U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:20-cv-01193-IM

Wise et al v. City of Portland et al Assigned to: Judge Karin J. Immergut Demand: $0 Cause: 42:1983 Civil Rights Act

Date Filed: 07/22/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
Christopher Wise individual

represented by Courtney Peck Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209-4128 503-727-2063 Email: cpeck@perkinscoie.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

Misha Isaak Perkins Coie, LLP 1120 N.W. Couch Street Tenth Floor Portland, OR 97209 503-727-2000 Email: misaak@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan R. Morales Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209-4128

Plaintiff
Michael Martinez individual

503-727-2000 Email: nmorales@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R. Johnson Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209-4128 503-727-2176 Fax: 503-727-2222 Email: TRJohnson@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary Watterson Perkins Coie 3150 Porter Drive Palo Alto, CA 94304 650-838-4710 Email: zwatterson@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shane Grannum Perkins Coie LLP 700 Thirteenth Street, N.W. Suite 800 Washington, DC 20005 571-565-9185 Email: sgrannum@perkinscoie.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Courtney Peck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Christopher Durkee individual

Misha Isaak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan R. Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary Watterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shane Grannum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Courtney Peck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Misha Isaak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan R. Morales (See above for address) LEAD ATTORNEY

Plaintiff
Savannah Guest individual

ATTORNEY TO BE NOTICED
Thomas R. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary Watterson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shane Grannum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Courtney Peck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Misha Isaak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan R. Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary Watterson (See above for address)

V. Defendant City of Portland a municipal corporation
Defendant Stephen B. Pettey in his individual capacity

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shane Grannum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert T. Yamachika City Attorney's Office 1221 SW Fourth Avenue, Room 430 Portland, OR 97204 503-823-4047 Fax: 503-823-3089 Email: Rob.Yamachika@portlandoregon.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
William W. Manlove , III City of Portland 1221 SW Fourth Avenue Suite 430 Portland, OR 97204 503-823-4047 Fax: 503-823-3089 Email: William.Manlove@portlandoregon.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert T. Yamachika (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William W. Manlove , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant John Does 1-60 individual and supervisory officers of Portland Police Bureau Defendant U.S. Department of Homeland Security
Defendant U.S. Marshals Service
Defendant John Does 61-100 individual and supervisory officers of the federal government

represented by Andrew Warden DOJ-Civ 1100 L St., N.W. Ste 7301 Washington, DC 20005 202-616-5084 Email: andrew.warden@usdoj.gov ATTORNEY TO BE NOTICED
Jeffrey Aaron Hall DOJ-Civ 950 Pennsylvania Ave. Washington, DC 20530 202-353-8679 Email: jeffrey.a.hall@usdoj.gov ATTORNEY TO BE NOTICED
represented by Andrew Warden (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Aaron Hall (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

07/22/2020 1

Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: AORDC-7018610 Jury Trial Requested: Yes. Filed by Michael Martinez, Christopher Wise, Christopher Durkee, Savannah Guest against All Plaintiffs (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons City of Portland, # 3 Proposed Summons Officer Stephen B. Pettey, # 4 Proposed Summons John Does 1-60,

07/22/2020
07/22/2020 07/24/2020 07/24/2020 07/24/2020 07/24/2020 07/24/2020

# 5 Proposed Summons U.S. Department of Homeland Security, # 6 Proposed Summons U.S. Marshals Service, # 7 Proposed Summons John Does 61-100). (Peck, Courtney) (Entered: 07/22/2020)

2 Notice of Case Assignment to Judge Karin J. Immergut 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 11/19/2020. Joint Alternate Dispute Resolution Report is due by 12/21/2020. Pretrial Order is due by 12/21/2020. Ordered by Judge Karin J. Immergut. (joha) (Entered: 07/22/2020)

3 Summons Issued Electronically as to City of Portland, Stephen B. Pettey, 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. (joha) (Entered: 07/22/2020)

Motion for Temporary Restraining Order and Order to Show Cause

4

Why Preliminary Injunction Should Not Enter. Oral Argument

requested.Expedited Hearing requested. Filed by All Plaintiffs.

(Morales, Nathan) (Entered: 07/24/2020)

5 Declaration of Christopher Durkee in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

document(s): Motion for Temporary Restraining Order 4 .) (Morales, Nathan) (Entered: 07/24/2020)
6 Declaration of Christopher Wise in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

document(s): Motion for Temporary Restraining Order 4 .) (Morales, Nathan) (Entered: 07/24/2020)
7 Declaration of Dr. Catherine Morgans in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

document(s): Motion for Temporary Restraining Order 4 .) (Morales, Nathan) (Entered: 07/24/2020)
8 Declaration of Jeffrey Paul in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

document(s): Motion for Temporary Restraining Order 4 .) (Morales, Nathan) (Entered: 07/24/2020)

07/24/2020

9 Declaration of Michael Martinez in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

07/24/2020

document(s): Motion for Temporary Restraining Order 4 .) (Morales, Nathan) (Entered: 07/24/2020)
10 Declaration of Peyton Dully Hubbard in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

07/24/2020

document(s): Motion for Temporary Restraining Order 4 .) (Morales, Nathan) (Entered: 07/24/2020)
11 Declaration of Savannah Guest in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

07/25/2020

document(s): Motion for Temporary Restraining Order 4 .) (Morales, Nathan) (Entered: 07/24/2020)
12 Scheduling Order by Judge Karin J. Immergut. Defendants are required to respond to plaintiffs' Motion for Temporary Restraining

07/27/2020 07/27/2020 07/28/2020

Order 4 by Tuesday, July 28, 2020 at 5:00 p.m. Any reply from Plaintiffs must be filed by Wednesday, July 29, 2020 by 5:00 p.m. Oral Argument is set for Thursday, July 30, 2020 at 1:30 p.m. in Portland by videoconference before Judge Karin J. Immergut. Ordered by Judge Karin J. Immergut. (jy) (Entered: 07/25/2020)
13 Return of Service Executed as to U.S. Department of Homeland Security served on 7/27/2020, answer due on 9/25/2020. Service specifically made upon Local U.S. Attorney. (Peck, Courtney) (Entered: 07/27/2020)
14 Return of Service Executed as to U.S. Marshals Service served on 7/27/2020, answer due on 9/25/2020. Service specifically made upon Local U.S. Attorney. (Peck, Courtney) (Entered: 07/27/2020)
15 Declaration of Nathan Cohen in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

07/28/2020 07/28/2020

document(s): Motion for Temporary Restraining Order 4 .) (Peck, Courtney) (Entered: 07/28/2020)

16 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: 07/28/2020)

Memorandum in Opposition to Motion for Temporary Restraining

17

Order and Order to Show Cause Why Preliminary Injunction Should

07/28/2020

Not Enter 4 . 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: 07/28/2020)
18 Response to Motion for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Enter 4

07/28/2020 07/28/2020 07/29/2020 07/29/2020

Oral Argument requested. Filed by City of Portland, Stephen B. Pettey. (Manlove, William) (Entered: 07/28/2020)
19 Declaration of Craig Dobson . Filed by City of Portland, Stephen B. Pettey. (Related document(s): Response to Motion 18 .) (Manlove, William) (Entered: 07/28/2020)
20 Notice of Appearance of Robert T. Yamachika appearing on behalf of City of Portland, Stephen B. Pettey Filed by on behalf of City of Portland, Stephen B. Pettey. (Yamachika, Robert) (Entered: 07/28/2020)
21 Proof of Service Return of Service Executed as to Stephen B. Pettey served on 7/29/2020, answer due on 8/19/2020. (Peck, Courtney) (Entered: 07/29/2020)
Unopposed Notice re Motion for Temporary Restraining Order 4 22
Deferral Filed by All Plaintiffs. (Related document(s): Motion

07/29/2020 08/02/2020

for Temporary Restraining Order 4 07/29/2020)

.) (Peck, Courtney) (Entered:

23 Order by Judge Karin J. Immergut. Unopposed Notice 22 of Deferral of Plaintiff's Motion for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Enter is GRANTED. Plaintiffs' Reply in Support of their Motion will be filed by noon on Sunday, August 2, 2020. The hearing on Plaintiffs' Motion is rescheduled for 8/3/2020 at 2:00PM. The parties shall inform the Court no later than noon on Sunday, August 2, 2020 if a hearing is no longer required. The previous hearing date of 7/30/2020 is VACATED. Ordered by Judge Karin J. Immergut. (jy) (Entered: 07/29/2020)

24 Order by Judge Karin J. Immergut. By email dated 8/2/20202, Plaintiffs seek to withdraw their motion for temporary restraining order as to both the Federal and Municipal Defendants, without prejudice to their right to seek emergency relief as necessary in the future. The Court GRANTS Plaintiffs' request to withdraw and

08/06/2020 08/06/2020 08/07/2020
08/09/2020 08/09/2020 08/17/2020
08/17/2020 08/19/2020

VACATES the hearing scheduled for 8/3/2020. Ordered by Judge Karin J. Immergut. (jy) (Entered: 08/02/2020)
25 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Shane A. Grannum. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-7080703. Filed by All Plaintiffs. (Grannum, Shane) (Entered: 08/06/2020)
26 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Zachary Tyler Watterson. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-7080717. Filed by All Plaintiffs. (Watterson, Zachary) (Entered: 08/06/2020)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Zachary Tyler Watterson. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-7080717 26 , and Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Shane A. Grannum. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-7080703 25 : Both Reviewed and Ready for Ruling. (sss) (Entered: 08/07/2020)
27 ORDER: Granting Motion for Leave to Appear Pro Hac Vice by attorney Shane A. Grannum 25 . Ordered by Judge Karin J. Immergut. (jy) (Entered: 08/09/2020)
28 ORDER: Granting Motion for Leave to Appear Pro Hac Vice by attorney Zachary Tyler Watterson 26 . Ordered by Judge Karin J. Immergut. (jy) (Entered: 08/09/2020)
29 Proof of Certified Mailing Return of Service Unexecuted as to U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Attachment 1 - Receipts for U.S. Dept. of Homeland Security - Summons and Complaint, # 2 Attachment 2 Receipts for U.S. Dept. of Homeland Security - TRO and Supporting Declarations, # 3 Attachment 3 - Receipts for U.S. Marshals Summons and Complaint, # 4 Attachment 4 - Receipts for U.S. Marshals - TRO and Supporting Declarations) (Peck, Courtney) (Entered: 08/17/2020)
30 Proof of Certified Mailing Return of Service Unexecuted as to City of Portland. (Attachments: # 1 Attachment 1 - Receipt for City of Portland - Summons, Waiver, Complaint, TRO, and Supporting Declarations) (Peck, Courtney) (Entered: 08/17/2020)
31 Waiver of Service of Summons Returned Executed by City of Portland waiver sent on 8/17/2020. Filed by All Plaintiffs. (Peck, Courtney) (Entered: 08/19/2020)

08/19/2020 08/19/2020 08/20/2020
08/21/2020 08/21/2020

32 Unopposed Motion for Extension of Time to Answer . Filed by Stephen B. Pettey. (Manlove, William) (Entered: 08/19/2020)

33 Declaration of William W. Manlove . Filed by Stephen B. Pettey. (Related document(s): Motion for Extension of Time to Answer a Complaint/Petition 32 .) (Manlove, William) (Entered: 08/19/2020)

34 ORDER: Defendant Officer Stephen B. Pettey's Motion for Extension of Time to Answer 32 is GRANTED. Defendant's first response to Plaintiffs' Complaint is now due on October 16, 2020. Ordered by Judge Karin J. Immergut. (jy) (Entered: 08/20/2020)

Motion for Temporary Restraining Order and Order to Show Cause

35

Why Preliminary Injunction Should Not Enter Against Municipal

Defendants. Oral Argument requested.Expedited Hearing requested.

Filed by All Plaintiffs. (Morales, Nathan) (Entered: 08/21/2020)

36 Declaration of Jiri Rivera in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

08/21/2020

document(s): Motion for Temporary Restraining Order 35 .) (Morales, Nathan) (Entered: 08/21/2020)
37 Declaration of Jessica Shifflett in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related

08/21/2020

document(s): Motion for Temporary Restraining Order 35 .) (Morales, Nathan) (Entered: 08/21/2020)
38 Supplemental Declaration of Christopher Wise in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining

08/21/2020

Order 35 .) (Morales, Nathan) (Entered: 08/21/2020)
39 Supplemental Declaration of Michael Martinez in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining

08/21/2020

Order 35 .) (Morales, Nathan) (Entered: 08/21/2020)
40 Scheduling Order by Judge Karin J. Immergut regarding Motion for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Enter Against Municipal

Defendants 35 . Defendants' Response is due by Wednesday, 8/26/20 at 5:00 PM (Pacific). Plaintiffs' reply is due by Friday, 8/28/2020 at 5:00 PM (Pacific). Oral Argument is set for 9/1/2020 at 10:00AM (Pacific) in Portland by videoconference before Judge

08/25/2020 08/26/2020 08/26/2020 08/28/2020 08/28/2020 08/28/2020 09/01/2020 09/01/2020

Karin J. Immergut. Ordered by Judge Karin J. Immergut. (jy) (Entered: 08/21/2020)
41 Supplemental Declaration of Peyton Dully Hubbard in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining
Order 35 .) (Peck, Courtney) (Entered: 08/25/2020)
42 Response to Motion for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Enter Against
Municipal Defendants 35 Oral Argument requested. Filed by City of Portland, Stephen B. Pettey. (Manlove, William) (Entered: 08/26/2020)
43 Supplemental Declaration of Craig Dobson . Filed by City of Portland, Stephen B. Pettey. (Related document(s): Response to Motion, 42 .) (Attachments: # 1 Exhibit 1) (Manlove, William) (Entered: 08/26/2020)
44 Reply to Motion for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Enter Against
Municipal Defendants 35 Oral Argument requested. Filed by All Plaintiffs. (Peck, Courtney) (Entered: 08/28/2020)
45 Declaration of Dustin Chilton in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related
document(s): Motion for Temporary Restraining Order 35 .) (Peck, Courtney) (Entered: 08/28/2020)
46 Supplemental Declaration of Jiri Rivera in Support of Plaintiffs' Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 35
.) (Peck, Courtney) (Entered: 08/28/2020)
47 Notice of Appearance of Jeffrey Aaron Hall 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. (Hall, Jeffrey) (Entered: 09/01/2020)
48 MINUTES of Proceedings: Hearing on Motion for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Enter Against Municipal Defendants 35
Held. Ryan Peck, Kelly K. Simon, Misha Isaak, and Nathan R. Morales present as counsel for plaintiff(s). Robert T. Yamachika,

09/02/2020 09/09/2020
09/24/2020

William W. Manlove, III, and Jeffrey Aaron Hall present as counsel for defendant(s). Court Reporter: Jill Jessup. Judge Karin J. Immergut presiding. (jy) (Entered: 09/01/2020)
Opinion and Order. Plaintiffs' Motion for a Temporary Restraining 49
Order, ECF 35 , is DENIED. IT IS SO ORDERED. See attached order for details. Signed on 9/2/20 by Judge Karin J. Immergut. (jy) (Entered: 09/02/2020)
50 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion Hearing held on September 1, 2020, before Judge Karin J. Immergut, Court Reporter Jill L. Jessup, telephone number (503)3268191 or email at jill_jessup@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter at (503)326-8191 or email at jill_jessup@ord.uscourts.gov or PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 9/16/2020. Redaction Request due 9/30/2020. Redacted Transcript Deadline set for 10/13/2020. Release of Transcript Restriction set for 12/8/2020. (jjcr) (Entered: 09/09/2020)
51 Unopposed Motion for Extension of Time to Answer Complaint,, 1

09/25/2020

. Filed by U.S. Department of Homeland Security, U.S. Marshals Service. (Attachments: # 1 Proposed Order) (Hall, Jeffrey) (Entered: 09/24/2020)
52 ORDER: Federal Defendants' Unopposed Motion for an Extension of Time to Answer or Otherwise Respond to the Complaint 51 is GRANTED. Federal Defendants' first response to Plaintiffs' Complaint is now due on October 16, 2020. Ordered by Judge Karin J. Immergut. (jy) (Entered: 09/25/2020)

 
 Rian Peck (they/them), OSB No. 144012 RPeck@perkinscoie.com Thomas R. Johnson (he/him), OSB No. 010645 TRJohnson@perkinscoie.com Misha Isaak (he/him), OSB No. 086430 MIsaak@perkinscoie.com Nathan Morales (he/him), OSB No. 145763 NMorales@perkinscoie.com PERKINS COIE LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Telephone: 503.727.2000 Facsimile: 503.727.2222
Shane Grannum (he/him), pro hac vice pending SGrannum@perkinscoie.com Sarah Mahmood (she/her), pro hac vice pending SMahmood@perkinscoie.com PERKINS COIE LLP 700 13th Street, NW, Suite 800 Washington, D.C. 20005-3960 Telephone: 202.654.6200 Facsimile: 202.654.6211
Zachary Watterson (he/him), pro hac vice pending ZWatterson@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350
Kelly K. Simon (she/her), 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

COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

CHRISTOPHER WISE, MICHAEL MARTINEZ, CHRISTOPHER DURKEE, and SAVANNAH GUEST, individuals,
Plaintiffs, v. CITY OF PORTLAND, a municipal corporation; OFFICER STEPHEN B. PETTEY, in his individual capacity; JOHN DOES 1-60, individual and supervisory officers of Portland Police Bureau; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. MARSHALS SERVICE; JOHN DOES 61-100, individual and supervisory officers of the federal government,
Defendants.

Case No. 3:20-cv-01193 COMPLAINT DEMAND FOR JURY TRIAL

COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Plaintiffs Christopher Wise, Michael Martinez, Christopher Durkee, and Savannah Guest allege as follows:
NATURE OF THE ACTION
1. This is a civil rights action brought on behalf of protest medics who have been providing care and comfort to the hundreds of people protesting nightly in downtown Portland against white supremacy, police violence generally, and police brutality against Black lives specifically.
2. Plaintiffs are protest medics who, in the face of tear gas, rubber bullets, and other munitions, exercise their rights to free speech through their service to the cause of equal treatment and absolute equality under the law, but more fundamentally, they exercise their rights by creating a safer environment for citizens to continue to express their desire for change.
3. As the protests continue, these protest medics have put their safety at risk in order to keep protesters safe. They share a strong belief that the protests are necessary to effectuate change in our community, and our country, and that their service as protest medics is an expression of their commitment to these ideals.
4. The police and federal law enforcement officers, however, have engaged in violent tactics in an effort to suppress the protests advocating massive changes in the way we police in America. Despite clear expression to the police and federal officers that these protest medics are there to assist others, and are not violent in any way, the police and their federal counterparts have targeted medics with rubber bullets, shoved them, sprayed tear gas at close range, arrested them, and taken their property.
5. Plaintiffs seek monetary damages and prospective injunctive relief so that they can continue their efforts to aid protesters.

1- COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

PARTIES
6. Plaintiff Michael Martinez is an individual residing in Multnomah County, Oregon. He is a graduate student at Oregon Health & Sciences University (“OHSU”), pursuing his doctorate degree in Medical and Molecular Genetics. He serves as a protest medic at the Portland Protests.
7. Plaintiff Christopher Wise is an individual residing in Washington County, Oregon. He maintains a full-time day job and, at night, uses his skills as a former emergency medical technician (“EMT”) to render medical aid to protesters in Portland.
8. Plaintiff Christopher Durkee is an individual residing in Lane County, Oregon. He is a mental-health professional and trained EMT. He, with his partner Plaintiff Guest, serves as a volunteer medic at many protests throughout Oregon, including the Portland Protests.
9. Plaintiff Savannah Guest is an individual residing in Lane County, Oregon. She maintains a full-time day job and, with her partner Plaintiff Durkee, serves as a volunteer medic at many protests throughout Oregon, including the Portland Protests.
10. 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 Portland Police Bureau is a department or division of the City.
11. Officer Stephen B. Pettey is a police officer with the Portland Police Bureau. Upon information and belief, he is the officer who wrongfully arrested Plaintiff Martinez. He is sued in his individual capacity.

2- COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

12. Defendants John Does 1-20 are police officers employed by the City who directly assaulted Plaintiffs. They are sued in their individual capacity.
13. Defendants 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.
14. Defendants 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 Portland Police Bureau 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. They are sued in their individual capacity.
15. The Municipal Doe Defendants1 (which includes Does 1-60) have concealed their identities and their names or they are not yet fully known to

1

Plaintiffs refer to Does 1-60 as the “Municipal Doe Defendants.” The

Municipal Doe Defendants, Defendant City of Portland, and Defendant Pettey are

collectively referred to as the “Portland Police.”

3- COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Plaintiffs. On information and belief, Does 1-60 are responsible for the conduct alleged herein.
16. Defendant U.S. Department of Homeland Security (“DHS”) is a federal agency of the United States. DHS contains the United States Customs and Border Protection, Immigration and Customs Enforcement, the Transportation Security Administration, the Coast Guard, and the Federal Protective Service. On information and belief, federal officers from these parts of DHS perpetrated some of the injuries alleged below.
17. Defendant U.S. Marshals Service (“USMS”) is a federal agency within the United States Department of Justice.
18. Defendants John Does 61-80 are individual and supervisory lawenforcement officers employed by USMS and DHS who directly assaulted Plaintiffs and otherwise violated their rights as articulated below. They are sued in their individual capacity.
19. Defendants John Does 81-100 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.
20. The Federal Doe Defendants (which includes Does 61-100)2 have concealed their identities and their names or they are not yet fully known to Plaintiffs. On information and belief, Does 61-100 are responsible for the conduct alleged herein.

2

Plaintiffs refer to Does 61-100 as the “Federal Doe Defendants.” The

Federal Doe Defendants, Defendant USMS, and Defendant DHS are collectively

referred to as the “Federal Defendants.”

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JURISDICTION AND VENUE
21. This Court has subject matter jurisdiction over Plaintiffs’ claims that Defendants have violated Plaintiffs’ 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.
22. Venue is proper in the U.S. District Court for 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.
ALLEGATIONS
A. Minneapolis police officer Derek Chauvin murdered George Floyd, sparking worldwide protests against systemic racism in American policing. 23. On May 25, 2020, Minneapolis police officer Derek Chauvin kneeled on
George Floyd’s neck for 8 minutes and 46 seconds, as Mr. Floyd repeatedly pleaded for his life: “I can’t breathe.” “I can’t breathe.” “I can’t breathe.” “I can’t breathe.” More than twenty times. Officer Chauvin’s colleagues stood by and did nothing to intervene. Mr. Floyd’s murder was caught on video, and that footage quickly circulated nationally and internationally.
24. Mr. Floyd’s murder occurred around two months after police officers in Louisville, Kentucky burst into Breonna Taylor’s home and murdered her, shooting her eight times while she laid in her own bed. Ms. Taylor was an EMT and aspiring nurse.
25. Ms. Taylor and Mr. Floyd were the latest among many dozens of Black people murdered or wrongfully killed by America’s police in just the last few years. Widely-known victims include Michael Brown, Sandra Bland, Eric Garner, Philando

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Castile, Freddie Gray, Tamir Rice, Elijah McClain, and more. There also are victims whose names and stories are not amplified enough—primarily Black women and Black transgender Americans—such as India Kager, Aiyana Stanley-Jones, Layleen Polanco Xtravaganza, Tanisha Anderson, Monika Diamond, Rekia Boyd, Miriam Carey, Tony McDade, and Darnisha Harris. The names continue.
26. Of course, death is not the only potential consequence Black Americans disproportionately face in America’s criminal legal system: Nationally, and in Portland specifically, Black, Indigenous, and People of Color, are more likely to be profiled, stopped, arrested, charged, convicted, and imprisoned, and they often receive longer and harsher sentences. B. In the wake of George Floyd’s murder, protesters in Portland have
maintained a vigilant effort against police brutality in any form. 27. The protest movement that erupted after George Floyd’s murder has served as an indictment of racist and brutal policing practices, and it has forced states, cities, and non-Black citizens to reckon—in many cases, for the first time— with their history of participating in, and perpetuating, white supremacy. Indeed, in the words of Black-studies educator and writer Walidah Imarisha, “Oregon was founded as a racist white utopia.”3 28. The history of this State is steeped in racism, having been founded as a whites-only territory. Oregon’s founders implemented Black exclusionary laws designed to prevent Black people from living here. When Oregon became a state, these Black exclusionary laws—which provided that Black people outside Oregon were not permitted to “come, reside, or be within” the State, prevented Black

3

Tiffany Camhi, A Racist History Shows Why Oregon Is Still So White, Or.

Public Broadcasting (June 10, 2020 11:12 AM), https://www.opb.org/news/article/oregon-

white-history-racist-foundations-black-exclusion-laws/.

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Oregonians from owning land or entering contracts, and prescribed punishment for those who, employed, “harbor[ed],” or otherwise helped them—were enshrined in the Oregon Constitution. They remained in the Oregon Constitution until 2002— only 18 years ago—and even then, around 30% of Oregonians voted to keep the racist clause.
29. By their conduct, the Portland Police are no exception to the systemic racism inherent in policing nationwide, as local police officers have committed disproportionate violence against Black lives. In 2003, Portland police officers shot 21-year-old Kendra James during a traffic stop. In 2004, they shot James Jahar Perez. In 2006, they beat James Chasse Jr. to death while he was experiencing a mental-health crisis in their custody. In 2010, they shot 25-year-old Aaron Campbell. In 2011, Darris Johnson. In 2017, they shot 17-year-old Quanice Hayes. And in 2018, they shot 27-year-old Patrick Kimmons.
30. The protests in Portland came within days of Mr. Floyd’s murder. Protesters took to the streets of Portland in large number, beginning on May 29, 2020. They have continued every night since—or for more than 50 days, as of the date of filing this Complaint. The protesters are dedicated to real change and show no sign of being deterred by the police violence described herein. In fact, the police violence only serves to strengthen their resolve, as is memorialized in the familiar protest chant: “No Justice? No Peace!”
31. Protests have primarily occurred at places symbolic of Oregon’s racist history, specifically as it relates to criminal justice and police brutality. Though demonstrations have taken place at the Portland police-union headquarters in North Portland and the Multnomah County Sheriff’s Office in East Portland, they have for the most part been held downtown in Chapman and Lownsdale Squares,

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City parks surrounded by institutions of governance: Multnomah County Justice Center, Mark O. Hatfield Federal Courthouse, Portland City Hall, and the Multnomah County Courthouse.
32. For nearly as many nights as the protests have occurred, the Portland Police have responded with outsized displays of force that affect hundreds, and sometimes thousands, of peaceful protesters. Figure 1 depicts the Portland Police, ready to face protesters on a typical night of peaceful protests.

Figure 1: Portland Police officers in riot gear and a cloud of tear gas, taken by John Rudoff on June 19, 2020.
33. Clad in riot gear, the Portland Police bull-rush crowds of people,
shoving protesters to the ground, and hitting them with clubs and other
instruments until, in spite of pain or injury, they get up. Videos:
• https://twitter.com/MrOlmos/status/1284417770973626371?s=20

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• https://twitter.com/tuckwoodstock/status/1284734198926852097?s= 20
34. They shoot protesters with rubber bullets and other impact munitions. They beat them with truncheons. They pull their masks down and spray bear mace in their eyes at dangerously close ranges.
35. The Portland Police have perpetrated many of these assaults after they already have drenched protesters, and much of their surrounding area, in thick clouds of tear gas.
36. The Portland Police’s indiscriminate use of pepper spray, bear mace, and tear gas is especially concerning in light of the COVID-19 pandemic. That is because those weapons all are designed to make peoples’ eyes water and burn, to make people spit, cough, choke, retch, vomit, and to make mucous pour from their noses. Those are all ways COVID-19 can spread.
37. The Portland Police drive riot vans with officers lined on running boards around downtown Portland, collecting slower (often injured) protesters and arresting them without probable cause.
38. The Portland Police also tackle protesters riding their bikes away from the protest area in broad daylight, running up and giving them a knee to the gut for extra measure. Video: https://twitter.com/DanMcKATU/status/1283748895600721920?s=20 C. The President deploys federal officers, including the Federal
Defendants, to “quell” Portland protests. 39. About a month after the protests began, President Trump issued an Executive Order on Protecting American Monuments, Memorials, and Statues and

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Combating Recent Criminal Violence (the “Executive Order”).4 In it, he vilified the protesters’ political views, stating that many of them “have explicitly identified themselves with ideologies — such as Marxism — that call for the destruction of the United States system of government.”
40. Incredibly, the President also declared that state and local governments had, in the face of mass protests, “lost the ability to distinguish between the lawful exercise of rights to free speech and assembly and unvarnished vandalism.” The President of the United States also asserted that State and local governments’ sometimes brutal and militaristic police response to the protests had so far been inadequate, representing an “abdication of their law enforcement responsibilities in deference to [the protesters’ alleged] violent assault” and a “surrender[] to mob rule.”
41. Purportedly acting under color of the Executive Order, DHS and the USMS deployed or operationalized special forces in Portland. Upon information and belief, this occurred soon before the July 4 protests.
42. The agencies for whom these forces worked was initially a mystery to many in Portland. Upon information and belief, they are rapid response teams that include members of the USMS, as well as DHS’s Customs and Borders Protection (CBP), Immigration and Customs Enforcement (ICE), the Transportation Security Administration (TSA), the Coast Guard, and the Federal Protective Service (FPS). They include specially trained tactical units such as the Border Patrol Tactical Unit (BORTAC), which is normally tasked with investigating violent drug smuggling organizations.

4

https://www.whitehouse.gov/presidential-actions/executive-order-protecting-

american-monuments-memorials-statues-combating-recent-criminal-violence/

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43. The majority of DHS’s and USMS’s teams wear either black or camouflage military garb, without clear identification of the agency with which they are associated. There also is no discernible identifying information about the officers. They stand, upon arrival, ready only for combat. (See Figure 2.)

Figure 2: Federal Officers brandish their weapons at protesters, taken by John Rudoff on June 16, 2020.
44. DHS’s and USMS’s officers use many of the same weapons against
protesters that the Portland Police deploy.

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45. Some also carry AR-15 rifles, stocked with what appears to be live ammunition.

Figure 3: Federal Officer on left is carrying an AR-15 with what appears to be live ammunition. Photo by John Rudoff.
46. When DHS’s and USMS’s federal troops arrived, they turned the Mark O. Hatfield Federal Courthouse into a quasi-bunker. They built walls surrounding the front courthouse windows and most doors. The walls have functioning cut-out doors, as well as eye-level retractable cut-outs from which they can shoot weapons or direct the long-range acoustic device (LRAD)—a speaker system and sound energy weapon developed in the early 2000s for use by the U.S. military in foreign wars—at Oregonians. An LRAD has a maximum range of 8,900 meters. At 20 meters, it has an output of 110-130 dB, which can cause pain. At 1 meter, it has an output of 162 dB. Hearing loss, prolonged pain, and ringing have been reported as a

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result of LRAD use. Video depicting the sound: https://twitter.com/MrOlmos/status/1282194215481430016?s=20
47. Those, such as Plaintiffs, who have been subjected to the federal tear gas describe it as “spicier” than the Portland Police’s tear gas. Regardless, DHS’s and USMS’s officers use a lot of it, engulfing city blocks in opaque, chemical clouds. A video from this week’s protests: https://twitter.com/tuckwoodstock/status/1285482965707837440?s=20
48. They also have creative, medieval-seeming ways of distributing tear gas across large groups of protesters seeking to have their voices heard. Video: https://twitter.com/tuckwoodstock/status/1284017726487314433?s=20
49. Protesters exposed to the Federal Defendants’ tear-gas attacks have complained of long-lasting effects beyond the immediate physical symptoms. There have been reports of persistent mental fog, drowsiness, grogginess, nausea, diarrhea, loss of appetite, sustained asthma flare-ups, and increased or interrupted menstrual cycles—many of which symptoms Plaintiffs themselves have experienced.
50. On the night of July 11, following one such tear gas attack, several individuals began walking back toward the federal courthouse to continue the protests. The Federal Defendants remained on guard outside. A 26-year-old named Donavan La Bella stood on the City sidewalk in front of the federal courthouse and, with two arms, raised a boom box above his head. Federal officers shot a tear gas canister in his direction. He tried to lightly kick it away from his immediate vicinity and, when his kick proved too gentle, he tossed it away with insufficient force to come anywhere near the federal officers. As he raised his stereo again, an officer of one of the Federal Defendants shot him in the head with an impact munition. Mr.

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La Bella has been hospitalized since. He suffered catastrophic injury as a result of the officer’s action, requiring facial reconstruction surgery, and potentially suffering permanent brain damage.

Figure 4: La Bella, one week after recovery. 51. Days later, reports began surfacing of federal officers in unmarked uniforms in unmarked vehicles abducting suspected protesters who were walking away from the protest area on the sidewalk. See Declaration of Mark Pettibone, Rosenblum v. John Does 1-10 et al, No. 3:20-cv-01161 (D. Or. July 20, 2020), ECF No. 7 (“Pettibone Decl.”) ¶¶ 2-3. At least one of the abductees had his hat pulled over his eyes as he was placed by two officers of the Federal Defendants into the unmarked van and whisked away. He was taken somewhere for questioning and

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then released. Video: https://twitter.com/sparrowmedia/status/1283436911307218948?s=20.
52. Aside from the bizarre vehicular kidnappings, DHS’s and USMS’s officers also violently tackle and arrest protesters suspected of minor offenses and drag them into the federal courthouse. On information and belief, these arrests are not supported by probable cause, given the number of protesters, the lack of light, and the general bustle of the crowd. Video: https://twitter.com/LindseyPSmith7/status/1282237570475155456?s=20 D. The Municipal and Federal Defendants’ stated justification for their
violence. 53. The Portland Police has attempted to justify their treatment of the protesters, and Plaintiffs (as Protest Medics), by claiming that protesters have thrown objects, including soda cans and small rocks, at its officers.

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54. Acting Secretary of Homeland Security Chad Wolf has also published the Federal Defendants’ supposed rationale for waging war on Portland’s citizens protesting widespread police brutality. Those reasons: graffiti, more graffiti, and protesters tossing “animal seed” (pig feed) at riot-gear clad officers. Figure 5 depicts some highlights from the Federal Defendants’ justifications.5

Figure 5: Screenshot of a since-deleted Tweet from Acting Secretary Wolf dated July 17, 2020.
E. Protest medics play a central role in the ongoing protests. 55. Amid the nightly violence wrought by the Portland Police and Federal
Defendants, protest medics like Plaintiffs play a vital role in giving voice to the

5

https://www.dhs.gov/news/2020/07/16/acting-secretary-wolf-condemns-rampant-

long-lasting-violence-portland

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protesters. In the face of often violent police action, these medics deliver medical care in furtherance of the anti-racist ideals at the core of the protests.
56. Protest medics offer a range of services, among them: distributing eye wash and eye wipes to protesters in anticipation of tear gas attacks, offering personal protective equipment so that protesters can observe COVID-19 physical distancing protocols, ensuring that protesters remain adequately hydrated and fed, and rendering direct care when police injure protesters.
57. Protest medics have different degrees of first-aid training and a variety of backgrounds. Some are nurses, others graduate students, others medical residents, and others still are people who hold day jobs and have basic first-aid training or former EMT experience. The protest medics coordinate with one another to discern who has credentials to provide higher levels of care, and they ensure that they only provide the care they are qualified to provide.
58. The protest medics view what they do as an act of protest, and a form of speech and expression. By their presence, they send a message to all protesters, journalists, and neutral legal observers that someone will be there to care for them, even when the Portland Police and the Federal Defendants are actively harming them. The protest medics work to prevent all who attend the demonstrations from developing illness or injury, so they can continue protesting, documenting the protests, or providing legal observation at the protests.
59. The protest medics’ aid is necessary to provide a relatively safer environment for protesters to exercise their rights to free speech. The policeinflicted injuries that protest medics have treated include, among other things:
a. traumatic brain injuries; b. trauma-induced seizures;

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c. five lacerated scalps; d. a lacerated hand with a visible tendon; e. broken bones, including a finger, a pinkie toe, and metatarsals; f. a lacerated foot; g. abrasions and avulsions; h. contusions; i. an ankle sprain; j. eye and skin irritation; k. and asthma attacks. 60. Given the degree of risk that merely attending a protest presents to protesters, journalists, neutral legal observers, and even other protest medics, on nights when there are few or no protest medics, many would-be protest attendees choose not to participate, or leave earlier than they wish to, for fear that they will not have access to care in the likely event the police hurt them. 61. Aside from coordinating about their relative training levels at the beginning of each night, the protest medics work to communicate with one another on a regular basis throughout the protest. Many of them carry walkie-talkies so they can call for help and let each other know where they are needed. They also use a “buddy system” whenever possible, not necessarily always working together, but at least keeping track of their “buddy’s” whereabouts and remaining in the same general vicinity as one another. They work to share supplies and different techniques they develop as the protests go on. F. The police’s pattern of intentionally targeting and retaliating against the protest medics. 62. While they work as protest medics, Plaintiffs often are left in the impossible position of complying with the orders of law enforcement while rendering

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aid to injured protesters, journalists, and legal observers. Since the beginning of the protests, the Portland Police have indiscriminately attacked, and at times have specifically targeted protest medics, including Plaintiffs, during their service to the protests.
63. Since the Federal Defendants arrived in Portland, they have done the same thing.
64. The Portland Police’s and Federal Defendants’ conduct has intimidated medics or otherwise worn them so thin that they feel they cannot continue attending protests with the frequency required to protect the health and safety of protesters. Defendants’ conduct is part of a longstanding pattern of assaulting and threatening protest medics to prevent them from rendering aid to protesters, journalists, neutral legal observers, and their fellow protest medics.
1. The Portland Police repeatedly injure Plaintiff Wise. 65. Plaintiff Wise is a former EMT and one of the few Black men serving as a protest medic in Portland. He has attended the Portland Protests nearly every night since May 29, with the exception of Sundays and days on which he was too injured by police to continue to render adequate aid. 66. When serving as a protest medic, Plaintiff Wise wears, and has always worn, a black, waxed denim jacket with the words “medic” and the medic symbol painted in red across the back, as well as brightly colored duct-taped medic symbols on both upper arms and the chest. He quite openly carries medical supplies on his person at all times. 67. He does not interfere with the police or federal agents when he is at the protests, either when he is rendering aid or standing by “on call” for a medical need to arise. At times, he directs jokes at officers to diffuse tension between

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protesters and officers—he has found that making protesters laugh can give them a sense of calm in otherwise fraught moments.
68. Plaintiff Wise often renders aid by attempting to prevent injury altogether. He tries to clear paths for cars to drive safely through protest areas. He advocates for protesters to not throw objects toward officers in retaliation to the officers’ actions. In other words, he practices a form of “preventive medicine” by working to promote civil disobedience and peaceful assembly.
69. Nevertheless, the Portland Police and Federal Defendants have severely injured him multiple times and have threatened him with physical harm essentially every night he has attended the protests.
a. The Portland Police shoot Plaintiff Wise with a rubber bullet.
70. Plaintiff Wise served as a protest medic in his usual medic garb, on June 2, a night later referred to by protesters as “Tear Gas Tuesday.”
71. While standing close to the sidewalk near a group of protesters in the road, Plaintiff Wise saw a tear gas canister on the ground in the middle of the road and then a cloud of tear gas appeared. During this tear-gas attack, Plaintiff Wise attempted to pull a fallen protester out of the cloud of tear gas and helped move the protester to safety on a nearby bench. Plaintiff Wise then examined the protester’s minor injuries.
72. As Plaintiff Wise tended to the protester, one of the Municipal Doe Defendants (a Portland Police officer) shot him in the shin with a rubber bullet. The bullet penetrated his skin through his pants, all the way to his shin bone.

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73. Plaintiff Wise cleaned his wound, but it later became infected. He sought medical attention and took a seven-day course of antibiotics. To date, the wound still has not closed, let alone healed.

Figure 6: An image of Wise's leg taken immediately after his injury was sustained on June 2, 2020 (left), and an image of Wise's leg taken June 29, 2020 after the resulting infection cleared following a 10-day course of antibiotics (right).
b. The Portland Police throw a flash-bang grenade at Plaintiff Wise’s foot.
74. Plaintiff Wise also served as a protest medic on June 21, again dressed
in his medic attire.
75. As he stood in a tear-gas filled street with both hands raised, one of
the Municipal Doe Defendants (a Portland Police officer) threw a flash bang that
struck his foot.
76. It burned a hole through his shoe and sock and sprained his foot.

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c. The Portland Police spray bear mace in Plaintiff Wise’s eyes.
77. Plaintiff Wise served as a protest medic on June 28, wearing his medic clothes as usual.
78. Plaintiff Wise witnessed a wall of protesters develop in front of police officers. He then saw police officers push the wall of protesters back. As the protesters reluctantly complied with the officers’ requests, Plaintiff Wise witnessed police officers begin to bear mace protesters and hit them with batons.
79. After 10pm that evening, Plaintiff Wise watched a Portland Police officer, at close range, spray a protester’s eyes with bear mace. Plaintiff Wise rushed to the protester to pull them out of harm’s way and administer necessary medical aid to the protester.
80. As Plaintiff Wise reached the protester, one of the Municipal Doe Defendants (the Portland Police officer) turned the bear mace on Plaintiff Wise, spraying him directly in the eyes at a distance of no more than 6 inches. As he felt his eyes burn, and struggled to see, Plaintiff Wise sought shelter with the help of others and flushed his eyes for 45 minutes. Thereafter, despite the injuries to his face and body, Plaintiff Wise continued his service to the protests later that night.
d. The Portland Police “bull rush” Plaintiff Wise. 81. Plaintiff Wise also served as a protest medic at the protests in downtown Portland on the evening of July 4, a night a of explosive violence perpetrated by the Portland Police. Upon information and belief, federal USMS agents also participated in crowd-control activities that evening and contributed to the violence. 82. A few protesters, out of around 1,000 protest attendees, shot fireworks in the area, including at nearby buildings. The Portland Police declared a “riot,”

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tear gassed the crowd, and formed a riot line and began pushing protesters away from the Justice Center to the north, toward East Burnside.
83. Plaintiff Wise stayed toward the front of the protest line, about two or three rows back from the riot line. He walked backward, facing the police, to watch for any potential injuries. That day, as he did each time he served as a protest medic, Plaintiff Wise displayed a brightly colored cross on the back, chest, and both sleeves of his jacket, and wore medical supplies around his waist.
84. Plaintiff Wise noticed that one officer had Number 67 in place of a name tag. He made a joke directed at Officer No. 67 (one of the Municipal Doe Defendants in this Complaint), to the effect of the officer not understanding why kids like the delicious taste of Cinnamon Toast Crunch.
85. Suddenly, and without any notice or provocation, Officer No. 67 brushed past two protesters and charged at Plaintiff Wise from a distance between 10 and fifteen feet. At speed, Officer No. 67 forcefully shoved Plaintiff Wise to the ground.
86. Plaintiff Wise’s glasses flew off his face and his cell phone, which remained in his back pocket, shattered from the force of his impact to the ground.
87. Plaintiff Wise suffered a sprained shoulder and a wound the size of a quarter on his palm. For the rest of the evening, he was hindered from providing medical aid because he was profusely bleeding from one hand and had reduced mobility in his shoulder.
88. As a result of the shoulder injury, Plaintiff Wise was unable to go to his regular job for over a week.

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e. Some of the Federal Doe Defendants shoot Plaintiff Wise with pepper balls.
89. Plaintiff Wise served as a protest medic at the Portland protests on July 14.
90. When the Portland Police began “kettling” the protest attendees—tear gassing protesters at all angles, thereby eliminating paths for them to escape—Wise stood in the middle of Lownsdale Square to watch for any potential medical complications protesters might experience from tear gas, such as severe asthma attacks. Lownsdale Square is not on, and does not contain, any federal property.
91. As he stood there, some of Federal Doe Defendants repeatedly shot him in the legs with pepper balls.
92. Plaintiff Wise experienced temporary pain from the pepper balls, which hit him in the shin above guards that Wise tied around his leg to protect the open wound that was still present from a month and a half earlier.

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f. The remaining police violence blurs together. 93. Aside from those more severe injuries, the Portland Police and Federal Defendants have thrown or shot flashbang grenades and teargas canisters directly at Plaintiff Wise.

Figure 7: Wise, with hands raised, nearly hit with a tear gas canister shot in his direction.
94. On at least one of those occasions, Plaintiff Wise had not had the opportunity to don his gas mask, and the tear gas caused him to have a severe asthma attack.
95. On another night, the Portland Police used the LRAD at full volume and at an improper distance from where Plaintiff Wise and other protest attendees were.

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2. The Portland Police wrongfully arrest Plaintiff Martinez. 96. Plaintiff Martinez is a graduate student at OHSU, pursuing a doctorate degree in Cellular and Molecular Genetics. Specifically, he studies gene editing for phenylketonuria (PKU), an inborn error of metabolism that results in decreased metabolism of the amino acid phenylalanine. Infants are tested for PKU shortly after birth and there currently is no genetic cure.
a. Plaintiff Martinez first attended the protests as a “civilian” protester, and then determined he needed to use his skills, voice and affiliation with OHSU to serve as a protest medic.
97. Plaintiff Martinez began attending the Portland protests as a “civilian” protester on June 2, Tear Gas Tuesday. He participated in the protests that night with another OHSU graduate student.
98. The June 2 protest began in Pioneer Square and was peaceful, with the crowd chanting and a few people addressing the protesters on a megaphone. Around 9:10 p.m., the protesters marched as a group a couple of blocks east to Third Avenue.
99. Portland Police met them in full riot gear around 9:25 p.m. The police formed lines surrounding the protesters to the east and south.
100. Plaintiff Martinez was not engaged in any conduct that presented a danger or threat to public safety, and he also did not see any other protesters engaged in conduct in any way threatening to any police officer.
101. The protest had been peaceful up to this point. Given the stark contrast between the peaceful protest, and the officers in full riot gear, the protesters chanted: “Take off your riot gear! We don’t see no riot here!”

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102. Suddenly—and only within about five minutes of their arrival to the demonstration—the Portland Police began indiscriminately shooting tear gas and munitions into the crowd, for no apparent reason.
103. After ingesting the tear gas, Plaintiff Martinez had difficulty breathing and seeing, his eyes burned, and he suffered from confusion and general grogginess, among other symptoms.
104. The Portland Police struck Plaintiff Martinez’s OHSU colleague, with a rubber bullet or similar munition on her upper thigh, causing her pain and extensive bruising that lasted for days.
105. The police violence Plaintiff Martinez witnessed—and experienced firsthand—strengthened his belief that protesting police brutality was necessary and important. So, after recovering from Tear Gas Tuesday, he resumed attending the protests on June 5, at the Justice Center.
106. That night, the Portland Police used the “kettling” tactic to tear gas the peaceful protesters from all angles—cutting off any path for escape. Among the protesters he saw trying to escape the police violence that night was a mother with her baby in a stroller near the Multnomah County Courthouse. The mother could not move quickly enough away from the police and sought shelter near the courthouse wall. Yet again, witnessing this strengthened Plaintiff Martinez’s belief that the police were not protecting the City or its citizens from anything—they were just retaliating against protesters for decrying their violent policing tactics.
107. Every night thereafter, the Portland Police alleged some minor violation of the law to declare an “unlawful assembly” and, based on those supposed “infractions,” weakly justify the discharging of tear gas and other “less lethal” munitions at Plaintiff Martinez and the hundreds of other protesters.

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108. The Portland Police used tear gas against the protesters nearly every night until this Court entered an injunction in the Don’t Shoot PDX case on June 9, 2020.
109. The same week that Plaintiff Martinez was attending the protests as an active protester, some graduate students and faculty members at OHSU organized a group of volunteers to regularly serve as protest medics.
110. Plaintiff Martinez decided to join this group of protest medics, because it was important for him to take a tangible stand against the nightly police brutality he was witnessing and experiencing.
111. He also believed that a large group of protest medics affiliated with OHSU, one of the most respected teaching hospitals in the nation, would lend credibility to the protests and help people who were not attending them understand that they were not full of “violent anarchists” and lawless “mobs,” as Defendants falsely portrayed them to be.
112. Plaintiff Martinez also wanted to send a message that protesters have a right to protest safely and without fear of police violence. And, because he had witnessed many nights of Defendants freely discharging tear gas or “less lethal” munitions against protesters, he wanted to do his part as a participant in the protests by helping to ensure that injured protesters had the ability to obtain basic first aid and other healthcare, and to suffer as little harm as possible from Defendants.
113. By his presence, he also wanted to express to protesters that someone was there for them and they would have access to care if they needed it.

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b. The OHSU volunteer medic group is organized. 114. To that end, Plaintiff Martinez began serving as a protest medic with the OHSU group on June 8. 115. For the first couple of nights, the group carried backpacks and distributed food and water to protesters. 116. Eventually, on June 11, they set up a table in Chapman Square. The table was clearly marked as a medics’ station—it had a banner draped across it displaying the OHSU logo and was under a tent marked with a medic symbol and other first-aid signs. 117. The protest medics clearly marked the space as an OHSU medic’s station for a few reasons. First, they wanted people to be able to find the medics quickly. Second, they wanted to be visible to provide the protesters with some assurance that help was close at hand. Finally, the medics wanted the police to be able to identify who they were, so that the police understood the medics were there to render aid to people in need of urgent medical attention. 118. The OHSU medics kept (and still keep) a variety of supplies at the OHSU medics’ station. This includes medical supplies such as gauze, bandages, antibiotic ointments, tape, ear plugs, and over-the-counter pain medications. They also offer wipes and saline solution or other eye wash to help rinse peoples’ eyes following a tear gas attack. 119. Beyond medical supplies, the OHSU medics keep the table stocked with snacks and water to ensure that protesters remain sufficiently nourished. 120. And given the current pandemic, they offer personal protective equipment such as masks, gloves, and hand sanitizer—so that protesters and other medics can observe recommended safety measures.

