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PROTECTIVE ORD

U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:20-cv-00917-HZ

Don't Shoot Portland et al v. City of Portland Assigned to: Judge Marco A. Hernandez Cause: 42:1983 Civil Rights Act

Date Filed: 06/05/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff

Don't Shoot Portland a nonprofit corporation in its individual capacity

represented by Alexander Meggitt P.O. Box 5248 Portland, OR 97208 503-944-2270 Email: alex.meggitt@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brittney Plesser Oregon Innocence Project P.O. Box 5248 Portland, OR 97208 503-944-2270 Email: bplesser@oregoninnocence.info LEAD ATTORNEY ATTORNEY TO BE NOTICED

Franz H. Bruggemeier Oregon Justice Resource Center P.O. Box 5248 Portland, OR 97208 503-944-2270 Email: fbruggemeier@ojrc.info LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jesse A. Merrithew Levi Merrithew Horst LLP 610 SW Alder St. Suite 415 Portland, OR 97205 971-229-1241 Fax: 971-544-7092 Email: jesse@lmhlegal.com LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Juan C. Chavez PO Box 5248 Portland, OR 97208 503-944-2270 ext. 212 Fax: 971-275-1839 Email: jchavez@ojrc.info LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maya Rinta Albies & Stark LLC 1 SW Columbia St. #1850 Portland, OR 97204 503-308-4778 Fax: 503-427-9292 Email: maya@albiesstark.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Viktoria Safarian Levi Merrithew Horst PC 610 SW Alder St Suite 415 Portland, OR 97205 971-229-1241 Fax: 971-544-7092 Email: viktoria@lmhlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Whitney B. Stark Albies & Stark 1 SW Columbia St. Ste 1850 Portland, OR 97204 503-308-4770 Fax: 503-427-9292 Email: whitney@albiesstark.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Ashlee Albies Albies & Stark, LLC 1 SW Columbia Street, Suite 1850 Portland, OR 97204

Plaintiff
Nicholas J. Roberts in an individual capacity and on behalf of themselves and all others similarly situated

503-308-4770 Fax: 503-427-9292 Email: ashlee@albiesstark.com ATTORNEY TO BE NOTICED
represented by Alexander Meggitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittney Plesser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Franz H. Bruggemeier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jesse A. Merrithew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juan C. Chavez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maya Rinta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Viktoria Safarian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Whitney B. Stark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Ashlee Albies (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michelle Belden in an individual capacity and on behalf of themselves and all others similarly situated also known as Misha Belden
Plaintiff Alexandra Johnson in an individual capacity and on behalf

represented by Alexander Meggitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittney Plesser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Franz H. Bruggemeier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jesse A. Merrithew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juan C. Chavez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maya Rinta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Viktoria Safarian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Whitney B. Stark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Ashlee Albies (See above for address) ATTORNEY TO BE NOTICED
represented by Jesse A. Merrithew (See above for address)

of themselves and all others similarly situated
V. Defendant City of Portland a municipal corporation

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Meggitt (See above for address) ATTORNEY TO BE NOTICED
Brittney Plesser (See above for address) ATTORNEY TO BE NOTICED
Franz H. Bruggemeier (See above for address) ATTORNEY TO BE NOTICED
Jessica Ashlee Albies (See above for address) ATTORNEY TO BE NOTICED
Juan C. Chavez (See above for address) ATTORNEY TO BE NOTICED
Maya Rinta (See above for address) ATTORNEY TO BE NOTICED
Viktoria Safarian (See above for address) ATTORNEY TO BE NOTICED
Whitney B. Stark (See above for address) ATTORNEY TO BE NOTICED
represented by J. Scott Moede City of Portland City Attorney's Office 1221 SW Fourth Avenue Room 430 Portland, OR 97204 503-823-4047 Fax: 503- 823-3089 Email: Scott.Moede@portlandoregon.gov

Defendant
Multnomah County a political subdivision of the State

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Naomi Sheffield Portland City Attorney's Office 1221 SW 4th Ave. Room 430 Portland, OR 97204 503-823-3122 Fax: 503-823-3089 Email: naomi.sheffield@portlandoregon.gov ATTORNEY TO BE NOTICED
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 ATTORNEY TO BE NOTICED
represented by B. Andrew Jones Multnomah County Attorneys Office 501 SE Hawthorne Blvd Suite 500 Portland, OR 97214 (503) 988-3138 Fax: (503) 988-3377 Email: andy.jones@multco.us ATTORNEY TO BE NOTICED
Lindsay A. Byrne Multnomah County Attorney's Office 501 SE Hawthorne Blvd Suite 500 Portland, OR 97214 503-988-3138 Fax: 503-988-3377 Email: lindsay.byrne@multco.us ATTORNEY TO BE NOTICED

Date Filed 06/05/2020

#

Docket Text

1 Complaint. Filing fee in the amount of $400 collected. Agency Tracking

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ID: AORDC-6799694 Jury Trial Requested: Yes. Filed by Don't Shoot Portland, Belden Michelle, Nicholas J. Roberts against City of Portland (Attachments: # 1 Civil Cover Sheet). (Albies, Jessica) (Entered: 06/05/2020)
2 Motion for Temporary Restraining Order . Expedited Hearing requested. Filed by All Plaintiffs. (Albies, Jessica) (Entered: 06/05/2020)
3 Declaration of Michelle Belden ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
4 Declaration of Brittany Bezdek ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
5 Declaration of Adrian Salvatore Butera-Smith ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
6 Declaration of Andy Green ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
7 Declaration of Hari Khalsa ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
8 Declaration of Mara Kruszewski ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
9 Declaration of Nicholas J. Roberts ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
10 Declaration of Daniel Rushton ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
11 Declaration of Allyxandra Theus ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
12 Declaration of Kevin Wilbanks ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
13 Declaration of Bradie Nicole Winders ISO Motion for TRO. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/05/2020)
14 Scheduling Order by Judge Marco A. Hernandez. A Telephone Conference is set for 6/8/2020 at 10:00AM regarding Plaintiff's Motion

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06/09/2020 06/09/2020 06/09/2020 06/09/2020

for Temporary Restraining Order 2 before Judge Marco A. Hernandez. The parties shall call into the Court's conference line (the phone number provided via separate email) five minutes prior to the scheduled conference time. Ordered by Judge Marco A. Hernandez. (EMailed to DDA Scott Moede and Naomi Sheffield on 6/7/2020.) (jp) (Entered: 06/07/2020)
15 Notice of Case Assignment to Judge Marco A. Hernandez and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 10/6/2020. Joint Alternate Dispute Resolution Report is due by 11/5/2020. Pretrial Order is due by 11/5/2020. Ordered by Judge Marco A. Hernandez. (jn) (Entered: 06/08/2020)
16 MINUTES of Proceedings: Telephonic Scheduling Conference held
regarding Motion for Temporary Restraining Order 2 . ORDER: These proceedings shall not be recorded. The Court discussed the issues of interest and directed Defendant to file a Response no later than 9:00AM TOMORROW, 6/9/2020. A hyperlink to any video footage the parties would like the Court to review should be included in their filings. Oral Argument is set for TOMORROW, 6/9/2020 at 03:00PM in Portland by videoconference before Judge Marco A. Hernandez. The Court will circulate the videoconference information to the involved parties. Interested individuals and/or press shall contact Jennifer Paget, Courtroom Deputy (jennifer_paget@ord.uscourts.gov) for information to access the hearing by telephone (listening only). Jesse Merrithew speaking on behalf of all Plaintiffs. Also present as counsel for Plaintiffs: Alexander Meggitt, Brittney Plesser, Franz H. Bruggemeier, Jessica Ashlee Albies, Juan C. Chavez, Maya Rinta, Viktoria Safarian, and Whitney B. Stark. Naomi Sheffield and Scott Moede present as counsel for Defendant(s). Court Reporter: Nancy Walker. Judge Marco A. Hernandez presiding. (jp) (Entered: 06/08/2020)
17 Response to Motion for Temporary Restraining Order 2 . Filed by City of Portland. (Sheffield, Naomi) (Entered: 06/09/2020)
18 Declaration of Franz Schoening in Support of Response to Motion for TRO. Filed by City of Portland. (Related document(s): Response to
Motion 17 .) (Moede, J.) (Entered: 06/09/2020)
19 Declaration of Craig Dobson in Support of Response to Motion for TRO. Filed by City of Portland. (Related document(s): Response to Motion 17
.) (Moede, J.) (Entered: 06/09/2020)
20 Declaration of Naomi Sheffield in Support of Response to Motion for TRO. Filed by City of Portland. (Related document(s): Response to
Motion 17 .) (Attachments: # 1 Exhibit 1) (Sheffield, Naomi) (Entered: 06/09/2020)

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06/12/2020 06/12/2020

21 Declaration of Michael Reese in Support of Response to Motion for TRO. Filed by City of Portland. (Related document(s): Response to
Motion 17 .) (Sheffield, Naomi) (Entered: 06/09/2020)
22 Declaration of Dr. Sven-Eric Jordt . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .)
(Attachments: # 1 Attachment) (Stark, Whitney) (Entered: 06/09/2020)
23 Declaration of Dr. Mark Baskerville . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Stark, Whitney) (Entered: 06/09/2020)
24 Expert Declaration of Peter Chin-Hong . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/09/2020)
25 Declaration of Gabriel Trumbly . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/09/2020)
26 Declaration of James Comstock with links to video. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining
Order 2 .) (Albies, Jessica) (Entered: 06/09/2020)
27 Expert Declaration of Erika Moseson . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Albies, Jessica) (Entered: 06/09/2020)
28 MINUTES of Proceedings: Oral Argument held regarding Plaintiff's
Motion for Temporary Restraining Order 2 . The Court took the matter under advisement as of 6/9/2020. Jesse Merrithew speaking on behalf of all Plaintiffs. Naomi Sheffield speaking on behalf of all Defendants. Court Reporter: Nancy Walker. Judge Marco A. Hernandez presiding. (jp) (Entered: 06/09/2020)
29 ORDER: Plaintiff's Motion for a Temporary Restraining Order 2 is GRANTED IN PART. Signed on 6/9/2020 by Judge Marco A. Hernandez. (jp) (Entered: 06/09/2020)
30 Scheduling Order by Judge Marco A. Hernandez. A Telephone Conference is set for 6/12/2020 at 03:00PM in Portland by telephone before Judge Marco A. Hernandez. The parties shall call into the Court's conference line (the phone number provided via separate email) five minutes prior to the scheduled conference time. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 06/12/2020)
31 Motion for Extension of Time of Temporary Restraining Order and Setting of Preliminary Injunction Hearing. Filed by City of Portland. (Sheffield, Naomi) (Entered: 06/12/2020)
32 MINUTES of Proceedings: Telephone Status Conference held. The Court clarified its orders in the TRO as stated on the record. Defendant

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shall file a motion to extend the TRO as discussed. Juan C. Chavez speaking on behalf of all Plaintiffs. Naomi Sheffield speaking on behalf of all Defendants. Court Reporter: Jill Jessup. Judge Marco A. Hernandez presiding. (jp) (Entered: 06/12/2020)
33 Response to Motion for Extension of Time of Temporary Restraining
Order and Setting of Preliminary Injunction Hearing 31 . Filed by All Plaintiffs. (Merrithew, Jesse) (Entered: 06/13/2020)
34 ORDER: Granting Motion for Extension of Time of Temporary
Restraining Order and Setting of Preliminary Injunction Hearing 31 . The TRO is extended until 7/24/2020. The Motion for Preliminary Injunction is to be filed by 6/29/2020. Defendant's Response is due by 7/6/2020. A 2-day Preliminary Injunction Hearing is set to begin 7/16/2020 at 09:00AM in Portland Courtroom 15A before Judge Marco A. Hernandez. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 06/16/2020)
35 First Amended Complaint . Filed by Don't Shoot Portland, Michelle Belden, Nicholas J. Roberts against City of Portland. (Albies, Jessica) (Entered: 06/18/2020)
36 Proposed Summons Filed by All Plaintiffs. (Albies, Jessica) (Entered: 06/19/2020)
37 Summons Issued Electronically as to City of Portland. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (jn) (Entered: 06/19/2020)
38 Second Amended Complaint . Filed by Don't Shoot Portland, Michelle Belden, Nicholas J. Roberts against City of Portland, Multnomah County. (Safarian, Viktoria) (Entered: 06/24/2020)
39 Proposed Summons for Multnomah County Filed by All Plaintiffs. (Safarian, Viktoria) (Entered: 06/24/2020)
40 Summons Issued Electronically as to Multnomah County. 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. (jn) (Entered: 06/24/2020)
41 Stipulated Motion for Protective Order . Filed by City of Portland. (Moede, J.) (Entered: 06/25/2020)
42 Stipulation Stipulated Additional Temporary Restraining Order by City of Portland. Filed by City of Portland. (Moede, J.) (Entered: 06/26/2020)
43 Stipulated Additional Temporary Restraining Order. Signed on 6/26/2020 by Judge Marco A. Hernandez. (jp) (Entered: 06/26/2020)
44 Affidavit of Service of Summons Issued 40 upon Multnomah County served on 6/29/2020 Filed by All Plaintiffs. (Merrithew, Jesse) (Entered: 06/29/2020)
45 Motion for Preliminary Injunction . Oral Argument requested. Filed by

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

All Plaintiffs. (Chavez, Juan) (Entered: 06/30/2020)
46 Declaration of Dr. Randolph . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 45 .) (Chavez, Juan) (Entered: 06/30/2020)
47 Declaration of Yarn . Filed by All Plaintiffs. (Related document(s):
Motion for Preliminary Injunction 45 .) (Chavez, Juan) (Entered: 06/30/2020)
48 Declaration of Johnson . Filed by All Plaintiffs. (Related document(s):
Motion for Preliminary Injunction 45 .) (Chavez, Juan) (Entered: 06/30/2020)
49 Declaration of Kaplan . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 45 .) (Chavez, Juan) (Entered: 06/30/2020)
50 Declaration of Garlick . Filed by All Plaintiffs. (Related document(s):
Motion for Preliminary Injunction 45 .) (Chavez, Juan) (Entered: 06/30/2020)
51 Declaration of Norcross . Filed by All Plaintiffs. (Related document(s):
Motion for Preliminary Injunction 45 .) (Chavez, Juan) (Entered: 06/30/2020)
52 Declaration of Horaites . Filed by All Plaintiffs. (Related document(s):
Motion for Preliminary Injunction 45 .) (Chavez, Juan) (Entered: 06/30/2020)
53 Declaration of Reinhardt . Filed by All Plaintiffs. (Related document(s):
Motion for Preliminary Injunction 45 .) (Chavez, Juan) (Entered: 06/30/2020)
54 Declaration of Trumbly . Filed by All Plaintiffs. (Related document(s):
Motion for Preliminary Injunction 45 .) (Chavez, Juan) (Entered: 06/30/2020)
55 Motion for Findings of Contempt and for Sanctions Against Defendant City of Portland. Oral Argument requested. Filed by All Plaintiffs.
(Attachments: # 1 Appendix PPB 1010 Directives) (Merrithew, Jesse) (Entered: 06/30/2020)
56 Declaration of Aubrey Danner . Filed by All Plaintiffs. (Related document(s): Motion - Miscellaneous 55 .) (Merrithew, Jesse) (Entered: 06/30/2020)
57 Declaration of Gabriel Trumbly . Filed by All Plaintiffs. (Related document(s): Motion - Miscellaneous 55 .) (Merrithew, Jesse) (Entered: 06/30/2020)
58 Declaration of Gillian Herrera . Filed by All Plaintiffs. (Related document(s): Motion - Miscellaneous 55 .) (Merrithew, Jesse) (Entered: 06/30/2020)

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59 Declaration of Hilary Jepsen . Filed by All Plaintiffs. (Related document(s): Motion - Miscellaneous 55 .) (Merrithew, Jesse) (Entered: 06/30/2020)
60 Declaration of Maggie Sisco . Filed by All Plaintiffs. (Related document(s): Motion - Miscellaneous 55 .) (Merrithew, Jesse) (Entered: 06/30/2020)
61 Declaration of Mason Lake . Filed by All Plaintiffs. (Related document(s): Motion - Miscellaneous 55 .) (Merrithew, Jesse) (Entered: 06/30/2020)
62 Declaration of Princess Blair Unicorn . Filed by All Plaintiffs. (Related document(s): Motion - Miscellaneous 55 .) (Merrithew, Jesse) (Entered: 06/30/2020)
63 Declaration of Thaddeus O'Connell . Filed by All Plaintiffs. (Related document(s): Motion - Miscellaneous 55 .) (Merrithew, Jesse) (Entered: 06/30/2020)
64 Stipulated Motion for Protective Order Between Plaintiffs and Defendant City of Portland. Filed by City of Portland. (Moede, J.) (Entered: 07/03/2020)
65 STIPULATED PROTECTIVE ORDER BETWEEN PLAINTIFFS AND DEFENDANT CITY OF PORTLAND. Signed on 7/6/2020 by Judge Marco A. Hernandez. (jp) (Entered: 07/06/2020)
66 Notice of Appearance of B. Andrew Jones appearing on behalf of Multnomah County Filed by on behalf of Multnomah County. (Jones, B.) (Entered: 07/06/2020)
67 Response to Motion for Preliminary Injunction 45 . Filed by City of Portland. (Sheffield, Naomi) (Entered: 07/06/2020)
68 Declaration of Jason Andersen . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
69 Declaration of Nicholas Bianchini . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
70 Declaration of Susan Billard . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
71 Declaration of Justin Damerville . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
72 Declaration of Chris Davis . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)

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73 Declaration of Craig Dobson . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
74 Declaration of Zachary Domka . Filed by City of Portland. (Related
document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
75 Declaration of Mark Duarte . Filed by City of Portland. (Related
document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
76 Declaration of Charles Elam . Filed by City of Portland. (Related
document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
77 Declaration of Brandon Haase . Filed by City of Portland. (Related
document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
78 Declaration of Erica Hurley . Filed by City of Portland. (Related
document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
79 Declaration of Erik Kammerer . Filed by City of Portland. (Related
document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
80 Declaration of Andrew Kofoed . Filed by City of Portland. (Related
document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
81 Declaration of Michael Krantz . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
82 Declaration of Randy Kuykendoll, Jr. . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
83 Corrected Declaration of Nicholas Bianchini . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
84 Declaration of Craig Lehman . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
85 Declaration of Heather Martley . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
86 Declaration of John Oliphant . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered:

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07/06/2020)
87 Declaration of Scott Partridge . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
88 Declaration of Anthony Passadore . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
89 Declaration of Michael Pool . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
90 Response to Motion for Preliminary Injunction 45 . Filed by Multnomah County. (Jones, B.) (Entered: 07/06/2020)
91 Declaration of Taylor Rethmeier . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) Modified on 7/7/2020 to correct linked motion (jn). (Entered: 07/06/2020)
92 Declaration of Michael Reese in Support of Defendant Multnomah County's Response to Motion for Preliminary Injunction. Filed by
Multnomah County. (Related document(s): Response to Motion 90 .) (Jones, B.) Modified on 7/7/2020 to correct linked motion (jn). (Entered: 07/06/2020)
93 Declaration of Franz Schoening . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) Modified on 7/7/2020 to correct linked motion (jn). (Entered: 07/06/2020)
94 Declaration of Damon Simmons . Filed by City of Portland. (Related
document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
95 Declaration of Michael Crank in Support of Defendant Multnomah County's Response to Motion for Preliminary Injunction. Filed by
Multnomah County. (Related document(s): Response to Motion 90 .) (Jones, B.) Modified on 7/7/2020 to correct linked motion (jn). (Entered: 07/06/2020)
96 Declaration of Erik Strohmeyer . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
97 Declaration of Brent Taylor . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
98 Declaration of Carey Kaer in Support of Defendant Multnomah County's Response to Motion for Preliminary Injunction. Filed by Multnomah
County. (Related document(s): Response to Motion 90 .) (Jones, B.) Modified on 7/7/2020 to correct linked motion (jn). (Entered:

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07/06/2020)
99 Declaration of Jason Wands . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
100 Declaration of London Westerlund . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
101 Declaration of Anthony Whitmore . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
102 Declaration of John Young . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
103 Declaration of Naomi Sheffield . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Sheffield, Naomi) (Entered: 07/06/2020)
104 Declaration of J. Scott Moede . Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Moede, J.) (Entered: 07/06/2020)
105 Corrected Declaration of Craig Dobson. Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Yamachika, Robert) (Entered: 07/07/2020)
106 Scheduling Order by Judge Marco A. Hernandez.. A telephone conference to discuss logistics for the preliminary injunction hearing is set for 7/13/2020 at 12:00PM (Noon) before Judge Marco A. Hernandez. The parties shall call into the Court's conference line (the phone number provided via separate email) five minutes prior to the scheduled conference time. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 07/09/2020)
107 Corrected Declaration of Erik Strohmeyer With Exhibit. Filed by City of Portland. (Related document(s): Response to Motion 67 .)
(Attachments: # 1 Exhibit 1) (Moede, J.) (Entered: 07/10/2020)
108 Corrected Declaration of J. Scott Moede With Exhibit. Filed by City of Portland. (Related document(s): Response to Motion 67 .)
(Attachments: # 1 Exhibit 2 (placeholder)) (Moede, J.) (Entered: 07/10/2020)
109 Corrected Declaration of Jason Andersen With Exhibit. Filed by City of
Portland. (Related document(s): Response to Motion 67 .) (Attachments: # 1 Exhibit 3) (Moede, J.) (Entered: 07/10/2020)
110 Corrected Declaration of Scott Partridge With Exhibit. Filed by City of
Portland. (Related document(s): Response to Motion 67 .)

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07/13/2020

(Attachments: # 1 Exhibit 4) (Moede, J.) (Entered: 07/10/2020)
111 Corrected Declaration of Anthony Passadore With Exhibits. Filed by City
of Portland. (Related document(s): Response to Motion 67 .) (Attachments: # 1 Exhibit 5-15) (Moede, J.) (Entered: 07/10/2020)
112 Corrected Declaration of Chris Davis With Exhibits. Filed by City of
Portland. (Related document(s): Response to Motion 67 .) (Attachments: # 1 Exhibit 16-19) (Moede, J.) (Entered: 07/10/2020)
113 Corrected Declaration of Craig Dobson With Exhibits. Filed by City of
Portland. (Related document(s): Response to Motion 67 .)
(Attachments: # 1 Appendix Appendix, # 2 Exhibit 20-43) (Moede, J.) (Entered: 07/10/2020)
114 Corrected Declaration of Erica Hurley With Exhibits. Filed by City of
Portland. (Related document(s): Response to Motion 67 .) (Attachments: # 1 Exhibit 33-35) (Moede, J.) (Entered: 07/10/2020)
115 Corrected Declaration of Naomi Sheffield With Exhibits. Filed by City of Portland. (Related document(s): Response to Motion 67 .) (Attachments: # 1 Appendix Appendix, # 2 Exhibit 44-71) (Sheffield, Naomi) (Entered: 07/10/2020)
116 Reply to Motion for Preliminary Injunction 45 . Filed by All Plaintiffs. (Chavez, Juan) (Entered: 07/12/2020)
117 Declaration of Sharma . Filed by All Plaintiffs. (Related document(s): Reply to Motion 116 .) (Chavez, Juan) (Entered: 07/12/2020)
118 Declaration of Passmore . Filed by All Plaintiffs. (Related document(s): Reply to Motion 116 .) (Chavez, Juan) (Entered: 07/12/2020)
119 Declaration of Dicks . Filed by All Plaintiffs. (Related document(s): Reply to Motion 116 .) (Attachments: # 1 Exhibit) (Chavez, Juan) (Entered: 07/12/2020)
120 Declaration of Cleinman . Filed by All Plaintiffs. (Related document(s): Reply to Motion 116 .) (Chavez, Juan) (Entered: 07/12/2020)
121 MINUTES of Proceedings: Telephone Conference held. The Court discussed the logistics for the Preliminary Injunction hearing. The parties shall notify the Court regarding any video conference issues. The Court will circulate the video conference information to the parties. Any requests from the public/press to listen in on the hearing shall be directed to Courtroom Deputy Jennifer Paget. Jesse Merrithew speaking on behalf of all Plaintiffs. present as counsel for plaintiff(s). Naomi Sheffield speaking on behalf of all Defendant City of Portland and B. Andrew Jones on behalf of Multnomah County. Court Reporter: Nancy Walker. Judge Marco A. Hernandez presiding. (jp) (Entered: 07/13/2020)
122 Supplemental Memorandum in Support of Plaintiffs' Motion for Findings of Contempt and for Sanctions Against Def City of Portland. Filed by All Plaintiffs. (Related document(s): Motion - Miscellaneous 55

07/13/2020 07/13/2020 07/13/2020 07/13/2020 07/13/2020 07/13/2020 07/14/2020
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.) (Merrithew, Jesse) (Entered: 07/13/2020)
123 Declaration of Colin Herring . Filed by All Plaintiffs. (Related
document(s): Memorandum in Support of Motion 122 .) (Merrithew, Jesse) (Entered: 07/13/2020)
124 Declaration of Haley Dallas . Filed by All Plaintiffs. (Related
document(s): Memorandum in Support of Motion 122 .) (Merrithew, Jesse) (Entered: 07/13/2020)
125 Declaration of Eric Greatwood . Filed by All Plaintiffs. (Related
document(s): Memorandum in Support of Motion 122 .) (Merrithew, Jesse) (Entered: 07/13/2020)
126 Second Declaration of Gillian Herrera . Filed by All Plaintiffs. (Related
document(s): Memorandum in Support of Motion 122 .) (Merrithew, Jesse) (Entered: 07/13/2020)
127 Declaration of Katarina Haas . Filed by All Plaintiffs. (Related
document(s): Memorandum in Support of Motion 122 .) (Merrithew, Jesse) (Entered: 07/13/2020)
128 Declaration of Dylan VanWeelden . Filed by All Plaintiffs. (Related
document(s): Memorandum in Support of Motion 122 .) (Merrithew, Jesse) (Entered: 07/13/2020)
129 Scheduling Order by Judge Marco A. Hernandez. Pursuant to email discussions with the parties, a Telephone Conference is set for TODAY, 7/14/2020 at 02:15PM before Judge Marco A. Hernandez. The parties shall call into the Court's conference line (the phone number provided via separate email) five minutes prior to the scheduled conference time. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 07/14/2020)
130 Waiver of Service of Summons Returned Executed by City of Portland waiver sent on 7/11/2020. Filed by All Plaintiffs. (Merrithew, Jesse) (Entered: 07/14/2020)
131 Response to Motion for Findings of Contempt and for Sanctions Against Defendant City of Portland 55 . Filed by City of Portland. (Sheffield, Naomi) (Entered: 07/14/2020)
132 Declaration of J. Scott Moede . Filed by City of Portland. (Related document(s): Response to Motion 131 .) (Attachments: # 1 Exhibit A) (Moede, J.) (Entered: 07/14/2020)
133 MINUTES of Proceedings: Telephone Conference held. The Court granted the parties joint email request to continue the Temporary Restraining Order in its current form until further order of the Court. The parties shall confer regarding a hearing on Plaintiff's contempt motion 55
122 and contact the Court no later than 4:00PM on 7/15/2020 regarding scheduling a contempt hearing. Juan C. Chavez speaking on behalf of all Plaintiffs. Naomi Sheffield speaking on behalf of Defendant City of Portland and B. Andrew Jones on behalf of Defendant

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Multnomah County. Court Reporter: Nancy Walker. Judge Marco A. Hernandez presiding. (jp) (Entered: 07/15/2020)
134 Notice of Association of Attorney Lindsay A. Byrne for Multnomah County. Filed by Multnomah County. (Byrne, Lindsay) (Entered: 07/15/2020)
135 Motion for Extension of Time to Answer /File Responsive Pleading Amended Complaint 38 . Filed by Multnomah County. (Jones, B.) (Entered: 07/16/2020)
136 Declaration of B. Andrew Jones in Support of Defendant Multnomah County's Unopposed Motion for Extension of Time to File Responsive Pleading. Filed by Multnomah County. (Related document(s): Motion
for Extension of Time to Answer a Complaint/Petition 135 .) (Jones, B.) (Entered: 07/16/2020)
137 ORDER: Granting Motion for Extension of Time to File Responsive
Pleading 135 . Response is due by 9/9/2020. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 07/16/2020)
138 Unopposed Motion for Extension of Time to File Response to Plaintiffs' Supplemental Memorandum in Support of Motion for Contempt and for Sanctions. Filed by City of Portland. (Sheffield, Naomi) (Entered: 07/17/2020)
139 Declaration of Naomi Sheffield . Filed by City of Portland. (Related document(s): Motion for Extension of Time 138 .) (Sheffield, Naomi) (Entered: 07/17/2020)
140 ORDER: GRANTING City of Portland's Unopposed Motion for
Extension of Time 138 . City's Response to Plaintiffs' Supplemental Memorandum in Support of Motion for Contempt and for Sanctions is due 8/24/20. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 07/22/2020)
141 Amended Declaration of Naomi Sheffield . Filed by City of Portland. (Related document(s): Response to Motion 17 .) (Attachments: # 1 Exhibit 1-21) (Sheffield, Naomi) (Entered: 07/28/2020)
142 Exhibits to the Amended Declaration of Naomi Sheffield (# 141 ) received on 7/29/20. This filing includes a conventionally filed flash drive. This conventional filing is maintained in the Clerk's Office but cannot be made a part of the court's electronic record in CM/ECF. Filed by City of Portland. (eo) (Entered: 08/03/2020)
143 Exhibits 1-13 to the Declaration of Dicks (# 119 ). This filing includes a conventionally filed DVD. This conventional filing is maintained in the Clerk's Office but cannot be made a part of the court's electronic record in CM/ECF. Filed by All Plaintiffs. (eo) (Entered: 08/04/2020)
144 Exhibits to the Declaration of James Comstock (# 26 ). This filing includes a conventionally filed DVD. This conventional filing is maintained in the Clerk's Office but cannot be made a part of the court's

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08/14/2020 08/14/2020 08/18/2020
08/27/2020

electronic record in CM/ECF. Filed by All Plaintiffs. (eo) (Entered: 08/04/2020)
145 Amended Motion for Order to Show Cause . Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Appendix) (Merrithew, Jesse) (Entered: 08/12/2020)
146 Declaration of Pedro Anglada Cordero . Filed by All Plaintiffs. (Related
document(s): Motion for Order to Show Cause 145 .) (Merrithew, Jesse) (Entered: 08/12/2020)
147 Second Declaration of James Comstock . Filed by All Plaintiffs. (Related
document(s): Motion for Order to Show Cause 145 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Merrithew, Jesse) (Main Document 147 replaced on 8/14/2020) (cw). (Entered: 08/12/2020)
148 Amended Declaration of Eric Greatwood . Filed by All Plaintiffs.
(Related document(s): Motion for Order to Show Cause 145 .) (Attachments: # 1 Exhibit Ex 1 video placeholder page) (Bruggemeier, Franz) (Entered: 08/13/2020)
149 Declaration of Vince Epker . Filed by All Plaintiffs. (Related
document(s): Motion for Order to Show Cause 145 .) (Bruggemeier, Franz) (Entered: 08/13/2020)
150 Amended Declaration of Matthew Cleinman . Filed by All Plaintiffs. (Related document(s): Motion for Order to Show Cause 145 .) (Attachments: # 1 Exhibit Ex 1 video placeholder page) (Bruggemeier, Franz) (Entered: 08/13/2020)
151 Notice of Correction by Clerk regarding 147 Declaration. A Clerical error has been discovered in the case record: An incorrect url link was listed in the declaration. The following corrections were made to the record: A corrected PDF has been uploaded and has replaced the incorrect attachment. (cw) (Entered: 08/14/2020)
152 Joint Status Report and Rule 26(f) Conference Report. Filed by All Plaintiffs. (Albies, Jessica) (Entered: 08/14/2020)
153 ORDER: Plaintiffs' Motion for Findings of Contempt and for Sanctions
Against Defendant City of Portland 55 is WITHDRAWN on 8/12/20,
by Amended Motion for Order to Show Cause 145 . Ordered by Judge Marco A. Hernandez. (mja) (Entered: 08/14/2020)
154 Video Exhibits re Amended Motion for Order to Show Cause 145 . This filing includes a conventionally filed DVD. This conventional filing is maintained in the Clerk's Office but cannot be made a part of the court's electronic record in CM/ECF. Filed by All Plaintiffs. (jn) (Entered: 08/18/2020)
155 Notice of Deadline for City's Response to Plaintiffs' Amended Motion for Finding of Contempt and for Sanctions Filed by City of Portland. (Sheffield, Naomi) (Entered: 08/27/2020)

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156 Declaration of Naomi Sheffield . Filed by City of Portland. (Related document(s): Notice 155 .) (Sheffield, Naomi) (Entered: 08/27/2020)
157 Status Report Regarding Motion for Class Certification by All Plaintiffs. Filed by All Plaintiffs. (Chavez, Juan) (Entered: 08/28/2020)
158 Response to Amended Motion for Order to Show Cause 145 . Filed by City of Portland. (Sheffield, Naomi) (Entered: 09/04/2020)
159 Declaration of Nicholas Bianchini . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
160 Declaration of Zachary Domka . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
161 Declaration of Charles Elam . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
162 Declaration of Brandon Haase . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
163 Declaration of Derek Harris . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
164 Declaration of Erik Kammerer . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
165 Declaration of Andrew Kofoed . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
166 Declaration of Craig Lehman . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
167 Declaration of Ariel Livingston . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
168 Declaration of Trevor Middleton . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
169 Declaration of Vance Nebling . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Attachments: # 1 Exhibit BG) (Sheffield, Naomi) (Entered: 09/04/2020)
170 Declaration of Michael Pool . Filed by City of Portland. (Related

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09/18/2020 09/21/2020
09/21/2020 09/21/2020

document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
171 Declaration of Naomi Sheffield . Filed by City of Portland. (Related
document(s): Response to Motion 158 .) (Attachments: # 1 Exhibit HI) (Sheffield, Naomi) (Entered: 09/04/2020)
172 Declaration of Brent Taylor . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
173 Declaration of John Young . Filed by City of Portland. (Related document(s): Response to Motion 158 .) (Sheffield, Naomi) (Entered: 09/04/2020)
174 Motion to Dismiss for Failure to State a Claim as to Plaintiff Don't Shoot Portland. Filed by City of Portland. (Moede, J.) (Entered: 09/09/2020)
175 Answer to 38 Amended Complaint and Affirmative Defenses. Filed by Multnomah County. (Jones, B.) (Entered: 09/09/2020)
176 Proposed Fed. R. Civ. P. 26(a)(1) Agreement . Filed by Multnomah County. (Jones, B.) (Entered: 09/11/2020)
177 Scheduling Order by Judge Marco A. Hernandez. A Telephone Conference to discuss logistics and case schedule is set for 9/21/2020 at 01:30PM before Judge Marco A. Hernandez. The parties shall call into the Court's conference line (the phone number provided via separate email) five minutes prior to the scheduled conference time. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 09/16/2020)
178 Reply to Amended Motion for Order to Show Cause 145 . Filed by All Plaintiffs. (Merrithew, Jesse) (Entered: 09/18/2020)
179 MINUTES of Proceedings: Telephone Conference held. Status of case discussed as stated on the record. The Court set a video conference Evidentiary Hearing for 10/21/2020 at 09:00AM before Judge Marco A. Hernandez in connection with Plaintiffs' Amended Motion for Order to
Show Cause 145 . The Court will circulate video conference connection information prior to the conference. As discussed, Plaintiffs' counsel shall confer regarding class certification scheduling issues and advise the Court of an agreed upon schedule. Jesse Merrithew speaking on behalf of all Plaintiffs. J. Scott Moede, Naomi Sheffield and Robert Yamachika for City Defendants, and B. Andrew Jones for County Defendants. Court Reporter: Ryan White. Judge Marco A. Hernandez presiding. (jp) (Entered: 09/21/2020)
180 Unopposed Motion for Extension of Time to File a Response/Reply to Motion to Dismiss for Failure to State a Claim as to Plaintiff Don't
Shoot Portland 174 . Filed by All Plaintiffs. (Albies, Jessica) (Entered: 09/21/2020)
181 Declaration of J. Ashlee Albies ISO Plaintiff's Unopposed Motion for

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10/07/2020 10/12/2020 10/15/2020 10/15/2020

Extension of Time to Reply to Motion to Dismiss. Filed by All Plaintiffs. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion 180 .) (Albies, Jessica) (Entered: 09/21/2020)
182 ORDER: Granting Motion for Extension of Time to File Response/Reply to Motion to Dismiss for Failure to State a Claim 180 . Response is due by 10/2/2020. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 09/22/2020)
183 Motion for Leave to File Amended Complaint/Petition . Filed by All Plaintiffs. (Attachments: # 1 Exhibit A) (Albies, Jessica) (Entered: 10/01/2020)
184 Scheduling Order by Judge Michael J. McShane. Settlement Conference is set for 11/2/2020 at 09:00AM in Eugene by video conference before Judge Michael J. McShane. Presence of all parties with settlement authority required. This includes anyone who is to have input on the decision of whether or not to settle the case. If any of the parties is going to seek input from a third person(s) regarding decisions associated with the settlement of a case, that third person should be present during all phases of the settlement process. Ordered parties to submit settlement document to the court by 5:00PM, 10/26/2020, in which they state realistic proposals they are willing to make or accept to resolve this case. PLEASE SEE ATTACHED INSTRUCTIONS REGARDING SETTLEMENT DOCUMENT. Ordered by Judge Michael J. McShane. (cp) (Entered: 10/02/2020)
185 ORDER: The Court GRANTS Plaintiffs' Motion for Leave to File
Amended Complaint/Petition 183 . Plaintiffs shall file their Third Amended Complaint by October 8, 2020. In light of the Third Amended Complaint, the Court DENIES as moot Defendant City of Portland's
Motion to Dismiss for Failure to State a Claim 174 . Ordered by Judge Marco A. Hernandez. (jp) (Entered: 10/06/2020)
186 Third Amended Complaint . Filed by Don't Shoot Portland, Michelle Belden, Nicholas J. Roberts, Alexandra Johnson against All Defendants. (Albies, Jessica) (Entered: 10/07/2020)
187 Supplemental Declaration of Naomi Sheffield . Filed by City of
Portland. (Related document(s): Response to Motion 158 .) (Attachments: # 1 Exhibit J) (Sheffield, Naomi) (Entered: 10/12/2020)
188 Exhibits I re Declaration 171 . Filed by City of Portland. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) (Attachments: # 1 Exhibit I) (Sheffield, Naomi) (Entered: 10/15/2020)
189 Exhibit J to the Supplemental Declaration of Naomi Sheffield re Declaration 187 . This filing includes a conventionally filed thumb drive. This conventional filing is maintained in the Clerk's Office but cannot be made a part of the court's electronic record in CM/ECF. Filed by City of Portland. (jn) (Entered: 10/16/2020)

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190 Motion for Extension of Time to Answer Plaintiffs' