obviating the need for the TRO to continue, but discovery showed that that was not true. (Compare Dkt. 113 at 8 with Declaration of Matthew Borden PAGE 11 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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(“Borden Decl.”), Ex. 1 (“Russell Dep.”) at 30:7-8, 48:22-24.) On August 6, the Court extended the TRO for another 14 days. (Dkt. 126.)
Since then, nothing has changed. The Portland protests have continued. The federal agents have not left. Journalists and legal observers still need the Court’s protection.
ARGUMENT Under the traditional four-factor test, plaintiffs may obtain a preliminary injunction if they show that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tip in their favor; and (4) an injunction is in the public interest. Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733, 738 (9th Cir. 2014). Alternatively, in the Ninth Circuit, plaintiffs who show that the balance of hardships tips “sharply” in their favor need only raise “serious questions” going to the merits. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011); see also Warsoldier v. Woodford, 418 F.3d 989, 993-94 (9th Cir. 2005) (“[T]he greater the relative hardship to [plaintiff], the less probability of success must be shown.” (quotation marks omitted)). Here, Plaintiffs easily meet either bar. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR FIRST AMENDMENT CLAIMS The First Amendment prohibits any law “abridging the freedom of speech, or of the press.” U.S. Const. amend. I. To obtain a preliminary injunction, Plaintiffs need only “mak[e] a colorable claim that [their] First Amendment rights have been infringed, or are threatened with infringement.” Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014). After that, the Government bears the burden of justifying the restriction on Plaintiffs’ speech. Id. The substantive First Amendment issues here are essentially the same as those the Court has decided twice already, first when it granted the TRO against the City and a second time when it granted the TRO against the federal agents. Federal agents have retaliated against journalists and legal observers for reporting on their campaign of terror in downtown Portland. They have also illegally denied journalists and legal observers access to document and record what they are
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doing to protesters. Thus, Plaintiffs satisfy the likelihood-of-success prong and the Court should enjoin the federal agents from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a journalist or legal observer.
A. Federal Agents Unlawfully Retaliated Against Journalists and Legal Observers
The First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). To state a First Amendment retaliation claim, a plaintiff must allege (1) that he or she was engaged in a constitutionally protected activity; (2) that the officers’ actions would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the protected activity was a substantial or motivating factor in the officers’ conduct. Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300-01 (9th Cir. 1999). These elements are easily satisfied here.
1. Plaintiffs Were Engaged in Constitutionally Protected Activities Plaintiffs and the other declarants all easily satisfy the first prong of a retaliation claim because they were engaged in the core First Amendment activities of newsgathering and recording federal agents at protests. The First Amendment protects newsgathering because freedom of the press lies at the heart of the First Amendment. United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978) (citing Branzburg v. Hayes, 408 U.S. 665, 681 (1972)). When the media reports on “the proceedings of government,” it acts as “surrogates for the public,” so the First Amendment’s protection is at its zenith. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491-92 (1975); Leigh, 677 F.3d at 900 (quotation marks omitted). Here, at the time federal agents shot, beat, or intimidated them, Plaintiffs were doing just that: reporting on protests against the government and government agents’ violent dispersal of the protesters.2
2 Lewis-Rolland July 13 Decl. ¶¶ 2-3; Doug Brown July 17 Decl. ¶¶ 1-3; Yau July 17 Decl. ¶¶ 12; Rudoff July 20 Decl. ¶¶ 1, 3; Tracy July 20 Decl. ¶¶ 1, 3-5; Tracy July 22 Decl. ¶¶ 1, 3-4; Mahoney July 22 Decl. ¶¶ 1-2, 5-6; Lewis-Rolland July 22 Decl. ¶¶ 1-3; Rudoff July 22 Decl. PAGE 13 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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Plaintiffs’ activity was constitutionally protected for a separate and independent reason: For 25 years, the Ninth Circuit has recognized that people have the right to film “public officials performing their official duties in public.” Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).3 In the decades since Fordyce, courts have continued to recognize this clearly established right. See, e.g., McComas v. City of Rohnert Park, 2017 WL 1209934, at *7 (N.D. Cal. Apr. 3, 2017) (holding that there is a clearly established right against retaliation for “peacefully filming [an] officer”); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (First Amendment protects filming of “government officials engaged in their duties in a public place, including police officers performing their responsibilities”); Fields v. City of Philadelphia, 862 F.3d 353, 355 (3d Cir. 2017) (collecting cases from the Courts of Appeals for the First, Fifth, Seventh, Ninth, and Eleventh Circuits). Here, Plaintiffs were gathering news, recording public demonstrations on public streets, and documenting protest activities and police conduct, just as Jerry Fordyce did 25 years ago.4 Fordyce, 55 F.3d at 439. For this reason, Plaintiffs were engaged in constitutionally protected activity.
2. Federal Agents’ Use of Violent Force Has Chilled Plaintiffs from Exercising Their First Amendment Rights
Plaintiffs have submitted multiple declarations from journalists and legal observers, all of whom were attacked by federal agents even though they were clearly marked as press or observers and no one else was around.5 These are repeated, targeted, painful, and gratuitous
¶¶ 1-3; Conley July 28 Decl. ¶¶ 1-2, 11-12, 18; Mahoney July 26 Decl. ¶¶ 1-3, 9; Conley Aug. 4 Decl. ¶¶ 1-3; see also, e.g., Elsesser Decl. ¶ 2; Nicholson Decl. ¶ 2; Jeong Decl. ¶¶ 1, 4. 3 This remains true even if a person directs “a significant amount of verbal criticism and challenge” at officers. Adkins v. Limtiaco, 537 F. App’x 721, 722 (9th Cir. 2013) (quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987) (allowing retaliation claim for photographing police officers to proceed)). 4 See n.2, supra. 5 E.g., Bivins Decl. ¶¶ 2, 4, 6; Berger Decl. ¶¶ 3-4; Johnson Decl. ¶¶ 3, 6; Rudoff July 20 Decl. ¶¶ 3-7; Binford-Ross Decl. ¶ 15; Levinson Decl. ¶¶ 4-6; Mahoney July 26 Decl. ¶¶ 9-13; Knivila Decl. ¶¶ 8-10; Howard Decl. ¶¶ 2, 5-7; Berger Decl. ¶¶ 7-9; Conley July 28 Decl. ¶¶ 6-9; Katz Decl. ¶¶ 11-12; Molli Decl. ¶¶ 8-10; Elsesser Decl. ¶¶ 2, 4-6; Hollis Decl. ¶¶ 2, 4-7; Grinnell Decl. ¶¶ 2-3, 8.
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attacks. They are easily enough to chill a reasonable person’s speech. Mendocino, 192 F.3d at 1300-01. Courts have had no trouble finding that similar uses of force would deter a person of ordinary firmness from exercising their constitutional rights. See, e.g., Black Lives Matter Seattle—King Cty. v. City of Seattle, 2020 WL 3128299, at *3 (W.D. Wash. June 12, 2020) (holding that using tear gas, pepper spray, and rubber bullets would “surely chill[] speech”); Abudiab v. Georgopoulos, 586 F. App’x 685, 686 (9th Cir. 2013) (denying qualified immunity for retaliation where officer pepper-sprayed and punched plaintiff). Indeed, they have actually prevented several declarants from continuing to attend and document the protests. (E.g., Conley July 28 Decl. ¶ 25 (“I want to continue covering the protests, but after what happened on July 2728, I can barely walk.”); Elsesser Decl. ¶ 13 (“If I am asked to cover the protests again, I would refuse unless I had a bulletproof vest”); Katz Decl. ¶ 15 (“Because of how federal agents treated me, I have stopped covering the Portland protests.”).) Even the ones who return fear that they will once again be punished by federal agents. (E.g., Karina Brown Decl. ¶ 14; Mahoney July 22 Decl. ¶ 17; Molli Decl. ¶ 11; Lewis-Rolland July 22 Decl. ¶ 12.)
3. Plaintiffs’ Protected Activities Were a Substantial Motivating Factor in the Federal Agents’ Conduct
The last element of a retaliation claim is that a plaintiff’s protected activity must be “a substantial motivating factor” in federal agents’ conduct—that is, there must be some “nexus between [federal agents’] actions and an intent to chill speech.” Ariz. Students’ Ass’n v. Ariz. Bd. Of Regents, 824 F.3d 858, 867 (9th Cir. 2016). This nexus may be shown with circumstantial as well as direct evidence. Ulrich v. City & Cty. of S.F., 308 F.3d 968, 979 (9th Cir. 2002). For example, evidence that federal agents engaged in speech-chilling conduct without a good nonretaliatory reason for doing so is circumstantial evidence that an intent to chill speech was a substantial motivating factor. Mendocino, 192 F.3d at 1300-01.
Plaintiffs easily meet this standard here. As noted above, Plaintiffs have documented dozens of incidents where federal agents shot, beat, or intimidated someone clearly marked as a reporter or legal observer, and in many of those instances, there was no conceivable alternative
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target.6 All of these uses of force were excessive. (Declaration of Gil Kerlikowske (“Kerlikowske Decl.”) ¶¶ 30-41.) This continued after the TRO was entered. (Id. ¶¶ 40-41.) In several cases, federal agents deliberately attacked reporters or groups of reporters even after they had alerted the federal agents that they were press.7 Nathan Howard was shot after he screamed that he was press and complied with agents’ commands to stay where he was. (Howard Decl. ¶¶ 6-7.) Jungho Kim was shot in the chest right on his press pass. (Kim Decl. ¶ 7.)
Several were shot in the back. Courthouse News reporter Karina Brown was shot by a skilled marksman twice in the buttocks at close range. (Karina Brown Decl. ¶ 11.) Plaintiff Lewis-Rolland was shot 10 times with his back turned. (Lewis-Rolland July 13 Decl. ¶¶ 13-15.) Kathryn Elsesser was also shot from behind, when she was all alone, simply walking away from federal agents she had photographed. (Elsesser Decl. ¶¶ 4-6.) But federal agents have admitted that shooting people in the back is wrong:

(Borden Decl., Ex. 2

.; see also Borden Decl., Ex. 3

Haley Nicholson was carefully shot in the heart. (Nicholson Decl. ¶¶ 3-7.) Several others were also shot in inappropriate areas—some in the head—which is not how such munitions should be used. (Lewis-Rolland July 13 Decl. ¶¶ 13-16; Rudoff July 20 Decl. ¶ 7; Johnson Decl.
6 See n.4, supra. 7 E.g., Howard Decl. ¶¶ 2, 5-7; Berger Decl. ¶¶ 7-9; Conley July 28 Decl. ¶¶ 6-9; Ellis Decl. ¶ 5; Katz Decl. ¶¶ 11-12; Molli Decl. ¶¶ 8-10.
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¶ 6; Hickey Decl. ¶¶ 5-13; Mahoney July 26 Decl. ¶¶ 5-8; Nicholson Decl. ¶¶ 5-7; Kerlikowske Decl. ¶¶ 31, 33.) Indeed, several were shot with munitions that should not be shot at the body at all, such as pepper balls, tear-gas canisters, and flash-bang grenades. (Davis Decl. ¶¶ 4, 13-14; Tracy July 20 Decl. ¶ 5; Karina Brown Decl. ¶¶ 10-13; Howard Decl. ¶ 7; Conley July 28 Decl. ¶¶ 20, 24; Kerlikowske Decl. ¶¶ 32, 34.) There is no explanation for such conduct other than intimidation and retaliation, and the federal agents offer none.
In earlier briefing, the federal agents cited Capp v. City of San Diego, 940 F.3d 1046, 1059 (9th Cir. 2019), for the proposition that retaliatory intent must be a “but for” cause of the speech-chilling conduct. (Dkt. 67 at 17.) Capp says nothing of the sort. The plaintiffs there did allege that retaliation was a but-for cause, but the court was clear that the First Amendment required only that retaliation be a “substantial or motivating factor.” Id. at 1055, 1059 (quotation marks omitted); see Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 855 (9th Cir. 2019) (“The substantial-factor test is more permissive than the ‘but-for’ test applied in cases involving only a single possible cause.”).
The federal agents have also argued that it is impractical to distinguish between lawabiding protesters” and “a violent subset of protesters who disrupt civic order.” (Dkt. 67 at 17 (quoting Menotti v. Seattle, 409 F.3d 1113 (9th Cir. 2005).) But the declarations Plaintiffs have submitted were not, for the most part, close cases. In no instances were the victims protesting, much less doing anything violent, and almost all of them were not near any protesters, much less anyone engaged in violence. The federal agents are highly skilled marksmen with accurate weapons. (FPS 824 Dep. at 15:25-16:21, 22:15-22; see also Declaration of Andrew Smith (“Smith Decl.”), Dkt. 106-1 ¶ 5 (explaining that the federal agents are “specially trained” and “capable of conducting complex and sensitive operations throughout the globe in furtherance of the rule of law”); Kerlikowske Decl. ¶¶ 27, 37.) Before they shoot, they are capable of assessing whom they are shooting. (FPS 824 Dep. at 25:2-16.) If they hit a journalist or legal observer, it is because they intend to do so.
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B. Plaintiffs Are Likely to Prevail on Their Access Claim The federal agents have admitted that their policy is to disperse everyone at the protests, without differentiating among protesters, rioters, journalists, and legal observers. As explained above, they have carried out that policy with deadly efficacy. But the federal agents can have no legitimate interest in excluding press and legal observers when they execute dispersal orders against protesters. Their stated policy is to protect federal property and law enforcement, but a policy of dispersing the press as well is not narrowly tailored and violates the First Amendment.
1. Plaintiffs Have a Right to Observe and Report on Protests Plaintiffs assert the right to observe, record, and report on how the federal agents police protests, interact with protesters, and enforce their dispersal orders. To vindicate that right, Plaintiffs must show (1) that the place and process to which they seek access have historically been open to the press and general public and (2) that public access plays a significant positive role in the functioning of the particular process in question. Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”), 478 U.S. 1, 8-9 (1986); Leigh, 677 F.3d at 900. As the Court has already held, both elements are met here: “The public streets, sidewalks, and parks historically have been open to the press and general public[.]” (Dkt. 84 at 14-15; Dkt. 33 at 7.) The federal agents have previously argued that Plaintiffs are “trespass[ing] on federal property” (Dkt. 67 at 17), but this is a non sequitur. Public streets are by definition public property—i.e., government property—and that has never prevented courts from recognizing that they are traditional public fora, even when a government purports to “close” it. See, e.g., McCullen v. Coakley, 573 U.S. 464, 490 (2014) (closure of sidewalks adjacent to abortion clinics was overbroad). This applies with equal or greater force to “[p]ublic open spaces” such as parks, because they are “uniquely suitable for public gatherings and the expression of political or social opinion.” Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1022 (9th Cir. 2009) (quotation marks omitted). Moreover, permitting Plaintiffs to observe and report on how federal agents police protests and disperse crowds facilitates federal agents’ accountability to the public. (Dkt. 84 at
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14-15; Dkt. 33 at 7.) People have “but limited time and resources with which to observe at first hand the operations of [their] government.” Cox Broad. Corp., 420 U.S. at 490-91. If they want to know what their public servants are doing in their name, they necessarily must rely upon the press. Id. That is why “the public’s right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.” Glik, 655 F.3d at 82. Thus, Plaintiffs have a qualified right of access to law-enforcement activity at protests on public streets, sidewalks, and parks.
In earlier briefing, the federal agents argued that despite Press-Enterprise II and Leigh, they may lawfully disperse press and legal observers when they disperse protesters, because the First Amendment gives press and legal observers no greater rights than anyone else. (Dkt. 67 at 18.) This is a false syllogism. Press and protesters are engaged in different activities. Even assuming that the federal agents had a valid reason to use violence against people exercising their right to protest, it does not follow that the same purported justifications for using violence apply to journalists and legal observers.
Journalists and legal observers are engaged in different conduct than protesters, and so their claims are evaluated under different standards. Protesters seek a right to speak and assemble. Such claims are evaluated under the familiar forum-analysis framework.8 Plaintiffs, however, seek a right to access and “observe government activities.” Access claims are evaluated under the two-part test of Press-Enterprise II. Leigh, 677 F.3d at 898 & n.3. The latter test has no bearing on others’ right to speak, even if at the same time and in the same place. That is why Press-Enterprise II established a right to access certain criminal proceedings, but not a right to heckle the judge. See 478 U.S. at 8-9. If a journalist seeks to engage in protest, she has no more
8 Even if Plaintiffs’ claims were evaluated under forum analysis, Plaintiffs would be likely to prevail for substantially the same reasons as stated here: Excluding journalists and legal observers is not narrowly tailored and leaves no alternative observation opportunities. Reed v. Lieurance, 863 F.3d 1196, 1211-12 (9th Cir. 2017). PAGE 19 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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right than the public.9 But here, Plaintiffs seek to observe and report on protests, and under
Press-Enterprise II and Leigh, they have a qualified right to do so even if the federal agents may
lawfully disperse the public.
2. The Federal Agents Have No Legitimate Interest in Denying Plaintiffs Access
The federal agents can defeat Plaintiffs’ qualified right of access only if they show “an
overriding interest based on findings that closure is essential to preserve higher values and is
narrowly tailored to serve that interest.” Press-Enterprise II, 478 U.S. at 9. But the federal agents
have no legitimate interest, much less an “overriding interest,” in shooting people clearly marked
as press or legal observers, who are committing no crime but simply documenting how federal
agents interact with protesters. Federal agents might have a valid interest in protecting federal
property or protecting themselves—but media and neutral observers present no threat to such
interests. To the contrary, as the Ninth Circuit explained in Leigh: By reporting about the government, the media are “surrogates for the public.” When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate. If a government agency restricts public access, the media’s only recourse is the court system. The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press. Thus, courts have a duty to conduct a thorough and searching review of any attempt to restrict public access.
677 F.3d at 900 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980)); see
also Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 Stan. L. Rev.
927, 949 (1992) (“[W]hen the government announces it is excluding the press for reasons such as
administrative convenience, preservation of evidence, or protection of reporters’ safety, its real
9 Thus, for example, in California First Amendment Coalition v. Calderon, the Ninth Circuit permitted San Quentin to allow witnesses at executions to begin viewing the execution only after the inmate was strapped to the gurney and the IV was inserted. 150 F.3d 976, 981-82 (9th Cir. 1998). The regulation was justified because it was necessary to protect the anonymity of the executioners, and it still allowed access to observing and documenting the execution. Id. The Court reasoned that the press had no greater right than the public to document and observe the execution—because they were engaged in the exact same activity. Id. Here, in contrast, the press is documenting and observing the protests, while protesters are engaged in a different activity.
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motive may be to prevent the gathering of information about government abuses or incompetence.”).
3. Denying Plaintiffs Access is Not Narrowly Tailored The federal agents’ stated purpose for dispersing people is to protect federal property and law enforcement. (Russell Dep. at 12:16-13:1, 23:1-5.) But the Court has already held that “there are at least serious questions” about whether it is narrowly tailored for law enforcement to exclude journalists and legal observers at the same time. (Dkt. 84 at 16; Dkt. 33 at 7.) Effecting that exclusion with the kind of extreme violence federal agents have used against Plaintiffs and other journalists and legal observers10 can never be narrowly tailored. To be narrowly tailored, a policy must not “restrict more protected speech than is necessary.” Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 814 (9th Cir. 2013). Thus, in Board of Airport Commissioners v. Jews for Jesus, Inc., the Supreme Court struck down an ordinance that prohibited “all ‘First Amendment activity’” in an airport terminal. 482 U.S. 569, 570, 574-75 (1987). The ordinance was aimed at activities that might cause congestion, such as canvassing, but the Court held that it was not narrowly tailored because it unnecessarily swept in protected activities such as “wearing of campaign buttons or symbolic clothing.” Id. Similarly, the Ninth Circuit struck down a purported traffic-safety law that restricted hiring day laborers on the street because it prohibited “all in-street solicitation, regardless of whether the solicitation blocked traffic.” Valle del Sol, 709 F.3d at 814, 825-27. Here, the federal agents’ admitted policy is to direct violence at anyone who does not leave when ordered to do so:  “DHS admits that it does not have policies that differentiate between protesters,
rioters, and people present for other reasons, such as journalists or legal observers.” (Dkt. 124-4 at 4.)
10 See nn.4 & 6, supra, and accompanying text. PAGE 21 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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 “DHS admits that before the issuance of the TRO, DHS did not direct its officers to exempt journalists and legal observers from dispersal orders, tear gas, munitions, and other crowd control techniques.” (Id.)
Like the ordinance in Board of Airport Commissioners, this complete ban on First Amendment activities on public streets broadly sweeps in journalists and legal observers who pose no threat to the federal agents’ stated objectives.
The federal agents have argued that “allowing journalists and legal observers to remain is not a practicable option.” (Dkt. 67 at 20.) But “a court cannot rubber-stamp an access restriction simply because the government says it is necessary.” Leigh, 677 F.3d at 900. The federal agents have still offered no evidence, despite several opportunities, that any person marked as a journalist or legal observer has harmed a federal agent or anyone else. (Cf. Dkt. 67 (opposition to TRO); Dkt. 101 (motion for reconsideration); Dkt. 113 (opposition to extending TRO).) Allowing press to remain, unharmed, is something other police departments have safely done in hundreds of similarly chaotic protests. (Kerlikowske Decl. ¶¶ 3-4, 9, 15-19, 21, 28.) Police have several options for doing so safely, and if they actually perceived any risk, they could leave an officer back to liaise with press who are behind a skirmish line. (Id. ¶¶ 16-17.) The “availability of [such] obvious less-restrictive alternatives renders [the federal agents’ blanket-exclusion policy] overinclusive.” Valle Del Sol, 709 F.3d at 826; see Glik, 655 F.3d at 84 (“peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation”).
Not only is the federal agents’ policy overinclusive, it also fails to significantly advance its stated goal of protecting officer safety and federal property. Law-enforcement officers protecting a building usually create a perimeter around it, and from there they would have “no reason to target journalists or legal observers or disperse them.” (Kerlikowske Decl. ¶ 8.)
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Ignoring all these options and simply firing at journalists and legal observers does not advance the federal agents’ stated goal because journalists and legal observers are not threats to officer safety and federal property. (CBP NZ-1 Dep. at 72:10-73:1, 84:20-85:3.) That “a substantial portion of the [policy’s] burden on speech does not serve to advance its goals” is a second and “particularly compelling” reason why it fails the narrow tailoring requirement. Berger v. City of Seattle, 569 F.3d 1029, 1045-46 (9th Cir. 2009) (en banc) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)); Bay Area Peace Navy v. United States, 914 F.2d 1224, 1228 (9th Cir. 1990) (government “is not free to foreclose expressive activity in public areas on mere speculation about danger”).
4. Denying Plaintiffs Access Leaves Them No Alternative Observation Opportunities
Excluding journalists and legal observers from the scene of protests and law-enforcement activities also fails to leave them any “alternative observation opportunities,” much less “ample” ones. See Reed, 863 F.3d at 1211-12. The federal agents argue that Plaintiffs can just observe and report from “a few blocks away from federal property.” (Dkt. 67 at 19.) This argument defies both constitutional law and the laws of physics. As the Court reasoned, “[f]ederal agents are using tear gas, which decreases visibility, and the protests are at night. Reporting from a few blocks away is not a viable alternative location.” (Dkt. 84 at 15.) This is a third reason that denying journalists and legal observers access to protests is impermissible under the First Amendment. Reed, 863 F.3d at 1211-12. II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM WITHOUT THE
COURT’S INTERVENTION “[A]nytime there is a serious threat to First Amendment rights, there is a likelihood of irreparable injury.” (Dkt. 33 at 7 (citing Warsoldier v. Woodford, 418 F.3d 989, 1001-02 (9th Cir. 2005)).) Because Plaintiffs have, at minimum, raised a colorable claim that the exercise of their constitutionally protected right to record government activity in public has been infringed, they have satisfied the irreparable-injury requirement. (See id.) As long as federal agents are free to PAGE 23 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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shoot and arrest journalists and legal observers, Plaintiffs’ exercise of their First Amendment rights will “surely [be] chilled.” Black Lives Matter, 2020 WL 3128299, at *3; Barich v. City of Cotati, 2015 WL 6157488, at *1 (N.D. Cal. Oct. 20, 2015) (“No reasonable trier of fact could doubt that a person of ordinary firmness would be deterred by the threat of arrest.”).
What is more, in the newsgathering context, the Ninth Circuit has recognized that time is of the essence and that any delay or postponement “undermines the benefit of public scrutiny and may have the same result as complete suppression.” Courthouse News Serv. v. Planet, 947 F.3d 581, 594 (9th Cir. 2020) (quoting Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)). Thus, every minute that Plaintiffs are inhibited and intimidated from exercising their First Amendment rights, they suffer irreparable injury. (Dkt. 33 at 7.)
The federal agents have argued that because “the winding-down of the heightened federal presence [is] well underway,” Plaintiffs are no longer in danger of suffering irreparable injury. (Dkt. 113 at 8.) This argument fails for at least two reasons. First, there is no evidence that the federal agents are going to stand down and withdraw from Portland, and DHS has publicly stated just the opposite. Second, in any event, FPS agents are always stationed in Portland.
Federal agents’ supposed withdrawal from Portland is—to use DHS’s word—a “myth.” (Acharya Decl., Ex. 1 at 1.) According to DHS’s own press report, reports and implications that it is leaving are “irresponsible and dishonest.” (Id.) Mr. Russell, too, was unequivocal on the subject of the supposed drawdown:
Q: Is Diligent Valor over? A: It is not. (Russell Dep. at 30:7-8.) Nor could he say when it would be over. (Id. at 48:22-24.)
The federal agents argue that Plaintiffs’ fear of injury is speculative, but the true speculation is when (or whether) they will withdraw from Portland. (Cf. Dkt. 113 at 12.)
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In any event, their “heightened federal presence” is a red herring. Federal Protective Service agents are stationed in Portland year-round. (Russell Dep. at 11:16-12:7, 20:24-21:4; NZ-1 Dep. at 29:20-24.) These forces police “as many as a hundred [protests] a year.” (Id. at 63:19-64:4.) Even if Operation Diligent Valor ends and all the excess troops are sent home, these regulars will remain.
And these troops remain a threat to Plaintiffs. They are under Mr. Russell’s tactical and administrative command. (Id. at 11:16-22, 19:16-20:10, 20:24-21:9.) He is responsible for “making sure that [they] don’t use excessive force” and for making sure that they follow the Court’s TRO. (Russell Dep. at 76:9-12, 92:23-93:2.) But neither he nor anyone else at DHS disciplined a single agent for the uses of force described in Plaintiffs’ declarations. (Id. at 81:8-10 (“Q: Ultimately, zero agents were disciplined? A: I don’t know”); Dkt. 124-4 at 5 (“DHS admits that it has not disciplined any of its employees related to their treatment of a journalist or legal observer in Portland since May 26, 2020.”); NZ-1 Dep. at 62:7-15.)
Mr. Russell stated that he did not know which officers or agents were involved in those incidents. (Russell Dep. at 81:1-7.) But he also took no steps to make it easier to identify agents who harmed journalists in the future. (Id. at 98:23-100:8.) He had not even read or watched the videos of two of the most egregious uses of force, the dectuple shooting of Plaintiff LewisRolland and the wanton pepper-spraying of Plaintiff Mahoney. (Id. at 87:1-4, 101:8-102:16, 105:15-23; but cf. id. at 79:25-80:3, 100:9-11.) He was not even aware of the allegations. (Id. at 102:15-17.) Most concerning of all, even with the allegations before him, he could not “say one way or the other” whether they would be permissible in the absence of the TRO, or whether they violated the TRO. (Id. at 98:7-14, 104:16-19.)
This is not the testimony of a commander serious about preventing federal agents from intimidating, beating, and shooting journalists and legal observers. As long as FPS regulars remain here—and the government has given no indication that it intends to withdraw them, retrain them, or replace Mr. Russell with someone who will be attentive to their discipline—they will threaten Plaintiffs with irreparable harm. PAGE 25 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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In sum, the heightened federal presence remains in Portland and continues to threaten Plaintiffs. The regular FPS presence also continues to threaten Plaintiffs. Mr. Russell, a commander with no interest in disciplining his troops, continues to command them all. And the situation in Portland remains “dynamic and volatile.” (Dkt. 124-1 at 2.) So, there is at least a “possibility of recurrence,” if not an outright likelihood that the federal defendants will be “free to return to their old ways” if the Court does not issue a preliminary injunction. F.T.C. v. Affordable Media, 179 F.3d 1228, 1237 (9th Cir. 1999) (quotation marks and alteration omitted).11 That is especially true because the federal defendants “continue[] to defend the legality” of their conduct. Knox v. Serv. Employees Int’l Union, Local 1000, 567 U.S. 298, 307 (2012). Thus, the threat to Plaintiffs of irreparable injury is alive and well, and Plaintiffs need the Court’s protection to continue their vital reporting and observing. (See, e.g., Russell Dep. at 121:10-21 (agreeing that a local freelance journalist’s reporting on the protests was “[a]bsolutely” a good thing).) III. THE PUBLIC’S INTEREST AND BALANCE OF EQUITIES WEIGH
STRONGLY IN FAVOR OF PLAINTIFFS A. The Public Has an Unassailable Interest in a Free Press In the context of a preliminary injunction, courts have “consistently recognized the significant public interest in upholding First Amendment principles.” Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (quotation marks omitted). Not only do speakers have a right to speak and press a right to observe, but the public has a right to know. Grosjean v. Am. Press Co., 297 U.S. 233 (1936) (striking down tax on press because it would “limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties” (emphasis added)). And it is “always in the public interest to prevent the violation of a party’s constitutional
11 Although this case speaks in terms of mootness, it involves precisely the same factual scenario as here: The defendants “contend[ed] that [their] ‘voluntary cessation of an unlawful course of conduct preclude[d] the issuance of an injunction [because there was] no cognizable danger of recurrent violations.’” Affordable Media, 179 F.3d at 1237 (alteration omitted). PAGE 26 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quotation marks omitted) (granting an injunction under the Fourth Amendment).
It would be difficult to identify a situation in which the public has a greater interest in unbiased media coverage of police and Government conduct than this one. The protests are rooted in an incident of shocking police brutality, and how the police and federal agents respond to the protesters is of critical importance to how and whether the community will be able to move forward. “The press was protected [by the First Amendment] so that it could bare the secrets of government and inform the people.” New York Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring). Although the protests began in Minneapolis, they have now spread across the country and the globe. The public interest in press coverage of these events cannot reasonably be questioned.
“The Free Speech Clause exists principally to protect discourse on public matters.” Brown v. Entm’t Merch. Ass’n, 564 U.S. 786, 790 (2011). It reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). It is “[p]remised on mistrust of governmental power.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010). “[I]t furthers the search for truth,” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2464 (2018) (citation omitted), and “ensure[s] that . . . individual citizen[s] can effectively participate in and contribute to our republican system of self-government.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982). Unless the constitutional rights of journalists are protected, the public’s ability to participate meaningfully as citizens in a constitutional democracy will be severely diminished.
B. A Preliminary Injunction Would Be Workable The federal agents argue that attempting to comply with the TRO “will hamstring federal officers in their duties” because lawbreakers are pretending to be press using indicia set forth in the TRO. (Dkt. 113 at 10-15.) But well-trained police are more than capable of using the indicia
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in the Court’s TRO and similar indicia to safely avoid hitting journalists and legal observers. (Kerlikowske Decl. ¶¶ 3-4, 9, 15-19, 21, 23, 28.)
The federal agents still have not identified a single instance of a person masquerading as press harming a federal agent or anyone else. Nor, after more than 60 straight days of protests, has any such incident occurred with the local police. The reason that the federal agents cannot point to any such event is that, unlike throwing objects or shining lasers when concealed by a crowd, attacking law enforcement from behind their own lines ensures that the bad actor would be sandwiched between the skirmish line and the rear guard and surely be swarmed and arrested. (Kerlikowske Decl. ¶ 16.) Anyone with that kind of death-wish would just do so head on.
The federal agents have, so far, submitted several declarations that purport to show the danger in permitting press and legal observers to report after a dispersal order. But in the most dangerous such supposed incident, involving a person with a gun, video evidence shows that the person did not cross the federal agents’ perimeter, federal agents actually attacked the person unprovoked, and the person had a valid license to carry the firearm. (Dkt. 124-3 at 5 ¶ 10; Dkt. 124 ¶ 7.12) Much of the federal agents’ other evidence contains similar factual infirmities. (See Dkt. 123 at 11-13 (explaining that Mr. Russell testified that he was unaware of many of the events recounted in his declaration and had misstated significant facts of the videos he watched).)
The remainder of the federal agents’ declarations establish: (1) that some people marked as press were intermingled with protesters and/or people engaged in wrongful conduct,13 (2) that some people marked with the word “press” engaged in wrongful conduct themselves,14 (3) that
12 https://youtu.be/1vcM5KMAwkY. 13 CBP PAO #1 Decl. ¶¶ 6-8, 10, 12; FPS 824 Decl. ¶ 5(a); FPS 882 Decl. ¶¶ 5(a), (c)-(d); Russell Decl. ¶ 8(a); CBP NZ-1 Decl. ¶¶ 11-13. 14 CBP PAO #1 Decl. ¶ 9; FPS 824 Decl. ¶ 5(b); CBP NZ-1 Decl. ¶¶ 9-10; CBP SOG-1 Decl. ¶¶ 10-11; Smith Decl. ¶¶ 8, 10-11, 14-15; Russell Decl. ¶¶ 8(b), (f)-(h). PAGE 28 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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some people marked “press” avoided dispersal orders when they may not have been press,15 and (4) that a few protesters have stated that they intend to fraudulently mark themselves as press.16
The TRO already answers these concerns. As to (1), the TRO does not prohibit law enforcement from going after wrongdoers, even if they are standing near or behind press. As to (2), the federal agents can arrest anyone if they have probable cause (Dkt. 84 at 18 ¶ 1),17 and there is no evidence in the record that by marking themselves as “press,” any of the wrongdoers identified by the federal agents gained any advantage. (Kerlikowske Decl. ¶ 14; FPS 824 Dep. at 54:1-56:22.) Indeed, protesters breaching or cutting the fence would be able to do the same thing (and be arrested) regardless of what they were wearing. (Russell Dep. at 122:24-123:23 (admitting that when an individual wearing a press helmet hopped the courthouse fence, the helmet did not affect officers’ ability to determine that there was probable cause to arrest that person, and would not have prevented officers from arresting the person).)
As to (3) and (4), the federal agents have not submitted any evidence that any counterfeiters have caused any harm. For example,
This declaration fails to establish that the subjects were not journalists. But even if they were not,
He expressly testified:
Obviously, protesters should not be exploiting the TRO, but the actions of these few 15 FPS 824 Decl. ¶ 5(c); FPS 882 Decl. ¶ 5(b). 16 Russell Decl. ¶¶ 8(c), 8(e).
17
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individuals does not create so manifest a threat to public safety or law enforcement as to alter the balance of the equities.
In sum, contrary to the federal agents’ arguments, the TRO is perfectly workable. If federal agents have probable cause to believe a person is committing a crime, the TRO grants that person no immunity. If federal agents choose to arrest a person, the TRO offers that person no invulnerability. If a person wearing press indicia is mingled with protesters lawfully being dispersed, the TRO shields federal agents from liability for incidentally exposing that person to crowd-control devices. The safety valves are built in. The only workability issue under the TRO has been the federal agents’ failure to comply with its terms.
C. The Court Should Require That Federal Agents Be Marked With Large Identifying Codes
When the federal agents were sent from Washington, they were told to police anonymously. This was the equivalent of telling them they would not be held accountable for the violence they were encouraged to inflict on Portland. “Having easily identifiable information specific to individual officers is a hallmark of professional policing.” (Kerlikowske Decl. ¶ 42.) Adding prominent, visible numbers to the uniforms of any federal officer policing the protests would increase transparency and accountability, promote good behavior and deter misconduct without impeding the officers’ abilities to do their jobs. (Id.)
For the preliminary injunction to be enforceable, there must be some way to identify federal agents who violate it. With that in mind, the Court suggested that any federal agent “who leaves the interior of the federal courthouse during a protest while carrying or using any crowdcontrol device must wear a clearly visible unique identifying code [at least 8 inches high] on the front and back of the outside of that person’s clothing.” (Dkt. 108.)
This modification would improve the workability of the preliminary injunction. To avoid burdening the Court with duplicative briefing, Plaintiffs incorporate the arguments and suggestions made at pages 11-12 of their memorandum in support of extending the TRO (Dkt. 112) and pages 14-17 of their reply brief (Dkt. 123). Plaintiffs also met and conferred with
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counsel for the federal agents on August 9 to explore the possibility of a mutually acceptable compromise, but the federal agents were unwilling to agree to any suggestion made by Plaintiffs thus far and did not have any new suggestions of their own. (Borden Decl. ¶ 5.) Because this proposal is necessary, fair, and workable, the Court should incorporate it into the preliminary injunction. See Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality op.).
D. The Court Should Prohibit Federal Agents from Leaving Federal Property While Carrying or Using Any Crowd-Control Device
Prohibiting federal agents from leaving federal property while on duty to police protests is also necessary, fair, and workable. To avoid burdening the Court with duplicative briefing, Plaintiffs incorporate the arguments made at pages 13-14 of their memorandum (Dkt. 112) and page 17 of their reply (Dkt. 123). In addition, while “police forces under leadership trained and experienced in civil disturbances are able to protect public safety without excluding press and legal observers,” that appears not to be true of the federal agents. (Kerlikowske Decl. ¶ 19.) They lack unity of command; they lack the training and experience to police civil disturbances; their conduct evinces no plan to facilitate rather than suppress First Amendment activities; and they seem to have provided less-lethal weaponry to every agent rather than “a small group of welltrained people who are familiar with the restraint necessary for policing this type of situation.” (Id. ¶¶ 20-29.) For all these reasons, they should be limited to the minimum ambit necessary to execute their supposed mission of protecting federal property.
E. Plaintiffs Do Not Object to Adding an Indicium That Journalists Stand to One Side
At the hearing on extending the TRO, the Court suggested that “perhaps one of the indicia of being a journalist or a protester[,] but not a requirement[,] is that they stand off to the side of the protests or the demonstration and not intermingle with the protesters,” “when feasible and when it doesn’t otherwise interfere with their journalistic or legal observer duties.” (TRO Extension Hrg. Tr. at 7:7-15, 49:10-14 (Aug. 6, 2020)). As the Court seemed to recognize, journalists and legal observers often do not have the option of standing to one side, especially when police and federal agents seek to block their view of arrests and other enforcement actions. PAGE 31 - PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST
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But Plaintiffs do not object to this addition as stated and have incorporated it into their relief requested. Commensurately, however, Plaintiffs also ask the Court to clarify that federal agents may not order a journalist or legal observer to move to a location or distance from which that person cannot reasonably photograph, record, or observe a protest or law-enforcement action.
F. The Balance of Equities Weighs Strongly in Favor of Plaintiffs Because Plaintiffs have “raised serious First Amendment questions,” the balance of hardships “tips sharply in [Plaintiffs’] favor.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th Cir. 2007) (quotation marks omitted). Plaintiffs’ evidence—both video and testimony—shows that officers have exercised their discretion in an arbitrary and retaliatory fashion to punish journalists for recording government conduct and that their unlawful policy is aimed toward the same end. In contrast to the substantial and irreparable injuries to Plaintiffs, any harm to the Government would be negligible. The Government has no legitimate interest in preventing journalists from reporting on what it is doing to protesters. While the Government might have an interest in protecting federal buildings and property, that interest is not served by using force against individuals who are identified as journalists, or who are merely recording events and present no threat of harm to police or the public. The balance of equities weighs heavily in favor of Plaintiffs.
* * * The Government’s attempts to shield its violence against protesters from public scrutiny by targeting press and legal observers shows, once again, that “[w]hen wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.” Leigh, 677 F.3d at 900. But just as the “free press is the guardian of the public interest,” so “the independent judiciary is the guardian of the free press.” Id. To protect the press—and ultimately, the public’s power to govern its public servants—this Court should enjoin the police from dispersing and retaliating against press and legal observers.
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CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court enter a preliminary injunction against the federal agents.

Dated: August 10, 2020

Respectfully Submitted,
By: /s/ Matthew Borden Matthew Borden, pro hac vice J. Noah Hagey, pro hac vice Athul K. Acharya, OSB No. 152436 Gunnar K. Martz, pro hac vice BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

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Matthew Borden, admitted pro hac vice borden@braunhagey.com J. Noah Hagey, admitted pro hac vice hagey@braunhagey.com Athul K. Acharya, OSB No. 152436 acharya@braunhagey.com Gunnar K. Martz, admitted pro hac vice martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND, a municipal corporation; JOHN DOES 1-60, officers of Portland Police Bureau and other agencies working in concert; U.S. DEPARTMENT OF HOMELAND SECURITY; and U.S. MARSHALS SERVICE,
Defendants.

Case No. 3:20-cv-1035-SI
PLAINTIFFS’ MOTION FOR FINDING OF CONTEMPT AND FOR SANCTIONS AGAINST DEFENDANTS U.S. DEPARTMENT OF HOMELAND SECURITY AND U.S. MARSHALS SERVICE EXPEDITED HEARING REQUESTED

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TABLE OF CONTENTS
Table of Contents ............................................................................................................................ 2 Table of Authorities......................................................................................................................... 4 Local Rule 7-1 Certification ........................................................................................................... 5 Motion............................................................................................................................................. 5 Memorandum of Law ..................................................................................................................... 7 Introduction..................................................................................................................................... 7 Argument ........................................................................................................................................ 8 I. The Federal Defendants Have Intentionally Violated This Court’s TRO ........................... 8
A. July 23-24: Federal Agents Shoot Journalist Jonathan Levinson ........................... 9 B. July 23-24: Federal Agents Shoot and Intimidate Journalist
Rebecca Ellis......................................................................................................... 10 C. July 23-24: Federal Agents Shoot Legal Observers Kat Mahoney
and Rachelle Collins ............................................................................................. 10 D. July 23-25: Federal Agents Shoot and Throw Tear Gas Canister at
Plaintiff Brian Conley ........................................................................................... 11 E. July 24-25: Federal Agents Shoot Photojournalist Kathryn Elsesser ................... 12 F. July 24-25: Federal Agents Shoot Legal Observer Haley Nicholson ................... 12 G. July 25-26: Federal Agents Mace Four Legal Observers at Point-
Blank Range.......................................................................................................... 14 H. July 25-26: Federal Agents Shoot Videographer Daniel Hollis ............................ 15 I. July 25-27: Federal Agents Disperse and Target Tear Gas Canisters
at Journalist Justin Grinnell .................................................................................. 15 J. July 27-28: Federal Agents Again Shoot and Throw Tear-Gas
Canisters and Flashbangs at Plaintiff Brian Conley ............................................. 16 II. The Court Should Grant Plaintiffs Relief ......................................................................... 16
A. The Court Should Prohibit the Agents Involved from Participating in Any Armed Operations Within the District of Oregon ..................................... 17
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Case 3:20-cv-01035-SI Document 85 Filed 07/28/20 Page 3 of 19 B. The Court Should Order the Federal Agents’ Supervisors to Appear
and Show Cause as to Why They Are Not in Contempt ....................................... 18 C. The Court Should Issue Coercive Fines and Award Plaintiffs Their
Attorney’s Fees ..................................................................................................... 19 Conclusion .................................................................................................................................... 19
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TABLE OF AUTHORITIES

Page(s)

CASES
Baez-Sanchez v. Barr, 947 F.3d 1033 (7th Cir. 2020) ................................................................................................... 18
Century Indem. Co. v. Marine Grp., LLC, No. 3:08-CV-1375-AC, 2013 WL 5838991 (D. Or. Oct. 29, 2013) .................................................................................. 9
Donovan v. Mazzola, 716 F.2d 1226 (9th Cir. 1983) ................................................................................................. 8, 9
Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935 (9th Cir. 2014) ....................................................................................................... 9
Int’l Union v. Bagwell, 512 U.S. 821 (1994).................................................................................................................. 16
J.L. v. Cuccinelli, 2020 WL 2562895 (N.D. Cal. Feb. 20, 2020)..................................................................... 16, 18
Maness v. Meyers, 419 U.S. 449 (1975).................................................................................................................... 8
Nat’l Comm’n for Certification of Crane Operators, Inc. v. California Crane Sch., Inc., 470 F. App’x 698 (9th Cir. 2012) ........................................................................................ 16, 18
Stone v. City & Cty. of San Francisco, 968 F.2d 850 (9th Cir. 1992) .............................................................................................. passim
Welch v. Frederickson, No. 07-CV-1185-AC, 2008 WL 2185213 (D. Or. May 22, 2008) ...................................... 16, 18

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LOCAL RULE 7-1 CERTIFICATION Counsel for Plaintiffs hereby certify that they contacted counsel for U.S. Department of Homeland Security (“DHS”) and U.S. Marshals Service (“USMS”) (together, the “federal defendants”) and attempted to resolve this dispute but were unable to do so. Counsel for federal defendants also objected to Plaintiffs’ request for an expedited hearing.
MOTION Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau hereby move for a finding that the federal defendants are in contempt of court and an order imposing sanctions. Plaintiffs support this motion with the accompanying memorandum of law and the declarations of Haley Nicholson, Rebecca Ellis, Jonathan Levinson, Kat Mahoney, Bruce Knivila, Brian Conley, Kathryn Elsesser, and Matthew Borden. Plaintiffs ask this Court to impose sanctions that are reasonably calculated to prevent future contemptuous conduct by the City. This Court has wide discretion in determining the appropriate sanction. Plaintiffs request at least the following relief: 1. An order that each federal agent in the supporting declarations who violated the Court’s temporary restraining order (Dkt. 84) be identified, personally appear, and be prohibited from participating in any armed operations within the District of Oregon. 2. An order that the federal agents’ commanders, including L. Eric Patterson, Richard K. Cline, Mark Morgan, Robert Perez, Rodney Scott, Raul Ortiz, Matthew Albence, Derek Benner, Donald W. Washington, Derrick Driscoll, Chad Wolf, and Ken Cuccinelli personally appear and show cause why they should not be sanctioned for failure to comply with paragraph 7 of the Court’s TRO. 3. A complete ban on the federal defendants’ use of lethal or “less lethal” weapons in the District of Oregon.
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Case 3:20-cv-01035-SI Document 85 Filed 07/28/20 Page 6 of 19 4. Fines of sufficient size to coerce the federal defendants to comply with the Court’s TRO, such as $500 for every day a journalist or legal observer is shot, beaten, arrested, or intimidated by a federal agent. 5. Plaintiffs’ attorney’s fees for bringing this motion. 6. All further relief that the Court deems necessary to ensure compliance with its TRO.
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MEMORANDUM OF LAW Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan Tracy, Tuck Woodstock, and Justin Yau respectfully submit this memorandum in support of their motion to hold Defendants U.S. Department of Homeland Security (“DHS”) and U.S. Marshals Service (“USMS”) (together, the “federal defendants”) in contempt of court.
INTRODUCTION On July 23, 2020, the Court issued a temporary restraining order prohibiting federal agents from assaulting and dispersing journalists and legal observers. Within hours, federal agents began violating the Court’s TRO and have continued to do so every night since. These violations are not inadvertent. They are intentional acts by a lawless president, who has sent his paramilitary forces to shoot up the streets of Portland, choke downtown in a haze of toxic chemical fumes, and generate reelection soundbites—in blatant disdain of public safety, the rule of law, and the most fundamental principles of our Constitution. On July 23, a federal agent shot reporter Jonathan Levinson while he was trying to take a photo. No protesters were near him. A federal agent also shot journalist Brian Conley, when he was trying to video an arrest. Later that night, federal agents tear-gassed Mr. Conley. The same night, federal agents shot reporter Rebecca Ellis and separately prevented her from documenting their dispersal of protesters. On July 24, federal agents shot legal observer Haley Nicholson in her chest, just above her heart, from four feet away. Impact munitions should not be used at distances of less than 15 feet or above the waist. On July 25, federal agents deliberately sprayed toxic chemicals into the faces of multiple legal observers, including Bruce Knivlia and Kat Mahoney, at point blank range. They were all clearly identified in blue ACLU vests and green NLG hats. They also shot photojournalist Kathryn Elsesser, who was also clearly marked with “PRESS” on her helmet.
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On July 26, a federal agent temporarily left an advancing line of agents to kick a flaming tear-gas canister directly at a group of clearly marked journalists.
On July 27, Plaintiffs contacted government counsel to raise these blatant violations. (Declaration of Matthew Borden (“Borden Decl.”), Ex. 1.) Instead of investigating and providing information as promised, the federal defendants claimed that they were unaware of what agents and commanders were involved and offered nothing to extenuate their violations of the TRO. That night, the federal agents heaped on more acts of contempt. (Declaration of Brian Conley (“Conley Decl.”) ¶¶ 19, 20, 22, 25.)
Every day it has existed, federal agents have intentionally violated the Court’s TRO. As a result of the federal agents’ defiance of the Court’s order, the free press remains unsafe while trying to document and observe the cataclysmic violence that federal authorities are inflicting on Portland. The federal agents—and their commanders, whom the Court ordered to be notified of the TRO—are not above the law.
In light of the foregoing facts, and those detailed further below, the Court should find the federal defendants in contempt and (1) prohibit the offending officers from engaging in armed operations in Portland, (2) order the federal agents’ commanders L. Eric Patterson, Richard K. Cline, Mark Morgan, Robert Perez, Rodney Scott, Raul Ortiz, Matthew Albence, Derek Benner, Donald W. Washington, Derrick Driscoll, Chad Wolf, and Ken Cuccinelli to appear and show cause as to why they should not be held in contempt, (3) order additional prophylactic restrictions to ensure that no further violations of Plaintiffs’ rights occur, (4) order fines of sufficient size to coerce the federal defendants’ compliance, and (5) order that the federal defendants pay Plaintiffs’ attorney’s fees for bringing this motion.
ARGUMENT I. THE FEDERAL DEFENDANTS HAVE INTENTIONALLY VIOLATED
THIS COURT’S TRO “Absent a stay,” parties subject to a court order must comply “promptly.” Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th Cir. 1983) (quoting Maness v. Meyers, 419 U.S. 449, 458
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(1975)). Parties that fail to take “all reasonable steps within [their] power” to comply with a “specific and definite” court order are in contempt of court. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir. 2014) (quotation marks omitted).
Initially, the moving party bears the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order; the burden then shifts to the contemnors to demonstrate either that they substantially complied based on a reasonable interpretation of the court’s order, or that they took “all reasonable steps” but were unable to comply. Stone v. City & Cty. of San Francisco, 968 F.2d 850, 856 n.9 (9th Cir. 1992), as amended on denial of reh’g (Aug. 25, 1992); Century Indem. Co. v. Marine Grp., LLC, No. 3:08CV-1375-AC, 2013 WL 5838991, at *2 (D. Or. Oct. 29, 2013). The contemnors’ intent is irrelevant and their good faith or lack thereof is no defense: “The sole question is whether [they] complied with the district court’s order.” Stone, 968 F.2d at 856; Donovan, 716 F.2d at 1240. District courts have “wide latitude” in answering that question. Stone, 968 F.2d at 856 (quotation marks omitted).
A. July 23-24: Federal Agents Shoot Journalist Jonathan Levinson The very night the Court issued its TRO, federal agents intentionally violated it by shooting OPB reporter Jonathan Levinson. (Declaration of Jonathan Levinson (“Levinson Decl.”) ¶¶ 4-5.) Mr. Levinson was wearing an OPB press pass with his name, his photograph, the OPB logo, and the word “MEDIA.” (Id. ¶ 3.) He was also wearing a helmet that said “PRESS” in large letters on the front and back and carrying two professional cameras with large, bulky lenses. (Id.) Around 1:00 a.m., federal agents had cleared the area next to the courthouse and there were few protesters in the immediate vicinity, so Mr. Levinson decided to take some pictures of the agents inside the fence. (Id. ¶ 4.) One agent was standing on a platform near the north side of SW 3rd Avenue. (Id. ¶ 5.) As Mr. Levinson looked back and forth between his camera and the agent, trying to focus his lens, he saw the agent raise his weapon, deliberately point it at him, and
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fire several rounds. (Id.) Mr. Levinson’s camera and lens were splattered with paint. (Id.) Based on Mr. Levinson’s position and the position of people around him, there is almost no chance the agent was aiming at anyone other than Mr. Levinson. (Id. ¶ 6.) This was an intentional act of contempt.
B. July 23-24: Federal Agents Shoot and Intimidate Journalist Rebecca Ellis Federal agents also intentionally violated the TRO by shooting OPB reporter Rebecca Ellis and then preventing her and her colleagues from reporting on their enforcement of a dispersal order. Like Mr. Levinson, Ms. Ellis attended the protests on the night the Court issued the TRO. (Declaration of Rebecca Ellis (“Ellis Decl.”) ¶ 3.) She too was wearing her OPB press pass. (Id. ¶ 2.) Around 1:30 a.m., she was standing with a group of journalists, away from protesters, and filming federal agents as they exited the federal courthouse. (Id. ¶ 3.) Suddenly, for no reason, a federal agent fired directly at her, hitting her in the hand and singeing her arm. (Id. ¶ 4.)1 Around ten minutes later, she was on SW Salmon Street with several other journalists, attempting to film federal agents’ enforcement of dispersal orders. (Id. ¶ 5.)2 Two agents physically forced her to leave; one shouted “MOVE, MOVE,” and “WALK FASTER!” in her face, forcing her and her colleagues to walk backward, while another agent kept pace menacingly holding his gun. (Id.) These two agents together prevented her and her colleagues from reporting on what was going on behind them. This, too, was an intentional act of contempt. C. July 23-24: Federal Agents Shoot Legal Observers Kat Mahoney and
Rachelle Collins Federal agents also shot ACLU legal observers Kat Mahoney and Rachelle Collins, again violating the TRO the night it was issued. At around 12:45 a.m. on July 24, Ms. Mahoney was on SW 3rd Avenue facing the federal courthouse. (Declaration of Kat Mahoney (“Mahoney Decl.”)
1 @Rjaellis, Twitter (July 24, 2020, 1:27 A.M.), https://twitter.com/Rjaellis/status/1286578718693978113. 2 @Rjaellis, Twitter (July 24, 2020, 1:39 A.M.), https://twitter.com/Rjaellis/status/1286581690626748416. PAGE 10 - MOTION FOR CONTEMPT & SANCTIONS AGAINST FEDERAL
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¶ 4.) Federal agents began aggressively firing through the fence at protesters on the other side. (Id.) As they began approaching her position, Ms. Mahoney moved north on SW 3rd Avenue away from them, and then slightly onto SW Salmon Street to continue filming and observing the events taking place. (Id.)
Suddenly, for no reason, a federal agent shot a pink paint bullet directly at Ms. Mahoney’s head. (Id. ¶ 5.) A paint bullet also hit Ms. Collins on her neck. (Id.) There was no discernible reason to shoot in their direction. (Id. ¶ 8.) They were near members of the press, but 6 to 10 feet away from protesters. (Id.) Nor was there any reason to shoot the protesters, who were not doing anything violent. (Id.) Based on their position and the position of people around them, there can be little doubt that this, too, was an intentional act of contempt. (Id.)
D. July 23-25: Federal Agents Shoot and Throw Tear Gas Canister at Plaintiff Brian Conley
On the night the TRO issued, federal agents intentionally shot Plaintiff Brian Conley and threw a tear-gas canister at his head. Mr. Conley was documenting events at 4:00 a.m., when only a few protesters were remaining. (Conley Decl. ¶ 4.) He was using a large Micro Four Thirds camera with a telephoto lens and external 20W LED light mounted on it. (Id. ¶ 3.) He was wearing a photographer’s vest that said “PRESS” on it as well as a helmet that said “PRESS” in big block letters across the front. (Id.) He was plainly a member of the press.
When a female protester holding flowers skipped towards federal agents, they grabbed her. (Id. ¶¶ 5-6.) They also grabbed a protester who tried to free her. (Id.) Having neutralized this threat, the federal agents inundated the street with tear gas. (Id. ¶¶ 6-7.) Mr. Conley yelled that he was press, over and over. (Id.) Suddenly, without warning, federal agents shot him multiple times with impact munitions, which were “incredibly painful.” (Id. ¶ 7.) They shot him in his chest and his foot. (Id.) This can only have been intentional, for there was nobody else nearby except press and a few medics. (Id. ¶¶ 7-8.) Further confirming that federal agents were targeting press intentionally, an agent threw a tear-gas canister directly at Mr. Conley, where it exploded above his head. (Id. ¶¶ 9-10.) Federal agents again threw canisters of tear gas at several members of the
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press, including Mr. Conley, the following night. (Id. ¶¶ 12-14.) These are repeated, intentional violations of this Court’s TRO.
E. July 24-25: Federal Agents Shoot Photojournalist Kathryn Elsesser Federal agents also shot a photojournalist the following night. Freelance photographer Kathryn Elsesser attended the protests on the night of July 24 on assignment for the world’s oldest news agency, the Agence France-Presse (AFP). (Declaration of Kathryn Elsesser (“Elsesser Decl.”) ¶¶ 1-2.) Her photos from that night were published around the world by Bloomberg, CBS News, and Yahoo, among others, including many international publications. (Id. ¶ 1.) She was wearing a press pass and a helmet with “PRESS” written on it in big letters across the front. (Id. ¶ 2.) At around 2:00 a.m., Ms. Elsesser was standing alone at the edge of the park, across the street from the federal courthouse, when a federal agent shot her in the arm from across the street. (Id. ¶¶ 4-6.) She also recounts four additional journalists who, despite being clearly identified as press, federal agents shot—including one in the head—and teargassed. (Id. ¶¶ 7-11.) F. July 24-25: Federal Agents Shoot Legal Observer Haley Nicholson Federal agents also shot an NLG legal observer the following night. Law student Haley Nicholson attended the protests on the night of July 24. (Declaration of Haley Nicholson (“Nicholson Decl.”) ¶¶ 1-2.) She was wearing a green NLG legal-observer hat, which she believed would protecte her from federal violence under the Court’s TRO. (Id. ¶ 2.) At around 11:50 p.m., she was recording and observing events on SW 3rd Avenue, near the intersection with SW Salmon Street. (Id. ¶ 3.) A federal agent lined her up in his sights, but she was facing away from him. (Id. ¶¶ 4, 7.) He waited for her to turn. (Id.) When she was fully facing him, he shot her in the chest, directly above the heart, at nearly point-blank range. (Id. ¶ 5.) Videos of this event can be viewed at https://tinyurl.com/FedShootsLO and https://tinyurl.com/FedShootsLO2, and they show that she was not threatening federal property, interfering with law enforcement, or even talking to the agent who shot her. (Id. ¶¶ 3, 7.)
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Case 3:20-cv-01035-SI Document 85 Filed 07/28/20 Page 13 of 19 The federal agent used a 40mm rubber bullet for which the minimum safe distance is 2 meters (approximately 6 feet) and the minimum recommended distance is 5 meters (approximately 15 feet). (Id. ¶ 5; 40mm Direct Impact Round, Defense Technology, https://www.defense-technology.com/wp-content/uploads/2020/06/40mm-Direct-ImpactRound.pdf.) He also fired it at Ms. Nicholson’s heart, even though the manufacturer recommends that it be fired “at the large muscle groups of the buttocks, thigh, and knees” in order to “reduc[e] serious or life-threatening injuries.” (Ibid.) Used in this thoroughly improper manner, it left a massive contusion in Ms. Nicholson’s chest (Nicholson Decl. ¶ 6.):
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Ms. Nicholson returned to downtown to serve as a legal observer on the night of July 25. Several times, federal agents pointed their guns at her and a group of legal observers. Recalling her experience of the previous night, Ms. Nicholson left early. (Id. ¶ 10.) Federal agents successfully deterred Ms. Nicholson from performing her vitally necessary role, in contempt of this Court’s order.
G. July 25-26: Federal Agents Mace Four Legal Observers at Point-Blank Range
Federal agents again brazenly violated the TRO on the night of July 25. On this night, two ACLU legal observers—Ms. Mahoney and Bruce Knivila—were standing with two NLG legal observers and some press at the corner of SW Salmon Street and SW 3rd Avenue, facing the federal courthouse. (Mahoney Decl. ¶¶ 9-10; Declaration of Bruce Knivila (“Knivila Decl.”) ¶¶ 3-4, 8.) All four were clearly marked as legal observers affiliated with their respective organizations (Mahoney Decl. ¶ 10; Knivila Decl. ¶ 3.)
To the right of the group were some protesters. (Mahoney Decl. ¶ 11; Knivila Decl. ¶¶ 56.) Video evidence3 clearly shows that the four legal observers were distinguishable from protesters because at least two federal agents actually distinguished them and declined to pepperspray them. (Mahoney Decl. ¶¶ 9, 11; Knivila Decl. ¶¶ 4-6.) Then, one agent chose to walk over, pop open a can of tear gas, and casually drop it right at the feet of the legal observers, in an area where only press and legal observers would suffer its effects. (Knivila Decl. ¶ 8.) A couple of minutes later, another agent (or perhaps the same one) walked directly to the group—exactly to where his collaborators had stopped their pepper-spraying—and maced or pepper-sprayed the legal observers. (Mahoney Decl. ¶ 12; Knivila Decl. ¶ 9.) A minute after that, a federal agent again maced or pepper-sprayed an NLG legal observer. (Knivila Decl. ¶ 10.) There were no protesters behind the legal observers that the agents might have been aiming at. (Id. ¶ 9.) The
3 Available at https://tinyurl.com/FedsMaceLOs and https://tinyurl.com/FedsMaceLOs2. (Mahoney Decl. ¶ 9; Knivila Decl. ¶ 4.) PAGE 14 - MOTION FOR CONTEMPT & SANCTIONS AGAINST FEDERAL
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agents’ only possible reason was unlawful and contemptuous retaliation for documenting the agents’ actions. (Id.)
H. July 25-26: Federal Agents Shoot Videographer Daniel Hollis In the early hours of July 26, federal agents violated the TRO yet again. Daniel Hollis, a videographer for VICE News, was wearing a helmet with the word “PRESS” on it and operating large, professional video-recording equipment. (Declaration of Daniel Hollis (“Hollis Decl.”) ¶ 2.) He went to the intersection of SW Salmon Street and SW 3rd Avenue specifically to get away from protesters for a wide angle shot. (Id. ¶ 4.) There were very few people near him, and nearly all of them were clearly marked as press. (Id. ¶ 7.) The few non-press in the area were not doing anything threatening at all. (Id.) Federal agents were coming out of the side door to the federal courthouse, and the mass of protesters were outside their line of sight and line of fire. (Id.) Nevertheless, the agents launched a barrage of munitions at Mr. Hollis and the members of the press around him, hitting Mr. Hollis near his groin and in his lower back. (Id.) Mr. Hollis was forced to stop reporting for the night. (Id. ¶ 8.) I. July 25-27: Federal Agents Disperse and Target Tear Gas Canisters at
Journalist Justin Grinnell Federal agents continued to violate the TRO over the weekend. Justin Grinnell, the Managing Editor of the Portland State Vanguard, covered the protests outside the Hatfield Courthouse on the nights of July 25 and 26, 2020. (Declaration of Justin Grinnell (“Grinnell Decl.”) ¶¶ 1-2.) He was wearing a press pass and his hat and backpack were labeled “PRESS” in large letters written on yellow tape. (Id. ¶ 2.) Just before 2:30 a.m. on July 26, Mr. Grinnell documented a federal agent who temporarily left the advancing line to kick a flaming tear-gas canister directly at a group of journalists. (Id. ¶¶ 3-4.)4 The next night, in the early hours of July 27, federal agents dispersed Mr. Grinnell and other journalists, forcing them in the opposite direction from where federal
4 @psuvanguard, Twitter (July 26, 2020, 2:23 A.M.), https://twitter.com/psuvanguard/status/1287317488527486976. PAGE 15 - MOTION FOR CONTEMPT & SANCTIONS AGAINST FEDERAL
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agents were advancing on protestors. (Id. ¶ 5.) But there was no reason to disperse Mr. Grinnell. He was following federal agents’ orders. (Id.) All the press he was standing with appeared to be properly identified and were clearly just documenting. (Id.) They were not posing any danger to the federal agents or the federal courthouse. (Id.) A while later, a federal agent launched a tear gas canister at a group of press with whom Mr. Grinnell was standing. (Id. ¶ 8.) There were no protestors nearby, just clearly identified members of the press. (Id.)
J. July 27-28: Federal Agents Again Shoot and Throw Tear-Gas Canisters and Flashbangs at Plaintiff Brian Conley
Plaintiff Conley returned to cover the protests on the night of July 27. He was still using a large Micro Four Thirds camera with a telephoto lens and external 20W LED light mounted on it and wearing his photographer’s vest and his helmet that said “PRESS” across the front. (Conley Decl. ¶¶ 2, 22) He was, again, plainly a member of the press.
Just before 1:00 a.m. on July 28, federal agents—again—intentionally shot Mr. Conley and threw tear-gas canisters and flashbangs directly at him. (Id. ¶ 19.) Even once Mr. Conley moved to the side, and there was nobody else near him, a federal agent threw another flashbang directly at him. (Id. ¶ 20.) Mr. Conley was hit multiple times, rearranging the “PRESS” stickers on his helmet, and he is having trouble walking today. (Id. ¶¶ 19, 22, 25.) II. THE COURT SHOULD GRANT PLAINTIFFS RELIEF
District courts have broad power to enforce their orders. They may issue penalties “designed to compel compliance with [their orders] or to compensate the contemnor’s adversary for any damages resulting from the contemptuous behavior.” Welch v. Frederickson, No. 07-CV1185-AC, 2008 WL 2185213, at *2 (D. Or. May 22, 2008); see also Int’l Union v. Bagwell, 512 U.S. 821, 827 (1994) (“The paradigmatic coercive, civil contempt sanction . . . involves confining a contemnor indefinitely until he complies with an affirmative command”); J.L. v. Cuccinelli, 2020 WL 2562895, at *3 (N.D. Cal. Feb. 20, 2020) (holding Defendant DHS, Acting Deputy Secretary of Homeland Security Ken Cuccinelli, and Acting Secretary of Homeland Security Chad Wolf in contempt), modified on reconsideration, 2020 WL 2562896 (N.D. Cal.
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Mar. 27, 2020) (observing that sanctions caused DHS and Cuccinelli to return three removed class members). When less intrusive measures fail, courts may use “more intrusive measures” to enforce the rights of parties before them. Stone, 968 F.2d at 861 (collecting cases). Courts also have power to grant attorney’s fees as a sanction for civil contempt. Nat’l Comm’n for Certification of Crane Operators, Inc. v. California Crane Sch., Inc., 470 F. App’x 698, 700 (9th Cir. 2012).
A. The Court Should Prohibit the Agents Involved from Participating in Any Armed Operations Within the District of Oregon
If the agents who shot, pepper-sprayed, and intimidated journalists above have proven one thing, it is that they cannot be trusted to carry firearms of any type. In the five nights since this Court issued its TRO, they have managed to shoot at least eight clearly marked journalists and legal observers, one on multiple occasions.5 (Levinson Decl. ¶ 5; Ellis Decl. ¶ 4; Mahoney Decl. ¶ 5; Conley Decl. ¶ 7; Nicholson Decl. ¶ 5; Elsesser Decl. ¶¶ 4-6; Hollis Decl. ¶ 7.) Nor can they be trusted with other crowd-control devices like pepper spray and tear gas. (Conley Decl. ¶¶ 9-10, 12-14; Mahoney Decl. ¶ 12; Knivila Decl. ¶¶ 9-10; Grinnell Decl. ¶¶ 3-4, 8.) The Court has tried the lesser remedy of simply ordering them to stop violating Plaintiffs’ First Amendment rights; now it is time for stronger medicine. See Stone, 968 F.2d at 861. The only remedy that will actually prevent further violations of the Court’s TRO is to take these federal agents off the streets. Accordingly, the Court should order that each federal agent in the supporting declarations who violated the Court’s TRO be identified, personally appear, and be prohibited from participating in any armed operations within the District of Oregon.
5 They have, in fact, shot many more journalists and legal observers. The shootings discussed in this brief are merely some of the ones that are clearly and convincingly intentional and not supposedly “incidental” to the unnecessary violence perpetrated by the federal agents. Cf, e.g., @GriffinMalone6, Twitter (July 25, 2020, 3:15 A.M.), https://twitter.com/GriffinMalone6/status/1286968297980755968 (showing a federal agent shooting a journalist, apparently in response to a water bottle thrown from almost 180 degrees in the opposite direction). PAGE 17 - MOTION FOR CONTEMPT & SANCTIONS AGAINST FEDERAL
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Furthermore, the Court is entitled to order “more intrusive measures” to enforce Plaintiffs’ rights if the federal defendants do not respond to less restrictive orders. Stone, 968 F.2d at 861 (collecting cases). Plaintiffs ask that the Court consider issuing a complete ban on the federal defendants’ use of lethal or “less lethal” weapons in the District of Oregon if they remain unwilling to comply with the Court’s orders.
B. The Court Should Order the Federal Agents’ Supervisors to Appear and Show Cause as to Why They Are Not in Contempt
The Court should order that the Federal Agents’ commanding officers personally appear and show cause why they should not be held in contempt and sanctioned for willfully violating the Court’s TRO. The Court specifically ordered that the TRO be distributed to “all employees, officers, and agents of the Federal Defendants with any supervisory or command authority over any” federal agent deployed to Portland, including Attorney General Bill Barr and Acting Secretary of Homeland Security Chad Wolf, and that those supervisory officials could be liable for a willful violation of the TRO. (Dkt. 84 ¶ 7.) As shown above, Plaintiffs have proffered clear and convincing evidence that the federal agents committed acts of contempt—which are still ongoing—after the Court ordered that all the federal agents’ supervisors be placed on notice of the TRO. Accordingly, the federal agents’ supervisors L. Eric Patterson, Richard K. Cline, Mark Morgan, Robert Perez, Rodney Scott, Raul Ortiz, Matthew Albence, Derek Benner, Donald W. Washington, Derrick Driscoll, Chad Wolf, and Ken Cuccinelli should be ordered to appear and show cause why they should not be sanctioned for contempt. See, e.g., J.L, 2020 WL 2562895, at *3 (N.D. Cal. Feb. 20, 2020) (holding Wolf and Cuccinelli in contempt for DHS’s removal of juvenile class members in violation of a preliminary injunction); see also Baez-Sanchez v. Barr, 947 F.3d 1033, 1035-36 (7th Cir. 2020) (observing that individual members of the Board of Immigration and Appeals who “refused to implement” the Seventh Circuit’s decision “must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails”).
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Furthermore, Plaintiffs ask that the Court consider the “more intrusive measure” of holding Attorney General William Barr in contempt if they remain unwilling to comply with the Court’s orders. (See Dkt. 84 ¶ 7 (providing that both Wolf and Barr are responsible for compliance with the Court’s TRO).)
C. The Court Should Issue Coercive Fines and Award Plaintiffs Their Attorney’s Fees
Finally, coercive fines and attorney’s fees are standard remedies for contempt of court and the Court should order the federal defendants to pay them in an amount to be determined. Welch, 2008 WL 2185213, at *2; Nat’l Comm’n for Certification of Crane Operators, 470 F. App’x at 700. For coercive sanctions, Plaintiffs suggest that the federal defendants be ordered to pay $500 for every day a journalist or legal observer is shot, beaten arrested, or intimidated by a federal agent. See J.L, 2020 WL 2562896, at *1-*2 (observing that that amount was “warranted to ensure Defendants’ compliance posthaste, especially in light of the continuing harm suffered by the class members”).
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court find the federal defendants in contempt and issue sanctions against them.

Dated: July 28, 2020

Respectfully Submitted,
By: /s/ Matthew Borden Matthew Borden, pro hac vice J. Noah Hagey, pro hac vice Athul K. Acharya, OSB No. 152436 Gunnar K. Martz, pro hac vice BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

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FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
OCT 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

INDEX NEWSPAPERS LLC, DBA Portland Mercury; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU, and those similarly situated,
Plaintiffs-Appellees,
v.
UNITED STATES MARSHALS SERVICE; U.S. DEPARTMENT OF HOMELAND SECURITY,
Defendants-Appellants,
and
CITY OF PORTLAND, a municipal corporation; JOHN DOES, 1-60; individual and supervisory officers of Portland Police Bureau and other agencies working in concert,
Defendants.

No. 20-35739 D.C. No. 3:20-cv-01035-SI District of Oregon, Portland
ORDER

Before: O’SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges. Order by Judges RAWLINSON and CHRISTEN, Dissent by Judge O’SCANNLAIN

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On May 25, 2020, George Floyd was killed by a Minneapolis police officer while being arrested. Bystanders on the sidewalk recorded videos of a police officer kneeling on Floyd’s neck for several minutes while Floyd begged for his life. A video showing the last minutes of Floyd’s life was circulated nationwide, and it ignited protests across the country in support of the Black Lives Matter movement.
This case arises out of the protests in Portland, Oregon. Most of the protests have been peaceful, but some have become violent. There have been incidents of vandalism, destruction of property, looting, arson, and assault, particularly late at night. Since the protests began, state and local authorities in Oregon have actively monitored the protests and engaged in crowd control measures. Plaintiffs—a newspaper organization and individual journalists, photojournalists, and legal observers who have attended the protests to serve as reporters and recorders—filed a class-action complaint against the City of Portland on June 28, 2020.
The complaint alleged that the City’s response to the protests violated their rights under the First and Fourth Amendments to the United States Constitution, and Article I, Sections 8 and 26 of the Oregon Constitution. Specifically, plaintiffs asserted that although they had not participated in the protests, the local authorities shot them with less-lethal munitions (pepper balls, impact munitions, paint
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markers, and tear gas canisters), and pepper sprayed, shoved, and otherwise prevented them from recording and reporting on the protests and on law enforcement’s response to the same. Four days after the complaint was filed, on July 2, the district court entered a temporary restraining order (TRO) against the City regulating the local authorities’ use of crowd-control tactics against journalists and legal observers. On July 16, the City and plaintiffs stipulated to a preliminary injunction that was largely identical to the TRO.
Many of the protests in Portland have centered around the Mark O. Hatfield Federal Courthouse. In response to the threat to federal property, the Department of Homeland Security (DHS) and the United States Marshals Service (USMS) (collectively, the Federal Defendants) deployed federal law enforcement agents to Portland. It appears undisputed that the intensity of the protests escalated after the Federal Defendants arrived.
Plaintiffs filed a second amended complaint on July 17 joining as defendants DHS and USMS. This complaint alleged that the Federal Defendants “intentionally targeted and used physical force and other forms of intimidation against journalists and authorized legal observers for the purpose of preventing or deterring them from observing and reporting on unreasonably aggressive treatment
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of lawful protestors.” The district court entered a TRO against the Federal Defendants on July 23.
On July 29, 2020, DHS and the State of Oregon reached an agreement regarding their respective crowd control efforts. The agreement is not part of the record, but the district court described it as generally providing that the City would take the lead in responding to the protests. The court’s findings also made clear that the agreement contains numerous caveats and is terminable at any time, without notice. Though the agreement was to take effect on July 29, the district court observed that the record includes video clips that purport to show federal agents firing tear gas and less-lethal munitions at journalists standing on SW Main Street on July 29 and into the morning of July 30. The district court found that “there was no one nearby on the street but numerous federal enforcement officers and six journalists when the munitions were deployed.”
The Federal Defendants assert that the Oregon State Police are no longer enforcing crowd control in Portland, and that the Portland Police are currently filling that role instead. But it is clear that the federal agents have remained in
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Portland, and Acting Secretary of DHS, Chad Wolf, stated that “no determination of timetables for reduction in protective forces has yet been made.”1
On August 10, plaintiffs filed a motion for a preliminary injunction against the Federal Defendants. After briefing was complete, the parties stipulated that the court could base its decision on the record and the parties’ arguments without holding an evidentiary hearing. The record comprises dozens of declarations, many of which include photographs and links to video files. The district court issued a detailed, sixty-one page order granting plaintiffs’ motion on August 20 and entered a preliminary injunction with terms largely identical to the terms of the July 23 TRO.
The district court’s order began by observing that the Constitution reserves the general police power to the states, and pursuant to the general police power, local officials have the authority to issue general dispersal orders on the public streets and sidewalks. The court noted that the City had separately stipulated that it would not require members of the press or legal observers to disperse, and
1 On July 28, plaintiffs filed a motion for a finding of contempt and imposition of sanctions against the Federal Defendants, alleging several violations of the July 23 TRO. The district court has not yet ruled on the motion, but noted “serious concerns” that the Federal Defendants had not complied with the July 23 TRO, and that some of the alleged misconduct occurred after the Federal Defendants reached the agreement with Governor Brown.
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explained that the Federal Defendants did not assert the authority to issue general dispersal orders to clear city streets and that the statutory authority the Federal Defendants relied upon did not so provide. The court’s order recounts the Federal Defendants’ position, which was that federal officers had been dispatched to Portland with the stated mission to protect federal property and personnel. Nevertheless, the district court was confronted with compelling photographic evidence showing that federal officers “routinely have left federal property and engaged in crowd control and other enforcement on the streets, sidewalks and parks of the City of Portland.” The court’s order detailed several of the dozens of declarations, photos, and video clips introduced into evidence to support plaintiffs’ contention that at least some of the federal officers had intentionally targeted journalists and legal observers in retaliation for their news-reporting efforts.
Having explained that local officials had separately stipulated they were not requiring journalists and legal observers to disperse, the preliminary injunction entered to address the Federal Defendants’ conduct states that journalists and legal observers “shall not be subject to arrest for not dispersing following the issuance of an order to disperse.” The order states that journalists and legal observers may not impede, block, or otherwise physically interfere with the lawful activities of the Federal Defendants, and recognizes that the Federal Defendants are free to issue
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“otherwise lawful crowd-dispersal orders for a variety of lawful reasons;” i.e. crowd-dispersal orders not issued to clear city streets and sidewalks. The preliminary injunction also requires that journalists and observers “must comply with all laws other than general dispersal orders.”
Because the Federal Defendants argued that some protestors had masqueraded as members of the press by wearing press badges or clothing identifying them as members of the press corps, the order provides that it does not protect unlawful conduct and that anyone, even a person who appears to be a journalist, is subject to arrest for engaging in such conduct. Finally, the injunction sets out a number of indicia to assist the Federal Defendants in distinguishing between journalists, legal observers, and protesters. These indicia include visual identifiers such as press passes, people standing off to the side of protests not engaging in protest activities, people not intermixed with protest activities, and people carrying professional-grade photographic equipment. The order requires that the Federal Defendants’ uniforms bear marks allowing federal officers to be identified. The injunction also provides that if a journalist or legal observer is incidentally exposed to crowd-control devices after remaining in the area where such devices are deployed to enforce a lawful dispersal order, the Federal Defendants will not be liable for violating the injunction.
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On August 25, the district court denied the Federal Defendants’ motion for a stay of the preliminary injunction pending appeal, principally concluding that the Federal Defendants had not shown a sufficient likelihood that they would suffer irreparable injury absent a stay. On appeal, a divided three-judge motions panel issued a brief, two-page order on August 27 granting the Federal Defendants’ motion for an administrative stay of the injunction pending resolution of their emergency motion for a stay pending appeal.
Having considered the parties’ complete briefing, and after hearing oral argument, we conclude that the Federal Defendants have not shown a strong likelihood of success on the merits. The Federal Defendants also failed to demonstrate they are likely to suffer irreparable injury if the preliminary injunction is not stayed pending appeal. Accordingly, we deny the Federal Defendants’ emergency motion.
I “A stay is not a matter of right, even if irreparable injury might otherwise result to the appellant.” Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Nken v. Holder, 556 U.S. 418, 433–434 (2009).
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To decide whether to grant the Federal Defendants’ motion for a stay pending appeal, our case law requires that we consider: (1) whether the Federal Defendants have made a strong showing that they are likely to succeed on the merits; (2) whether the Federal Defendants will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id. at 426.
To decide whether the Federal Defendants have demonstrated a likelihood that they will succeed on the merits of their claims, we review the district court’s findings of fact for clear error, its legal conclusions de novo, and the injunction’s scope for abuse of discretion. Armstrong v. Brown, 768 F.3d 975, 979 (9th Cir. 2014); Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998) (“A district court’s factual findings are entitled to deference unless they are clearly erroneous.”).
II The bar for obtaining a stay of a preliminary injunction is higher than the Winter standard for obtaining injunctive relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We have explained that the first two Nken factors are the most critical, and that the second two factors are only considered if the first two factors are satisfied. Nken, 556 U.S. at 434–35; Al Otro Lado v. Wolf, 952 F.3d 999, 1007 (9th Cir. 2020). The Federal Defendants must show a strong likelihood
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of success on the merits. Doe #1 v. Trump, 957 F.3d 1050, 1062 (9th Cir. 2020). And “simply showing some possibility of irreparable injury fails to satisfy the second factor.” Nken, 556 U.S. at 434–35 (internal citations and quotations omitted). The demanding standard applicable here requires that the Federal Defendants show “that irreparable injury is likely to occur during the period before the appeal is decided.” Doe #1, 957 F.3d at 1059.
A The Federal Defendants argue they are likely to succeed on the merits for three reasons. First, they argue plaintiffs lack standing to pursue injunctive relief on their First Amendment retaliation claim because plaintiffs have not shown a sufficient likelihood that they will be deprived of their constitutional rights if the Federal Defendants’ crowd control measures are not subject to the district court’s preliminary injunction pending appeal. Second, they argue they will succeed on the merits of plaintiffs’ retaliation claim because there is no evidence to support the district court’s conclusion that plaintiffs’ protected activity was a substantial or motivating factor that prompted the Federal Defendants’ actions to disperse them. Third, the Federal Defendants argue they are likely to succeed on plaintiffs’ First Amendment right-of-access claim because the press and legal observers have no First Amendment right to access the streets and sidewalks where the protests are
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staged if the Federal Defendants order them to disperse. For these three reasons, the Federal Defendants argue they are entitled to a stay of the preliminary injunction pending appeal.2
1 Three elements make up the “irredicuble constitutional minimum of standing”: (1) injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992). Here, only the “injury in fact” element is disputed. “A plaintiff threatened with future injury has standing to sue ‘if the threatened injury is certainly impending, or there is a substantial risk the harm will occur.’” In re Zappos.com, Inc., 888 F.3d 1020, 1024 (9th Cir. 2018) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). A plaintiff may not rely “on mere conjecture about possible governmental actions” to demonstrate injury, and must instead present “concrete evidence to substantiate their fears.”
2 Our case law has frequently observed the importance of the press as surrogates for the public, but we have not considered whether legal observers serve the same function. Neither the parties nor the district court focused on whether the legal observers’ right of access differs from the one enjoyed by the press. Because we do not need to decide this question in order to rule on the emergency motion for a stay, we leave it for another day.
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Clapper v. Amnesty Int’l USA, 568 U.S. 398, 420 (2013). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)).
The Federal Defendants’ standing argument relies primarily on Lyons, a case involving a claim for injunctive relief asserted by a man who had been subjected to a chokehold by police officers. Id. at 102. In Lyons, the Court explained that to establish standing, the plaintiff was required to “credibly allege that he faced a realistic threat from the future application of the City’s [chokehold] policy.” Id. at 106 n.7. Because Lyons had not been subjected to a second chokehold in the time before he filed his federal complaint, the Supreme Court concluded that his assertion that he might face such abuse in the future was premised on a speculative sequence of events. Id. at 105–06. The Supreme Court explained that Lyons did not have standing to pursue equitable relief barring the use of chokeholds because “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” Id. at 102 (emphasis added) (citation omitted).
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Here, plaintiffs’ injuries are different for several reasons. First, their risk of future injury is not speculative. Plaintiffs introduced powerful evidence of the Federal Defendants’ ongoing, sustained pattern of conduct that resulted in numerous injuries to members of the press between the date the complaint was filed and the date the district court entered its preliminary injunction. The district court’s preliminary injunction included twelve pages solely dedicated to factual findings that describe in detail dozens of instances in which the Federal Defendants beat plaintiffs with batons, shot them with impact munitions, and pepper sprayed them. The court’s findings were supported by nineteen declarations and video and photographic evidence. The Federal Defendants do not argue that any of the district court’s findings are clearly erroneous, and we conclude the findings are amply supported.
As of the time the preliminary injunction was entered, the district court found that the Federal Defendants had engaged in a pattern of conduct that had persisted for weeks and was ongoing. After reviewing plaintiffs’ declarations, photos, and video clips, the district court found that many victims had been standing on public streets, sidewalks, and parks, well away from protestors, and were not engaged in unlawful activity when they were shot, tear gassed, shoved, or pepper sprayed by the Federal Defendants. Unlike Lyons, the district court found
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that some journalists and legal observers monitoring the protests had been injured by the Federal Defendants more than once. The district court’s findings are compelling because “the possibility of recurring injury ceases to be speculative when actual repeated incidents are documented.” Thomas v. Cnty. of Los Angeles, 978 F.3d 504, 507 (9th Cir. 1992) (internal quotation marks omitted).
The nature of plaintiffs’ injuries also sharply differs from the substantive due process injury asserted in Lyons. Plaintiffs allege that the Federal Defendants’ crowd-control measures have “chilled” the exercise of their First Amendment rights, and that this First Amendment injury is ongoing. A chilling of First Amendment rights can constitute a cognizable injury, so long as the chilling effect is not “based on a fear of future injury that itself [is] too speculative to confer standing.” Munns v. Kerry, 782 F.3d 402, 410 (9th Cir. 2015) (citing Clapper, 568 U.S. at 417–18); Libertarian Party of L.A. Cty. v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013) (“[A]s the Supreme Court has recognized, a chilling of the exercise of First Amendment rights is, itself, a constitutionally sufficient injury.”).
The district court agreed that the Federal Defendants’ targeting of the plaintiffs chilled their First Amendment rights, and after analyzing the factors prescribed by Furgatch, the court concluded that the Federal Defendants’ conduct
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was likely to continue.3 Fed. Election Comm’n v. Furgatch, 869 F.2d 1256, 1263 n.5 (9th Cir. 1989). The district court issued a lengthy and detailed order and the Federal Defendants do not challenge its factual findings. On this record, we conclude the Federal Defendants have not made a strong showing that their standing argument is likely to succeed, and have not shown that the district court abused its discretion by entering a preliminary injunction. This cuts against the emergency motion for a stay pending appeal.
2 We also conclude the Federal Defendants have not made the strong showing required by Nken that they are likely to succeed on the merits of plaintiffs’ First Amendment retaliation claim. For this claim, plaintiffs were required to show that they were engaged in a constitutionally protected activity, the Federal Defendants’ actions would chill a person of ordinary firmness from continuing to engage in the protected activity, and the protected activity was a substantial or motivating factor
3 Furgatch instructs courts to consider five factors when determining whether conduct is likely to occur in the future: (1) the degree of scienter involved; (2) the isolated or recurrent nature of the infraction; (3) the defendant’s recognition of the wrongful nature of his conduct; (4) the extent to which the defendant’s professional and personal characteristics might enable or tempt him to commit future violations; and (5) the sincerity of any assurances against future violations. Fed. Election Comm’n v. Furgatch, 869 F.2d 1256, 1263 n.5 (9th Cir. 1989). The Federal Defendants do not argue that the district court misapplied any of these factors, and we see no error.
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in the Federal Defendants’ conduct. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d
755, 770 (9th Cir. 2006). The Federal Defendants do not contest the first or second
elements of the retaliation claim, nor does there appear to be a good faith basis for
doing so.4
The Federal Defendants only argue that they are likely to succeed on the
merits of plaintiffs’ retaliation claim because “plaintiffs have not shown their First
Amendment activity was a ‘substantial or motivating factor’ in the government’s
conduct.” This element of a First Amendment retaliation claim may be met with
either direct or circumstantial evidence, and we have said that it involves questions
of fact that normally should be left for trial. Ulrich v. City & Cty. of San
4 As to the first element, plaintiffs were clearly observing and recording law enforcement activity in public, as the district court found. Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing plaintiff was exercising his “First Amendment right to film matters of public interest” when filming activities of police officers during a public protest march). The First, Third, Fifth, Seventh and Eleventh Circuits have all recognized the public’s First Amendment right to observe and film police activities in public. See Fields v. City of Philadelphia, 862 F.3d 353, 359–60 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 688 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1, 7 (1st Cir. 2014); ACLU of Illinois v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). As to the second element of the retaliation claim, the Federal Defendants do not challenge the district court’s finding that being shot with less-lethal munitions like pepper balls, tear gas, and paint-marking munitions, being pepper sprayed at close range, or being shoved by a law enforcement officer would chill a person of ordinary firmness from continuing to exercise their First Amendment rights.
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Francisco, 308 F.3d 968, 979 (9th Cir. 2002). The district court’s extensive and
thorough factual findings provide robust support for its conclusion that plaintiffs’
exercise of their First Amendment rights was a substantial or motivating factor in
the Federal Defendants’ conduct. To highlight just four of the district court’s
findings:
• On July 29, plaintiff Brian Conley was wearing a photographer’s vest marked “PRESS,” a helmet marked “PRESS,” and was carrying a large camera with an attached LED light and telephoto lens. After reviewing video footage submitted by plaintiffs, the district court found that Conley was filming a line of federal officers moving down the street pepper spraying peaceful protesters—including spraying a woman in the face at point blank range who was on her knees in the middle of the street with her hands up—when, without warning, a federal officer pepper sprayed Conley at point blank range.
• On the night of July 19, Jungho Kim, a photojournalist, was wearing a neon yellow vest marked “PRESS” and a white helmet marked “PRESS” on the front and rear. The district court found that Kim was standing alone, about 30 feet from federal agents, taking photographs, when suddenly and without warning, Kim was shot in the chest, just below his heart with a less-lethal munition. A photograph submitted with Kim’s declaration shows that he was shot where the word “PRESS” was printed on his vest.
• On the night of July 26, Daniel Hollis, a videographer, was wearing a press pass and a helmet marked “PRESS” in bright orange tape, and carrying a large, professional video-recording camera. Hollis was filming a group of federal agents massed outside the federal courthouse. “Almost immediately,” the federal agents shot at him, striking him just left of his groin. He turned and began to run away, but was shot again in the lower back.
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• On July 27, Amy Katz, a photojournalist, was wearing a hat and tank top marked “PRESS” and carrying a camera with a telephoto lens while covering the protests. Katz was photographing a federal agent who pushed a man down a flight of stairs while arresting him. Another federal agent physically blocked Katz and tried to stop her from photographing the arrest. Katz stepped to the side to continue photographing the arrest, and the federal agent physically shoved her away.
Plaintiffs’ expert witness, Gil Kerlikowske, provided a declaration
supporting the district court’s conclusion that these incidents were retaliatory in
nature and did not reflect appropriate crowd-control tactics.5 Kerlikowske opined
that defending the federal courthouse in Portland mainly involves establishing a
perimeter around the building, and that there is no need to target or disperse
journalists. According to Kerlikowske, in crowd-control situations it is
inappropriate to shoot non-lethal munitions at a person’s head, chest, or back.
Kerlikowske also opined that pepper balls and tear gas canisters should not be
aimed at people at all, as those munitions are intended to be shot at the ground
5 The district court found Kerlikowske to be a “qualified, credible, and persuasive expert witness.” Kerlikowske is a former Commissioner of U.S. Customs and Border Protection, served as the Chief of Police in Seattle, Washington for 10 years, and as the Police Commissioner in Buffalo, New York. The district court recognized Kerlikowske’s “substantial training and experience with crowd control and civil unrest in the context of protests [and] use of force in that context,” and observed that Kerlikowske has “led and orchestrated the policing of hundreds of large and potentially volatile protests, many of which were considerably larger than the recent protests in Portland.”
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where they explode and release their contents into the air. In his view, virtually all of the journalists’ injuries were caused by the improper use of force, including shooting people who were not engaged in threatening acts, and the Federal Defendants’ misuse of crowd-control munitions.
All told, the district court’s findings describe at least forty-five instances similar to the four highlighted here, and all of them occurred between July 15 and July 30 while plaintiffs were observing and recording the Black Lives Matter protests in downtown Portland. The forty-five instances were “just several examples selected” by the district court “from the extensive evidence provided by Plaintiffs.” The court was clear that “[t]here are more.” Plaintiffs submitted a total of nineteen declarations with their motions for a temporary restraining order and preliminary injunction. Many of the events described by the declarations were corroborated by accompanying photographs and video clips.
Because the district court’s findings include so many instances in which plaintiffs were standing nowhere near protesters while photographing and observing the Federal Defendants’ actions, they provide exceptionally strong evidentiary support for the district court’s finding that some of the Federal Defendants were motivated to target journalists in retaliation for plaintiffs’ exercise of their First Amendment rights. Indeed, in response to this shocking pattern of
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misconduct, the dissent contemplates that plaintiffs’ allegations may well support Bivens actions and claims of excessive force against individual federal agents.6
The evidence that at least some of the Federal Defendants’ conduct was retaliatory supports the district court’s conclusion that the plaintiffs are likely to succeed on the merits of their retaliation claim. On this record, we do not hesitate to conclude that the Federal Defendants have not made the required strong showing that they are likely to prevail on the merits of the claim. This evidence of retaliatory conduct also cuts against the emergency motion for a stay pending appeal.7
3 The Federal Defendants have not shown that they are likely to succeed on the merits of plaintiffs’ First Amendment right-of-access claim. To begin, the Federal Defendants reframe the issue and mischaracterize the preliminary injunction as recognizing a special, across-the-board exemption for members of the press and legal observers. But the threshold issue presented is whether plaintiffs
6 A Bivens claim requires a showing of purposeful misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009).
7 The dissent argues that the retaliation claim does not justify enjoining the Federal Defendants from issuing dispersal orders because the dispersal orders themselves are not retaliatory. This argument overlooks that the preliminary injunction expressly states the Federal Defendants are not precluded from issuing lawful crowd-dispersal orders for a variety of reasons.
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have a constitutionally protected right to access the public forum where the protests are staged, and as the district court observed, the preliminary injunction does not afford plaintiffs any special rights beyond those enjoyed by the general public pursuant to the First Amendment.
In Press-Enterprise II, the Supreme Court articulated a two-part test to determine whether a member of the public has a First Amendment right to access a particular place and process. Press-Ent. Co. v. Superior Court of Cal., 478 U.S. 1 (1986). First, a court must ask “whether the place and process has historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. at 8. If a qualified right of access exists, the government can overcome that right and bar the public by showing that it has “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id. at 9.
The Federal Defendants argue that the press is not entitled to any special First Amendment right of access to observe and record the protests taking place on Portland’s streets and sidewalks. But the Press-Enterprise II test is not dependent upon plaintiffs’ occupation, and plaintiffs do not argue that it affords them a special right of access not shared by the general public. We agree with plaintiffs
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that the press is entitled to a right of access at least coextensive with the right enjoyed by the public at large; the press is certainly not disfavored. See Pell v. Procunier, 417 U.S. 817, 833–34 (1974). Indeed, the Supreme Court has repeatedly observed that excluding the media from public fora can have particularly deleterious effects on the public interest, given journalists’ role as “surrogates for the public,” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572–73 (1980); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975) (“Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.”). Recognizing the outsized effect of denying access to the press, we have observed that the Supreme Court’s Press-Enterprise II test “balances the vital public interest in preserving the media’s ability to monitor government activities against the government’s need to impose restrictions if
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necessary for safety or other legitimate reasons.” Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012).8
The Federal Defendants do not contest that the place—Portland’s streets and sidewalks—and the process—public protests and law enforcement’s response to them—have historically been open to the public. See Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”).
Public demonstrations and protests are clearly protected by the First Amendment, and a protest not open to the press and general public is not a public demonstration. See, e.g., Snyder v. Phelps, 562 U.S. 443, (2011) (reiterating that “speech on matters of public concern . . . is at the heart of the First Amendment’s protection” (internal quotation marks omitted)); City of Houston v. Hill, 482 U.S.
8 The Press-Enterprise II test emerged from a line of cases involving access to criminal judicial proceedings, but by its terms the test is not limited to any particular type of plaintiff or any particular type of forum. The Ninth Circuit and several other courts have applied Press-Enterprise II’s analytical framework to other settings, including planning commission meetings, student disciplinary records, state environmental agency records, settlement records, transcripts of state utility commission meetings, resumes of candidates for school superintendents, and legislator’s telephone records, among others. See Leigh, 677 F.3d at 899 and n.5 (collecting cases).
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451, 472 (1987) (“[T]he First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive.”); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–12 (1982) (holding that a boycott of local businesses “clearly involved constitutionally protected activity” including “speech, assembly, association, and petition”); Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996) (“Activities such as demonstrations, protest marches, and picketing are clearly protected by the First Amendment.”).
Nor do the Federal Defendants deny that public access plays a significant positive role in the functioning of our democracy. Just as streets and sidewalks historically have been recognized as being open to the public, the press has long been understood to play a vitally important role in holding the government accountable.9 Indeed, the public became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First
9 Leigh, 677 F.3d at 897 (“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” (quoting 9 WRITINGS OF JAMES MADISON 103 (G. Hunt ed. 1910))).
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Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.
“The free press is the guardian of the public interest,” and “[o]pen government has been a hallmark of our democracy since our nation’s founding.” Leigh, 677 F.3d at 897, 900. “In a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations.” Cox Broad. Corp., 420 U.S. at 490–91. Transparency assures that the government’s response is carried out “fairly to all concerned,” and public access discourages “misconduct of participants, and decisions based on secret bias or partiality.” Richmond Newspapers, 448 U.S. at 569. Given our deeply entrenched recognition of the public’s right to access city streets and sidewalks, circuit precedent establishing the right to film public police activity, and the broadly accepted principle that the public’s interest is served by the role the press plays, the district court had strong support for its conclusion that plaintiffs demonstrated a likelihood of success on the merits of their First Amendment right-of-access claim.
We are mindful that the Federal Defendants could have overcome plaintiffs’ right of access by demonstrating “an overriding interest based on findings that
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closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise II, 478 U.S. at 9. There is no question the Federal Defendants have a strong interest in protecting federal property and persons on federal property, and we do not doubt the district court’s findings related to the difficult and dangerous situation posed by protesters who engaged in violent and criminal conduct. But Federal Defendants argue that dispersing the press, regardless of whether they are on federal property, is essential to protecting the government’s interests. They further argue that their dispersal orders cannot be tailored in any way and that the district court erred by granting a special exemption from crowd-control measures to members of the press and legal observers. We disagree.
First, the district court did not grant a special exemption to the press; it found that dispersing the press was not essential to protecting the government’s interests. The district court was faced with a mountain of evidence that the Federal Defendants routinely left federal property to engage in crowd control. The injunction recognizes that the Federal Defendants did not claim the authority to issue general dispersal orders on Portland’s streets and sidewalks, that local law enforcement retains that authority pursuant to the general police power, and that Portland’s law enforcement agreed not to require journalists and legal observers to
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disperse. The preliminary injunction does nothing to hinder Federal Defendants from arresting individuals engaged in violent or criminal acts.
The Federal Defendants’ argument that the injunction grants a broad special exemption to the plaintiffs hinges on the implied assumption that they have the authority to take action to disperse members of the public who are neither on federal property nor threatening it. At oral argument before our court, the Federal Defendants declined to provide their view of the scope of their authority to take such action, but the district court’s order makes clear that, in the district court, the Federal Defendants did not argue they have “the legal authority to declare a riot and order persons to disperse from the city streets in Portland.” We need not precisely define the limits of the Federal Defendants’ authority in order to resolve their emergency motion, but it cannot be debated that the United States Constitution reserves the general police power to the states, U.S. CONST. amend. X; United States v. Morrison, 529 U.S. 598, 618 (2000), and the district court found that the Federal Defendants “routinely have left federal property and engaged in crowd control and other enforcement on the streets, sidewalks, and parks of the City of Portland.”
The district court did not question that the provision relied upon by the Federal Defendants, 40 U.S.C. § 1315, grants them the authority to protect federal
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property, including issuing and enforcing dispersal orders against people on or threatening federal property. Paragraph six of the injunction expressly recognizes that the Federal Defendants may issue “lawful crowd-dispersal orders for a variety of lawful reasons.” In footnoting that the authority provided by § 1315 does not allow the Federal Defendants to declare an unlawful assembly on the city’s streets or to disperse people from city streets, the court carefully distinguished the Federal Defendants’ ability to disperse people from federal property and described their authority outside the property as limited to performing authorized duties “to the extent necessary to protect the property and persons on the property.” 40 U.S.C. § 1315(b)(1) (emphasis added). But the Federal Defendants’ suggestion that § 1315 confers authority to take action to disperse members of the public who
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are neither on nor threatening federal property is dubious.10 See United States v.
Baldwin, 745 F.3d 1027, 1029 (10th Cir. 2014) (Gorsuch, J.) (discussing § 1315
and its implementing regulations as they relate to “[p]ersons in and on [Federal]
property” (alterations in original)). On remand, the district court may have
occasion to more precisely define the scope of the Federal Defendants’ authority if
the Federal Defendants indicate that they intend to issue dispersal orders outside of
federal property for lawful purposes.
The district court was not persuaded that the Federal Defendants’ response
to the plaintiffs was essential or narrowly tailored to serve the government’s
interests. Press-Enterprise II, 478 U.S. at 9. The district court’s conclusions are
well supported and the Federal Defendants have not established that they will
likely prevail in their efforts to show that the dispersal of press was essential. Nor
10 Pursuant to § 1315, the Secretary of Homeland Security “shall protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government . . . and the persons on the property.” 40 U.S.C. § 1315(a). Relevant here, the governing regulations: (1) prohibit disorderly conduct “in or on Federal property,” 41 C.F.R. § 102–74.390; (2) prohibit people “entering in or on Federal property” from improperly disposing of rubbish on property, willfully damaging property, stealing property, creating a hazard on property, throwing articles at a building, or climbing on a building, 41 C.F.R. § 102–74.380; and (3) require people “in and on property” to obey the “lawful direction of federal police officers and other authorized individuals,” 41 C.F.R. § 102–74.385; United States v. Baldwin, 745 F.3d 1027, 1029 (10th Cir. 2014) (Gorsuch, J.) (construing 41 C.F.R. § 102–74.385 as being applicable to people “in and on [Federal] property” (alteration in original)).
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did the Federal Defendants show that the need to defend federal property made it impossible to tailor their dispersal orders.
The district court cited plaintiffs’ expert, Kerlikowske, who opined that “[d]efending the federal courthouse in Portland mainly involves establishing a perimeter around the building, and there is no reason to target or disperse journalists from that position.” The district court further relied on Kerlikowske’s opinion that “trained and experienced law enforcement personnel are able to protect public safety without dispersing journalists and legal observers and can differentiate press from protesters, even in the heat of crowd control.” The district court found this expert qualified, credible, and persuasive. Rather than deferring to the court’s findings, the dissent examines the record anew, decides that Kerlikowske did not adequately address crowd control, and questions the district court’s tailoring analysis. But the Federal Defendants conceded that they made no effort to tailor their response, and on the record at this preliminary stage they have not made the strong showing required by Nken that dispersing the press was essential or that their response was narrowly tailored to serve the government’s interest in protecting federal property.
We also agree with the district court that the City’s ability to comply with a similarly worded injunction strongly undercuts the Federal Defendants’ argument.
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The City has not required journalists and authorized legal observers to disperse when it has issued crowd control orders to the protesters. After the district court entered the first temporary restraining order against the City on July 2, the district court “specifically invited the City to move for amendment or modification if the original TRO was not working or to address any problems at the preliminary injunction phase.” But the City did not seek modification. Instead, on July 16 the City stipulated to entry of a preliminary injunction that was “nearly identical to the original TRO.” The City’s willingness to tailor the dispersal orders it issues pursuant to its general police power is strong evidence that the Federal Defendants’ dispersal of journalists and legal observers is not essential to defend federal property, and that it is possible for the Federal Defendants to tailor their methods more narrowly.
By its terms, the preliminary injunction the district court entered against the Federal Defendants addresses each of the reasons the Federal Defendants advanced to argue that it was impossible to tailor their dispersal orders. As to the contention that journalists or legal observers might interfere with federal law enforcement if not required to disperse, the preliminary injunction expressly prohibits journalists and legal observers from impeding, blocking, or otherwise interfering with the lawful conduct of the Federal Defendants. The preliminary injunction leaves the
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Federal Defendants free to make arrests if there is probable cause to believe a crime has been committed, even if the perpetrator is dressed as a journalist or legal observer. The preliminary injunction also provides that the Federal Defendants will not be liable for violating the injunction if journalists or legal observers remain in the area after a dispersal order is issued, and are incidentally exposed to crowdcontrol devices. Finally, though the Federal Defendants argued that large and unique identifying markings on their uniforms could inhibit their ability to carry out their duties, the district court concluded they did not support this claim. Indeed, the district court went to great lengths to make sure the terms of the injunction do not impede the federal defendants’ ability to safely achieve their mission.11
The dissent faults us for deferring to the district court’s findings, but that is precisely what our precedent requires. Walters, 145 F.3d at 1047. It is not our role
11 Plaintiffs’ expert Kerlikowske opined that identifiable markings on law enforcement officers’ uniforms increase accountability, act as a check and deterrent against misconduct, and will not interfere with federal officers’ ability to perform their duties. This term of the injunction was added after the Federal Defendants were unable to identify their own officers in videos submitted in support of plaintiffs’ still-pending motion for sanctions and contempt of the July 23 TRO. The Federal Defendants contend the district court overreached, but requiring the officers’ uniforms to bear unique identifiable markings is a commonsense method to ensure that non-compliance with the court’s order may be addressed.
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to second-guess the district court’s factual findings; we review the district court’s findings for clear error, and we do not see any. The dissent is not so constrained. It reviews the facts de novo, reframes all of the protests as riots, and concludes the Federal Defendants must be permitted to issue dispersal orders without limit. Yet the majority of the protests have been peaceful, and the record is replete with instances in which members of the press were targeted when they were not mixed with, or even proximate to, protesters. Even the Federal Defendants recognize that the general police power is reserved to the states, and the response to protesters on the public streets of Portland is being handled by the state and local police. As for the Federal Defendants’ actions on federal property, the injunction expressly recognizes that the Federal Defendants are free to issue dispersal orders for a variety of lawful reasons. Their authority to issue dispersal orders to protect federal property has not been questioned.
But on the record before us, the Federal Defendants have not shown the general dispersal orders they issued were lawful, much less essential or narrowly tailored. Press-Enterprise II, 478 U.S. at 9. We do not condone any form of violence, nor did the district court, but the court found no evidence that any of the named plaintiffs engaged in unlawful conduct. The many peaceful protesters, journalists, and members of the general public cannot be punished for the violent
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acts of others. “[T]he proper response to potential and actual violence is for the government to ensure an adequate police presence . . . and to arrest those who actually engage in such conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure.” Collins v. Jordan, 110 F.3d 1363, 1373 (9th Cir. 1996) (internal citations omitted). Accordingly, we conclude the Federal Defendants have not made a strong showing that they are likely to succeed on the merits of plaintiffs’ First Amendment right-of-access claim, nor that this argument supports their emergency motion for a stay pending appeal.
B We turn next to the second Nken factor: whether the Federal Defendants have shown a likelihood they will suffer irreparable injury if the district court’s preliminary injunction is not stayed pending appeal. Nken, 556 U.S. at 426. The Federal Defendants contend the district court abused its discretion because the scope of the injunction is unworkable. Specifically, they argue the injunction will force federal officers to make snap judgments to distinguish journalists and legal observers from protesters. They argue federal officers will face irreparable injury absent a stay pending appeal because the preliminary injunction will hinder their ability to safely protect federal property and people on federal property, and will
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generally place them in the untenable position of having to choose between risking their safety and violating the preliminary injunction.
The district court was not persuaded, and for purposes of their emergency motion for a stay pending appeal, the Federal Defendants have not shown that the court likely erred. First, as we have explained, the preliminary injunction entered against the Federal Defendants is one of two preliminary injunctions the district court entered. In a separate preliminary injunction, the City stipulated that it would not require journalists and legal observers to disperse from Portland’s streets and sidewalks after it issues general dispersal orders. In the lengthy preliminary injunction the court issued to address the Federal Defendants’ conduct, the court took pains to explain that the general police power is reserved to the states, and that the Federal Defendants had not taken the position that they had the authority to issue general dispersal orders on Portland’s streets and sidewalks.
Second, it is clear the district court has worked tirelessly to respond to a tense and sometimes chaotic situation. In order to provide clear direction, the district court required the Federal Defendants to broadly disseminate, to the federal agents responding to the protesters, the three pages of its opinion and order that enumerate the terms of the injunction. The Federal Defendants read one sentence from the three-page excerpt in isolation and argue that the preliminary injunction
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provides a special, citywide exemption to dispersal orders for journalists and legal observers. In fact, it is apparent the district court was actually providing the Federal Defendants with an unambiguous statement of actions they may and may not take in the field, including the requirement that the Federal Defendants mark their uniforms in some way to allow officers to be identified, thereby incentivizing compliance with the court’s orders. Read as a whole, the preliminary injunction does not provide a special exemption for journalists and legal observers. Rather, the terms of the injunction account for the City’s stipulation that journalists and legal observers will not be required to disperse from Portland’s streets and sidewalks. The injunction also accounts for the district court’s finding that the Federal Defendants, at least at this preliminary stage, have not shown that it is essential to disperse press to protect federal property, nor that their response was narrowly tailored.
Third, the preliminary injunction unambiguously provides that the Federal Defendants will not be held liable for violating the preliminary injunction by incidentally exposing journalists or legal observers to otherwise lawful crowdcontrol measures. The Federal Defendants’ argument that they may be irreparably harmed if individuals disguise themselves as journalists or legal observers in order to commit crimes or interfere with law enforcement is similarly unpersuasive
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because the order explicitly allows the Federal Defendants to arrest anyone if they have probable cause to believe a crime is being committed—regardless of whether that person is, or appears to be, a journalist or legal observer. The preliminary injunction expressly prohibits journalists and legal observers from impeding, blocking, or otherwise physically interfering with the lawful activities of the Federal Defendants.
The district court recognized that Federal Defendants have sustained injuries over the course of the summer, but found no evidence that any of the named plaintiffs engaged in any of the unlawful conduct that caused their injuries, and the Federal Defendants point to no evidence that the injuries they sustained were more severe or more frequent during the time they were operating under the substantially similar terms of the July 23 TRO, or that the alleged confusion in distinguishing between protestors and plaintiffs resulted in any injury.
The district court was heavily influenced by the City’s agreement to enter into a stipulated preliminary injunction that largely mirrors the preliminary injunction entered against the Federal Defendants, and observed “[t]he City did not contend that the terms of the stipulated preliminary injunction were intrusive, unworkable, or vague.” In fact, the City supported entry of the instant preliminary injunction against the Federal Defendants, arguing “[t]he actions of [F]ederal
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[D]efendants are escalating violence, inflaming tensions in [Portland], and harming Portlanders who seek to engage in nonviolent protests in support of racial justice.”
Plaintiffs’ expert, Gil Kerlikowske, also seriously undermined the Federal Defendants’ argument that they faced irreparable injury. Relying on Kerlikowske’s expert opinion, the district court concluded that the Federal Defendants’ concerns regarding the workability of the injunction were exaggerated. The district court noted Kerlikowske’s statement that “during his tenure in Seattle, law enforcement did not target or disperse journalists and there were no adverse consequences.” Kerlikowske opined that the prohibitions contained in the July 23 temporary restraining order, which the district court incorporated into the preliminary injunction, were both safe and workable for law enforcement. Kerlikowske stated that dispersing press and legal observers is not necessary to protect public safety, and further explained that trained and
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experienced law enforcement personnel can differentiate press from protesters in the heat of crowd control.12
On the present record, despite the Federal Defendants’ assertion that all of their officers and agents are adequately trained, the district court found numerous instances in which Federal Defendants shot munitions directly at journalists’ and legal observers’ chests, arms, backs, and heads while they were standing entirely apart from the protesters. These methods directly conflict with Kerlikowske’s opinion that crowd-control munitions are not appropriately aimed at the upper body, and that pepper balls and tear gas canisters should not be aimed at people at all. We review the court’s findings for clear error, and for purposes of the Federal Defendants’ emergency motion, the Federal Defendants have not shown that they will likely establish the district court’s findings are clearly erroneous.
We also conclude the Federal Defendants’ have not made the required showing that they will suffer irreparable harm if the preliminary injunction is not
12 Plaintiffs’ briefing repeatedly asserts that the Federal Defendants lack crowd control training, and the Federal Defendants repeatedly respond that they are trained in the appropriate use of force. At this preliminary stage, the record did not allow the district court to determine whether the Federal Defendants differentiate between crowd control training and training in the proper use of force. Nor does the record make clear whether the training provided to U.S. Marshals differs from the training provided to personnel from the Department of Homeland Security. Those questions may be resolved at a later stage in the proceedings.
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stayed pending a decision on the merits of their appeal. The district court took care to address the Federal Defendants’ concerns regarding the workability of the injunction. The terms of the injunction itself adequately address their concerns, and the Federal Defendants’ continued objection that the injunction is unworkable is undermined by the City’s agreement to operate pursuant to a substantially similar order. Kerlikowske’s opinions, which the court found persuasive and credible, further support the district court’s finding that the terms of the preliminary injunction are safe and workable.
The dissent decides that the Federal Defendants are likely to suffer irreparable harm absent a stay pending appeal because the preliminary injunction does not explain how arresting individual suspects is as feasible or safe as using general crowd control tactics during a riot. But the district court found that the protests have been largely peaceful, and the preliminary injunction does not prevent the Federal Defendants from issuing lawful dispersal orders to protect federal property if and when it is threatened by violent protests. We conclude the Federal Defendants have not shown that they will suffer irreparable injury if the district court’s preliminary injunction is not stayed.
C
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The Federal Defendants have not satisfied the first two Nken factors, but we briefly note that the final two factors also strongly suggest the Federal Defendants’ motion must be denied. See Nken, 556 U.S. at 435; Al Otro Lado, 952 F.3d at 1006.
1 The third Nken factor asks whether the other parties to the litigation will be substantially injured if the district court’s preliminary injunction is stayed pending appeal. Nken, 556 U.S. at 426. The City supported the imposition of the preliminary injunction against the Federal Defendants. As explained, the City asserted that the Federal Defendants’ presence in Portland escalated violence and inflamed tensions. Although the Federal Defendants have entered into some type of agreement with Governor Brown, the district court voiced “serious concerns that the Federal Defendants have not fully complied with the Court’s original TRO.” The district court also highlighted evidence in the record suggesting intentional targeting of journalists or legal observers after the imposition of the TRO. Further, the district court found that the day after the Federal Defendants reached the agreement with the Governor, federal agents fired tear gas at journalists standing nowhere near protesters. In light of this evidence, and the Federal Defendants’ stated intention to remain in
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Portland to continue to protect the federal buildings should they deem local authorities’ efforts unsatisfactory, the likelihood that the City will suffer substantial injury supports denial of the emergency motion for a stay pending appeal.
Plaintiffs also face substantial injury if the Federal Defendants’ motion is granted because the district court found that the Federal Defendants’ conduct chilled the exercise of their First Amendment rights. The district court made this finding after reviewing plaintiffs’ vivid descriptions and photographic evidence of injuries they sustained as bystanders. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also, e.g., Assoc. Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (“The loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.”). In sum, the Federal Defendants have failed to show that the other parties to the litigation will not be substantially injured if the district court’s preliminary injunction is stayed pending appeal.
2 The fourth Nken factor requires courts to determine where the public interest lies. Nken, 556 U.S. at 426. When the government is a party, the irreparable injury and public interest factors merge, id. at 435, but the Federal Defendants are
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incorrect to suggest that a showing of harm to the government commands the conclusion that the public interest weighs entirely in favor of whichever outcome the government seeks. Our court has consistently balanced the public interest on the side of the plaintiffs against the public interest on the side of the government to determine where the public interest lies. See, e.g., Padilla v. Immigration & Customs Enforcement, 953 F.3d 1134, 1147–48 (9th Cir. 2020) (determining the “balance of the equities and public interest favors plaintiffs”).
Here, the public interest on the Federal Defendants’ side is the uncontested interest in protecting federal agents and property. The harms the Federal Defendants assert relate to the potential challenges the preliminary injunction poses to their ability to safely and effectively protect federal property and personnel. On the other hand, plaintiffs also assert a strong public interest: “It is always in the public interest to prevent the violation of a party’s constitutional rights.” Padilla, 953 F.3d at 1147–48 (internal quotation marks omitted). When weighing public interests, courts have “consistently recognized the significant public interest in upholding First Amendment principles.” Assoc. Press, 682 F.3d at 826 (quoting Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). The Federal Defendants assert a very important public interest, but the
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record fully supports the district court’s conclusion that the Federal Defendants’ interest does not require dispersing plaintiffs. They have not threatened federal property, and the journalists, in particular, provide a vitally important service to the public. Accordingly, the final Nken factor does not weigh in favor of a stay.
The Federal Defendants have not made a strong showing that they are likely to succeed on the merits of plaintiffs’ claims. Nor have they shown that they are likely to suffer irreparable injury as a result of the district court’s preliminary injunction. Further, a stay of the district court’s injunction would substantially injure both the City and the plaintiffs. For these reasons, we cannot say at this juncture that the Federal Defendants are entitled to a stay of the preliminary injunction pending appeal. The Federal Defendants’ emergency motion for a stay pending appeal is DENIED, and the administrative stay entered August 27, 2020 is lifted.
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Index Newspapers v. U.S. Marshals Serv., No. 20-35739

FILED

OCT 9 2020
O’SCANNLAIN, J., dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
In the words of the majority—and I agree—“the district court has worked

tirelessly to respond to a tense and sometimes chaotic situation”1 arising from

peaceful urban protest events that have degenerated into riots and destructive mob

violence, resulting, inevitably, in crowd dispersal actions by law enforcement.

Unfortunately, because the constitutional interests of the parties are misaligned in

the provisions of the injunction before us, I must, respectfully, dissent from the

order. Since the government is likely to prevail on the merits and the other

requisite factors are met, I would grant the motion for stay pending appeal.

With its decision today, the majority of this motions panel validates the

transformation of the First Amendment-based “right of public access” to

governmental proceedings into a special privilege for self-proclaimed journalists

and “legal observers” to disregard crowd dispersal orders issued by federal law

enforcement officers. The district court’s injunction erroneously curtails an

important law enforcement tool for responding to protest events that threaten

federal property and personnel, thereby limiting options available for federal

officers precisely when they are most needed. While well-meaning, the district

court’s decision constitutes a significant and unwarranted departure from the

1 Majority Opinion at 35. 1

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traditional, qualified “right of public access” to criminal judicial proceedings that has been carefully delineated by the Supreme Court. In short, the majority’s decision approves the mutation of a very limited historical right reinforced by a millennium of legal tradition into a broad, amorphous entitlement that finds support nowhere in our precedents or in the historical sources of the First Amendment.
Similarly, the majority’s decision to uphold the injunction before us ostensibly rests on the deference that it accords to the district court’s factual findings with respect to plaintiffs’ “retaliation” claim, which, indeed, reveal quite a disturbing pattern of apparent misconduct by certain federal officers. But even these unfortunate facts cannot justify granting journalists and “legal observers” a unique exemption from lawful dispersal orders—orders that were neither found, nor alleged, to be retaliatory.
I Because the facts set forth in the majority opinion do not adequately reveal the full picture, I respectfully restate them as found in the record.
A In the early morning of July 3, 2020, the recent and ongoing political protests in downtown Portland, Oregon took a violent and destructive turn. Rioters smashed the glass entryway doors of the Mark O. Hatfield Federal Courthouse and
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attempted to set fire to the building. They threw balloons containing an accelerant into the lobby and fired powerful commercial fireworks toward the accelerant, which ignited a fire in the lobby. Vandalism, destruction of property, and assault on federal law enforcement officers securing the building continued throughout the Fourth of July holiday weekend, and federal agents made multiple arrests.
Before July 3rd, federal law enforcement officers at the Hatfield Courthouse had been stationed in a defensive posture, intended to de-escalate tensions with protesters by remaining inside and responding only to breach attempts on the building and assaults on personnel or to other serious crimes. With limited support from the Portland Police Bureau (“PPB”), however, federal agents struggled to contain protests that often focused on the Courthouse and frequently devolved into violence in the late evenings and early mornings.
When this pattern of violent unrest culminated in the July 3rd attack, the Department of Homeland Security (“DHS”) changed its tactics and authorized federal agents to take additional action to protect the Courthouse, and to identify and to arrest serious offenders. After federal officers adopted this more assertive posture, the protests became larger and more intense. These protest events were chaotic and dynamic, and federal officers had frequent confrontations with rioters. According to DHS’s Gabriel Russell, the law enforcement officer leading the federal response in Portland, 120 federal officers experienced injuries, including
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broken bones, hearing damage, eye damage, a dislocated shoulder, sprains, strains, and contusions. Conflict between federal officers and rioters continued until the early morning of July 30th, after which incidents diminished as a result of DHS reaching an agreement with the Governor of Oregon for the Oregon State Police to provide security in the areas adjacent to the Hatfield Courthouse.
During the period of unrest, journalists and “legal observers” ostensibly reporting on law enforcement’s response to the riots were frequently interspersed with protesters when events degenerated into violence. Some of these individuals even participated in violent and unlawful conduct, including assaults on federal officers and destruction of federal property. For example, a person with a helmet marked “press” used a grinder to attempt to breach the fence surrounding the Hatfield Courthouse. Another person with a “press” helmet entered Courthouse property and encouraged others to join, yelling to the crowd that “they can’t arrest us all!” A man wearing a vest labeled “press” was seen throwing a hard object toward police. In yet another incident, a Courthouse staff member reported being kicked by someone wearing clothing marked “press.”
B Plaintiffs are a newspaper organization and individual journalists and “legal observers,” some of whom are affiliated with the National Lawyers Guild (“NLG”) and the American Civil Liberties Union (“ACLU”). They allege that federal law
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enforcement officers with DHS and the U.S. Marshals Service (“USMS”) operating in Portland during the month of July (1) infringed their First Amendment “right of access” to public streets and sidewalks to observe and to document law enforcement’s response to the riots near the Hatfield Courthouse; and, (2) deliberately and unlawfully “retaliated” against them for exercising their putative First Amendment right to report on those events by targeting them with tear gas, less-lethal munitions, and pepper spray.
Plaintiffs initially filed suit against the City of Portland, and unnamed individual PPB officers, in federal district court, alleging similar constitutional violations arising out of the PPB’s response to the protest events. For example, Plaintiffs alleged a “broader pattern of the Portland police repeatedly and intentionally shooting, gassing, and beating journalists and [legal] observers.” Among other incidents, Plaintiffs alleged that the PPB slammed a reporter from The Oregonian in the back with a truncheon, even as she was displaying her press pass, and shoved a reporter from the Portland Tribune into a wall, after he had identified himself as media, when he initially refused to comply with an order to disperse. Plaintiffs further alleged that the PPB had publicly announced that it would use force to disperse reporters unless they had been previously selected to embed with officers. Plaintiffs obtained a temporary restraining order (“TRO”) against the PPB, without the City of Portland’s consent, on July 2nd, with terms
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similar to those contained in the instant preliminary injunction. In its order granting the TRO, the district court concluded that Plaintiffs had demonstrated “serious questions going to the merits” with respect to their claim of a First Amendment-based “right of public access” to observe law enforcement’s response to protest events. The TRO specified that press and “legal observers” were exempt from any orders to disperse issued by the PPB.
After alleged retaliation by a federal law enforcement agent on July 12th, plaintiffs filed an emergency motion seeking the district court’s leave to file an amended complaint describing such incident and also adding DHS and USMS as defendants in the case. The City of Portland filed an objection, arguing, inter alia, that plaintiffs’ claims against the City of Portland and those against DHS and USMS raised no common questions of law or fact. The City maintained that PPB operates under fundamentally different conditions than federal law enforcement agencies, including different directives governing the use of force, different limitations on the use of force, and a separate command structure.
On July 16th, before the district court had an opportunity to rule on the motion to bring DHS and USMS into the case, plaintiffs and the City jointly filed a “Stipulated Preliminary Injunction” that substantially mirrored the TRO’s terms. The following day, the district court granted plaintiffs’ motion for leave to file the operative Second Amended Complaint.
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The Second Amended Complaint sets forth independent causes of action based on the First and Fourth Amendments of the U.S. Constitution and Article I, Sections 8 and 26 of the Oregon Constitution. It seeks both damages and equitable relief. The day it was filed, Plaintiffs immediately moved for a TRO against DHS and USMS, with the request for injunctive relief limited only to their aforementioned First Amendment claims.
On July 22nd, the City filed a brief in support of the entry of the TRO against DHS and USMS. The City accused both agencies of escalating violence, harming non-violent protesters, and effectively kidnapping people off of Portland streets. Notably, on the same day, the Portland City Council passed a resolution prohibiting the PPB from cooperating with federal officers deployed in Portland.
The district court granted the TRO on July 23rd and extended it for an additional 14 days on August 6th. On August 20th, the district court entered the instant preliminary injunction, from which DHS and USMS now seek emergency relief pending appeal.
The preliminary injunction provides, among other things, that journalists and “legal observers” are exempt2 from general dispersal orders issued by federal
2 The precise language of the district court’s order provided that journalists and “legal observers” “shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse.”
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officers. It further requires that federal officers refrain from using force or
threatening arrest to compel such persons to disperse after an order to disperse has
been issued. It also sets forth a non-exclusive list of indicia by which officers are
to determine who qualifies as a journalist or “legal observer.” 3
3 The eight-part injunction entered by the district court is lengthy, not to say labyrinthine, but warrants repetition in full for appreciation of its extraordinary scope:
1. The Federal Defendants, their agents and employees, and all persons acting under their direction are enjoined from arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), unless the Federal Defendants have probable cause to believe that such individual has committed a crime. For purposes of this Order, such persons shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse. Such persons shall, however, remain bound by all other laws. No Journalist or Legal Observer protected order this Order, however, may impede, block, or otherwise physically interfere with the lawful activities of the Federal Defendants.
2. The Federal Defendants, their agents and employees, and all persons acting under their direction are further enjoined from seizing any photographic equipment, audio- or video- recording equipment, or press passes from any person whom they know or reasonably should know is a Journalist or Legal Observer (as explained below), or ordering such person to stop photographing, recording, or observing a protest, unless the Federal Defendants are also lawfully seizing that person consistent with this Order. Except as expressly provided in Paragraph 3 below, the Federal Defendants must return any seized equipment or press passes immediately upon release of a person from custody.
3. If any Federal Defendant, their agent or employee, or any person acting under their direction seize property from a Journalist or Legal Observer who is lawfully arrested consistent with this Order, such Federal Defendant shall, 8

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as soon thereafter as is reasonably possible, make a written list of things seized and shall provide a copy of that list to the Journalist or Legal Observer. If equipment seized in connection with an arrest of a Journalist or Legal Observer lawfully seized under this Order is needed for evidentiary purposes, the Federal Defendants shall promptly seek a search warrant, subpoena, or other court order for that purpose. If such a search warrant, subpoena, or other court order is denied, or equipment seized in connection with an arrest is not needed for evidentiary purposes, the Federal Defendants shall immediately return it to its rightful possessor.
4. To facilitate the Federal Defendants’ identification of Journalists protected under this Order, the following shall be considered indicia of being a Journalist: visual identification as a member of the press, such as by carrying a professional or authorized press pass, carrying professional gear such as professional photographic equipment, or wearing a professional or authorized press badge or other official press credentials, or distinctive clothing, that identifies the wearer as a member of the press. It also shall be an indicium of being a Journalist under this Order that the person is standing off to the side of a protest, not engaging in protest activities, and not intermixed with persons engaged in protest activities, although these are not requirements. These indicia are not exclusive, and a person need not exhibit every indicium to be considered a Journalist under this Order. The Federal Defendants shall not be liable for unintentional violations of this Order in the case of an individual who does not carry or wear a press pass, badge, or other official press credential, professional gear, or distinctive clothing that identifies the person as a member of the press.
5. To facilitate the Federal Defendants’ identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest. It also shall be an indicium of being a Legal Observer protected under this Order that the person is standing off to the side of a protest, not engaging in protest activities, and not intermixed with persons engaged in protest activities, although these are not requirements.
6. The Federal Defendants are not precluded by the Order from issuing otherwise lawful crowd-dispersal orders for a variety of lawful reasons. The 9

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A prior motions panel of this court entered an administrative stay of the
injunction pending the adjudication of the government’s motion for emergency
Federal Defendants shall not be liable for violating this injunction if a Journalist or Legal Observer is incidentally exposed to crowd-control devices after remaining in the area where such devices were deployed after the issuance of an otherwise lawful dispersal order.
7. Plaintiffs and the Federal Defendants shall promptly confer regarding how the Federal Defendants can place unique identifying markings (using numbers and/or letters) on the uniforms and/or helmets of the officers and agents of the Federal Defendants who are specially deployed to Portland so that they can be identified at a reasonable distance and without unreasonably interfering with the needs of these personnel. Based on the Court’s understanding that Deputy U.S. Marshals and Courtroom Security Officers stationed in Portland who are under the direction of the U.S. Marshal for the District of Oregon are not part of the force that has given rise to events at issue in the lawsuit, they are exempt from this requirement. Agents wearing plain clothes and assigned to undercover duties also are exempt from this requirement. If the parties agree on a method of marking, they shall submit the terms of their agreement in writing to the Court, and the Court will then issue a modified preliminary injunction that incorporates the parties’ agreement. If the parties cannot reach agreement within 14 days, each party may submit its own proposal, and each side may respond to any other party’s proposal within seven days thereafter. The Court will resolve any disputes on this issue and modify this preliminary injunction appropriately.
8. To promote compliance with this Preliminary Injunction, the Federal Defendants are ordered to provide copies of the verbatim text of the first seven provisions of this Preliminary Injunction, in either electronic or paper form, within 14 calendar days to: (a) all employees, officers, and agents of the Federal Defendants currently deployed in Portland, Oregon (or who later become deployed in Portland, Oregon while this Preliminary Injunction is in force), including but not limited to all personnel in Portland, Oregon who are part of Operation Diligent Valor, Operation Legend, or any equivalent; and (b) all employees, officers, and agents of the Federal Defendants with any supervisory or command authority over any person in group (a) above.
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relief. As the court, in its role as this motions panel, today denies such emergency request for a stay pending appeal, the injunction will go back into effect and this matter will proceed before the district court, pending disposition of the government’s appeal of the preliminary injunction by a merits panel of this court. Plaintiffs’ Fourth Amendment and state constitutional claims did not form part of the request for preliminary relief and remain pending before the district court, as do plaintiffs’ requests for compensatory and punitive damages, attorney’s fees, and costs. As the City’s stipulation to a preliminary injunction resolved only Plaintiffs’ request for equitable relief, Plaintiffs’ remaining claims against the City and individual PPB officers also remain pending in the district court.
II I agree with the majority that the Nken v. Holder factors must determine our disposition of the government’s request for emergency relief, but I respectfully disagree with how the majority analyzes those factors. 556 U.S. 418, 426 (2009). I address each factor in turn, beginning with the government’s burden to make a strong showing of likelihood of success on the merits.4
4 Upon appeal of a preliminary injunction, the district court’s conclusions of law are reviewed de novo, its underlying factual findings are reviewed for clear error, and the scope of the injunction is reviewed for abuse of discretion. Padilla v. Immigration & Customs Enf’t, 953 F.3d 1134, 1141 (9th Cir. 2020). In addition, “we review First Amendment questions de novo since they present mixed questions of law and fact, requiring us to apply principles of First Amendment
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The district court granted injunctive relief on the basis of Plaintiffs’ two First Amendment claims: (1) a “right of public access” to public streets and sidewalks to observe and to document law enforcement officers engaged in riot control and crowd dispersal; and (2) a right to be free from “retaliation” by federal officers for reporting on law enforcement’s response to civil unrest.
A 1 With respect to the “right of public access” issue, the district court purported to apply the framework articulated in Press-Enterprise Co. v. Superior Court of Cal. (“Press-Enterprise II”) for evaluating “claim[s] of a First Amendment right of access to criminal proceedings[.]” 478 U.S. 1, 8–9 (1986). Pursuant to that doctrine, in evaluating a purported claim of public access to a proceeding, a court must consider: (1) “whether the place and process have historically been open to the press and general public;” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. “If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches.” Id. “A presumptive right of access to any particular proceeding may be overcome by an overriding
jurisprudence to the specific facts of this case.” Gerritsen v. City of Los Angeles, 994 F.2d 570, 575 (9th Cir. 1993).
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government interest based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” Id.
But the First Amendment-based right of public access and its corresponding
framework have never been deemed to apply to riot control and crowd dispersal in a public street.5 The Supreme Court has discussed only a qualified right of access
to certain criminal judicial proceedings and has never recognized a right of public
access outside of that context. See Press-Enterprise II, 478 U.S. at 8–9 (right of
public access to preliminary hearings in criminal cases); Press-Enterprise Co. v.
Superior Court of Cal., 464 U.S. 501, 503, 508 (1984) (right of public access to
voir dire hearings in criminal cases); Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 580 (1980) (right of public access to criminal trials).
5 The majority, echoing arguments offered by plaintiffs’ counsel, invokes prior decisions of our court referencing a First Amendment-based right to record law enforcement activity in public. See Reed v. Lieurance, 863 F.3d 1196, 1211 (9th Cir. 2017); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). Those cases are inapposite, however, as they do not address situations where law enforcement is responding to rioting and violent unrest. At most, those cases merely recognize the right of a person to use a recording device in a public forum, before any measures have been taken to restrict access to the forum, such as issuance of a general dispersal order. They certainly do not stand for the extraordinary proposition that an individual is exempt from a dispersal order or other riot control measure merely because he is engaged in the act of recording law enforcement operations. Moreover, as a matter of doctrine, neither case applied right-of-public-access analysis. In fact, Reed applied public forum analysis, which the district court notably chose not to do here. 863 F.3d at 1211. Cf. fn. 9, infra.
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In the decades since Press-Enterprise II, the courts of appeals have expanded the right-of-public-access doctrine considerably beyond its initial, paradigmatic application to criminal proceedings—including, in our court, to a variety of non-criminal, non-adjudicative, governmental proceedings, such as a horse gather on federal land, Leigh v. Salazar, 677 F.3d 892, 894 (9th Cir. 2012), and a referendum on a regulatory order conducted by the U.S. Department of Agriculture, Cal-Almond, Inc. v. U.S. Dept. of Agriculture, 960 F.2d 105, 109 (9th Cir. 1992)—but the doctrine is not without limit. Rather, the Press-Enterprise II framework has been confined to claims of access to specific governmental proceedings and has never been applied to public spaces in general or to private events therein. Cf. Leigh, 677 F.3d at 894 (evaluating access to horse gather, not to federal lands); Whiteland Woods, L.P. v. Township of W. Whiteland, 193 F.3d 177, 181 (3d Cir. 1999) (evaluating access to town planning commission meeting, not to town hall). Here, protests in a public street are privately sponsored and organized events, and when they degenerate into riots, the crowd control measures taken by law enforcement are spontaneous and temporary responses to ongoing criminal activity. Protests and resulting riots are simply not governmental proceedings to which a right of public access may be claimed.6
6 Curiously, the complaint might be better viewed as claiming a “right of exclusion” from crowd dispersal actions by federal law enforcement. Plaintiffs seek access to a putative proceeding, the necessary impact of which they actually
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Similarly, even where the Press-Enterprise II framework applies, it requires a court to evaluate a claim of access by first determining whether “the place and the process” have historically been open to the public, and whether the public’s presence plays a critical role in the specific proceeding at issue. 478 U.S. at 8–9 (emphasis added). Here, the district court noted that streets, sidewalks, and parks constitute traditional public fora, which have been open to speech and expression from “time out of mind,” Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939), but it failed to evaluate any history of public access to law enforcement operations responding to ongoing criminal activity, including violent civil unrest that threatens federal property and personnel. In the absence of historical analysis regarding the proceeding, as distinguished from the place, a presumptive right of public access simply does not attach. Cf. Leigh, 677 F.3d at 894 (calling for inquiry into history of public access to horse gathers, not to federal lands).
The district court’s reasoning here is reflective of an emerging pattern of lower courts expanding the right-of-public-access doctrine well beyond its original scope, with little consideration of a limiting principle. Cf., e.g., N.Y. Civil Liberties Union v. N.Y. City Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) (noting, with approval, that “there is no principle that limits the First Amendment right of
wish to avoid. This contradiction highlights the discrepancy between plaintiffs’ claims and traditional right-of-public-access case law.
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[public] access to any one particular type of government process”). When the Supreme Court first articulated the First Amendment right of public access in Richmond Newspapers, Inc. v. Virginia, it drew on an extensive historical record of public access to criminal trials in the Anglo-American legal tradition, dating back to “the days before the Norman Conquest.” 448 U.S. at 580. After canvassing more than a thousand years of “unbroken, uncontradicted” history, the Court felt justified in concluding that the right to attend criminal trials is “implicit in the guarantees of the First Amendment.” Id. In Press-Enterprise II, the Court limited its inquiry to post-Bill of Rights history, but nonetheless identified a “near uniform” “tradition of accessibility” to preliminary hearings in criminal cases dating back to the “celebrated trial of Aaron Burr” in 1807. 478 U.S. at 10–11.
Lower courts, by contrast, including ours, have extended the right of public access largely without extensive historical backing and without further guidance from the Supreme Court regarding the specific contours of the doctrine. If the majority’s reasoning here is any indication, the doctrine is growing haphazardly, like a weed in an untended garden, presaging conflict with more established legal rights and powers. This doctrinal disorder warrants further review.
2 Even if right-of-public-access analysis were appropriate under these circumstances, any right to access the proceeding in question must apply equally to
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the press and the public. See Cal. First Amendment Coal. v. Woodford, 299 F.3d 868, 873 n.2 (9th Cir. 2002) (“As members of the press, plaintiffs’ First Amendment right of access to governmental proceedings is coextensive with the general public’s right of access.” (citing Houchins v. KQED, Inc., 438 U.S. 1, 15– 16 (1978)). Indeed, it is a long-established and fundamental principle of constitutional law that “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” Branzburg v. Hayes, 408 U.S. 665, 684 (1972). Cf. Erwin Chemerinsky, Protect the Press: A First Amendment Standard for Safeguarding Aggressive Newsgathering, 33 U. Rich. L. Rev. 1143, 1145 (2000) (“[The Supreme Court’s] rulings, without exception, have failed to provide any First Amendment protection for newsgathering. Indeed, the Court has declared that there is no exemption for the press from general laws. In other words, while engaged in newsgathering, the press is not exempt from tort liability or criminal laws, no matter how compelling the need for reporting to protect the public’s health and safety.”)
But here, the district court’s injunction, by its own terms, grants selfidentified journalists and “legal observers” a special privilege to disregard dispersal orders with which the general public must comply, which has no legal
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basis. The injunction is thus at odds with a core First Amendment principle and a
common-sense rule of thumb: the media have the same rights as the rest of us.7
The majority opinion here rejects this characterization of the injunction and
insists that it creates no special rights. According to the majority, the injunction
merely prevents federal agents from seeking to disperse the press from local streets
and sidewalks when the City’s current policy is that press may remain there, even
during riots, but does not seek to regulate crowd dispersal on federal property. On
this view, the injunction is a wholesome exercise in federalism!
But the majority’s analysis is inconsistent with the plain text of the district
court’s order and misapplies principles of constitutional structure. The injunction,
by its own terms, appears to extend to dispersal orders issued on federal property,
7 Even if journalists had some special claim to enhanced Constitutional protection when reporting on law enforcement activities, grounded in the First Amendment’s “freedom of the press” clause, “legal observers” have never been accorded any special recognition under our law. Cf. Wise v. City of Portland, No. 3:20-CV01193-IM, 2020 WL 5231486, at *7 (D. Or. Sept. 2, 2020) (declining to recognize special status for “protest medics” in similar Portland protests) (“[T]his Court has found no legal authority for affording protest medics, as defined by Plaintiffs, unique recognition under the First Amendment beyond that afforded any individual who attends a protest. . . . They simply have no unique status under the First Amendment that allows them to disregard lawful [dispersal] orders.”). That the district court’s injunction appears to empower the ACLU and NLG to bestow immunity from lawful dispersal orders is particularly dubious given the status of these organizations as perennial litigation adversaries of law enforcement agencies. In sum, like “protest medics,” there is no cognizable basis for “legal observers” to receive “special dispensation” to disregard lawful dispersal orders. Wise, 2020 WL 5231486 at *2.
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and is certainly not geographically limited in any explicit way. The injunction thus allows the press, but not others, to disregard dispersal orders that are clearly lawful. That can only be understood as a special dispensation that is not consistent with the First Amendment.
In any event, even if federal agents are located on City property when they issue, or seek to enforce, an order to disperse, principles of federalism do not justify carving out a special exemption for the press from such orders simply because City police would typically allow for one. The Federal Government is indeed acknowledged by all to be one of limited and enumerated powers, see Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 534 (2012), and it is not entitled to exercise general or residual powers, see United States v. Comstock, 560 U.S. 126, 153 (2010) (Kennedy, J., concurring) (“Residual power, sometimes referred to (perhaps imperfectly) as the police power, belongs to the States and the States alone”), such as the prevention and punishment of crime and disorder on local streets, sidewalks, and parks, see United States v. Morrison, 529 U.S. 598, 618 (2000) ([W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).
It is an inversion of our constitutional structure, however, to require federal officers to abide by municipal policies regarding crowd dispersal when carrying
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out their statutory prerogative to protect federal property and personnel. Federal officials are prohibited, of course, from “commandeering” state and local law enforcement officers to help secure federal property and must instead rely on voluntary cooperation with state and local officials for this purpose. See Printz v. United States, 521 U.S. 898, 935 (1997). Where such cooperation is inadequate, the federal government must deploy its own agents. In these circumstances, the agency’s lawful directives regarding crowd dispersal, i.e., those adopted pursuant to a constitutionally enacted federal statute or rule, take precedence over state and local ones, not the other way around. Such an arrangement does not violate principles of federalism or dual sovereignty but is rather required by them. See, e.g., Alden v. Maine, 527 U.S. 706, 732 (1999) (federal government sets the supreme law of the land when acting within its enumerated powers).
The majority opinion relies heavily on the district court’s conclusion, with which it agrees, that it is, in fact, unlawful for federal agents to issue orders to disperse if they are situated beyond federal property. According to the majority, DHS and USMS have never claimed to have such authority, and the federal statute upon which they principally rely, 40 U.S.C. § 1315, does not provide for it.
The suggestion that the government has simply conceded this question is overstated. Although this issue was not adequately briefed by either party, the government has consistently articulated the position, both before the district court
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and on appeal, that federal law enforcement officers may issue dispersal orders on federal property, and in several circumstances, may effectuate those orders beyond federal property, such as by establishing a secure perimeter. In particular, the government has invoked § 1315(b)(1), which provides that the Secretary of Homeland Security may designate DHS agents to protect federal property, including designating agents for duty in “areas outside the property to the extent necessary to protect the property and persons on the property.”
I am inclined to agree with the government’s general understanding of its statutory authority. As the government has pointed out, it would be unreasonable to require that federal officers charged with securing federal buildings wait until violent opportunists have breached the property line or entered the building before taking any protective measures. There is very likely a statutory basis for at least some crowd dispersal activity adjacent to a federal courthouse faced with violent unrest and the other challenging circumstances at issue here.
I also agree with the majority, however, that a determination of the precise scope of DHS’s and USMS’s statutory authority is not required for resolution of this emergency motion. Indeed, the statutory question muddles the First Amendment analysis upon which the district court’s injunction is ultimately grounded. Presumably, if federal officers have no statutory basis for dispersals beyond federal property, then any such dispersals are ultra vires, and the inquiry is
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at an end. There is no reason to proceed to an evaluation of the constitutional rights of persons subject to such purportedly unlawful measures, let alone to construct a complex injunction that distinguishes the rights of press and “legal observers” from the rights of other participants in a protest. Ultimately, a lack of federal statutory authority for off-property dispersals, as such, cannot serve as the sole, or even primary, basis upon which this particular injunction is upheld, given its reliance on a painstaking analysis of purported constitutional violations with respect to specific persons. Thus, even if I were to accept the majority’s view that the injunction’s aim is simply to prohibit off-property dispersals by federal officers, which I do not, the injunction’s terms would be woefully underinclusive.
3 Even if a presumptive right of access for press and “legal observers” to witness law enforcement’s response to a riot could be said to exist, the inquiry does not end there. Under Press-Enterprise II, a presumptive right of public access to any particular proceeding may be overcome by an overriding government interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. 478 U.S. at 8–9. The district court’s narrow tailoring analysis failed to take proper account of the government’s interests in defense of federal personnel and property, which justify use of general dispersal orders during riot control situations that threaten
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federal resources, even in a public forum.8 Here, considering the chaotic and dynamic situation during Portland’s recent protest events, which have frequently devolved into riots, along with the nefarious actions by certain individuals falsely purporting to be press or “legal observers,” closure of the forum through general dispersal orders is essential to the defense of federal personnel and property. Indeed, the closure of governmental proceedings has been deemed proper in several instances where the government’s interest was arguably less immediate and the restriction on access was equally broad. Cf., e.g., Dhiab v. Trump, 852 F.3d 1087, 1095 (D.C. Cir. 2017) (government’s interest in preventing future threats to military operations would justify closure of habeas proceedings); U.S. v. Index Newspapers LLC, 766 F.3d 1072, 1087 (9th Cir. 2014) (government’s interest in
8 In addition, the district court’s narrow tailoring analysis was conceptually flawed because the closure evaluated in the Press-Enterprise II framework should be that of a specific governmental proceeding, not of a public forum generally. Utilizing “right-of-public-access” analysis to evaluate the closure of a “traditional public forum,” such as a public street, is unsettling because government restrictions on First Amendment activity in such locations are usually evaluated under “public forum analysis,” which has been more extensively developed in the case law and provides more guidance regarding the policing of protest events. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); Int’l Action Ctr. v. City of New York, 587 F.3d 521, 527 (2d Cir. 2009); Coal. to Protest Democratic Nat’l Convention v. City of Boston, 327 F. Supp. 2d 61, 69–70 (D. Mass.), aff’d sub nom. Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8 (1st Cir. 2004).
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secrecy justified closure of certain grand jury proceedings); ACLU v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (government’s interest in integrity of ongoing fraud investigation justified sealing of complaints filed in False Claims Act actions).
Moreover, if the categories of “journalist” and “legal observer” in fact include all members of the public engaged in observation, as distinguished from speech or protest—as the majority seems to suggest—then the government’s interests in full closure of the “proceeding” are even more compelling. Otherwise, in the event of a riot in a public forum that threatens federal property, federal officers could disperse only members of the public that are speaking, assembling, and protesting, but not members of the public that are observing or documenting. Peaceful protesters caught up in the riot would have to obey the dispersal order, but peaceful observers would not. This differential treatment is groundless and, in any event, would render federal dispersal orders a dead letter, even in the face of an undeniable threat to federal property and personnel. Federal law enforcement agents simply would not be allowed to clear the street. Such a prohibition is not only inconsistent with the government’s overriding interest in security in cases of violent unrest that threatens federal property and personnel, it is also contrary to established law in other First Amendment settings, which permits general dispersal orders in similar circumstances. Cf., e.g., Bible Believers v. Wayne Cty., Mich., 805 F.3d 228, 252 (6th Cir. 2015) (“The police may go against the hecklers,
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cordon off the speakers, or attempt to disperse the entire crowd if that becomes necessary.”). Carr v. D.C., 587 F.3d 401, 409–10 (D.C. Cir. 2009) (“[W]hen police face an unruly crowd they may give a dispersal order and then arrest those who, after reasonable opportunity to comply, fail to do so. We continue to acknowledge that this tactic will be invaluable to police in certain circumstances. A dispersal order might well be necessary in a situation in which a crowd is substantially infected with violence or otherwise threatening public safety.” (internal citations and quotation marks omitted)); Wise, 2020 WL 5231486 at *2 (recognizing propriety of general dispersal orders in response to Portland riots).
The only way the majority arrives at a different conclusion is by according deference to the district court’s factual findings, which placed heavy emphasis on the City of Portland’s consent to abide by an injunction with nearly identical terms and a declaration submitted by former DHS official Gil Kerlikowske stating that law enforcement officers may respond effectively to riots without dispersing journalists and “legal observers.” Evaluating whether a government measure is narrowly tailored is not simply a matter of ordinary fact-finding, however. Narrow tailoring is viewed as a mixed question of fact and law that requires a delicate balancing of legal principles as applied to specific circumstances. See Gilbrook v. City of Westminster, 177 F.3d 839, 861 (9th Cir. 1999); Gerritsen v. City of Los Angeles, 994 F.2d 570, 575 (9th Cir. 1993) (“[W]e review First Amendment
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questions de novo since they present mixed questions of law and fact, requiring us to apply principles of First Amendment jurisprudence to the specific facts of this case.” (internal quotation marks omitted)); see also Mastrovincenzo v. City of New York, 435 F.3d 78, 100 (2d Cir. 2006) (“Our narrow-tailoring inquiry requires us to apply principles of First Amendment jurisprudence to the specific facts of this case, and therefore we treat this issue as a mixed question of law and fact that we may resolve on appeal.” (internal quotations marks omitted)); Casey v. City of Newport, R.I., 308 F.3d 106, 116 (1st Cir. 2002) (“Inescapably, the application of the narrow tailoring test entails a delicate balancing judgment.” (citations omitted)). Accordingly, I would revisit the district court’s narrow tailoring inquiry, which I believe did not correctly balance the interests at stake.
The City’s stipulation does not have the import that the district court, and the majority, ascribe to it. That the City ultimately agreed to the terms of the injunction does not show that it complied with them, let alone that it did so and managed to protect property and personnel. In any event, the City’s agreeableness should not be overstated here. The PPB is still alleged to have followed until recently a policy of dispersing press and “legal observers,” the TRO was entered
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without the City’s consent, and, after the City agreed to a preliminary injunction, it suggested that modifications would be required.9
Moreover, as already discussed, holding DHS and USMS to the City’s policies and practices reflects a misunderstanding of the relationship between federal and local law enforcement, each of which operates under a separate command structure and is typically entitled to set different enforcement priorities and to follow different directives regarding lawful crowd control tactics, including general dispersal orders. In this case, the City not only sought to distinguish the PPB from federal law enforcement, it has been explicitly adverse to the presence of federal officers in Portland, leveling serious allegations of unlawful conduct against them, and even going so far as to prohibit the PPB from cooperating with federal agents to provide security for the Hatfield Courthouse. The City’s actions, and its filings in the district court, suggest that it has a divergent assessment of the severity of the threat posed to federal personnel and property by protest events that degenerate into riots, and of the proper manner of dealing with that threat. The
9 The City also resisted a very similar request for injunctive relief brought by socalled “protest medics.” Wise, 2020 WL 5231486 at *2. The City apparently argued, and the district court agreed, that an injunction exempting “protest medics” from dispersal orders would be unworkable for the PPB. Why the City expects the PPB to identify and to exempt “legal observers,” but not “protest medics,” is difficult to understand. Cf. fn. 7, supra.
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City is entitled, of course, to utilize different crowd control tactics, but the City’s choices obviously do not bind federal law enforcement agencies.
Similarly, Kerlikowske’s testimony does not adequately address crowd control under the specific circumstances faced by federal officers in Portland. For example, he deals in a conclusory manner with the evidence placed in the record regarding the involvement of putative journalists and “legal observers” in criminal acts, stating that federal officers “were not fooled” by the “press” labels and that trained officers are capable of dealing with such incidents on an individualized basis. But effectuating an arrest may not be feasible or safe in the chaotic and dynamic environment of a riot that threatens federal property and personnel, which is why dispersal orders—and related crowd control tactics, such as deployment of tear gas—are understood to be legitimate law enforcement tools in the first place. Cf. Wise, 2020 WL 5231486 at *2 (recognizing propriety of general dispersal orders in responding to Portland riots); Don't Shoot Portland v. City of Portland, No. 3:20-CV-00917-HZ, 2020 WL 3078329, at *4 (D. Or. June 9, 2020) (allowing use of tear gas in situations where safety of public or police is at risk). Given the conclusory nature of Kerlikowske’s testimony on this point, it is hardly definitive.
Accordingly, the government has made a strong showing that it is likely to succeed in demonstrating that the First Amendment-based right of public access does not support the district court’s injunction.
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B With respect to the “retaliation” claim, the district court also concluded that plaintiffs were likely to succeed, largely based on its detailed factual findings indicating a disturbing pattern of unwarranted force by federal agents. The majority opinion here discusses the “retaliation” claim extensively and ultimately defers to these factual findings. Even if plaintiffs’ retaliation claim were viable, however, that claim alone cannot justify this injunction. The district court’s factual findings regarding retaliation, while apparently based on a meticulous examination of the record, bear no relation to the injunctive relief actually entered. General dispersal orders were not among the acts alleged to be retaliatory, nor did the district court make any findings to support such a conclusion. An injunction that exempts plaintiffs—not to mention, journalists and “legal observers” more generally—from dispersal orders is thus far broader than necessary to provide relief for the injuries alleged, and documented, as a result of retaliation.10 Indeed, Judge Immergut, of the very same district court, relied on such reasoning in denying a similar request for injunctive relief based on First Amendment “retaliation” just two weeks after the
10 Remarkably, some of the allegations in the complaint regarding “retaliation” may well support Bivens actions and claims of excessive force against individual officers, but that is not what is before us today. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 395 (1971).
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instant preliminary injunction was entered. Wise, 2020 WL 5231486 at *8 (injunction not warranted where instances of alleged targeting appeared to occur when “protest medics” refused to follow dispersal orders).
Accordingly, I would hold that, regardless of whether plaintiffs’ have stated a valid First Amendment “retaliation” claim, an injunction that exempts them from non-retaliatory dispersal orders is overbroad and an abuse of discretion. See Cal. v. Azar, 911 F.3d 558, 584 (9th Cir. 2018) (“The scope of the remedy must be no broader and no narrower than necessary to redress the injury shown by the [plaintiff].”)
I conclude that DHS and USMS have made a strong showing that they are likely to succeed in demonstrating that the district court’s extraordinary injunction was issued without an adequate legal basis. This critical Nken factor favors grant of the government’s emergency motion for stay pending appeal.
III The remaining Nken factors also favor a stay pending appeal here. First, while a closer question, the government has shown that it is likely to suffer irreparable harm during the pendency of the appeal if the injunction is not stayed, because it is unworkable for federal officers to distinguish journalists and “legal observers” in the midst of a riot that threatens federal property and personnel based
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on the nebulous criteria established by the district court, particularly in light of the incidents of press and “legal observer” involvement in violent unrest.
The majority rejects the government’s showing on this factor, stating that the injunction is carefully drawn to avoid undue interference with DHS’s and USMS’s defense of federal resources, that the PPB has been operating safely and effectively under nearly identical terms, and that Kerlikowske’s declaration indicates that general dispersal orders are unnecessary for crowd control. The majority’s characterization of the order as carefully drawn is misleading because the order merely restates existing legal rules, such as an officer’s power to make an arrest based on probable cause. And the order does not explain how effectuating arrest of individual suspects is as feasible or safe as utilizing general crowd control tactics during a riot that threatens federal property and personnel. Similarly, the City’s stipulation and Kerlikowske’s declaration do not warrant the treatment they receive, for the reasons discussed above.
Second, the harms to the government are serious because the injunction’s curtailment of general dispersal orders will compromise the security of federal personnel and property, whereas, if there is no right of public access, as I have argued, then any harm to plaintiffs from a stay is minimal because they do not have a right to remain in the street after they have been ordered to disperse, and the injunction does not protect them from retaliation. Third, for similar reasons, the
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public interest in maintenance of order and public safety also favors stay of an overbroad injunction that unduly interferes with law enforcement operations, while offering little, if any, protection for plaintiffs’ actual constitutional rights. This combination of showings justifies a stay pending appeal. See Leiva-Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) (stay warranted where irreparable harm is probable, there is a strong likelihood of success on the merits, and the public interest does not weigh heavily against a stay).
IV Because the government has made a strong showing that it is likely to succeed in demonstrating that the injunction lacks an adequate legal basis, and the other Nken factors also weigh in favor of a stay, I respectfully dissent and would grant the emergency motion for stay pending appeal.
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 Case 3:20-cv-01035-SI Document 198 Filed 12/08/20 Page 1 of 4

Matthew Borden, admitted pro hac vice borden@braunhagey.com J. Noah Hagey, admitted pro hac vice hagey@braunhagey.com Athul K. Acharya, OSB No. 152436 acharya@braunhagey.com Gunnar K. Martz, admitted pro hac vice martz@braunhagey.com BRAUNHAGEY & BORDEN LLP 351 California Street, Tenth Floor San Francisco, CA 94104 Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213 ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P.O. Box 40585 Portland, OR 97240 Telephone: (503) 227-6928
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

INDEX NEWSPAPERS LLC, a Washington limited-liability company, dba PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY; SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND, a municipal corporation; JOHN DOES 1-60, officers of Portland Police Bureau and other agencies working in concert; U.S. DEPARTMENT OF HOMELAND SECURITY; and U.S. MARSHALS SERVICE,
Defendants.

Case No. 3:20-cv-1035-SI
STIPULATION IN LIEU OF CONTEMPT MOTION

STIPULATION IN LIEU OF CONTEMPT MOTION

Case 3:20-cv-01035-SI Document 198 Filed 12/08/20 Page 2 of 4

This agreement is between Plaintiffs Index Newspapers LLC, Doug Brown, Brian

Conley, Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex

Milan Tracy, Tuck Woodstock, and Justin Yau (“Plaintiffs”) and Defendant City of Portland

(collectively, the “Parties”), in the action styled Index Newspapers LLC v. City of Portland, No.

3:20-cv-1035-SI (D. Or.).

WHEREAS the Court has entered a preliminary injunction against the City of Portland,

prohibiting the City and its police officers from “arresting, threatening to arrest, or using physical

force directed against any person whom they know or reasonably should know is a Journalist or

Legal Observer . . ., unless the Police have probable cause to believe that such individual has

committed a crime” (Dkt. 185) (“Preliminary Injunction”);

WHEREAS Plaintiffs allege the following facts, which they contend violated the

Preliminary Injunction:

• That

arrested ACLU Legal Observer Kat Mahoney on

August 9, 2020, and dislocated her shoulder by picking her up by her handcuffs;

• That

threatened ACLU Legal Observer Bruce Knivila on

August 8, 2020;

• That

assaulted journalist Maranie Staab by pushing her in

the back when she was complying with his order to leave her location on August

10, 2020;

• That

again assaulted journalist Maranie Staab in retaliation

for her filming him pepper-spraying a protestor on September 29, 2020;

• That

prevented ACLU Legal Observers Stasia Brownell

and Rachelle Collins from filming

arrest of Ms. Mahoney

and grabbed Ms. Brownell by the throat and threw her to the ground on August 9,

2020;

• That

assaulted journalist Maranie Staab in retaliation for her

filming him assaulting a protester on August 16, 2020;

PAGE 1 - STIPULATION IN LIEU OF CONTEMPT MOTION

Case 3:20-cv-01035-SI Document 198 Filed 12/08/20 Page 3 of 4

WHEREAS Plaintiffs have provided the City video evidence regarding the allegations set

forth above;

WHEREAS Plaintiffs are prepared to seek a finding of contempt and sanctions against

the City and the individual officers in connection with those allegations;

WHEREAS the City does not admit liability nor the truth of Plaintiffs’ allegations and is

in the process of investigating the above allegations;

WHEREAS the Parties wish to resolve their disputes, if possible, without going to Court;

THEREFORE, the Parties agree as follows:

1. The City will continue its investigation of the allegations against

and

;

2. Pending the resolution of its investigations, the City will remove

and

from public-order policing duty involving contact with the

public;

3. If the City seeks to reinstate either officer to public-order policing duty involving

contact with the public before the completion of their respective disciplinary processes, the City

will give Plaintiffs at least 3 days’ notice before doing so, so that Plaintiffs can move the Court

for contempt.

Dated: December 8, 2020

By: /s/Matthew Borden Matthew Borden, pro hac vice J. Noah Hagey, pro hac vice Athul K. Acharya, OSB No. 152436 Gunnar K. Martz, pro hac vice BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

PAGE 2 - STIPULATION IN LIEU OF CONTEMPT MOTION

Case 3:20-cv-01035-SI Document 198 Filed 12/08/20 Page 4 of 4

Dated: December 8, 2020

By: /s/ Denis M. Vannier______ DENIS M. VANNIER, OSB# 044406 Senior Deputy City Attorney NAOMI SHEFFIELD, OSB# 170601 Deputy City Attorney RYAN C. BAILEY, OSB# 130788 Deputy City Attorney YOUNGWOO JOH, OSB# 164105 Assistant Deputy City Attorney
Attorneys for Defendant City of Portland

PAGE 3 - STIPULATION IN LIEU OF CONTEMPT MOTION