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121. Their supplies are largely donated from community members and local businesses.
122. As the OHSU volunteer group became more organized, they developed roles for two different kinds of medics: (1) those who stay at the table and hand out supplies to other medics and protesters, and (2) those who go “into the field” to provide support to other medics or direct care to protesters wherever that care is needed.
123. The medics also came to learn that the Portland Police were recommending that ambulances not enter the protest area, even when someone was seriously wounded and needed to be treated at a hospital. So, on nights that police are expected to be particularly violent, OHSU volunteer medics turn their personal cars into makeshift ambulances.
124. Plaintiff Martinez has basic first-aid training, so he typically does not provide direct physical care to protesters. Instead, he assists other medics who have higher levels of training by making sure they have adequate supplies. He also makes sure that protesters have eye wipes, eye solution, and other supplies they need to feel safe when the police begin using force.
c. The Portland Police arrest Plaintiff Martinez for standing at the OHSU medics’ station and unlawfully seize the OHSU medics’ supplies.
125. On June 13, Plaintiff Martinez worked as a protest medic at the OHSU station beginning around 9:00 p.m.
126. The medics’ station was at its usual location near the corner of Fourth Avenue and Madison Street in Chapman Square.
127. The crowd of protesters was mainly congregated in front of the federal courthouse, adjacent to Chapman Square.

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128. Around 10:30 p.m., the Portland police used the LRAD to make an announcement. The LRAD was positioned around Second Avenue and Main Street, which was not in direct earshot of Plaintiff Martinez or the other OHSU volunteer medics. They could not quite hear the announcement until the LRAD repositioned.
129. Plaintiff Martinez eventually was able to discern their announcement: The Portland police had declared an “unlawful assembly” and were ordering protesters to disperse or else be subject to crowd-control munitions, tear gas, or arrest.
130. In the past, the police had typically given protest attendees about a 30minute warning before using crowd-control munitions. Plaintiff Martinez and the other OHSU volunteer medics therefore spent about five minutes handing out eye wash and wipes to as many protesters as they could, in anticipation of the likely imminent tear-gas attack. They then began packing up they supplies, which usually took them around 20 minutes. About five minutes after they started packing their supplies, the Portland Police stormed the crowd.
131. Plaintiff Martinez saw a line of police coming directly towards the OHSU medics’ tent, so he started filming the scene. Filming police encounters was a safety protocol recommended for all OHSU volunteer medics. The OHSU medics’ tent was still standing and it was clear that it was a medics’ station. Plaintiff Martinez stood in front of the tent, closest to the police, while the other OHSU volunteers moved quickly to break down the station. When the police approached, the OHSU medics explained that they were packing up their supplies, after which they would immediately clear the area. The police told them to leave without their supplies and directed them to move west.

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132. Plaintiff Martinez still stood between the officers and the OHSU volunteers, continuing to film, as the volunteers began complying with the officers’ orders. Plaintiff Martinez also began complying with the officers’ orders, moving to the west, and walking backwards to keep the camera trained on the officers. After he started to walk, an officer pointed at him and said, “Arrest that guy. Arrest him.”
133. An officer (who Plaintiff Martinez later learned was Defendant Officer Stephen B. Pettey) then arrested him. Zip ties were placed around his wrists. Plaintiff Martinez did not resist arrest and, in fact, told the officers that one of the zip ties had slipped off his wrist because they hadn’t tightened it enough. Plaintiff Martinez was wearing a CamelBak backpack, and the police cut the straps to remove it from his person.
134. They then took him to the Justice Center, where he was detained until the National Lawyers Guild arranged with the PDX Defense Fund for bail to be posted on his behalf. The Portland Police released Plaintiff Martinez from the Justice Center at approximately 5:30 a.m.
135. As Plaintiff Martinez was being arrested, the Portland Police ordered the other OHSU volunteer medics to continue moving to the west, leaving behind their supplies. The Portland Police confiscated their tent, table, medical and other supplies, and banner.
136. Though the Portland Police denied having confiscated their supplies, and even told the volunteer medics that they should have known their supplies would be “stolen” because the area was a “war zone,” the OHSU volunteer medics eventually recovered their table and supplies from the Portland Police Bureau’s outgoing trash. To this day, they have not received their tent or banner. They have since had a new banner made, but they operate without a tent now.

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d. Plaintiff Martinez and the OHSU medics change their practices to avoid further police brutality.
137. Following Plaintiff Martinez’s arrest, the OHSU volunteer group was forced to limit its operations to protect the medics’ safety from police violence and arrest.
138. For example, they usually would start packing up their tent and supplies by 11:00 p.m., because, in their experience, the police tended to declare an “unlawful assembly” and began using tear gas and making arrests around 11:30 pm. On some nights, however, the police would surprise them and begin exerting aggressive crowd-control tactics even earlier than expected, forcing them to stop providing services to the protesters, pack up their tent and supplies, and leave much earlier than they wanted.
139. Given the message of support the medics were trying to give to the protesters (and public at large), they would have stayed much later on those nights and continued offering services to the protesters if they did not fear physical violence or arrest by the police.
140. They also started keeping roll of all OHSU volunteer medics and instituted a buddy system for medics to watch over one another.
141. Plaintiff Martinez, especially, has dramatically decreased his attendance at the protests since the night of his arrest, as a direct result of his interactions with the Portland Police.
142. In the weeks leading to his arrest, he had attended the protests nearly every night. After June 13, he scaled his service as a medic to only two or three nights a week.
143. He also has to be much more alert when he attends the protests, to avoid police interaction. This is out of fear that another (wrongful) arrest could

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detract from the OHSU volunteer medics’ credibility as a group and complicate Plaintiff Martinez’s defense against his pending criminal charges.
3. The Federal Defendants beat Plaintiffs Durkee and Guest for trying to render medical aid.
144. Plaintiffs Durkee and Guest live in Lane County and initially participated in the 2020 Black Lives Matter protests in Eugene. Those protests have included essentially no police violence.
145. Plaintiff Durkee is trained as an EMT and is also a mental-health professional.
146. Plaintiff Guest is a former emergency medical services (EMS) volunteer.
147. While they were participating in the Eugene protests, Plaintiffs Durkee and Guest watched live-stream footage and followed other social-media updates about the Portland protests. They were appalled by the repeated police violence they saw, especially considering that the protesters themselves appeared to be demonstrating peaceably.
148. Plaintiffs Durkee and Guest decided to get involved in the Portland protests as protest medics, not only because they felt strongly that systemic racism exists and has repeatedly led to police brutality against Black people, but also because they knew that their medical training could assist both the protesters and the larger movement.
149. When they attend the protests, and with the intent of clearly identifying themselves as protest medics, they wear dark-colored clothes with highgloss, red duct tape in the shape of crosses on their front and back. They also wear dark backpacks and helmets with the same red crosses, and wear shoulder patches

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with red crosses. The crosses are identifiable during the day and at night and can be seen from any angle.
a. The Portland Police and Federal Defendants tear gas and physically assault Plaintiffs Durkee and Guest.
150. Their first night serving as medics at the Portland protests was July 4. 151. Upon information and belief, both the Portland Police and Federal Defendants engaged in law-enforcement activities associated with the protests that night. 152. That night, the Portland Police and Federal Defendants employed violence indiscriminately, including against members of the press, legal observers, and medics. 153. One of the Municipal Doe Defendants or Federal Doe Defendants shot Plaintiff Guest with a projectile and another officer checked her in the shoulder with his baton. During both those incidents, Plaintiff Guest was complying with the officers’ orders to disperse and was not interfering with law-enforcement activities. 154. The Portland Police forcibly pushed both Plaintiffs Durkee and Guest, again, while they were attempting to comply with the officers’ orders to disperse. 155. Finally, the Portland Police or Federal Defendants deployed tear gas indiscriminately that evening. Because Plaintiffs Durkee and Guest position themselves near the police line to keep a watchful eye for potential injured protesters, they experienced the brunt of the tear gas. Although they could not see and had difficulty breathing, they tried to remain calm to avoid creating a panic. They were concerned that if protesters saw medics panicking, then they too would start panicking.

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b. The Federal Defendants assault Plaintiffs Durkee and Guest for attempting to render medical aid.
156. Plaintiffs Durkee and Guest also served as protest medics on the night of July 11 and into the morning of July 12. They wore their usual medics’ gear.
157. That night, one of the Federal Doe Defendants shot Donavan La Bella in the head. Plaintiff Durkee was one of the first responders, and he stayed with Mr. La Bella, applying pressure to his head and maintaining him in the recovery position until an ambulance arrived. Plaintiff Durkee’s hand is visible in this video, applying pressure to Mr. La Bella’s head: https://twitter.com/sparrowmedia/status/1283869468658147336?s=20
158. Despite the horrific injury the Federal Defendants inflicted on Mr. La Bella, they fired impact munitions at protesters later that night.
159. Plaintiffs Durkee and Guest cared for people who had extensive injuries from rubber bullets that prevented them from walking. As they moved injured people out of the protest and away from the activity, they had to walk toward federal agents, who were approaching from multiple directions. Some of the Federal Doe Defendants responded by firing pepper balls at Plaintiffs Durkee and Guest, as well as the injured protesters they were attempting to help.
160. Additionally, as Plaintiff Guest was clearly kneeling down to help an injured protester, she locked eyes with another Federal Doe Defendant. That Defendant then threw a tear gas canister at her and the injured protester. It landed on the ground near them. Plaintiff Guest then lightly kicked the tear gas canister away from her and the injured protester, at which point the Defendant began shooting her with rubber bullets. They hit her several times, leaving abrasions and bruises on her feet and ankles.

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161. That night, the Federal Defendants tear gassed the area on Third Avenue in front of the federal courthouse, including Lownsdale Square and surrounding streets, at least five or six separate times. Each time, the protesters would clear the area until the tear gas dissipated, and then return to continue their demonstrations.
162. Around 2:00 a.m. on July 5, the Federal Defendants made a large push to clear the area and keep protesters away for good. They deployed so much tear gas that Lownsdale Square became engulfed in an essentially opaque cloud.
163. Nearly simultaneously, the Portland Police brought their LRAD to the corner of Third Avenue and Main Street and announced that protesters needed to clear the area. They began pushing protesters in the same direction as the federal agents were directing them.
164. Plaintiffs Durkee and Guest were on Southwest Broadway, between Main and Salmon streets, when they heard someone yell for a medic from across Broadway.
165. As they crossed the street to provide aid, they noticed several protesters attempting to carry a person who appeared to be houseless—and not a protester—to safety. The protesters stayed with the person until Plaintiffs Durkee and Guest reached them.
166. Before Plaintiffs Durkee and Guest even had time to check on the person, some of the Federal Doe Defendants began rushing them. Plaintiff Guest said loudly enough for the Defendants to hear that a civilian, and not a protester, was injured and needed assistance. The civilian appeared to have been severely negatively affected by tear gas exposure.

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167. Those federal agents continued to move toward Plaintiffs Durkee and Guest, who raised both hands and continued to plead with the agents to allow them to provide medical care to the clearly ailing person. The agents refused, instructing them to move to the north, toward Pioneer Square.
168. Plaintiff Durkee walked backwards heading north, while Plaintiff Guest faced frontwards. This is a tactic they use for all movement, to ensure they have eyes on all things surrounding them.
169. As Plaintiff Durkee walked backwards with his arms raised, one of the Federal Doe Defendants forcefully shoved him, causing both him and Plaintiff Guest to fall. Plaintiff Guest struck her arm on the ground. Some of the Federal Doe Defendants then beat both of them with truncheons multiple times. Video: https://twitter.com/stoggrd/status/1282432033533210625?s=20
170. Their resulting injuries prevented them from serving as protest medics the next evening, even though they wished to do so.
171. As Plaintiff Durkee and Plaintiff Guest reflected on that evening, they understood that simply attending a protest, no matter what conduct you engage in, is to put your life at grave risk. They did not attend another Portland protest until July 18, after they were able to purchase helmets and other protective gear. G. Plaintiffs are suffering and will continue to suffer irreparable harm.
172. Plaintiffs fear for their safety from the Portland Police’s violence. Protest medics who attend and provide medical aid at the protests are at risk of being hit with tear gas, rubber bullets, police batons, arrested, and more. Even medics who remain at medical stations or at the rear of crowds are at risk of injury and arrest. Those medics who do remain at the rear of crowds cannot provide

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medical assistance without injury because the police use strategies like the “kettling” employed against Plaintiffs on June 5, July 14, and many other nights.
173. For these same reasons, Plaintiffs fear for their safety from the Federal Defendants’ violence. Since President Trump ordered federal agents to go to Portland to quell protests, the Federal Defendants have been coordinating with the Portland Police to violently disperse demonstrators, neutrals, and medics standing behind a medical-supply table. The Federal Defendants use the same types (or worse) of force—chemical irritants, rubber bullets, batons—as the Portland Police. And they have emerged from unmarked vehicles clad in unmarked uniforms to abduct suspected protesters.
174. Plaintiffs wish to continue attending protests to provide medical treatment when Defendants indiscriminately injure protesters, journalists, and neutral legal observers. They want to offer support and comfort that when the outpouring of violence from the police begins, those present will be cared for. Defendants have prevented Plaintiffs and other medics from providing aid when police have dispersed protesters and have repeatedly told medics that they will be arrested and assaulted if they fail to stop administering first aid to injured demonstrators, journalists, and neutral legal observers.
175. On information and belief, countless others would serve as protest medics and volunteer their time to provide medical assistance, but for fear that they would be subject to violence from Defendants, have chosen to stay away.

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176. There are no signs that the violence showcased towards Plaintiffs will end. As long as demonstrations persist, and Defendants continue to use the same levels of force, Plaintiffs and other medics will need to administer medical aid. In fact, Acting Secretary Wolf has said on several occasions that the Federal Defendants “will never surrender” and that they “will prevail” against “violent extremists” and “violent anarchists.” See Figures 8 and 9 below.

Figure 8: Acting Secretary Wolf's since-deleted Tweet from Portland visit, July 17, 2020.

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Figure 9: Acting Secretary Wolf's since-deleted Tweet from Portland visit, July 17, 2020.
177. No matter how peaceful the protests are, Defendants will remain in Portland and Plaintiffs will be at risk of injury. President Trump declared that if the protests start[] again, we’ll quell it again very easily. It’s not hard to do if you know what you’re doing.”6 Defendants’ use of force has and will continue to cause irreparable harm to Plaintiffs.
178. Plaintiffs fear for their safety from police violence because they have been attacked and injured repeatedly and without warning throughout the last approximately 50 days. Plaintiffs, as protest medics, are at risk of being hit with

6

https://www.cbsnews.com/news/portland-protests-tear-gas-oregon-officials-call-

for-federal-authorities-to-leave/.

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tear gas, rubber bullets, truncheons, arrest, and more. Even protest medics who remain apart from the crowd cannot carry out their humanitarian mission without serious risk of harm because officers specifically target them and their property.
179. Plaintiffs wish to continue supporting the protests by serving as protest medics. They wish to continue treating protester injuries and doing their part to create a safer protest environment. They do so because they believe in the anti-racism message at the heart of the protests, and because they believe creating a safer environment will amplify that message.
180. The protests in Portland are growing in size and strength in opposition to the growing presence of anonymous federal troops on the streets of Portland.7 Groups not traditionally associated with confronting police violence have begun to form. For example, a group of women recently stood before the Portland Justice Center with locked arms and chanted: “Feds stay clear. Moms are here.”8
181. Targeting protest medics limits their ability to support protesters with medical care. Even a temporary deprivation of the Fourth and First Amendment freedoms, including the right to free speech, unquestionably constitutes irreparable injury.

7

See Violent protest clashes turned Portland into a ‘right-wing’ boogeyman.’

Here’s how it happened, Washington Post, July 21, 2020,

https://www.washingtonpost.com/nation/2020/07/21/portland-feds-protests/ (describing de-

escalation by late June, and swelling of protest size in direct response to presence of federal

officers in early July).

8

From Antifa to Mothers in Helmets, Diverse Elements Fuel Portland Protests,

New York Times, July 19, 2020, https://www.nytimes.com/2020/07/19/us/portland-protests.html

(describing disparate groups of families, businesspeople, political leaders, and young people)

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CAUSES OF ACTION
FIRST CAUSE OF ACTION (Violation of the First Amendment, 42 U.S.C. §1983, Against the Portland
Police Officially and the Municipal Doe Defendants Individually) 182. Plaintiffs incorporate all paragraphs above by reference as if fully set forth herein. 183. Plaintiffs engaged in constitutionally protected speech, as active participants in the Black Lives Matter protests in Portland, Oregon. Plaintiffs sought to protest in support of Black lives and against systemic racism and police brutality. 184. Plaintiffs engaged in constitutionally protected expressive conduct through their works as protest medics, by creating a safer environment for protesters. Plaintiffs provided medical services, supplies, and treatment to fellow protesters. Plaintiffs intended to convey a particularized message that protesters have a right to engage in constitutionally protected speech without fear of violence, and Plaintiffs served as protest medics to take a stand against federal and law enforcement officials who have injured protesters. The likelihood is great that Defendants understand Plaintiffs’ particularized message, since Plaintiffs established themselves as medics with clearly-identifiable statements, clothing, equipment, and insignia. 185. Defendants’ physical violence and deployment of chemical irritants and munitions against Plaintiffs and other protesters would chill a person of ordinary firmness from continuing to participate in protests as demonstrators and medics. Defendants’ actions caused grave, physical injuries and psychological trauma to Plaintiffs.

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186. Defendants indiscriminately unleashed chemical irritants, deployed munitions, and engaged in physical violence against Plaintiffs, establishing that Plaintiffs’ protected activities—and their overall message against police brutality— were a substantial motivating factor in Defendants’ conduct.
187. Given that Defendants’ actions would chill a person of ordinary firmness from engaging in constitutionally-protected speech, and that Plaintiffs’ protected activities were a substantial motivating factor in Defendants’ conduct, Defendants retaliated against Plaintiffs in violation of the First Amendment to the U.S. Constitution.
188. As a direct result of harm that Plaintiffs have suffered, they seek prospective injunctive relief against the Portland Police and damages in an amount to be proven at trial against the individual Municipal Doe Defendants.
SECOND CAUSE OF ACTION (Violation of the Fourth Amendment, 42 U.S.C. §1983, Against the Portland
Police Officially and the Municipal Doe Defendants Individually) 189. Plaintiffs incorporate all paragraphs above by reference as if fully set forth herein. 190. Plaintiffs were seized by the Portland Police when their officers intentionally, through chemical irritants, bullets, and physical force terminated their freedom of movement. 191. Plaintiffs were present at the protests to provide medical assistance. Plaintiffs did not commit any crimes, pose any threat to any officers or any other person, or resist arrest. 192. Using chemical weapons, semi-lethal projectiles, and riot batons against parties who are not engaged in criminal activity and pose no threat to

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anyone’s safety is an unconstitutionally excessive use of force. The Portland Police’s seizure of Plaintiffs, thus, was objectively unreasonable. The Portland Police, under color of state and federal law, subjected or caused Plaintiffs to be subjected to the deprivation of rights secured by the Fourth Amendment to the United States Constitution.
193. The Portland Police seized Plaintiffs’ property when officers confiscated from Plaintiffs their medical supplies and medics’ table materials, including a tent, banner, and table, without a warrant.
194. Plaintiffs used the medical supplies and medics’ table materials to provide injured protesters with medical care.
195. The Portland Police had no probable cause to associate the medical supplies and medics’ table materials with criminal activity. The Portland Police’s seizures of Plaintiffs’ property, thus, was objectively unreasonable. Under color of state and federal law, the Portland Police subjected or caused Plaintiffs to be subjected to the deprivation of rights secured by the Fourth Amendment to the United States Constitution.
196. It was the City of Portland’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.
197. The City of Portland’s failure to supervise and train its employees and agents with respect to the Fourth Amendment rights of Plaintiffs, including a failure to investigate and discipline officers for Fourth Amendment violations, amounts to deliberate indifference to the rights of Plaintiffs.

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198. The pattern of similar constitutional violations against Plaintiffs demonstrates the City of Portland’s deliberate indifference to Plaintiffs’ Fourth Amendment rights.
199. In light of 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 of Portland demonstrated its deliberate indifference to the need for such training and supervision.
200. Plaintiffs reasonably fear further retaliation in the future in violation of the Fourth Amendment if they continue to participate in constitutionally protected activity.
THIRD CAUSE OF ACTION (Violation of the First Amendment Against the Federal Doe Defendants in
their Official and Individual Capacities) 201. Plaintiffs incorporate all paragraphs above by reference as if fully set forth herein. 202. This action arises under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 203. Regardless of the existence of an implied cause of action under Bivens, the federal courts have inherent authority to grant injunctive relief to direct compliance of the federal government and individual federal officials with the First Amendment. 204. Plaintiffs have a constitutionally protected right under the First Amendment, which prohibits the federal government from “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” When the

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federal government violates that right, the victim is entitled to sue the responsible officers. Mendocino Environmental Center v. Mendocino County, 14 F.3d 457, 464 (9th Cir. 1994).
205. Plaintiffs provide medical services to protesters as an act of expression and a form of speech. By their presence, they send a message to all protesters, journalists, and neutral legal observers that someone will be there to care for them, even when the Portland Police and Federal Defendants (who have their own medics that exist only to assist their own), and their agents, are actively harming them. The likelihood is great that the Federal Doe Defendants understand Plaintiffs’ particularized message, since Plaintiffs established themselves as medics with clearly-identifiable statements, clothing, equipment, and insignia.
206. The Federal Doe Defendants, acting under color of federal authority, which includes, but is not limited to, the Executive Order, violated Plaintiffs’ rights under the First Amendment, by intentionally abridging through violence and intimidation, the abilities of Plaintiffs to express themselves as described above.
207. For example, the Federal Doe Defendants intentionally violated Plaintiffs’ First Amendment rights as alleged above, by, among other things, firing tear gas and pepper balls specifically at Plaintiffs Durkee and Guest, while those Plaintiffs moved injured protesters out of the way and to safety. They also forcefully shoved Plaintiff Durkee while he walked backwards with his arms raised, causing both him and Plaintiff Guest to fall. Some of the Federal Doe Defendants then beat both of them with truncheons multiple times.
208. The Federal Doe Defendants also fired tear gas and rubber bullets directly at Plaintiff Guest, while she attempted to provide first aid to a protester.

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209. And with respect to Plaintiff Wise, the Federal Doe Defendants shot him in the legs with pepper balls, as he stood in clearly marked “red-cross” clothing in a park that did not contain any federal property.
210. Each of those constitutional violations caused Plaintiffs direct harm, including, but not limited to, respiratory damage, abrasions, and bruising.
211. Each of the Plaintiffs would like to continue to render aid to protest participants in future protests. Each of them is in fear that the Federal Defendants will take actions and perform operations to violate their First Amendment rights, as they have been doing night after night.
212. Any available statutory remedy that the Plaintiffs might have to redress their harm does not provide a meaningful remedy.
213. Therefore, Plaintiffs are entitled to damages in an amount to be proven at trial.
FOURTH CAUSE OF ACTION (Violation of the Fourth Amendment Against the Federal Doe Defendants
in their Official and Individual Capacities) 214. Plaintiffs incorporate all paragraphs above by reference as if fully set forth herein. 215. This action arises under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 216. Regardless of the existence of an implied cause of action under Bivens, the federal courts have inherent authority to grant injunctive relief to direct compliance of the federal government and individual federal officials with the Fourth Amendment.

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217. Plaintiffs have a constitutionally protected right under the Fourth Amendment, which guarantees citizens the right “to be secure in their persons . . . against unreasonable . . . seizures.” That right includes freedom from excessive force by federal law enforcement officers.
218. The Federal Doe Defendants, acting under color of federal authority, which includes, but is not limited to, the Executive Order, violated Plaintiffs’ rights under the Fourth Amendment, by using excessive force.
219. For example, the Federal Doe Defendants intentionally violated Plaintiffs’ Fourth Amendment rights as alleged above, by, among other things, firing tear gas and pepper balls specifically at Plaintiffs Durkee and Guest, while those Plaintiffs moved injured protesters out of the way and to safety. They also forcefully shoved Plaintiff Durkee while he walked backwards with his arms raised, causing both him and Plaintiff Guest to fall. Some of the Federal Doe Defendants then beat both of them with truncheons multiple times.
220. The Federal Doe Defendants also fired tear gas and rubber bullets directly at Plaintiff Guest, while she attempted to provide first aid to a protester.
221. And with respect to Plaintiff Wise, the Federal Doe Defendants shot him in the legs with pepper balls, as he stood in clearly marked “red-cross” clothing in a park that did not contain any federal property.
222. Each of those constitutional violations caused Plaintiffs direct harm, including, but not limited to, respiratory damage, abrasions, and bruising.
223. Each of the Plaintiffs would like to continue to render aid to protest participants in future protests. Each of them is in fear that the Federal Defendants will take actions and perform operations to violate their Fourth Amendment rights, as they have been doing night after night.

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224. Any available statutory remedy that the Plaintiffs might have to redress their harm does not provide a meaningful remedy.
225. Therefore, Plaintiffs are entitled to damages in an amount to be proven at trial.
FIFTH CAUSE OF ACTION (Administrative Procedures Act (“APA”) Against the Federal Defendants)
226. Plaintiffs incorporate all paragraphs above by reference as if fully set forth herein.
227. As authorities of the United States Government, the Federal Defendants are “agencies” as defined under the federal APA.
228. Under the APA, the Federal Defendants are prohibited from acting in ways that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and “contrary to constitutional right.” 5 U.S.C. § 706.
229. The Executive Order authorizes the Federal Defendants to provide law-enforcement services in Oregon, solely for the purpose of “providing assistance for the protection of federal monuments, memorials, statues, and property.”
230. Additionally, ORS 133.245 authorizes federal law enforcement officers to “arrest a person” in Oregon for violations of state law.
231. Notwithstanding the limitations of the Executive Order and ORS 133.245, the Federal Defendants have adopted a policy and have given direction to federal officers to engage in generalized anti-protest law enforcement, including dispersal of crowds with uses of force such as deployment of chemical irritants and munitions to quell protest activity. Federal officials’ public statements indicate that the anti-protest law enforcement authorized and directed pursuant to these policies

50- COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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and directives are without regard to the location or other nexus with federal monuments, memorials, statues, and property.
232. Through the above-described policies and directions, and with implementation of those policies and directions against the individual Plaintiffs and others, the Federal Defendants have acted arbitrarily and capriciously, abused their discretion, and not in accordance with the Executive Order and ORS 133.245.
233. Plaintiffs have suffered a legal wrong because of the Federal Defendants’ actions; they have been adversely affected or aggrieved by those actions; and they will continue to be adversely affected by them night after night. Plaintiffs are thus entitled to judicial review thereof and injunctive relief.
234. Therefore, Plaintiffs request that the Court hold the Federal Defendants’ actions unlawful, pursuant to the APA, and grant all appropriate relief.
SIXTH CAUSE OF ACTION (Declaratory Judgment)
235. Plaintiffs incorporate all paragraphs above by reference as if fully set forth herein.
236. Plaintiffs intend to continue rendering aid to protest attendees in Portland as a show of their solidarity and support for the protesters’ message, the Black Lives Matter movement, and for their own message to Defendants that their violence will not deter Oregonians from exercising their free speech rights. Plaintiffs are fearful, however, that they will be subjected to police violence or dispersed without reason. Plaintiffs are also fearful that the police will continue to use “kettling” tactics against protesters that sweep in all protest attendees.
237. As a result of the acts described in the preceding paragraphs, there exists a controversy of sufficient immediacy and reality to warrant issuing a

51- COMPLAINT

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declaratory judgment that threatening Plaintiffs with arrest, arresting them, and targeting them for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including rendering first aid to protest attendees, violates the First Amendment.
238. 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 with arrest, arresting them, and targeting them for uses of force, while they were engaged in constitutionally protected acts of speech and expressive conduct during protests, including rendering first aid to protest attendees, violates the Fourth Amendment.
239. A judicial declaration is necessary and appropriate so that Plaintiffs may ascertain their rights to engage in constitutionally protected acts of speech and expressive conduct during protests, including rendering first aid to protest attendees.
240. Plaintiffs are entitled to a declaratory judgment that Defendants may not threaten them with arrest, arrest them, or target them for uses of force, while they are engaged in constitutionally protected acts of speech and expressive conduct during protests, including rendering first aid to protest attendees.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for relief against Defendants as follows: A. Declaratory relief; B. Injunctive relief; C. Compensatory damages; D. Punitive damages; E. An award of pre-judgment interest;

52- COMPLAINT

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F. An award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and the Equal Access to Justice Act;
G. Any other relief the Court deems proper.

DATED: July 22, 2020

PERKINS COIE LLP
By: /s/ Rian Peck Rian Peck, OSB No. 144012 Thomas R. Johnson, OSB No. 010645 Misha Isaak, OSB No. 086430 Nathan Morales, OSB No. 145763 Shane Grannum, pro hac vice pending Sarah Mahmood, pro hac vice pending Zachary Watterson, pro hac vice pending PERKINS COIE LLP
Kelly K. Simon, OSB No. 154213 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON
Attorneys for Plaintiffs

53- COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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 Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 1 of 53
Rian Peck (they/them), OSB No. 144012 RPeck@perkinscoie.com Thomas R. Johnson (he/him), OSB No. 010645 TRJohnson@perkinscoie.com Misha Isaak (he/him), OSB No. 086430 MIsaak@perkinscoie.com Nathan Morales (he/him), OSB No. 145763 NMorales@perkinscoie.com PERKINS COIE LLP 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Telephone: 503.727.2000 Facsimile: 503.727.2222
Shane Grannum (he/him), pro hac vice SGrannum@perkinscoie.com Sarah Mahmood (she/her), pro hac vice pending SMahmood@perkinscoie.com PERKINS COIE LLP 700 13th Street, NW, Suite 800 Washington, D.C. 20005-3960 Telephone: 202.654.6200 Facsimile: 202.654.6211
Zachary Watterson (he/him), pro hac vice ZWatterson@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350
Kelly K. Simon (she/her), 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

MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 2 of 53

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

CHRISTOPHER WISE, MICHAEL MARTINEZ, CHRISTOPHER DURKEE, and SAVANNAH GUEST, individuals,
Plaintiffs, v. CITY OF PORTLAND, a municipal corporation; OFFICER STEPHEN B. PETTEY, in his individual capacity; JOHN DOES 1-60, individual and supervisory officers of Portland Police Bureau; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. MARSHALS SERVICE; JOHN DOES 61-100, individual and supervisory officers of the federal government,
Defendants.

Case No. 3:20-cv-01193-IM PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ENTER AGAINST MUNICIPAL DEFENDANTS; MEMORANDUM OF LAW IN SUPPORT THEREOF Pursuant to Fed. R. Civ. P. 65 ORAL ARGUMENT REQUESTED EXPEDITED HEARING REQUESTED

MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 3 of 53

TABLE OF CONTENTS

Page
MOTION........................................................................................................................................ 1
MEMORANDUM OF LAW ......................................................................................................... 4
I. INTRODUCTION ................................................................................................. 4
II. FACTS ................................................................................................................... 5
A. Volunteer medics begin to attend the Portland protests, to create a safer environment for protesters seeking to protest police violence.......... 5
B. After reviewing the violent tactics being used by the Portland Police, this court intervened and issued a temporary restraining order enjoining the Portland Police from using excessive force against protesters........................................................................................ 7
C. Federal Officers Arrive in Portland ........................................................... 8
D. This Court intervened again and issued a temporary restraining order enjoining the Portland Police and Federal Officers from using excessive force against journalists ................................................... 8
E. The Federal Officers reduce their presence in Portland, but the Portland Police then resume their violence against protest medics ........... 9
F. Plaintiffs peacefully offer aid to protest attendees and, despite clearly identifying themselves as providing medical aid, are targeted by the Portland Police ................................................................ 12
III. ARGUMENT ....................................................................................................... 15
A. Plaintiffs are likely to succeed on the merits of their First Amendment claim .................................................................................... 16
1. Plaintiffs engaged in constitutionally protected speech while serving as volunteer protest medics ................................... 16
2. Defendants’ actions would chill a person of ordinary firmness from continuing to engage in constitutionally protected speech........................................................................... 24
3. Plaintiffs’ protected activities were a substantial motivating factor in Defendants’ conduct ...................................................... 27
B. Plaintiffs also are likely to succeed on the merits of their Fourth Amendment claim .................................................................................... 30
1. The Portland Police have used, and continue to use, excessive force against Plaintiffs ................................................. 31
2. Plaintiffs are likely to establish that law enforcement officers unlawfully seized their property in violation of the Fourth Amendment ...................................................................... 36
3. Defendants continue to violate Plaintiffs’ Fourth Amendment rights........................................................................ 38

i- TABLE OF CONTENTS

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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 4 of 53

TABLE OF CONTENTS (continued)

Page

C. Plaintiffs will suffer irreparable harm without the Court’s intervention .............................................................................................. 39
D. The public’s interest and balance of equities weigh strongly in Plaintiffs’ favor ........................................................................................ 41
1. The public has an unassailable interest in free speech and medical care ................................................................................. 41
2. The balance of equities tips sharply in Plaintiffs’ favor .............. 43
E. Plaintiffs’ requested relief is reasonable .................................................. 44
IV. CONCLUSION.................................................................................................... 45

ii- TABLE OF CONTENTS

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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 5 of 53

TABLE OF AUTHORITIES
Page
CASES
Abay v. City of Denver, No. 20-cv-01616-RBJ, 2020 WL 3034161 (D. Colo. June 5, 2020) ...........................18, 19, 24
Alexander v. City & Cty. of San Francisco, 29 F.3d 1355 (9th Cir. 1994) ...................................................................................................31
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .................................................................................................15
Ariz. Students Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858 (9th Cir. 2016) ...................................................................................................16
Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012) ...................................................................................................41
Black Lives Matter Seattle-King Cty. v. City of Seattle et al., No. 2:20-cv-00887-RAJ, 2020 WL 3128299 (W.D. Wash. June 12, 2020)..........17, 24, 27, 40
Boos v. Barry, 485 U.S. 312 (1988)...........................................................................................................16, 17
Brown v. Louisiana, 383 U.S. 131 (1966).................................................................................................................22
Cantu v. City of Portland, No. 3:19-cv-01606-SB, 2020 WL 295972 (D. Or. June 3, 2020) ...........................................27
City of Houston, Tex. v. Hill, 482 U.S. 451 (1987).................................................................................................................17
Cmty. House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007) .................................................................................................43
Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1996) .................................................................................................25
Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009) .............................................................................................18, 20

iii- TABLE OF AUTHORITIES

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TABLE OF AUTHORITIES (continued)

Page

Don’t Shoot Portland v. City of Portland, No. 3:20-cv-00917-HZ, 2020 WL 3078329 (D. Or. Jun. 9, 2020).................................. passim

Drozd v. McDaniel, No. 3:17-cv-556-JR, 2019 WL 8757218 (D. Or. Dec. 19, 2019) ............................................24

Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235 (11th Cir. 2018) .........................................................................................18, 22

Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (en banc) ...................................................................................15

Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733 (9th Cir. 2014) ...................................................................................................15

Graham v. Connor, 490 U.S. 386 (1989).................................................................................................................31

Hartman v. Moore, 547 U.S. 250 (2006).................................................................................................................16

Headwaters Forest Def. v. Cty. Of Humboldt, 276 F.3d 1125 (9th Cir. 2002) .................................................................................................35

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004) ...............................................................................................19

Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992) (per curiam)...............................................................................33

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 556 (1995)...........................................................................................................19, 22

Illinois v. Gates, 462 U.S. 213 (1983).................................................................................................................36

Index Newspapers LLC v. City of Portland, No. 3:20-cv-1035-SI, 2020 WL 4220820 (D. Or. Jul. 23, 2020)..................................... passim

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ...................................................................................................41

iv- TABLE OF AUTHORITIES

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TABLE OF AUTHORITIES (continued)

Page

Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283 (9th Cir. 1999) .................................................................................................16

Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012) ........................................................................................... passim

O’Brien v. Welty, 818 F.3d 920 (9th Cir. 2016) ...................................................................................................16

Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755 (9th Cir. 2006) ...................................................................................................16

Quraishi v. St. Charles Cty., Mo., No. 4:16-CV-1320 NAB, 2019 WL 2423321 (E.D. Mo. June 10, 2019)................................25

Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (2006)...................................................................................................................19

Soldal v. Cook Cty., Ill., 506 U.S. 56 (1992)...................................................................................................................36

Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) ...................................................................................................15

Texas v. Johnson, 491 U.S. 397 (1989).................................................................................................................18

U.S. v. Hawkins, 249 F.3d 867 (9th Cir. 2001) ...................................................................................................36

U.S. v. Jacobsen, 466 U.S. 109 (1984)...........................................................................................................36, 37

U.S. v. Neill, 166 F.3d 943 (9th Cir. 1998) ...................................................................................................32

Ulrich v. City & Cty. of San Francisco, 308 F.3d 968 (9th Cir. 2002) ...................................................................................................27

United States v. Grace, 461 U.S. 171 (1983).................................................................................................................22

v- TABLE OF AUTHORITIES

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TABLE OF AUTHORITIES (continued)

Page

Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) .............................................................................................15, 40

Young v. Cty. of L.A., 655 F.3d 1156 (9th Cir. 2011) .................................................................................................32

STATUTES

Or. Rev. Stat. § 133.235.............................................................................................................2, 44

OTHER AUTHORITIES

Disease Control & Prevention, Facts About Riot Control Agents (Apr. 4, 2018), https://emergency.cdc.gov/agent/riotcontrol/factsheet.asp#:~:text=Riot%20co ntrol%20agents%20(sometimes%20referred,to%20be%20riot%20control%20 agents .......................................................................................................................................25

Executive Order 13933 ....................................................................................................................8

Fed. R. Civ. P. 65 .....................................................................................................................1, 3, 4

Judge Simon’s Temporary Restraining Order in Index Newspapers, 2020 WL 4220820....................................................................................................................................44

Press Release, Department of Homeland Security, DHS Announces New Task Force to Protect American Monuments, Memorials, and Statues (July 1, 2020) available at https://www.dhs.gov/news/2020/07/01/dhs-announces-new-taskforce-protect-american-monuments-memorials-and-statues#; ..................................................8

Statement on Portland Civil Unrest (July 5, 2020), available at https://www.dhs.gov/news/2020/07/05/fps-statement-portland-civil-unrest .............................8

U.S. Constitution First Amendment....................................................................................... passim

U.S. Constitution Fourth Amendment ................................................................................... passim

Willamette Week, As Federal Police Withdraw, Portland Protests Take Newly Gentle Tone (August 1, 2020) available at https://www.wweek.com/news/2020/08/01/as-federal-police-withdrawportland-protests-take-newly-gentle-tone/ .................................................................................9

vi- TABLE OF AUTHORITIES

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MOTION Plaintiffs Christopher Wise, Michael Martinez, Christopher Durkee, and Savannah Guest (collectively, “Plaintiffs” or “Protest Medics”) hereby move for a Temporary Restraining Order (“TRO”) against Defendants City of Portland, Officer Stephen B. Pettey, and John Does 1-60 (collectively, “Defendants”), pursuant to Rule 65 of the Federal Rules of Civil Procedure, to protect them from further violations of their constitutional rights under the First and Fourth Amendments to the U.S. Constitution. This Motion is supported by the enclosed Memorandum of Law; the Declarations of Christopher Wise, Michael Martinez, Christopher Durkee, Savannah Guest, Peyton Hubbard, Jiri Rivera, Jessica Shifflett, and others being collected and signed at the time of filing this motion. Plaintiffs specifically seek an order enjoining Defendants and their agents, employees, representatives, and servants, from directly targeting any Protest Medics in the manners that follow: 1. To facilitate the Defendants’ identification of Protest Medics protected under this Order, the following shall be considered indicia of being a Protest Medic: visual identification as a medic, such as by carrying medical equipment or supplies identifiable as such or wearing distinctive clothing that identifies the wearer as a medic. Examples of such visual indicia include any clothing or medical equipment that (1) clearly displays the word “medic” in red in an unobstructed manner or (2) clearly displays any universally recognized emblems for medics, such as the red cross, in an unobstructed manner. These indicia are not exclusive, and a person need not exhibit every indicium to be considered a Protest Medic under this Order. Defendants shall not be liable for any unintentional violations of this Order caused by the failure of an individual to wear or carry any indicia of being a Protest Medic.

1- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 10 of 53

2. The Portland Police Bureau and its agents, employees, and all persons acting under the direction of or in concert with the Portland Police Bureau,1 are enjoined from arresting, threatening to arrest, or using physical force (as described in number 3, below) directed against any person who they know or reasonably should know is a Protest Medic (as described in number 1, above), unless authorized under Or. Rev. Stat. § 133.235.
3. The Portland Police are further enjoined from using physical force directly or indirectly targeted at a Protest Medic (as described in number 1, above) when the medic is providing medical care to an individual and poses no threat to the lives or safety of the public or the Portland Police. Physical force includes, but is not limited to, the use of tear gas, pepper spray, bear mace, other chemical irritants, flash-bang devices, rubber ball blast devices, batons, rubber bullets, and other impact munitions.
4. For purposes of this Order, the Portland Police are enjoined from requiring such properly-identified (see supra, number 1) Protest Medics to disperse or move with demonstrators following the issuance of an order to disperse or move—including moving from the street to the sidewalk—when a medic is providing or attempting to provide medical care to an individual. Further, if a Protest Medic is providing medical care to an individual, the Portland Police shall not use the Protest Medic’s decision to not disperse or move with demonstrators following the issuance of an order to disperse or move as any basis, including either

1 Plaintiffs refer to the City of Portland, the Portland Police Bureau, their agents and employees, and all persons acting under the direction of or in concert with the Portland Police Bureau, collectively, as “the Portland Police.”

2- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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“reasonable suspicion” or “probable cause,” to establish that the medic is or has committed a crime. Such persons shall, however, remain bound by all other laws.
5. The Portland Police are further enjoined from seizing any medical equipment, first aid supplies, or other materials necessary for the Protest Medics to administer medical care, if the Portland Police know or reasonably should know that those materials are the property of a Protest Medic (as described in number 1, above), and unless the Portland Police also are lawfully seizing the Protest Medic to whom the materials belong.
6. The Portland Police are further enjoined from ordering a Protest Medic to stop treating an individual; or ordering a Protest Medic to disperse or move when they are treating or attempting to treat an individual, unless the Portland Police also are lawfully seizing that person consistent with this Order.
7. For purposes of this Order, the Portland Police shall not be liable for harm from tear gas, flashbangs, or smoke grenades, if a Protest Medic was incidentally exposed to, and not targeted with, those crowd-control devices.
8. In the interest of justice, Plaintiffs need not provide any security and all requirements under Rule 65(c) of the Federal Rules of Civil Procedure are waived.
9. This Order shall expire fourteen (14) days after entry, unless otherwise extended by stipulation of the parties or by further order of the Court.
10. The parties shall confer and propose to the Court a schedule for briefing and hearing on whether the Court should issue a preliminary injunction.
This Motion—with its supporting materials—confirms that Plaintiffs’ requested TRO is necessary, because “immediate and irreparable injury, loss or damage will result to the movant[s] before the adverse party can be heard in

3- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

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opposition.” Fed. R. Civ. P. 65(b)(1)(A). As their enclosed Memorandum of Law details, Plaintiffs have established that (i) Plaintiffs are likely to succeed on the merits of their claims; (ii) Defendants’ conduct has caused and threatens irreparable harm to Plaintiffs; (iii) the balance of harms weighs in favor of granting the TRO; and (iv) the public interest favors issuing a TRO. Thus, Plaintiffs respectfully request that the Court grant Plaintiffs’ Motion and enter the requested TRO.
MEMORANDUM OF LAW I. INTRODUCTION
Plaintiffs ask this Court to enjoin the Portland Police from exerting threats and violence against Protest Medics, who are providing care and comfort to the hundreds, and sometimes thousands, of people protesting nightly in downtown Portland over the murder of George Floyd and against police brutality against Black, Indigenous, and Brown lives generally.
Plaintiffs are volunteer protest medics who, in the face of tear gas, rubber bullets, and other “less lethal” munitions, exercise their constitutional rights of free speech by providing care and support to the protesters demonstrating for the cause of equal treatment and absolute equality under the law. Plaintiffs also exercise their free-expression rights by helping create and facilitate an environment where protesters can more securely and freely exercise their own free-speech rights.
In response, the Portland Police have continuously used excessive force— targeting protest medics, preventing them from administering medical care to protesters, and seizing their medical supplies—in violation of well-established First and Fourth Amendment rights. The Portland Police’s conduct is causing Plaintiffs and the public irreparable harm. As demonstrated in the attached declarations, the Portland Police are continuing to use excessive force to retaliate against Plaintiffs

4- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 13 of 53

and numerous other protest medics for providing medical aid to protesters who the police themselves injure.
Targeting individuals only for engaging in protected expressive activities violates the First and Fourth Amendments, and the Portland Police’s unlawful conduct should be enjoined immediately. This is because that conduct is causing irreparable, immediate harm. Daily protests continue and show no sign of abating. And each day that passes without relief further denies Plaintiffs and other protest medics their constitutional rights to support those demonstrating by providing medical care and to be free from unlawful searches and seizures. The requested TRO is necessary to ensure that protest medics can care for others without fear of retaliatory police violence.
II. FACTS A. Volunteer medics begin to attend the Portland protests, to
create a safer environment for protesters seeking to protest police violence. Minneapolis police officer Derek Chauvin murdered George Floyd on May 25, 2020. Only two months prior, police officers in Louisville, Kentucky, murdered Breonna Taylor as she lay in her own bed. Ms. Taylor and Mr. Floyd were the latest among many dozens of Black citizens killed by police officers in the United States in just the last few years. The murders of Mr. Floyd and Ms. Taylor sparked national and international protests in support of Black lives and against systemic racism in American policing—including in Portland, where protests have been ongoing for more than 80 days and show no sign of slowing down. Declaration of Christopher Wise in Support of Plaintiffs’ Motion for Temporary Restraining Order (ECF 6) (“Wise Decl.”) ¶¶ 3-4.

5- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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Although the media and law enforcement may portray it differently, protests in Portland have been generally peaceful. See Declaration of Michael Martinez in Support of Plaintiffs’ Motion for Temporary Restraining Order (ECF 9) (“Martinez Decl.”) ¶¶ 7-8, 14-17; Declaration of Dr. Catherine Morgans in Support of Plaintiffs’ Motion for Temporary Restraining Order (ECF 7) (“Dr. Morgans Decl.”) ¶¶ 3-7. Yet, on many nights, the Portland Police have responded with violent force. They have shoved protesters to the ground, beaten them with riot batons, shot them in the head with rubber bullets and other impact munitions, and sprayed them in their eyes with bear mace at dangerously close ranges. See, e.g., Wise Decl. ¶¶ 25; Martinez Decl. ¶ 28. Since the protests began, it has been a rare night when Defendants do not deploy tear gas or impact munitions into crowds ranging from dozens to hundreds of people. Declaration of Christopher Durkee in Support of Plaintiffs’ Motion for Temporary Restraining Order (ECF 5) (“Durkee Decl.”) ¶ 17; Martinez Decl. ¶ 15; see also Supplemental Declaration of Michael Martinez in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Martinez Suppl. Decl.”) ¶ 5 (“I feel lucky that I have not yet been injured” by Portland Police using crowd control devices.).
As the protests in Portland have continued, groups of protesters, including Plaintiffs, organized in teams and loose associations to provide medical aid to the protesters as they exercised their free expression rights. See Declaration of Jeffrey Paul in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Paul Decl.”) ¶11(“The protest medics who assisted me that evening were extremely helpful. I witnessed them helping other protesters who were injured by tear gas and other projectiles shot by the officers”); see also Dr. Morgans Decl. ¶ 17 (discussing the sophisticated systems protest medics have implemented to better protect volunteer

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 15 of 53

safety). Plaintiffs, themselves passionate about the cause of eliminating brutality against Black lives at the hands of police, decided to exercise their free expression rights through their assistance to others. Declaration of Savannah Guest in Support of Plaintiffs’ Motion for Temporary Restraining Order (ECF 11) (“Guest Decl.”) ¶¶ 5, 8; Durkee Decl. ¶ 10; Martinez Decl. ¶ 19; Wise Decl. ¶ 4. They gathered medical supplies, clearly identified themselves as citizens offering aid to injured protesters, Martinez Decl. ¶ 23-24; Durkee Decl. ¶ 9; Guest ¶ 10, and took to the streets to have their own voices heard through their service to others. Martinez Decl. ¶ 22; Durkee Decl. ¶¶ 9-11; Guest Decl. ¶¶ 9-10.
B. After reviewing the violent tactics being used by the Portland Police, this court intervened and issued a temporary restraining order enjoining the Portland Police from using excessive force against protesters.
Because of the Portland Police’s excessive use of violent force, this Court had to intervene and issue an injunction. On June 9, 2020, Chief Judge Marco Hernandez issued a temporary restraining order against the Portland Police. Don’t Shoot Portland v. City of Portland, No. 3:20-cv-00917-HZ, 2020 WL 3078329 (D. Or. Jun. 9, 2020). In that order, Judge Hernandez held that, because there was no evidence that the plaintiffs (protesters) had engaged in “criminal activity” and “only engaged in peaceful and non-destructive protest,” the use of tear gas against them by the Portland Police likely resulted “in excessive force contrary to the Fourth Amendment.” Id. at *3. Therefore, Judge Hernandez enjoined the Portland Police from using tear gas against peaceful protesters unless “the lives or safety of the public or the police are at risk.” Id. at *4. Judge Hernandez later expanded the order to enjoin the Portland Police from using other crowd control agents, including “less lethal” munitions, against peaceful protesters.

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 16 of 53

C. Federal Officers Arrive in Portland In an apparent attempt to circumvent Chief Judge Hernandez’s order, the Portland Police began to rely on federal law enforcement for tear-gas (and other crowd-control devices) deployment. See Durkee Decl. ¶19 (describing an especially violent, tear-gas filled night). Starting around July 4, protest attendees have had to contend with violence from federal officers of the Department of Homeland Security (“DHS”) and the U.S. Marshals Service (“USMS”).2 See Durkee Decl. ¶ 23 (describing distinctive uniform of Federal Officers). Purportedly acting under the color of Executive Order 13933, which declared that DHS would provide personnel to “assist with the protection of Federal monuments, memorials, statues, or property,” DHS and the USMS have deployed special forces in Portland, or otherwise created policing units for deployment to Portland. These Federal Officers use many of the same weapons and tactics against protesters that the Portland Police had already been deploying for over a month, some of which were restricted by Chief Judge Hernandez’s order. See Guest Decl. ¶ 12 (describing tear gas deployment by Federal Officers). D. This Court intervened again and issued a temporary
restraining order enjoining the Portland Police and Federal Officers from using excessive force against journalists. In light of the Portland Police’s seeming attempts to avoid Chief Judge Hernandez’s order, on July 23, 2020, Judge Michael Simon granted a group of legal observer and journalist plaintiffs a temporary restraining order. Index Newspapers

2 See Press Release, Department of Homeland Security, DHS Announces New Task Force to Protect American Monuments, Memorials, and Statues, (July 1, 2020) available at https://www.dhs.gov/news/2020/07/01/dhs-announces-new-task-forceprotect-american-monuments-memorials-and-statues#; see also Press Release, Department of Homeland Security, Federal Protective Service Statement on Portland Civil Unrest, (July 5, 2020), available at https://www.dhs.gov/news/2020/07/05/fps-statement-portland-civil-unrest.

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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LLC v. City of Portland, No. 3:20-cv-1035-SI, 2020 WL 4220820 (D. Or. Jul. 23, 2020). In that case, which is similar to this one, the Court found that the plaintiffs, by showing that “they were identifiable as press, were not engaging in any unlawful activity or protesting, were not standing near protesters, and yet were subject to violence by federal agents,” had “provide[d] sufficient evidence of retaliatory intent to show, at the minimum, serious questions going to the merits” of the plaintiffs’ First Amendment retaliation claim. Id. at *6. Therefore, the Court enjoined the defendants’ direct attacks on journalists and legal observers. Id. at *1.
E. The Federal Officers reduce their presence in Portland, but the Portland Police then resume their violence against protest medics.
Because of the violent tactics used by the Federal Defendants against protest medics, Plaintiffs filed for a temporary restraining order, enjoining the Federal Defendants and the Portland Police from continuing to target protest medics. (ECF 4.) Shortly thereafter, on or around August 1, 2020, the Federal Defendants agreed to reduce their presence in Portland, if the Oregon State Police and the Portland Police resumed primary responsibility for policing the protests.3 Soon after that happened, the Portland Police resumed their unconstitutional treatment of targeting protest medics for violence. For example:

• On August 4, 2020, protest medic Jessica Shifflett, who goes by the name of Phoenix, attended the Portland protests. Declaration of Jessica Shifflett in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Shifflett Decl.”) ¶ 12. While doing so, she clearly identified herself as a medic, and stood next to journalists and legal observers until she witnessed the Portland Police tackle a journalist, who was simply sitting down on a curb. Id. ¶¶ 7-8, 12. The journalist

3 See Willamette Week, As Federal Police Withdraw, Portland Protests Take Newly Gentle Tone, (August 1, 2020) available at https://www.wweek.com/news/2020/08/01/as-federal-police-withdraw-portlandprotests-take-newly-gentle-tone/.

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immediately began vomiting on himself and convulsing. Id. In response, Phoenix identified herself verbally as a medic, and asked the officers if she could provide emergency care. Id. Instead of allowing her to care for the journalist, however, the Portland Police pushed and hit her with their batons multiple times. Id. Then, (despite the beating) Phoenix pleaded with the officers to, at minimum, allow her to provide basic care or turn the journalist on his side, so he did not choke on his vomit. Id. But, instead, the officer sprayed Phoenix directly in the face with mace from only a couple feet away. Id. The mace leaked through Phoenix’s mask filter, causing her great physical pain, burns, and breathing problems. Id.
• On Friday, August 7, 2020, protest medic Peyton Hubbard attended the Black Lives Matter protest at the Multnomah County Sherriff’s Office, near 47th Avenue and East Burnside. Supplemental Declaration of Peyton Dully Hubbard in Support of Plaintiffs' Motion for Temporary Restraining Order (“Hubbard Suppl. Decl.”) ¶ 3. While there, Hubbard clearly identified themselves as a medic through clothing and equipment. Id. Shortly after 1:00 a.m., the Portland Police declared an unlawful assembly and ordered protesters to move east, which Hubbard complied with. Id. ¶ 5. Suddenly, an officer tackled Hubbard from behind, without any provocation. Id. ¶ 6. Once Hubbard was on the ground, multiple officers surrounded Hubbard and beat them several times with batons and fists, causing serious bruising and injury. Id. ¶¶ 6, 10. Hubbard immediately started yelling out that they were not resisting arrest. An officer replied that “they didn’t give a fuck.” Id. Ultimately, the Portland Police handcuffed Hubbard and detained them at a loading dock where other protesters were being detained. Id. ¶ 8. On the way to the loading dock, an officer pushed Hubbard, tried to trip them repeatedly, and tried to rip Hubbard’s backpack off, all while in Hubbard was in handcuffs. Video of multiple officers at this incident beating Hubbard while they were on the ground are available here:
https://perkinscoie.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id =7bbc4be0-83ed-4263-b2f5-ac1d0134d743
https://perkinscoie.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id =db57057c-b780-415c-9277-ac1d0134d6de

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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• On August 8, 2020, protest medic and U.S. Air Force veteran Jiri Rivera attended the Portland protests. Declaration of Jiri Rivera in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Rivera Decl.”) ¶ 11. While there, Rivera clearly identified himself as a medic through clothing and equipment. Id. ¶¶ 10, 12. At around 11:40 pm, the Portland Police declared an unlawful assembly, and began “kettling” the protesters. Id. ¶ 14-15. As the crowd began to move, Rivera suddenly found himself on the ground being detained by the Portland Police. Id. ¶ 18. Other veterans informed the police that Rivera was there serving as a medic and asked them to let him go. Id. Despite those pleas, however, the officers zip-tied Rivera and shoved his gas mask into his mouth, restricting his ability to breathe. Id. As a military veteran, Rivera would like to believe that the Portland Police did not specifically target him as a medic. Id. ¶ 19. But given the number of targeting incidents that he has seen, and the fact that he was a highly visible medic in a line of veterans dressed in military attire and white shirts, Rivera ultimately believes that the Portland Police targeted him specifically because he had a red cross on his vest:

Photo courtesy of John Rudoff

• In the early hours of this morning, August 21, Portland Police arrested Plaintiff Chris Wise when he was clearly marked as a medic. Supplemental Declaration of Christopher Wise in Support of

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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 20 of 53

Plaintiffs’ Motion for Temporary Restraining Order (“Wise Suppl. Decl.”) ¶ 4. Once again, Plaintiff Wise was clearly marked as a medic in several places. Id. ¶ 3. As he was complying with the Portland Police’s orders to disperse, two Portland Police officers walked past other protesters and grabbed Plaintiff Wise’s arms from either side, informing him that he was under arrest. Id. ¶¶ 4-5. Plaintiff Wise was released this morning around 8:45 am. Id. ¶ 4. Videos of Plaintiff Wise being arrested and patted down are available here:
https://twitter.com/MasonLakePhoto/status/1296768985405390849
https://twitter.com/MaranieRae/status/1296736119246086144
F. Plaintiffs peacefully offer aid to protest attendees and, despite clearly identifying themselves as providing medical aid, are targeted by the Portland Police.
Plaintiffs are all protest medics who have routinely attended the Portland protests to provide medical care to protesters and condemn racist police violence. Plaintiffs’ very presence at the protests is an act of peaceful resistance: They seek to make people feel safe while attending lawful demonstrations, demanding change. Plaintiffs express that “protesters have a right to protest safely and without fear of police violence.” Martinez Decl. ¶ 19; see Rivera Decl. ¶ 6; Shifflett Decl. ¶ 6. Plaintiffs’ service as protest medics also sends a clear message to the police: We will not allow your violence to prevent people from protesting your violence. Martinez Decl. ¶ 19; Durkee Decl. ¶ 10.
Protest medics offer a range of services that empower protesters to keep standing up for their values, journalists to keep reporting on the protests, and other medics to keep rendering aid at the protests. They equip protest attendees with eye wash and eye wipes in anticipation of tear-gas attacks, offer personal protective equipment so protest attendees can observe COVID-19 physical-distancing protocols, feed and hydrate protest attendees, and render medical aid when police injure protest attendees. Declaration of Peyton Dully Hubbard in Support of

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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 21 of 53

Plaintiffs’ Motion for Temporary Restraining Order (ECF 10) (“Hubbard Decl.”) ¶ 7; Paul Decl. ¶¶ 6, 9; Martinez Decl. ¶¶ 20, 23-24.
To ensure that the Portland Police and protesters recognize them, protest medics wear clothing designed to communicate and demonstrate that they are there to render aid to injured protesters. For example, protest medics wear clothing with the word “medic” and the red-cross medic symbol painted across the back, as well as brightly colored duct-taped medic symbols on both upper arms and the chest. Wise Decl. ¶ 9; Guest Decl. ¶7; Durkee Decl. ¶¶ 9-10; Shifflett Decl. ¶ 7. The crosses are identifiable during the day and at night and can be seen from any angle. Hubbard Decl. ¶ 5; Guest Decl. ¶7; Durkee Decl. ¶ 9. Additionally, many protest medics openly carry medical supplies on their persons at all times. See Wise Decl. ¶ 9; Durkee Decl. ¶ 13 (carrying large backpack holding trauma kit); Guest Decl. ¶ 10 (same); Shifflett Decl. ¶ 7 (same).
Though protest medics engage in nonviolent behavior and pose no threat to the public, officers, or city or federal property, the Portland Police have repeatedly intimidated, harassed, and assaulted them, including each Plaintiff. While attempting to render medical aid to those in need, Plaintiffs have been tear gassed by the Portland Police—including having tear gas canisters shot or thrown in their direction. Wise Decl. ¶¶ 20-30; Guest Decl. ¶¶ 12; Durkee Decl. ¶¶ 17; Martinez Decl. ¶ 32. Defendants also have shot protest medics with rubber bullets, while they were rendering or attempting to render aid. Wise Decl. ¶¶ 22, 28. Hubbard Decl. ¶ 10.
Despite Plaintiffs wearing identifying clothing, officers have specifically targeted them and other protest medics. For example:

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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 22 of 53

• A Portland Police officer sprained Plaintiff Chris Wise’s shoulder by shoving him into the ground, as Wise (while wearing identifiable clothing) was complying with the officer’s orders to move from the area by walking backwards with his hands raised. Wise Decl. ¶¶ 9, 26.
• A Portland Police officer arrested Plaintiff Michael Martinez while he was standing at a medics’ station organized by students at Oregon Health & Science University (“OHSU”). Martinez Decl. ¶¶ 33-41.
• Portland Police officers targeted and arrested Plaintiff Chris Wise when he was the only medic among a group of other protesters. Wise Suppl. Decl. ¶¶ 3-5.
• Portland Police officers targeted and arrested Jiri Rivera when he was the only medic standing among a group of other protesters. Rivera Decl. ¶¶ 11-19.
• Portland Police severely maced Phoenix, giving her chemical burns in her throat, because she asked for permission to render aid to a prone member of the press who was in so much pain after police tackled him that he was convulsing and laying in a pool of his own vomit.4 Shifflett Decl. ¶ 12. Phoenix has experienced similar incidents over the last couple months. Id. ¶¶ 10-11, 13.
• Portland Police have repeatedly beaten and shot Peyton Hubbard, despite the facts that Hubbard always wears identifying clothing, stands to the side of the protests unless someone needs assistance, and has not violated any police orders or committed any crimes. Hubbard Decl. ¶¶ 5-12; Hubbard Suppl. Decl. ¶¶ 3-14.
In each of these incidents, it was clear that the visibly identifiable protest medics
were actively rendering medical aid or standing by “on call,” ready to provide aid. It
also is clear that, at the time of these assaults, Plaintiffs posed no risk to the lives
or safety of the public or officers. And this use of force has had a clear chilling effect:
Despite their desire to continue serving as protest medics each day, Plaintiffs have

4 Because Portland Police prevented EMTs from timely responding, the press member lay there for around 12 minutes before an ambulance arrived to help him. Phoenix could have offered him immediate help if the Portland Police hadn’t forcibly prevented her from doing so. Shifflett Decl. ¶ 12.

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been prevented from attending protests or have chosen to attend them less frequently, in response to the very real possibility that they may be arrested or seriously injured by Defendants. Guest Decl. ¶¶ 23-31; Durkee Decl. ¶¶ 29-37; Hubbard Decl. ¶ 14; Shifflett Decl. ¶ 14.
III. ARGUMENT The evidence here justifies entry of a TRO to protect Plaintiffs as protest medics. The standard for issuing a TRO is “substantially identical” to the standard for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). Under the traditional four-factor test for a TRO or preliminary injunction, this Court must grant Plaintiffs’ motion if they show that (1) Plaintiffs 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 tips in their favor; and (4) the requested injunction is in the public interest. Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733, 738 (9th Cir. 2014) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Although not dispositive by itself, the first of these factors— likelihood of success on the merits—is the “most important.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc). But with respect to the relationship between factors (1) and (2), 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). In other words, “‘the greater the relative hardship to [Plaintiffs], the less probability of success must be shown.’” Warsoldier, 418 F.3d at 994 (quoting Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999)). Here, Plaintiffs satisfy either bar.

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A. Plaintiffs are likely to succeed on the merits of their First Amendment claim.
The First Amendment to the U.S. Constitution “reflects a ‘profound national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust, and wide-open.’” Boos v. Barry, 485 U.S. 312, 318 (1988) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Government officials—here, local law enforcement officers—may not retaliate against an individual for engaging in constitutionally protected speech. See Hartman v. Moore, 547 U.S. 250, 256 (2006).
To succeed on their First Amendment retaliation claims, Plaintiffs must show that (1) they engaged in constitutionally-protected speech; (2) Defendants’ actions would “chill a person of ordinary firmness” from continuing to engage in constitutionally-protected speech; and (3) Plaintiffs’ engagement in protected speech was a “substantial motivating factor” in Defendants’ conduct. O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016); Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006); Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999). In so doing, however, Plaintiffs “need only show that the defendant[s] ‘intended to interfere’ with the plaintiff[s’] First Amendment rights and that [they] suffered some injury as a result; the plaintiff[s are] not required to demonstrate that [their] speech was actually suppressed or inhibited.” Ariz. Students Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (citing Mendocino, 192 F.3d at 1300)). Here, Plaintiffs establish a high likelihood of success on the merits as to all three elements of their First Amendment claim.

1. Plaintiffs engaged in constitutionally protected speech while serving as volunteer protest medics.
Plaintiffs have met the first element for establishing a First Amendment claim—engagement in constitutionally protected speech. Specifically, under the facts of this case, Plaintiffs have shown that, as protest medics, they exercise their

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constitutional right to protest and engage in expressive conduct by providing medical assistance to those taking part in the large and continuing demonstrations in Portland. Plaintiffs have engaged in constitutionally protected speech as participants in protests for Black lives. Those protests began in the wake of the murders of George Floyd, Breonna Taylor, Ahmaud Arbery, Monika Diamond, and countless others. Plaintiffs and protesters attend the protests to express their support for eradicating “systemic racism, especially as it pertains to policing and police violence.” Martinez Decl. ¶ 3; see also Wise Decl. ¶ 4; Durkee Decl. ¶ 4, 7, 10; Guest Decl. ¶ 3, 5, 8; Paul Decl. ¶ 4, Dr. Morgans Decl. ¶ 8; Shifflett Decl. ¶ 6. Since they started protesting in May and June 2020, Plaintiffs have fought for justice for Black people across the United States.
Protesting is protected speech. The “classically protected” right to protest lies at the heart of the First Amendment, Boos, 485 U.S. at 318, and, thus, activities “such as ‘demonstrations, protest marches, and picketing’” are forms of speech protected under the Constitution, Black Lives Matter Seattle-King Cty. v. City of Seattle et al., No. 2:20-cv-00887-RAJ, 2020 WL 3128299, at *2 (W.D. Wash. June 12, 2020) (quoting Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996)). The recent protests have been passionate and emotional, as protesters nationwide seek to radically change the way policing is conducted in our communities and country, all while actively opposed by the very group they are attempting to challenge with their voices. See generally City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) (explaining that yelling obscenities and threats at a police officer is still protected speech under the First Amendment).
In addition to traditional protesting, rendering medical aid to support and advance a protest is itself a form of constitutionally protected expression: The

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“constitutional protection for freedom of speech ‘does not end at the spoken or written word.’” Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235, 1240 (11th Cir. 2018) (quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)). Certain expressive conduct constitutes a protected form of speech under the First Amendment, “when ‘it is intended to convey a ‘particularized message’ and the likelihood is great that the message would be so understood.’” Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009) (quoting Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir. 1999)); see also Johnson, 491 U.S. at 404. Applying those principles, courts have recognized that providing services, supplies, or support to individuals as part of a movement for political, policy, and social change, is expressive conduct and, thus, constitutionally protected speech. See, e.g., Fort Lauderdale Food Not Bombs, 901 F.3d at 1240-41 (ruling that a nonprofit organization’s sharing of food in visible spaces intended to convey a particular message that collective food sharing helps to eradicate hunger and poverty); Abay v. City of Denver, No. 20-cv-01616-RBJ, 2020 WL 3034161, at *3 (D. Colo. June 5, 2020) (finding that protesters, including protest medics who “attempt[ed] to render treatment to injured protest[e]rs,” as part of an “organized political protest” against police brutality, engaged in constitutionally protected speech).5

5 In their original motion, Plaintiffs relied on Abay in support of their First Amendment claims. In response, the City of Portland tried, but failed, to distinguish that case from the facts here. In Abay, the plaintiffs included a protest medic and similarly-situated individuals who sought to participate in organized political protests against police brutality in Denver, Colorado. 2020 WL 3034161, at **1, 3. The plaintiffs alleged that the Denver Police “specifically targeted medics wearing red crosses attempting to provide care and treatment to those injured by the Police’s wanton use of force . . . [including] while [medics] attempt to administer care to people prone on the ground.” Compl. ¶¶ 32-33, Abay, 2020 WL 3034161. The court did not, however, hold that the protest medics’ conduct was protected only because it occurred in the context of the larger demonstration, as argued by the City. Rather, after acknowledging that the plaintiff medics participated in the protests as part of an “attempt to render treatment to injured protest[e]rs,” the

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Although an undeniably clear message is sufficient to establish First Amendment protections, the Supreme Court has clarified that a “narrow, succinctly articulable message is not a condition of constitutional protection” for expressive conduct, because such a narrow conception would prevent the First Amendment from “reach[ing] the unquestionably shielded painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 556, 569 (1995) (citing Spence v. Washington, 418 U.S. 405, 411 (1974)). Thus, the appropriate question is “whether the reasonable person would interpret [conduct] as some sort of message, not whether an observer would necessarily infer a specific message.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004) (emphasis in original) (citing Hurley, 515 U.S. at 569). Indeed, “[i]f explanatory speech is necessary to explain the conduct, then that is strong evidence that the conduct at issue is not so inherently expressive that it warrants protection.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 66 (2006).
In furtherance of their expression, Plaintiffs render medical aid to support and advance the voices of the other protesters. They engage in expressive conduct protected under the First Amendment by lending medical services, supplies, and treatment to other protesters in order to “send a message [ ] that protesters have a right to protest safely and without fear of police violence.” Martinez Decl. ¶ 19; see Wise Decl. ¶ 6 (“I serve as a medic to further the protests themselves, including the overall purpose and message of the protests”); Durkee Decl. ¶ 7 (“I decided to get involved in the Portland protests as a medic for the protesters, not just because I

court ruled that the medics’ activities—as well as those of other protesters participating in different capacities—were protected under the First Amendment. Abay, 2020 WL 3034161, at *3.

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feel strongly that systemic racism exists and leads to police brutality against Black people, but because I knew that my medical training could assist both the protesters and the larger movement”); Guest Decl. ¶ 5 (“I was concerned that the protesters in Portland were very unprepared to treat the types of injuries that the police were inflicting on them . . . . [so] I decided to get involved . . . as a medic for the protesters . . . because I knew that my medical training could assist both the protesters and the larger movement”); Shifflett Decl. ¶ (“By serving as a protest medic, I hope to send a message to protesters and law-enforcement officers that people should be able to keep showing up and exercising their rights without fear of physical harm, knowing that medical aid will be readily available to them.”)
Plaintiffs are engaging in constitutionally protected speech because, as protest medics, they intend to convey “a particularized message.” Corales, 567 F.3d at 562. Plaintiffs began organizing as protest medics “to take a tangible stand against the nightly police brutality [they] witness and experience” in Portland. Martinez Decl. ¶ 19; see Shifflett Decl. ¶ 6 (“I serve as a protest medic because I believe that people should be able to exercise their First Amendment right to peaceably assemble and to speak freely—even when criticizing their own government—and to not be subject to state-sponsored violence when doing so. Additionally, I believe that Black Lives Matter and that police brutality is horrific.”). In particular, Plaintiffs serve as protest medics “to send a message that protesters have a right to protest safely [] without fear of violence” and to “make sure victims have access to care and suffer as little harm as possible.” Martinez Decl. ¶ 19; Shifflett Decl. ¶ 6. They know that their “medical training [can] assist both the protesters and the larger movement” for Black lives. Durkee Decl. ¶ 7. Plaintiffs have witnessed Portland Police unleash “tear gas, pepper spray, and other

20- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 29 of 53

police violence” on protesters and it is their understanding that Portland Police
sometimes are even “instructing ambulances not to enter [] protest area[s].”
Martinez Decl. ¶ 20; Dr. Morgans Decl. ¶ 20. Thus, they espouse the political belief
that—in lieu of trusting law enforcement officials to ensure the safety of protesters
exercising their First Amendment rights—they must establish and maintain a
community to aid, replenish, and support protesters themselves. Martinez Decl. ¶
19; Durkee Decl. ¶ 7; Wise ¶ 6. As protest medics, they do this in part by:
• Providing direct care to protesters and support to other medics who care for and treat protesters, Wise Decl. ¶¶ 12-17, Martinez Decl. ¶¶ 26, 30; Durkee Decl. ¶¶ 10-11;
• Carrying and distributing to protesters medical supplies, such as gauze, bandages, antibiotic ointments, tape, ear plugs, and over-thecounter pain medications, Martinez Decl. ¶ 23, Wise Decl. ¶ 9, Dr. Morgans Decl. ¶ 11; Durkee Decl. ¶ 13; Guest Decl. ¶ 10;
• “[C]arr[ying] backpacks and distribut[ing] food and water to protesters,” Martinez Decl. ¶ 22; Durkee Decl. ¶ 13; Guest Decl. ¶ 10;
• Establishing a “medics’ station” in Chapman Square in downtown Portland “under a tent [clearly] marked with a medic symbol and other first aid signs,” Martinez Decl. ¶ 22, Dr. Morgans Decl. ¶ 14;
• Offering protesters “wipes and saline solution or other eye wash to help rinse peoples’ eyes following a tear gas attack,” Martinez Decl. ¶ 23;
• Offering protesters “personal protective equipment such as masks, gloves, and hand sanitizer” to ensure protesters can “observe recommended safety measures” during the COVID-19 pandemic, Martinez Decl. ¶ 23; and
• Attempting to “deescalate situations that could or have turned violent” and “diffuse tensions,” including when an automobile driver plowed their car through a group of protesters and fired gunshots, Wise Decl. ¶¶ 18, 26; see also Durkee Decl. ¶ 10 (keeping morale high).

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

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Further, the context of and circumstances surrounding Plaintiffs’ participation in the protests clearly establish that a reasonable person would interpret their activities as protest medics as intended to convey some particularized message. See Fort Lauderdale Food Not Bombs, 901 F.3d at 1241 (“[T]he circumstances surrounding an event help set the dividing line between activity that is sufficiently expressive and similar activity that is not.”).6 The context of Plaintiffs’ participation as medics is clear. Night after night, police brutality and violence against protesters in downtown Portland is on full display for all of the city, Oregon, the nation, and the world to see—on social media, the local news, in newspapers, and for some Portland residents who live near these protests, right outside of their windows. Furthermore, as Plaintiffs have stated—and quite significantly, the City of Portland has not contested—ambulances and medical first responders often do not have access to or decline to come to protest sites to treat injured protesters, before, during, or after the Portland Police issue allegedly “lawful” dispersal orders. See, e.g., Wise Decl. ¶ 15 (describing “ambulances and first responders unwilling to come to [protesters]”); Shifflett Decl. ¶ 12 (explaining that it can take anywhere from 15-20 minutes, generally, when police call for an ambulance).
Surrounding circumstances make Plaintiffs’ participation clear, as well. Plaintiffs’ message at the protests is one that is particularized and specific to protest medics, as a discrete category of individuals attending the protests.

6 See also Hurley, 515 U.S. at 568 (using context to differentiate “marchers [in a parade] who are making some sort of collective point” from “bystanders along the way”); United States v. Grace, 461 U.S. 171, 176 (1983) (using context and surrounding circumstances to differentiate walking from “peaceful picketing and leafletting”); Brown v. Louisiana, 383 U.S. 131, 141-42 (1966) (using context and surrounding circumstances to distinguish between Black Americans playing a game and conducting a sit-in at a library to protest segregation).

22- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 31 of 53
Plaintiffs have clearly established themselves as medics within a community that attends the protests to aid and support protesters, and protesters recognize them as such. See Paul Decl. ¶ 11. Medics stations like the one Martinez attended are stocked with medical supplies like gauze and bandages and are clearly marked with indicia that they are there to render first aid. Martinez Decl. ¶ 22. Plaintiffs and other protest medics wear clearly-identifiable clothing, equipment, and insignia as they traverse demonstrations across Portland to care for protesters. Guest Decl. ¶ 7; Durkee Decl. 10; Wise Decl. ¶ 9; Shifflett Decl. ¶ 7. Protest medics have been an unmistakable presence at protests each night, verbally identifying themselves as medics, carrying medical supplies and rendering care and treatment to protesters injured by tear gas, pepper spray, rubber bullets, and other chemical irritants and munitions deployed by law enforcement officials. See Wise Decl. ¶¶ 9, 13-17; Guest Decl. ¶¶ 11-12; Shifflett Decl. ¶ 12.
The context of Plaintiffs’ activities as protest medics and surrounding circumstances should lead any reasonable observer—and certainly a Portland Police officer, who is presumably trained and required to contextualize situations and observe their surroundings—to understand that Plaintiffs seek to convey a particularized message by participating as protest medics. Further, the context and surrounding circumstances establish that the likelihood is great that this message would be understood. Therefore, Plaintiffs have established the likelihood of success on the merits that they engaged in constitutionally-protected expressive conduct as protest medics.

23- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 32 of 53

2. Defendants’ actions would chill a person of ordinary firmness from continuing to engage in constitutionally protected speech.
Plaintiffs also establish a likelihood of success on the merits as to the second element of their First Amendment retaliation claim—that Defendants’ actions would chill a person of ordinary firmness—because (as should come to no one’s surprise) physical violence and deployment of chemical irritants and munitions by law enforcement would chill a person of ordinary firmness from continuing to participate in protests as medics. “‘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 [their] protected activity.’” Black Lives Matter-Seattle, 2020 WL 3128299, at *3 (quoting Mendocino, 192 F.3d at 1300). Here, although Plaintiffs have continued, and will continue, to serve as protest medics, under the applicable objective standard, the Portland Police’s continuous targeting of protest medics almost certainly would chill any medic of ordinary firmness from participating in the protests.
This Court and others have repeatedly confirmed that what Plaintiffs endure nightly from Defendants would chill the First Amendment rights of a person of ordinary firmness:
• A police officer’s deployment of pepper spray caused a protester severe anxiety, and thus would chill the protester’s rights, Drozd v. McDaniel, No. 3:17-cv-556-JR, 2019 WL 8757218, at *5 (D. Or. Dec. 19, 2019);
• Law enforcement officials’ use of “crowd control weapons” like tear gas and pepper spray would chill person of ordinary firmness from protesting, Black Lives Matter-Seattle, 2020 WL 3128299, at *3;
• A police force’s use of “physical weapons and chemical agents” against protesters would chill speech by creating in demonstrators a “legitimate and credible fear of police retaliation,” Abay, 2020 WL 3034161, at *3; and

24- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 33 of 53

• A police officer’s deployment of tear gas would chill a person of ordinary firmness from engaging in protected activities under the First Amendment, Quraishi v. St. Charles Cty., Mo., No. 4:16-CV-1320 NAB, 2019 WL 2423321, at *6 (E.D. Mo. June 10, 2019).

Because of the chilling effect that an indiscriminate use of force presents, “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 [violent] conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure.” Collins v. Jordan, 110 F.3d at 1372 (citing Cox v. Louisiana, 379 U.S. 536, 551 (1965); Kunz v. New York, 340 U.S. 294-95 (1951)). The Portland Police have repeatedly done just the opposite.
The Portland Police have unquestionably engaged in conduct that would chill a person of ordinary firmness from continuing to participate in protests as medics. As in the cases cited above, the Portland Police have deployed tear gas, pepper spray, and other chemical irritants directly on Plaintiffs at close range. Martinez Decl. ¶ 12; Wise Decl. ¶ 28; Dr. Morgans Decl. ¶¶ 3-4; Shifflett Decl. ¶ 12. These irritants are deeply invasive and painful, causing the eyes, nose, and (sometimes) even the skin to burn and swell.7 Protest medics exposed to these irritants find it hard to breathe, feel burning or pain in their chest and lungs, and experience difficulty seeing, see id., as was the case for Plaintiffs. Martinez Decl. ¶ 9; Wise Decl. ¶ 25; Guest Decl. ¶ 13; Shifflett Decl. ¶ 12; Durkee Decl. ¶ 12, 18, 34 (“We decided not to attend the protest because we wanted more protective gear before going out”). Those internal biological reactions alone prevent Plaintiffs from performing their work as protest medics.

7 See Ctrs. for Disease Control & Prevention, Facts About Riot Control Agents (Apr. 4, 2018), https://emergency.cdc.gov/agent/riotcontrol/factsheet.asp#:~:text=Riot%20control%2 0agents%20(sometimes%20referred,to%20be%20riot%20control%20agents.

25- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 34 of 53

Defendants also have deployed munitions—such as rubber bullets and flash bangs—directly against protest medics, sometimes while they were rendering care and treatment to protesters and bystanders. Wise Decl. ¶¶ 22, 28. Especially when deployed in close contact, these munitions bruise and even puncture the skin, fracture bones, and cause blindness. The Portland Police have repeatedly attacked, beaten, clubbed, and harassed Plaintiffs and other protest medics. See Wise Decl. ¶¶ 22, 24-26, 28-30; Shifflett Decl. ¶ 12. This conduct has caused grave, physical injuries. See Wise Decl. ¶¶ 22-23 (“[A] Portland police officer shot me in the shin with a rubber bullet . . . penetrat[ing] my skin and expos[ing] my shin bone . . . [and] [m]y wound later became infected . . . [that] still has not closed, let alone healed”); Shifflett Decl. ¶¶ 10-14 (“(“PPB officers pushed me and hit me with their batons multiple times . . . . result[ing] in multiple bruises on my body . . . . [and shortly thereafter] sprayed me directly in the face with mace from only a couple feet away . . . . [which] leaked through my mask filter, causing me great physical pain, chemical burns in my throat, and breathing problems”). Those injuries have forced protest medics to stay home and heal, instead of continuing to serve as protest medics (as they desire to do). Wise Decl. ¶ 27; Hubbard Decl. ¶¶ 14; Shifflett Decl. ¶ 14. Furthermore, witnessing Defendants’ use of chemical irritants, munitions, and long-range acoustic devices commonly deployed by the United States Armed Forces against enemy combatants in foreign wars, against Americans on domestic soil, has caused lasting physical and emotional trauma for protest medics. See Durkee Decl. ¶ 19 (“The indiscriminate brutality of the police and federal agents—especially the shooting of [protester] Donavan La Bella [by law enforcement]—has had a significant negative impact on my ability to continue to serve as a medic . . . I could possibly lose my life”). For those reasons, Plaintiffs have established a high

26- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 35 of 53

likelihood that Defendants’ actions would chill a person of ordinary firmness from continuing to engage in constitutionally protected speech.
3. Plaintiffs’ protected activities were a substantial motivating factor in Defendants’ conduct.
Plaintiffs also establish a high likelihood of the existence of the third and final element of their First Amendment retaliation claim—that their protected activities were a substantial and motivating factor in the Portland Police’s conduct. This element requires a “nexus between [Defendants’] actions and an intent to chill speech.” Cantu v. City of Portland, No. 3:19-cv-01606-SB, 2020 WL 295972, at *7 (D. Or. June 3, 2020) (quoting Ariz. Students Ass’n, 824 F.3d at 867). Plaintiffs may establish that element through either direct or circumstantial evidence: “The use of indiscriminate weapons against all protesters—not just [] violent ones—supports the inference that [law enforcement officials’] actions were substantially motivated by Plaintiffs’ protected First Amendment activity.” Black Lives Matter-Seattle, 2020 WL 3128299, at *4; Ulrich v. City & Cty. of San Francisco, 308 F.3d 968, 979 (9th Cir. 2002) (citing Allen v. Iranon, 283 F.3d 1070, 1074 (9th Cir. 2002)).
Here, because (1) Plaintiffs consistently wore distinctive and visible markings identifying them as medics, (2) did nothing to threaten the safety of the public or police, and (3) despite those facts, the Portland Police nonetheless specifically targeted Plaintiffs for violence, the Court may infer that the Portland Police did so with an intent to prevent Plaintiffs from expressing themselves as protest medics. See Index Newspapers, 2020 WL 4220820, at *6 (holding that the plaintiffs established a sufficient nexus and showing to grant a restraining order because they (1) “were identifiable as press,” (2) were not engaging in any threatening activity, and (3) “yet were subject to violence by federal agents”).

27- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 36 of 53

Plaintiffs wear clothing with markings clearly identifying them as providing medical aid and “yet [are] subject to violence” by the Portland Police. Id. From that, it is reasonable to infer that Plaintiffs’ message of opposing police brutality in a tangible way is a substantial and motivating factor in the excessive and indiscriminate use of force. Plaintiffs have engaged in protests that specifically seek to eradicate police brutality and fundamentally transform the role that law enforcement plays in our society, and they have chosen to express their views through their particular service. Durkee Decl. ¶ 3; Guest Decl. ¶¶ 3-4; Wise Decl. ¶ 4-6; Shifflett Decl. ¶ 6; Rivera Decl. ¶¶ 6, 8. That message, if successful, is one that ultimately will have a negative impact on the authority and power that Defendants wield. Given that Plaintiffs are clearly identified, have not engaged in any threatening behavior, and that Defendants have used direct force to suppress the speed at which Plaintiffs perform their medical services or Plaintiffs’ ability to render aid altogether, it is reasonable to infer that Defendants sought, and seek, to suppress Plaintiffs’ particularized form of speech. Defendants acts to target Plaintiffs as they assist others and to prevent them from rendering aid in the first place leads to but one conclusion: Plaintiffs’ protected activities were a substantial motivating factor in Defendants’ conduct.
The Portland Police’s rationale for why its officers shot, fired at, beat, and injured clearly-marked and clearly-identifiable protest medics—the overall chaotic environment of the Portland protests—does not at all defeat Plaintiffs’ claims that the Portland Police unconstitutionally targeted them for violence. That is for two reasons. First, in making that argument, the Portland Police have mischaracterized the exact nature of Plaintiffs’ theories. Although Plaintiffs do rely on important contextual evidence showing that the Portland Police indiscriminately

28- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 37 of 53

use tactics such as kettling and the broad dispersal of tear gas on the entire Portland protests, that is not the crux of their claims. Instead, as in this motion for TRO, Plaintiffs’ gravest concern is the harm caused to them and other protest medics (not protesters generally) by the Portland Police’s “direct targeting” of medics: i.e., the use of force directly targeted at a protest medic; such as, macing a clearly identified protest medic in the face from a few feet away when they are providing or attempting to provide medical care; Wise Decl. ¶ 25; Martinez Decl. ¶ 28; Shifflett Decl. ¶ 12; aiming a gun directly at, shooting, and then laughing at a clearly identified protest medic who is standing to the side of the protests waiting to help someone; Hubbard Decl. ¶¶ 5-12; beating a clearly identified protest medic with batons, while they are screaming to help another injured protester; Hubbard Suppl. Decl. ¶ 6. And the overall chaotic environment of a protest has little to no bearing on those decisions by the Portland Police to identify the medics out of a crowd of protesters and specifically target them for violence.
Second, under the U.S. Constitution and its own internal agency directives, the Portland Police have an obligation to distinguish and detain only criminal and violent actors in a protest, but not others who serve important functions while caught in the crossfire of that violence. Contrary to the Portland Police’s assertions, the U.S. Constitution does not somehow allow law enforcement officers to fire directly or indiscriminately at people (such as Plaintiffs) peacefully exercising their constitutional rights and then blame the damage to those individuals on a few other actors who actually engaged in violent behavior. See Don’t Shoot Portland, 2020 WL 3078329 at *3 (holding that the Portland Police could not rely on the chaotic environment of protests to justify their excessive force under the Fourth Amendment, so long as the individual Plaintiffs did not actually pose a safety or

29- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 38 of 53
criminal risk). Constitutional uses of force may result in unintended consequences, but the Portland Police’s targeting of clearly marked medics and subjecting them to violent force can hardly be characterized as unintended. See, e.g., Wise Decl. ¶ 25 (being bear maced by a PPB officer from a distance of six to eight feet away, risking permanent, severe damage to Wise’s eyes); Shifflett Decl. ¶ 12 (describing being maced directly in the face from a few feet away); Hubbard Suppl. Decl. ¶ 6 (describing being beaten by multiple officers while on the ground). Similarly, the Portland Police’s own internal directives require officers to distinguish between actors while responding to demonstrations and protests. Under PPB Directive 0635.10, a police officer’s “response should be commensurate to overall crowd behavior, and members should differentiate between groups or individuals who are engaging in criminal behavior or otherwise posing a threat to the safety of others and those in the crowd who are lawfully demonstrating.” Therefore, the fact that these events took place in a generally chaotic environment does not make otherwise targeted unconstitutionally violent behavior suddenly constitutional.
B. Plaintiffs also are likely to succeed on the merits of their Fourth Amendment claim.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Here, Plaintiffs are likely to succeed on the merits of their claims that the Portland Police violated the Fourth Amendment by using excessive force against Plaintiffs and by unlawfully seizing their medical equipment.

30- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 39 of 53

1. The Portland Police have used, and continue to use, excessive force against Plaintiffs.
Plaintiffs have established a high likelihood that the Portland Police used excessive force against them, in violation of the Fourth Amendment. A seizure occurs when an “officer by means of physical force or show of authority terminates or restrains [a person’s] freedom of movement through means intentionally applied.” Nelson v. City of Davis, 685 F.3d 867, 875 (9th Cir. 2012) (quoting Brendlin v. California, 551 U.S. 249, 254 (2007). And, a law enforcement officer’s use of force is excessive and violates the Fourth Amendment when it was “objectively unreasonable in light of the facts and circumstances confronting the officer.” Graham v. Connor, 490 U.S. 386, 397 (1989). To determine whether use of force was unreasonable, courts balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests” against the “countervailing governmental interests at stake.” Id. at 396. “The force which was applied must be balanced against the need for that force; it is the need for force which is at the heart of the consideration” of the reasonableness inquiry. Alexander v. City & Cty. of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994) (emphasis in original). In this case, the Portland Police’s seizures through use of force against Plaintiffs was not objectively reasonable.

a. Plaintiffs were seized under the Fourth Amendment.
The Portland Police have continuously “seized” Plaintiffs under the Fourth Amendment by using force to terminate their movements. Under the Fourth Amendment, an officer’s intent to specifically target an individual is irrelevant; so long as the use of force that terminates an individual’s movement is intentional, a seizure occurs even where there is “an absence of concern regarding the ultimate recipient of the government’s use of force.” Nelson, 685 F.3d at 876. The Portland

31- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 40 of 53

Police not only terminate protest medics’, including Plaintiffs’, movements by shooting them with tear gas, rubber bullets, and stun grenades, and beating them with batons, see Martinez Decl. ¶ 32-40; Wise Decl. ¶ 22, 24-26, 28-30; Hubbard Decl. ¶¶ 7-8, 10; Hubbard Suppl. Decl. ¶ 6; Shifflett Decl. ¶ 12, but they also target protest medics both as individuals and as members of a crowd, Wise Decl. ¶¶ 21-28, 30; Hubbard Suppl. Decl. ¶¶ 5; Rivera Decl. ¶ 15; Shifflett Decl. ¶ 8. Because the officers intentionally targeted and used force against Plaintiffs, inhibiting their movement, Plaintiffs were seized.

b. The Portland Police use excessive force against Plaintiffs.
The Portland Police violated Plaintiffs’ Fourth Amendment rights by effecting a seizure (as described above) through the use of excessive force. The Ninth Circuit has held that the use of only pepper spray is a serious intrusion into an individual’s Fourth Amendment rights, “due to the immediacy and ‘uncontrollable nature’ of the pain involved.” Nelson, 685 F.3d at 878 (citations omitted); see U.S. v. Neill, 166 F.3d 943, 949 (9th Cir. 1998) (holding that pepper spray is dangerous weapon “capable of inflicting death or serious bodily injury”). Accordingly, deploying chemical irritants such as pepper spray to disperse protesters can constitute unreasonable, excessive force where it is “unnecessary to subdue, remove, or arrest the protestors,” even if the protesters have failed to heed a police warning. Young v. Cty. of L.A., 655 F.3d 1156, 1167 (9th Cir. 2011) (citation omitted).
The Portland Police have injured Plaintiffs and other protest medics with chemical irritants and impact munitions, which inflicted immediate and uncontrollable pain. As Plaintiffs and other protest medics cared for wounded protesters, officers temporarily blinded them with tear gas and bear mace and shot rubber bullets that cut through their skin. Wise Decl. ¶¶ 22-30; Shifflett Decl. ¶ 12.

32- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 41 of 53

When protest medics hung back, and asked officers if they could provide medical care, officers responded by macing them and shoving them with riot batons. Shifflett Decl. ¶ 10-12. When protest medics did not disperse fast enough, they were singled out from the crowd and tackled or violently arrested. Wise Decl. ¶¶ 22, 2428; Wise Suppl. Decl. ¶¶ 4-6; Martinez Decl. ¶¶ 37-40; Hubbard Suppl. Decl. ¶¶ 5-6; Rivera Decl. ¶¶ 15-18.
As a result of this police brutality, Plaintiff Wise suffered a sprained shoulder and was forced to take medical leave from work; Shifflett suffered chemical burns to her throat and had trouble eating; and several protest medics have been otherwise bruised and battered. Wise Decl. ¶¶ 26-27; Shifflett Decl. ¶ 12; Hubbard Decl. ¶¶ 78, Guest Decl. ¶ 15; Durkee Decl. ¶ 20. The Portland Police’s actions and the resulting injuries have caused Plaintiffs “immediate” and “uncontrollable” pain. Thus, consistent with Nelson, the Portland Police repeatedly have used excessive force on Plaintiffs, contravening the guarantees of Plaintiffs’ Fourth Amendment rights.
c. The use of force against Plaintiffs was not justified. Plaintiffs should prevail on their Fourth Amendment claims because the Portland Police had no valid justification for reacting with such extreme displays of force. In assessing the need for force against an individual, the Ninth Circuit considers factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Hopkins v. Andaya, 958 F.2d 881, 885 (9th Cir. 1992) (per curiam) (quoting Graham, 490 U.S. at 396). Not one of these factors is even implicated, let alone met.

33- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 42 of 53

The existence and, thus, severity of any crimes committed by Plaintiffs was nil. Where individuals are not engaged in “serious criminal behavior,” that “significantly reduce[s] the governmental interest involved” in the use of force against them. Nelson, 685 F.3d at 880. This holds true even where the use of force takes place under circumstances of “general disorder,” because the relevant inquiry is whether the targeted individual had engaged in criminal activity. Id. at 883. Thus, even if others in the immediate areas are engaging in criminal activity but the actual plaintiffs are not, then using force against the plaintiffs is not justified under the Fourth Amendment. See Don’t Shoot Portland, 2020 WL 3078329 at *3 (granting a TRO on Fourth Amendment grounds because, even though others at the Portland Protests were engaged in criminal activity, “there is no dispute that Plaintiffs engaged only in peaceful and non-destructive protest.” (Emphasis in original.)).
Here, Plaintiffs and protest medics did not engage in any criminal activity. Instead, they actually attempted to de-escalate activities that would lead to further police agitation. Wise Decl. ¶¶ 18, 26; Guest Decl. ¶¶ 14, 17, 19; Durkee Decl. ¶¶ 10, 24; Rivera Decl. ¶ 11. Therefore, under the first factor, the Portland Police’s use of force on protest medics is not justified.
Regarding the second factor, Plaintiffs did not pose any immediate threat to officer safety. Law enforcement officers may not justify use of force against an individual who does not pose an immediate threat to officers’ safety merely because of the underlying “tumultuous circumstances.” Nelson, 685 F.3d at 881. As just explained, Plaintiffs and protest medics did not pose a threat to anyone’s safety, and were subjected to violence even while retreating or attempting to leave the protest altogether. Durkee Decl. ¶¶ 14, 24 (describing need to walk backward so

34- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 43 of 53

that officers do not strike with batons with backs turned); Guest Decl. ¶¶ 11, 19 (same); Hubbard Decl. ¶ 8; Shifflett Decl. ¶¶ 7-13. In fact, quite the opposite is true: as protest medics, they were working to ensure and increase public safety. Therefore, Defendants’ use of force against Plaintiffs was not justified by any threat to officers’ public safety.
Third and finally, Plaintiffs did not resist or attempt to evade any valid arrest. Where an officer orders a crowd to disperse, a failure to comply immediately does not amount to actively resisting arrest, but “only rise[s] to the level of passive resistance,” which “neither rises to the level of active resistance nor justifies the application of a non-trivial amount of force.” Nelson, 685 F. 3d at 881; see also Headwaters Forest Def. v. Cty. Of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002) (protesters that remained seated in a congressman’s office despite officers’ orders to disperse had not actively resisted). To the extent that Plaintiffs may not have complied immediately with an officer’s order to disperse because they were packing up their medical supplies or attempting to render aid to an injured protester, that does not rise to the level of active resistance that would justify the application of a non-trivial amount of force, particularly when they did not resist arrest. Wise Suppl. Decl. ¶¶ 4-6; Martinez Decl. ¶ 39; Hubbard Suppl. Decl. ¶ 6; Rivera Decl. ¶¶ 17-18.
As Plaintiffs were not engaged in any criminal behavior, creating a threat to officers’ safety, or actively resisting arrest, it was not reasonable for officers to use any force against them, much less the chemical irritants, rubber bullets, and physical force that officers wrought upon them. Plaintiffs have therefore shown that they will likely succeed on the merits of their Fourth Amendment excessive force claim.

35- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 44 of 53

2. Plaintiffs are likely to establish that law enforcement officers unlawfully seized their property in violation of the Fourth Amendment.
The Portland Police also unlawfully seized Plaintiffs’ medical equipment and materials. “Seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” U.S. v. Jacobsen, 466 U.S. 109, 113 (1984). Such interference violates the Fourth Amendment when it is unreasonable. With limited exceptions, “[a] seizure conducted without a warrant is per se unreasonable under the Fourth Amendment.” U.S. v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001) (quoting Minn. v. Dickerson, 508 U.S. 366, 372 (1993)). Further, seizure of property without a warrant is reasonable only when “there is probable cause to associate the property with criminal activity.” Soldal v. Cook Cty., Ill., 506 U.S. 56, 69 (1992). Whether probable cause exists depends on the totality of the circumstances within an officer’s knowledge. Illinois v. Gates, 462 U.S. 213, 230-31 (1983).
Here, law enforcement officers violated the Fourth Amendment by unreasonably seizing Plaintiffs’ medical supplies and medics’ station materials. For example, to provide protesters with medical assistance, Plaintiff Martinez, with the OHSU for Black Lives Matter group, had set up a medics’ station for several days at the protests with a table, tent, and banner that prominently displayed medic symbols, first aid signs, and the logo for OHSU. Martinez Decl. ¶ 22; Dr. Morgans Decl. ¶ 14. Protest medics and community members brought medical supplies to the medics’ station, including wipes and saline solution to rinse protesters’ eyes after a tear gas attack, gauze and bandages, and personal protective equipment to help protesters observe public health measures, such as masks, gloves, and a hand sanitizer. Martinez Decl. ¶¶ 23-24. On June 13, 2020, law enforcement officers confiscated from the OHSU for Black Lives Matter group’s table, tent, banner, and

36- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 45 of 53

medical supplies and did not return those items. Martinez Decl. ¶ 41; Dr. Morgans Decl. ¶¶ 14-16; see also Shifflett Decl. ¶ 11 (describing an incident where the Portland Police “dumped [Shifflett’s] medical-supply bag into the street” before physically detaining her). They managed to recover their table and some medical supplies from the Portland Police’s outgoing trash, but have not yet received their tent, banner, or the remainder of their medical supplies. Martinez Decl. ¶ 41; Dr. Morgans Decl. ¶ 16. While OHSU owns some of this property, such as the banner, Plaintiff Martinez’s possessory interest in the property is sufficient for him to have suffered an injury when the property was seized. Jacobsen, 466 U.S. at 113 (defining “seizure” as the interference with an individual’s possessory, not ownership, interests).
The officers had no plausible reason to associate the medical supplies and medics’ table materials with criminal activity, let alone one sufficient to provide probable cause. The medic symbols, first-aid signs, and the logo for OHSU made clear that the table, banner, and tent were part of a medics’ table to promote public health and safety. The supplies were also plainly items for medical assistance. Further, the OHSU group had established and maintained the medics’ station at the protests for several days, without causing any concern of criminal activity. Thus, per the totality of the circumstances within the officers’ knowledge, the medical supplies and medics’ table materials were not associated with criminal activity, but with public safety and health instead. The officers’ seizure of the medical supplies and medics’ table materials was therefore unreasonable.
As such, Plaintiffs have clearly established a likelihood of success on the merits that law enforcement officers violated the Fourth Amendment by unlawfully seizing Plaintiffs’ property.

37- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 46 of 53

3. Defendants continue to violate Plaintiffs’ Fourth Amendment rights.
The Portland Police have shown no sign of refraining from using excessive force and unlawfully arresting protest medics. Martinez Decl. ¶ 33-40; Wise Decl. ¶ 22-28; Wise Suppl. Decl. ¶¶ 4-6; Hubbard Suppl. Decl. ¶¶ 3-15; Shifflett Decl. ¶¶ 913; Rivera Decl. ¶ 11-18. Nearly every day that protest medics have participated in the protests, Portland Police have beat them, shot them with bullets, or sprayed them with chemical irritants. As a result, protest medics reasonably fear that the Portland Police will continue to target them with excessive force for rendering medical assistance to protesters. Durkee Decl. ¶ 31 (Defendants’ “objective appears to be to inflict so much pain on the protesters, and those trying to medically provide for the protesters, that the protesters and medics like myself forget that we have a right to peacefully protest or forgo that right in favor of safety”); see Hubbard Decl. ¶ 14 (“I have had to stay home on some nights due to injuries I have suffered”); Guest Decl. ¶ 26 (noticing dwindling number of protest medics); Shifflett Decl. ¶ 14 (“Because I fear for my physical and emotional safety, I will continue to serve as a protest medic, but I am sure that doing so will result in additional physical harm to me and my fellow protest medics.”).
Defendants’ ongoing violation of the Fourth Amendment has chilled Plaintiffs’ efforts at providing medical aid. Martinez Suppl. Decl. ¶¶ 4-6 (“I have had to take a significant amount of time off from serving as a medic at the protests.”); Wise Dec. ¶¶ 32-33 (“I am afraid that continued aggression against medics will force protest medics to choose between either adhering to their training as medical professionals by helping injured individuals (if they are willing and able to), or not intervening to provide care simply because of the fear of suffering their own physical injuries at the hands of police and federal agents. I am concerned

38- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 47 of 53

about this because it is already happening”); Guest Decl. ¶ 27 (“The brutality of the police and federal officers has had a chilling effect on me. It feels targeted toward medics, to make sure that we are punished for taking care of protesters”); Durkee Decl. ¶ 34 (“[t]he shooting of Donavan La Bella . . . gave us pause, as the stakes of attending the Portland protests became clearer.”); Shifflett Decl. ¶ 14 (“Although I attend the protests in Portland regularly, the violence by law enforcement has resulted in me needing to take more days off and to take longer breaks while serving.”); Hubbard Suppl. Decl. ¶ (“I have not been back to the protests since my arrest even though I want to be out there showing my support as a protest medic.”). As a result, although Plaintiffs would like to continue attending the protests daily, the Portland Police’s actions have severely constrained Plaintiffs’ efforts. And every day that Plaintiffs miss a protest, more protesters suffer from the Portland Police’s abuses, without the assistance of a protest medic.
As discussed below, the Portland Police’s continual use of excessive force against Plaintiffs and other protest medics has consequences beyond just the medics’ ability to engage in expressive conduct by rendering care at nightly protests. By reducing the availability of on-site medical care, the Portland Police’s targeting of protest medics also chills the nightly protests themselves, by creating an unsafe environment that potential protesters must think twice about before joining.

C. Plaintiffs will suffer irreparable harm without the Court’s intervention.
With each passing night where Plaintiffs are inhibited and intimidated from exercising their First Amendment rights, they suffer irreparable injury. That is, each time protest medics like Plaintiffs experience violence, are unlawfully seized, and have their medical supplies taken or destroyed, they suffer irreparable injury.

39- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 48 of 53

Because Plaintiffs have, at a minimum, raised colorable claims that the exercise of their constitutionally protected right to provide medical aid to demonstrators has been infringed, the irreparable injury (violations of their First and Fourth Amendment rights) is met.
“Anytime there is a serious threat to First Amendment rights, there is a likelihood of irreparable injury.” Warsoldier, 418 F.3d at 1001-02; see Don’t Shoot Portland, 2020 WL 3078329 at *3-4 (finding a likelihood of irreparable harm where the plaintiffs established “a likelihood of success on the merits of their Fourth Amendment claim and at least a serious question as to whether they have been deprived of their First Amendment rights”). As long as the Portland Police are free to target medics with munitions, beat them back with riot batons, and otherwise unlawfully seize them, Plaintiffs’ exercise of their First Amendment rights will “surely [be] chilled,” Black Lives Matter-Seattle, 2020 WL 3128299, at *3, and their Fourth Amendment rights will be deprived.
Not only have Plaintiffs shown an overwhelming likelihood of success on their claims, they also have demonstrated continuous immediate and threatened irreparable harms—including their inability to render aid to protest attendees due to police interference. As a result, Plaintiffs have already been injured. All protest medics attending these demonstrations, including those who do not leave the medical stations, fear for their safety in light of the excessive tactics the police have used over the past 80 days. Wise Decl. ¶¶ 31-33; Martinez Suppl. Decl. ¶ 5; Durkee Decl. ¶¶ 30-32; Guest Decl. ¶¶ 23-25; Hubbard Decl. ¶ 12; Shifflett ¶ 14. Some of them have had to decrease their attendance to recover physically and emotionally. Durkee Decl. ¶¶ 34-35; Wise Decl. ¶ 27; Martinez Suppl. Decl. ¶¶ 4-6; Hubbard Decl. ¶ 14; Hubbard Suppl. Decl. ¶ 15; Guest Decl. ¶¶ 26-28; Shifflett Decl. ¶ 14.

40- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 49 of 53

The harm is ongoing. Protests continue. The protest medics want to attend as the Portland Police meet the protests with more and more violence. Durkee Decl. ¶ 37; Wise Decl. ¶¶ 34; Wise Suppl. Decl. ¶ 7; Dr. Morgans Decl. ¶¶ 23-24; Martinez Suppl. Decl. ¶ 7; Hubbard Decl. ¶ 15; Guest Decl. ¶ 31; Shifflett Decl. ¶ 14; Rivera Decl. ¶ 23. Protest medics want to ensure that when the inevitable happens— protesters are injured by police violence—those suffering will be cared for even if it means the protest medics themselves will be harmed. But that does not have to be so. For all the above reasons, the irreparable injury requirement is met.
D. The public’s interest and balance of equities weigh strongly in Plaintiffs’ favor. 1. The public has an unassailable interest in free speech and medical care.
Courts have “consistently recognized the significant public interest in upholding First Amendment principles” when considering requests for preliminary injunctions. Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (internal quotations omitted). For, “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) (internal quotations omitted). And, as Chief Judge Hernandez recently wrote: “This is a significant moment in time. The public has an enormous interest in the rights of peaceful protesters to assemble and express themselves. These rights are critical to our democracy.” Don’t Shoot Portland, 2020 WL 3078329 at *4.
Plaintiffs are volunteer medics providing comfort and care to protesters engaged in demonstrations of worldwide concern, to members of the press documenting the protests, to other protest medics rendering aid at the protests, and to bystanders who are harmed by the Portland Police’s indiscriminate displays of force. The Portland Police, in response, have targeted protest medics, singling them

41- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 50 of 53

out for arrest, shooting them with munitions when they are trying to render aid, and retaliating with bear mace to the face when they ask for permission to help people prostrate in pain.
By engaging in these unconstitutional acts, the Portland Police have attempted to quash Plaintiffs’ message: that demonstrators can feel safe working to counter the otherwise chilling impact of the Portland Police’s own violence. But Plaintiffs will not go quietly. Where so many protesters have been left battered, beaten, and traumatized by the police, there is a significant public interest that those injured may receive medical treatment.
The interest at stake here, however, is not just Plaintiffs’ own interest in engaging in expressive conduct by rendering medical care (although, that interest surely is at stake). It is not just the interest of victims of violence perpetrated by law enforcement at protests to receive prompt medical care (although, that interest, also, clearly is at stake). The greater public interest at stake here is in being free to participate in Portland protests safely and with the knowledge that medics are onsite and able to render care in an emergency. If the First Amendment is to mean anything, it must mean that Oregonians are free to join voices in solidarity with the Black Lives Matter movement, to demand that the government take steps to redress systemic racism and—with the strongest vehemence—violent, draconian, and excessive policing. By targeting protest medics, Defendants do not burden only Plaintiffs’ rights and those of the individuals to whom they care; rather, the Portland Police make the entire protest less safe by reducing the number of medics present and able to render care. And Oregonians who wish to join the protests, or who already are there and wish to stay later, are chilled from doing so when they perceive that the protests are unsafe as a result of the Portland Police’s actions.

42- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 51 of 53

In the context of the Portland Police’s violent, riotous actions in recent months, the public’s interest in having a frontline provider of first aid is obvious and cannot reasonably be questioned. The work of Plaintiffs as protest medics is necessary to facilitate a safe protest. In this critical moment in history, this Court must ensure the continued ability of the public to gather and express itself by protecting Plaintiffs’ ability to provide care and safety to all demonstrators. The public interest demands it.
2. The balance of equities tips sharply in Plaintiffs’ favor. Plaintiffs have “raised serious First [and Fourth] Amendment questions.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th Cir. 2007) (internal quotations omitted). The balance of hardships therefore “tips sharply in [their] favor.” Id. Plaintiffs’ evidence shows that they have not presented any danger to public, to property, or to the Portland Police. To the contrary, they mitigate dangers that befall protest attendees and bystanders—they render medical aid and proactively work to diffuse tension and de-escalate thorny situations. Plaintiffs’ evidence also shows, however, that the Portland Police have exercised their discretion in a retaliatory fashion to punish protest medics for rejecting the police’s own violence. The Portland Police have substantially and irreparably harmed Plaintiffs. On the other side of the scale, any harm to the Government would be negligible. The Government might have an interest in protecting buildings and property, but that interest is not served by using excessive force against individuals who are serving as volunteer medics. Protest medics present no threat to the police or to the public.

43- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 52 of 53

To protect the protest medics—and ultimately, the public at large—this
Court should enjoin the police from targeting and injuring medics in retaliation for
their administration of aid. Although limiting the use of force in certain situations
could impede an officer’s ability to protect themselves against potential violence
from demonstrators, here, any marginal risk of harm in limiting only the Portland
Police’s use of force to directly target protest medics is wholly outweighed by the
irreparable harm that Plaintiffs—engaged in peaceful expression—will endure.
Accordingly, the balance of equities weighs in Plaintiffs’ favor.
E. Plaintiffs’ requested relief is reasonable. In crafting the relief that they request in this Motion, Plaintiffs have,
consistent with Judge Simon’s Temporary Restraining Order in Index Newspapers,
2020 WL 4220820, narrowly tailored their request for relief to ensure that it enjoins
only unconstitutional activity targeted at protest medics:
• Recognizing that law enforcement officers sometimes operate when visibility is diminished, and at times when they must make quick decisions, Plaintiffs’ requested relief includes an adequate description of the distinctive markings they will wear so that Defendants can clearly identify protest medics.
• Plaintiffs’ proposed order states that Defendants would not be liable for indirect and unintended exposure to crowd-dispersal munitions following the issuance of a lawful dispersal order.
• The proposed order also contains sufficiently clear standards, so that Defendants will easily be able to determine what, when, and how their activity is prohibited. For example, in one of the requests for relief, Plaintiffs rely on existing Oregon statutes, Or. Rev. Stat. § 133.235, which regulates the use of force by law enforcement officers in Oregon, for the applicable standard.

See id. at *9-10 (issuing an order similar to that sought here); see also Opinion and Order Granting Preliminary Injunction at 44, Index Newspapers LLC v. City of

44- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:20-cv-01193-IM Document 35 Filed 08/21/20 Page 53 of 53

Portland, No. 3:20-cv-1035-SI (D. Or. Aug. 20, 2020) (ECF 157) (noting that City of Portland stipulated to preliminary injunction protecting press and legal observers, providing “compelling evidence” that the TRO was workable for Portland Police to follow). Thoughtful and narrowly crafted relief limiting only the ability of the Portland Police to target protest medics is more than reasonable in light of the serious constitutional violations resulting from the Portland Police’s attacks.
IV. CONCLUSION These protests have continued for more than 80 days, and the Plaintiffs continue to put their health and safety on the line helping others. Based on the record presented here, Plaintiffs have established the basis for the requested relief. For the foregoing reasons, Plaintiffs respectfully request that this Court grant their Motion for a Temporary Restraining Order.

DATED: August 21, 2020

PERKINS COIE LLP
By: /s/ Nathan Morales Rian Peck, OSB No. 144012 Thomas R. Johnson, OSB No. 010645 Misha Isaak, OSB No. 086430 Nathan Morales, OSB No. 145763 Shane Grannum, pro hac vice Sarah Mahmood, pro hac vice pending Zachary Watterson, pro hac vice PERKINS COIE LLP
Kelly K. Simon, OSB No. 154213 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON
Attorneys for Plaintiffs

45- MOTION FOR TEMPORARY RESTRAINING ORDER AGAINST MUNICIPAL DEFENDANTS

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

 
 Case 3:20-cv-01193-IM Document 49 Filed 09/02/20 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

CHRISTOPHER WISE, MICHAEL MARTINEZ, CHRISTOPHER DURKEE, and SAVANNAH GUEST
Plaintiffs,
v.
CITY OF PORTLAND, OFFICER STEPHEN B. PETTEY, JOHN DOES 1-60, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES MARSHALS SERVICE, JOHN DOES 61-100,
Defendants.

Case No. 3:20-cv-01193-IM OPINION AND ORDER

IMMERGUT, District Judge. Before this Court is Plaintiffs’ Motion for a Temporary Restraining Order (“TRO”)
pursuant to Rule 65 of the Federal Rules of Civil Procedure. Plaintiffs are four individuals who serve as “protest medics” at demonstrations against racial violence in downtown Portland. They seek an order with respect to the City of Portland, Officer Stephen B. Pettey, and John Does 1-60 (“Municipal Defendants”) that shall expire fourteen days after entry, unless extended by a
PAGE 1 – OPINION AND ORDER

Case 3:20-cv-01193-IM Document 49 Filed 09/02/20 Page 2 of 23
stipulation of the parties or by further order of the court. The requested order would enjoin the Municipal Defendants from:
(1) arresting, threatening to arrest, or using physical force directed against any person they know or reasonably should know is a protest medic, unless authorized under Or. Rev. Stat. § 133.235 or Or. Rev. Stat. § 133.245; (2) using physical force directly or indirectly targeted at a protest medic when the medic is providing medical care to an individual and poses no threat to the lives or safety of the public or police; (3) requiring properly identified protest medics to disperse or move with demonstrators following the issuance of an order to disperse or move when the medic is providing medical care to an individual, and prohibiting Municipal Defendants from using the protest medic’s decision not to disperse or move as any basis to establish that the medic has committed a crime; (4) seizing any medical equipment or other materials necessary for the protest medics to administer medical care, unless Municipal Defendants are lawfully seizing the protest medic; and (5) ordering a protest medic to stop treating an individual, or ordering a protest medic to disperse or move when they are treating an individual, unless Municipal Defendants are lawfully seizing that person. ECF 35 at ¶¶ 2–6. On September 1, 2020, this Court held oral argument. After considering the pleadings, declarations, exhibits and arguments of counsel, this Court finds Plaintiffs have failed to show sufficient facts and adequate legal support to warrant providing protest medics unique exemptions from lawful dispersal orders, or specialized treatment different from that of their
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fellow protesters. Further, the particular TRO sought in this case is unworkable when considering the totality of the chaotic circumstances that have been described by all parties in this case. In finding that Plaintiffs have not met their burden to obtain the extraordinary remedy of a mandatory injunction, this Court does not seek to discredit or diminish the efforts of the protest medics, or question their right to participate in the protests. Nor is this Court ruling on the merits of Plaintiffs’ underlying claims, which will be further developed through discovery.
For the reasons that follow, Plaintiffs’ Motion for a Temporary Restraining Order, ECF 35, is DENIED.
BACKGROUND George Floyd’s tragic killing on May 25, 2020 sparked national and international protests in support of Black lives and against systemic racism in American policing. In Portland, these protests have continued for almost one hundred days. While thousands of protesters have remained peaceful, a smaller number of protesters have engaged in vandalism, destroyed property, and committed acts of violence. Russell Decl., ECF 17-1 at ¶ 3; see also Don’t Shoot Portland v. City of Portland, No. 3:20-cv-00917-HZ, 2020 WL 3078329 (D. Or. June 9, 2020), Passadore Decl., ECF 118 at ¶¶ 25–60 (describing destructive and violent acts by protesters on June 25, 2020 and June 30, 2020). Over the past few months, various crowd dispersal tactics have been used at the protests, including rubber bullets, impact munitions, and other forms of force. Id. at ¶¶ 8, 9. Although the City of Portland initially used tear gas as a dispersal technique, that dispersal method was limited by a temporary restraining order issued on June 9, 2020 in Don’t Shoot Portland v. City of Portland, No. 3:20-cv-00917-HZ, 2020 WL 3078329 (D. Or. June 9, 2020). Those restrictions remain in effect today.1
1 On July 14, 2020, based on a joint request by the parties, Chief United States District Judge Marco A. Hernandez extended the temporary restraining order restrictions in their current PAGE 3 – OPINION AND ORDER

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Plaintiffs are “protest medics” who attend public demonstrations in Portland to provide support, comfort, and medical aid to protesters. Plaintiffs hail from a diverse array of backgrounds and medical training.2 Protest medics, as defined in the TRO, have no required uniform or dress, but identify themselves as medics through marks on their clothing—such as painting the word “medic” on their backs, or affixing a red-cross symbol with duct-tape to their arms and chest. See ECF 35 at ¶ 1. They often also carry medical supplies on their person and in backpacks.
The protest medics provide a range of services, including rendering basic medical aid to injured protesters, carrying injured persons to safety, providing water and food, and providing moral support. Durkee Decl., ECF 5 at ¶¶ 10 (dancing to keep spirits high), ¶ 13 (dressing lacerations), ¶ 21 (applying pressure to injured protester Donavan LaBella’s wound until the arrival of an ambulance); Wise Decl., ECF 6 at ¶ 15 (wrapping injured protester Donavan LaBella’s wound with gauze before helping to transport him to an ambulance); Paul Decl., ECF 8 at ¶ 9 (cleaning eye wound); Hubbard Decl., ECF 10 at ¶ 7 (washing out the eyes of protester who was pepper sprayed); Guest Decl., ECF 11 at ¶ 12 (providing eye wash to protesters after exposure to tear gas); Shifflett Decl., ECF 37 at ¶ 10 (attempting to carry an injured protester out of harm’s way). Protest medics also hand out supplies such as eye wash and eye wipes in anticipation of tear gas, and masks, gloves, and hand sanitizer to protect against COVID-19. Martinez Decl., ECF 9 at ¶ 23. The most common police-inflicted injuries the protest medics have seen in the Portland protests is exposure to tear gas. Guest Decl., ECF 11 at ¶ 12.
form until further order of the court. Don’t Shoot Portland v. City of Portland, No. 3:20-cv00917-HZ, ECF 133.
2 Based on the declarations provided, none of the plaintiffs appear to currently be licensed medical professionals in the state of Oregon.
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Plaintiffs allege Municipal Defendants violated the First and Fourteenth Amendments by targeting them in retaliation for serving as protest medics, using excessive force against Plaintiffs, and unlawfully seizing the property of protest medics. ECF 1 at ¶¶ 4, 186–87. Additionally, Plaintiffs contend that supporting protesters as protest medics constitutes expressive conduct protected by the First Amendment, and Municipal Defendants infringe on their right of free speech by ordering Plaintiffs to leave an area pursuant to lawful dispersal orders while they provide medical aid. Id. at ¶ 184. Plaintiffs have not challenged the lawfulness of the dispersal orders. Plaintiffs therefore raise the narrow issue of whether protest medics, as defined by the TRO, should effectively receive special dispensation under the First Amendment to remain in areas where police have issued lawful dispersal orders.
Plaintiffs previously filed for a TRO against both Federal and Municipal Defendants on July 24, 2020. ECF 4. Before this Court held a hearing on the motion, Federal Defendants announced an intention to reduce their presence in Portland. Shortly thereafter, Plaintiffs withdrew their TRO motion. ECF 24. On August 21, 2020, Plaintiffs filed this second motion for a TRO solely against Municipal Defendants. ECF 35.3 A. Plaintiffs
Plaintiff Christopher Wise completed training at Southwestern Oregon Community College to be an emergency medical technician (“EMT”). Wise Decl., ECF 6 at ¶ 2. Although not certified as an EMT, Plaintiff Wise has certifications for Basic Life Support (“BLS”) and CPR for Healthcare Workers. Id. Since June 2, 2020, Plaintiff Wise has regularly attended
3 At oral argument, Plaintiffs and Municipal Defendants agreed the Court can consider the supporting declarations for the initial TRO in evaluating Plaintiffs’ second TRO as well as those filed in Don’t Shoot Portland v. City of Portland, No. 3:20-cv-00917-HZ, 2020 WL 3078329 (D. Or. June 9, 2020).
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demonstrations as a protest medic. Id. at ¶ 7. While serving as a medic, Plaintiff Wise displays bright orange or pink duct-taped crosses on his outermost layer of clothing on his chest and each of his shoulders. Id. at ¶ 9. He also has the word “medic” spray painted in red lettering across his back. Id.
Plaintiff Michael Martinez has been a graduate student at Oregon Health & Sciences University (“OHSU”) since the fall of 2019, in a doctoral program for Medical and Molecular Genetics. Martinez Decl., ECF 9 at ¶ 2. He has attended the Portland protests several times as a protest medic with a group organized by OHSU faculty and graduate students. Id. at ¶¶ 19, 21, 22. The OHSU group sets up a medic station with a variety of medical supplies including gauze, bandages, antibiotic ointments, tape, ear plugs, over-the-counter pain medications, and eye wash solutions. Id. at ¶ 23. The station also offers snacks, water, and COVID-19 related supplies such as masks, gloves, and hand sanitizer. Id. Because Plaintiff Martinez has only basic first aid training, he generally assists medics with higher levels of training by providing supplies. Id. at ¶ 26. He has also provided food and water to protestors as part of his role as a protest medic. Id. at ¶ 22.
Plaintiff Christopher Durkee previously worked in Los Angeles County as an EMT and emergency dispatcher for five years. Durkee Decl., ECF 5 at ¶ 2. He has also worked at a psychiatric hospital in some capacity. Id. at ¶ 2. Plaintiff Durkee serves as a protest medic with a partner, Plaintiff Savannah Guest. Id. at ¶ 12; Guest Decl., ECF 11 at ¶ 9. Plaintiff Guest previously worked as a volunteer emergency medical responder for emergency medical services in Powhatan, Virginia for 1.5 years. Guest Decl., ECF 11 at ¶ 2. She is not trained as an EMT, but she is CPR, First Aid, and Automated External Defibrillator (“AED”) certified. Id. While attending the protests, both Plaintiffs Durkee and Guest wear dark-colored clothes with high-
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gloss, red duct tape in the shape of crosses on the front and back of their clothing. Durkee Decl., ECF 5 at ¶ 9; Guest Decl., ECF 11 at ¶ 7. They also wear shoulder patches with crosses and display the word “medic” on their backpacks. Durkee Decl., ECF 5 at ¶ 9; Guest Decl., ECF 11 at ¶ 7. B. Protests
The Portland protests initially centered around the downtown area near the Multnomah County Justice Center, the Portland Police Bureau’s North and Central Precincts, and the Mark O. Hatfield United States Courthouse. Dobson Supp. Decl., ECF 43 at ¶ 9. Demonstrations have also occurred near the Portland Police Association Union Hall in Northeast Portland and the Immigration and Customs Enforcement Building in Southwest Portland. Id. Most recently, demonstrations have also been held at Multnomah County’s Penumbra Kelly Building and the Portland Police Bureau’s East Precinct. Id. Several of these buildings are in or near residential neighborhoods. Id.
Although many demonstrators have peacefully assembled, declarations submitted by the parties demonstrate that the protests have regularly escalated into dangerous scenarios for the community, law enforcement, as well as protesters, particularly during the late hours of the night and into the early mornings.4 See Dobson Supp. Decl., ECF 43 at ¶ 9. For example, Federal Defendants allege that in the early morning hours of July 3, 2020, a group of individuals smashed the glass in the doors of the Mark O. Hatfield Courthouse, threw balloons containing an
4 Both law enforcement officers and protesters have been injured during altercations at the protests. Most recently, although not part of the declarations submitted, the protests turned deadly when someone was shot and killed in downtown Portland on August 29, 2020. Eder Campuzano, 1 man shot, killed near downtown Portland protests Saturday, THE OREGONIAN (Aug. 30, 2020), https://www.oregonlive.com/portland/2020/08/1-person-shot-killed-neardowntown-portland-protests-saturday.html.
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accelerant liquid into the lobby, then fired commercial fireworks towards the accelerant in an apparent attempt to start a fire. Russell Decl., ECF 17-1 at ¶ 6.
Federal Defendants also describe further violence which occurred on July 11, 2020. That night there were approximately 300 protesters around the Courthouse. Id. at ¶ 8. A barrier of police tape was placed across the front of the Hatfield Courthouse and protesters were ordered not to trespass onto federal property. Id. When an individual refused to comply with that command, federal officers deployed and made an arrest for trespass. Id. While the officers were making the arrest, a crowd of individuals swarmed them. Id. Officers deployed less-lethal projectile rounds into the crowd, and the crowd responded by throwing rocks, glass bottles, and fireworks at the officers. Id. Tear gas was then deployed as officers withdrew to the courthouse. Id.
On the night of July 19, 2020, a crowd of over 1,000 protesters demonstrated in the downtown area near the Hatfield Courthouse. Id. at ¶ 12. Federal Defendants allege the protesters removed fencing from around the courthouse and again attempted to set fire to the building. Id. Additionally, protesters are alleged to have shot commercial grade fireworks at law enforcement. Id. Officers used dispersal tactics to move the crowd off federal property. Id.
More recently, on the night of August 4, 2020, a protest of approximately 200 individuals marched from Peninsula Park to the Portland Police Association located in Northeast Portland. Dobson Supp. Decl., ECF 43 at ¶ 19. Protesters allegedly lit a large dumpster on fire near the Portland Police Association office while chanting that they wanted to burn down the building. Id. Municipal Defendants further allege protesters attempted to break into the building several times and lit a Molotov cocktail. Id. Furthermore, one protester allegedly pulled out a firearm and shot it several times after engaging in a fist fight with another protester. Id.
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Protesters again marched from Peninsula Park to the Portland Police Association on August 8, 2020. Id. at ¶ 21. Members of the crowd of roughly 500 protesters moved dumpsters onto the street and lit them on fire. Id. Municipal Defendants allege demonstrators attempted to break into the Portland Police Association office that night by breaking windows and disabling the security cameras. Id.
On the night of August 20, and the early morning August 21, 2020, roughly 200 to 250 protesters gathered around the ICE building, located near a residential neighborhood. Municipal Defendants allege members of the crowd threw rocks, hammers, and fireworks at law enforcement officers. Id. at ¶ 22. Protesters also allegedly sprayed graffiti, kicked doors, and broke windows. Id.
Yet another night, on August 23, 2020, there was a demonstration near the Portland Police Bureau’s North Precinct with over 200 protesters. Id. at ¶ 23. Municipal Defendants allege members of the crowd threw rocks, bottles, and other projectiles at law enforcement officers. Municipal Defendants also allege some members of the crowd “threw a commercial mortar on to the North Precinct roof, and lit the [northwest] corner awning of the Precinct building on fire.” Id.
During the demonstrations, officers protecting the municipal and federal properties allege they have been “subject to threats, rocks and ball bearings fired with wrist rockets, improvised explosives, aerial fireworks, and commercial grade mortars, high intensity lasers targeting officer’s eyes, thrown rocks, full and empty glass bottles, and balloons filled with paint and other substances such as feces.” Russell Decl., ECF 17-1 at ¶ 4. One protester is alleged to have struck an officer in the head and shoulder with a two-pound sledgehammer when the officer tried to prevent the protester from breaking into the Hatfield Courthouse. Id.
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Over the course of the past few months, the Portland Police Bureau (“PPB”) has frequently declared protests in Portland to be unlawful assemblies. See, e.g., Dobson Supp. Decl., ECF 43 at ¶¶ 19–23; Don’t Shoot Portland v. City of Portland, No. 3:20-cv-00917-HZ, 2020 WL 3078329 (D. Or. June 9, 2020), Dobson Decl., ECF 105. Since July 25, 2020, the Portland Police Bureau (“PPB”) has declared a riot under state law eight times. Id. at ¶ 11. Once an unlawful assembly or riot has been declared, the PPB has authority under Oregon law to disperse the group, and arrest those who fail to comply with police orders. See Or. Rev. Stat. § 131.675. Once dispersal orders have been given, it is important for the safe management of crowd control operations that protesters comply. Dobson Supp. Decl., ECF 43 at ¶ 14. When people fail to disperse, they are potentially interfering with a police tactical operation. Id.
Plaintiffs provide declarations that describe the police response to the protests. Plaintiffs allege they and other medics suffered injuries from crowd control tactics such as chemical irritants and less-lethal munitions deployed by Defendants.5 See, e.g., Martinez Decl., ECF 9 at ¶ 32; Durkee Decl., ECF 5 at ¶ 20; Guest Decl., ECF 11 at ¶ 15; Wise Decl., ECF 6 at ¶¶ 22–26, 28, 30. They argue these injuries evince an effort on the part of law enforcement to target the medics. The harms Plaintiffs allege they experienced have generally happened in the aftermath of a dispersal order while officers are trying to clear the area.
For example, Plaintiff Wise alleges on June 2, 2020, he was shot in the shin with a rubber bullet while attempting to pull another fallen protester out of a recently deployed cloud of tear gas. Wise Decl., ECF 6 at ¶ 22. Plaintiff Wise also alleges a Portland police officer forcefully shoved him down on the night of July 4, 2020, injuring his shoulder and hand. Id. at ¶ 26.
5 It is unclear whether some of the alleged harms described in Plaintiffs’ declarations are attributed to Federal or Municipal Defendants. PAGE 10 – OPINION AND ORDER

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Plaintiff Guest alleges on July 4, 2020, she was shot with a projectile, checked in the shoulder with a baton, and forcibly pushed by law enforcement officers. Guest Decl., ECF 11 at ¶ 15. Plaintiff Durkee alleges that an officer checked him from behind with a baton on that same night. Durkee Decl., ECF 5 at ¶ 20. Plaintiff Guest also alleges she was shot three times with rubber bullets on July 19, 2020 while trying to approach a protester suffering from tear gas exposure. Guest Decl., ECF 11 at ¶ 29.
Plaintiff Durkee alleges on July 11, 2020, and into the early morning of July 12, 2020, he and Plaintiff Guest were attempting to move injured people out of the street and away from incoming federal officers, who responded by firing tear gas canisters and pepper balls at them. Durkee Decl., ECF 5 at ¶ 22. Plaintiff Guest alleges she was also pushed by those federal officers and struck with their batons that same night after they refused to allow her to provide aid to someone lying on the ground during a dispersal order. Guest Decl., ECF 11 at ¶¶ 19–20.
Plaintiffs Martinez and Wise also allege they were unlawfully singled out and arrested by Municipal Defendants. Plaintiff Martinez alleges that on June 13, 2020, he was arrested while working at the OHSU medic station after starting to film the officers while they attempted to clear the area. This occurred after a dispersal order was announced. Martinez Decl., ECF 9 at ¶¶ 33–39. Plaintiff Wise alleges that while serving as a protest medic on August 20, 2020, through the early morning of August 21, 2020, he was unlawfully arrested while walking among a group of protesters who were complying with a police dispersal order. Wise Supp. Decl., ECF 38 at ¶ 4.
STANDARD In deciding whether to grant a motion for a temporary restraining order, 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 plaintiff seeking a preliminary injunction generally must show that: (1) he or she is PAGE 11 – OPINION AND ORDER

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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. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Like a
preliminary injunction, a temporary restraining order is an “extraordinary remedy that may only
be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22.
The Ninth Circuit applies a “sliding scale” approach in considering the factors outlined in
Winter. A stronger showing of one element of the preliminary injunction test may offset a
weaker showing of another. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th
Cir. 2011). Thus, “when the balance of hardships tips sharply in the plaintiff’s favor, the plaintiff
need demonstrate only ‘serious questions going to the merits.’” hiQ Labs, Inc. v. LinkedIn Corp.,
938 F.3d 985, 992 (9th Cir. 2019) (quoting All. for the Wild Rockies, 632 F.3d at 1135).
Finally, the already high standard for granting a TRO or preliminary injunction is
further heightened when the type of injunction sought is a “mandatory injunction.” Garcia v.
Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (noting that the burden is “doubly demanding”
for a mandatory injunction). To obtain a mandatory injunction, a plaintiff must “establish that the
law and facts clearly favor her position, not simply that she is likely to succeed.” Id. (emphasis in
original). As explained by the Ninth Circuit:
A preliminary injunction can take two forms. A prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits.” A mandatory injunction orders a responsible party to take action. A mandatory injunction goes well beyond simply maintaining the status quo pendente lite and is particularly disfavored. In general, mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages. The status quo ante litem referenced in Chalk means the last, uncontested status which preceded the pending controversy. PAGE 12 – OPINION AND ORDER

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Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878–79 (9th Cir. 2009) (quotation marks and citation omitted) (alterations in original).
DISCUSSION A. TRO Factors
1. Likelihood of Success on the Merits a. First Amendment Claim
Plaintiffs’ First Amendment claim alleges Municipal Defendants unlawfully retaliated against them for serving as protest medics. ECF 1 at ¶¶ 182–188, 201–213. The First Amendment prohibits governmental officials from retaliating against individuals for engaging in constitutionally protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). In order to prevail on a First Amendment retaliation claim, Plaintiffs must show that: (1) they engaged in a constitutionally protected activity; (2) the Municipal Defendants’ actions would “chill a person of ordinary firmness” from continuing to engage in the activity; and (3) Plaintiffs’ engagement in protected speech was a “substantial or motivating factor” in the Municipal Defendants’ conduct. O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016).
Plaintiffs allege that rendering medical aid to protesters is a constitutionally protected form of expressive conduct. ECF 1 at ¶ 184. To be sure, First Amendment protection of speech “does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989). Constitutional protection extends also to expressive conduct. Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc., 547 U.S. 47, 66 (2006). But to merit First Amendment protection, the conduct must be “inherently expressive.” Id. Whether expressive conduct constitutes a protected form of speech depends on whether the conduct “is intended to convey a ‘particularized message’ and the likelihood is great that the message would be so understood.” Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009) (quoting Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir. 1999)). Expressive PAGE 13 – OPINION AND ORDER

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conduct need not convey a specific message. Hurley v. Irish–Am., Gay, Lesbian & Bisexual
Group of Boston, etc., 515 U.S. 557, 569 (1995). The critical question is whether a reasonable
observer would interpret the conduct as some sort of message. Id.
Plaintiffs contend that they exercise their right of free speech by “providing care and
support to the protesters demonstrating for the cause of equal treatment and absolute equality
under the law.” ECF 35 at 12. Certainly, participating in a protest is expressive conduct “clearly
protected by the First Amendment,” Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996), but
Plaintiffs assert the novel position that “rendering medical aid to support and advance a protest is
itself a form of constitutionally protected expression.” ECF 35 at 25. Additionally, Plaintiffs ask
this Court to allow them to essentially disregard dispersal orders so they may provide aid to
injured protesters. Although Plaintiffs’ goal of providing aid to protesters is undoubtedly
admirable, this 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.6 Protest medics may continue to protest, and provide medical aid during
the protests. They simply have no unique status under the First Amendment that allows them to
disregard lawful orders.
6 Plaintiffs primarily rely on two cases—Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235 (11th Cir. 2018) and Abay v. City of Denver, 445 F. Supp. 3d 1286 (D. Colo. 2020)—for their assertion that serving as a protest medic is expressive conduct. Neither of these cases are precedential to this Court. Furthermore, these cases have not made clear that acting as a protest medic, as described in this case, constitutes expressive conduct. In Abay, the district court grouped the analysis of the alleged excessive force used against protesters, protest medics, and journalists. 445 F. Supp. 3d at 1292. Nowhere did the court recognize that participating in a protest as a medic is a distinct type of expressive conduct. In Food Not Bombs, the Eleventh Circuit concluded that an organization’s act of providing free food to the public constituted expressive conduct after noting that the group posted signs and distributed literature at the events which distinguished its food sharing from every day activities. 901 F.3d at 1242. Accordingly, the facts in that case are not sufficiently analogous to the issues before this Court.
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Regardless, Plaintiffs have not demonstrated that the Municipal Defendants’ actions were motivated by their status as protest medics sufficient to satisfy the third prong of a First Amendment retaliation claim. Plaintiffs argue that Municipal Defendants “indiscriminately, and at close range, unleashed chemical irritants, deployed munitions, and engaged in physical violence specifically against them,” despite visible markings identifying them as medics. ECF 4 at 30–31. But Plaintiffs admittedly lack a distinct uniform, instead identifying themselves primarily with crosses taped or painted onto ordinary clothing. This lack of uniformity cuts against the proposition that protest medics are readily identifiable, especially when considering the chaotic situations where officers must distinguish between protest medics and other protesters through split-second judgments.
Plaintiffs also concede that they often position themselves right next to protesters in areas which pose the most risk of harm, rather than standing apart from the crowd. See Durkee Decl., ECF 5 at ¶¶ 14–15 (stating that Plaintiff Durkee and Plaintiff Guest work in the “front line” during stationary moments and the “back line” during dispersals because those areas present a clear danger of injury); Wise Decl., ECF 6 at ¶ 29 (describing that declarant was standing behind “a group of protestors who formed a line with physical shields” facing “federal law enforcement officers”); Rivera Decl., ECF 36 at ¶ 15 (relating declarant’s participation in forming a wall between protesters and police with other non-medic, military veteran protesters after the PPB made an unlawful assembly announcement).
Furthermore, in many of the described instances of harm, the protest medics were not in the act of providing medical aid such that their unique role would be obvious to the outside observer. See, e.g., Wise Decl., ECF 6 at ¶ 25 (describing a PPB officer spraying “bear mace” at declarant in close proximity while declarant was attempting to pull a protester away from another
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PPB officer), ¶ 29 (stating that declarant was standing behind “a group of protestors who formed a line with physical shields” facing “federal law enforcement officers” when a law enforcement officer “shot a tear gas canister at [declarant’s] head”); Guest Decl., ECF 11 at ¶¶ 19–20 (describing being pushed and jabbed with a baton while federal agents were dispersing an area). Accordingly, on balance, Plaintiffs have not shown they were retaliated against because they exercised a First Amendment Right.
Many, if not all, of the instances of alleged targeting appear to occur when protest medics refuse to follow police dispersal orders. See, e.g., Guest Decl., ECF 11 ¶¶ 18–20 (being pushed while federal agents were dispersing an area after deciding to “stand our ground to try to assist the injured person, despite the incoming federal officers”); Durkee Decl., ECF 5 at ¶ 25 (stating a federal law enforcement officer struck him with a baton and another tackled him from the side while agents were trying to disperse the area). It is well established that protected speech can be regulated. Regulation of speech is justified “if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien, 391 U.S. 367, 376– 377 (1968). As previously noted, under Oregon law, Portland police have authority to disperse unlawful or riotous assemblies and arrest those who do not immediately comply. Or. Rev. Stat. § 131.675. Portland police are entitled to use some level of reasonable force under the circumstances to effectuate the dispersal. See Barney v. City of Eugene, 20 F. App’x 683, 685 (9th Cir. 2001).
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In sum, Plaintiffs have not demonstrated a likelihood of success on the merits of their First Amendment claim, let alone shown that “the law and facts clearly favor [their] position,” as required to obtain a mandatory injunction. Garcia, 786 F.3d at 740 (emphasis in original).
b. Fourth Amendment Claim Plaintiffs’ central Fourth Amendment claim alleges Municipal Defendants used excessive force in targeting the protest medics.7 ECF 35 at 12–13 (“the Portland Police are continuing to use excessive force to retaliate against Plaintiffs and numerous other protest medics for providing medical aid to protesters who the police themselves injure”); id. at 39–43. All claims of excessive force are analyzed under the Fourth Amendment’s “reasonableness” standard, using the framework the Supreme Court set forth in Graham v. Connor, 490 U.S. 386, 396 (1989). The objective reasonableness standard balances: (1) the nature and quality of the intrusion on the individual’s Fourth Amendment interests against (2) the countervailing governmental interests at stake. Id. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. Further, to obtain an injunction, Plaintiffs must show law enforcement’s use of force was targeted against
7 Plaintiffs also claim the PPB unlawfully seized medical equipment and materials from a medic station at which Plaintiff Martinez was volunteering on June 13, 2020. ECF 35 at 44–45. Even assuming Plaintiffs have stated a Fourth Amendment unlawful seizure claim, this appears to be at most one of two isolated incidents in which protest medic property was seized over the course of several months. See Shifflett Decl., ECF 37 at ¶ 11 (alleging on July 4, 2020, a police officer “dumped [declarant’s] medical-supply bag into the street.”). This Court finds that Plaintiffs have not met their burden to demonstrate any future risk of irreparable injury related to the unlawful seizure of property. Plaintiffs’ claims for equitable relief on this basis fail. PAGE 17 – OPINION AND ORDER

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them because they were protest medics, and therefore they are likely to suffer irreparable harm. See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
Plaintiffs allege they experienced multiple injuries at the hands of Municipal Defendants from crowd control tactics such as chemical irritants and less-lethal munitions. Martinez Decl., ECF 9 at ¶ 32; Durkee Decl., ECF 5 at ¶ 20; Guest Decl., ECF 11 at ¶ 15; Wise Decl., ECF 6 ¶¶ 22–26, 28, 30. A Fourth Amendment excessive force analysis is a highly particularized inquiry to be determined by assessing the “totality of the circumstances,” Tennessee v. Garner, 471 U.S. 1, 8–9 (1985), with consideration of the surrounding context of each interaction, Nelson v. City of Davis, 685 F.3d 867, 886 (9th Cir. 2012).
While some of these alleged instances do raise serious questions about the merits of the excessive force claims, Plaintiffs have not demonstrated that “the law and facts clearly favor [their] position,” as required to obtain a mandatory injunction at this time. Garcia, 786 F.3d at 740 (emphasis in original). Many of the alleged instances of excessive force occurred while police were attempting to clear an area through a dispersal order. See, e.g., Wise Decl., ECF 6 at ¶ 22 (describing being shot in the shin with a rubber bullet while attempting to pull another fallen protester out of a recently deployed cloud of tear gas). In other allegations, the context of the surrounding circumstances is entirely unclear. See Martinez Decl., ECF 9 at ¶ 32 (explaining that “[w]hile serving as a protest medic, [declarant has] been shoved, shot at, and tear gassed” without providing any further context). Plaintiffs claim they were targeted, but as previously mentioned, their appearance would not make them obviously distinguishable from others, particularly in the dark amongst a large crowd. Further, Plaintiffs often position themselves directly between law enforcement and other protesters during dispersals. See Durkee Decl., ECF 5 at ¶¶ 14–15.
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Finally, in some circumstances, there are directly competing narratives about what transpired on the ground. See Dobson Supp. Decl., ECF 43–1 (explaining declarant Rivera’s arrest occurred because he repeatedly shined a high-powered flashlight directly at police officers’ eyes in an alleged attempt to obscure their vision); Rivera Supp. Decl., ECF 46 at ¶¶ 3–5 (refuting allegations declarant ever possessed a high-powered flashlight or shined it at officers). A determination of excessive force in this context is better suited through litigation of the underlying Complaint, upon fuller development of the record. This Court cannot make the credibility determinations necessary to find for the Plaintiffs on the merits of their Fourth Amendment claims at this stage.
2. Irreparable Harm Plaintiffs must also “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. To satisfy this factor, Plaintiffs must show a “real or immediate threat that [Plaintiffs] will be wronged again.” Lyons, 461 U.S. at 111. In general, mandatory injunctions “are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages.” Marlyn Nutraceuticals, Inc., 571 F.3d at 879 (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1980) (internal quotation marks omitted)). As previously discussed, Plaintiffs have not raised sufficient evidence to suggest that they are being systematically targeted by law enforcement for their medical assistance at protests. The protest medics are a loosely organized group, united through an “informal network.” Wise Decl., ECF 6 at ¶ 12. They do not wear a particular uniform; instead, they each make their own. Because of their varied backgrounds and training, they do not offer uniform types of aid. While some utilize trauma kits, Durkee Decl., ECF 5 at ¶ 13, others hand out food, water, and basic
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medical supplies, Martinez Decl., ECF 9 at ¶¶ 22–23. In other words, the protest medics are not obviously distinguishable from other protesters.
Moreover, as described previously, in many of the incidents of alleged targeting described, the protest medics were not in the act of providing medical aid. See, e.g., Wise Supp. Decl., ECF 38 at ¶ 4 (recounting two PPB officers arresting him while “walking among a group of protesters”). The Municipal Defendants deny any targeting of protest medics in their use of force. See Dobson Supp. Decl., ECF 43 at ¶ 12 (“PPB and its [Rapid Response Team] squads do not target medics for application of Riot Control Agents . . . or other forms of physical force.”). Further, with regard to the alleged unlawful arrests, Municipal Defendants raise at least the plausible contention that rather than targeting protest medics without reason, there was probable cause to arrest them. See, e.g., Dobson Supp. Decl., ECF 43–1 (explaining declarant Rivera was arrested after allegedly refusing to stop shining an industrial grade flashlight into police officers’ eyes from less than ten feet away). These incidents raise further doubts that the protest medics were targeted for their activity as medics.
Additionally, the dynamic and evolving circumstances governing Municipal Defendants’ interactions with protesters caution against the likelihood of future similar injury to these Plaintiffs, particularly with regard to tear gas and less lethal munitions. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (noting a defendant’s cessation of a challenged practice is an important factor bearing on the question of whether a court should exercise its power to enjoin the defendant from renewing the practice). For instance, the PPB has several new restrictions on the use of tear gas, including: (1) an Executive Order issued by Mayor Wheeler on June 6, 2020, directing the PPB to only use CS gas (a form of tear gas) when there is “a serious and immediate threat to life safety, and there is no other viable alternative for
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dispersal,” ECF 18 at 8; Dobson Supp. Decl., ECF 43 at ¶ 24; (2) a TRO issued by Chief Judge Hernandez prohibiting the PPB’s use of tear gas to “to disperse crowds where there is no or little risk of injury,” ECF 18 at 9; Dobson Supp. Decl., ECF 43 at ¶ 24; and (3) a new law signed by Governor Kate Brown on June 30, 2020, restricting Oregon law enforcement agencies’ deployment of tear gas to circumstances constituting a riot under Or. Rev. Stat. § 166.015, and only after announcements are made and sufficient time is allowed for persons to leave the area, ECF 18 at 9; Dobson Supp. Decl., ECF 43 at ¶ 24.
Moreover, on June 26, 2020, Chief Judge Hernandez entered a stipulated TRO restricting PPB’s use of certain crowd control munitions and aerosol restraints. ECF 18 at 10. For example, Rubber Ball Distraction Devices of the type Plaintiff Wise alleges he was targeted with on June 21, 2020, by a PPB officer, Wise Decl., ECF 6 at ¶ 24, can now only be used in situations where the lives or safety of the public or police are at risk, and cannot be used to disperse crowds where there is no or little risk of injury. ECF 18 at 26. The TRO is currently operative and has been extended by the court until further notice. Id. at 10.
Finally, Plaintiffs’ nearly one-month delay in seeking equitable relief following the withdrawal of the First Motion for a TRO further undercuts their argument that such an extraordinary or drastic remedy is needed at this time. See Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984) (“A delay in seeking a preliminary injunction is a factor to be considered in weighing the propriety of relief.”). Plaintiffs have not shown that “irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22.
3. The Public Interest and the Balance of the Equities A plaintiff seeking a preliminary injunction or temporary restraining order must also establish not only that he is likely to succeed on the merits and is likely to suffer irreparable harm
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in the absence of preliminary relief, but also that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter, 555 U.S. at 20. “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Id. at 24 (internal citations omitted).
This Court acknowledges the significance of this moment in our nation’s history, and the crucial role of peaceful assembly in preserving American democracy. See Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (noting the important public interest in upholding First Amendment principles). However, there is also a strong public interest in maintaining order and public safety.
In their request for relief, the protest medics essentially ask for special status. They seek an exemption from generally applicable dispersal orders. However, doing so may impose irreparable harm and undue hardship on law enforcement, creating an unworkable distinction between the ordinary protestor, who is subject to dispersal orders, and the protest medics, who are not.
Based on the facts presented to this Court, the line between protester and protest medic is not sufficiently clear such that granting them the relief they request would not sow confusion or create additional risks. The protest medics wear no particular uniform, offer no particular type of aid, and possess no particular level of medical training. When they attend the protests, many deliberately stand in the spaces between law enforcement and the protesters, or even enmesh themselves with other protesters. See, e.g., Rivera Decl., ECF 36 at ¶ 15 (describing declarant’s participation in forming a wall between protesters and police with other non-medic, military veteran protesters after the PPB made an unlawful assembly announcement). The protest medics’ actions and appearance would not obviously distinguish them from a diverse crowd of protesters.
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Upon consideration of the record before this Court, at this time, Plaintiffs have failed to demonstrate that the public interest and the balance of equities support their position. Certainly, the safety of all protesters is clearly in the public interest. However, that safety is not the responsibility of these volunteers alone.8 These factors weigh against Plaintiffs’ request for injunctive relief.
CONCLUSION In so ruling, this Court does not seek to diminish or devalue the efforts of the protest medics in keeping others safe, nor does this Court question the protest medics right to continue engaging in the protests and offering medical support to protestors. Like ordinary protesters, however, the protest medics must abide by lawful police orders. Plaintiffs’ Motion for a Temporary Restraining Order, ECF 35, is DENIED.
IT IS SO ORDERED. DATED this 2nd day of September 2020.
/s/ Karin J. Immergut Karin J. Immergut United States District Judge
8 Portland Fire & Rescue Medics have also been present at the protests to assist with injured protesters and law enforcement. See Don’t Shoot Portland v. City of Portland, No. 3:20cv-00917-HZ, 2020 WL 3078329 (D. Or. June 9, 2020), Simmons Decl., ECF 94 at ¶ 6 (stating as of July 3, 2020, Portland Fire & Rescue Medics had assisted 42 protesters and 32 officers). PAGE 23 – OPINION AND ORDER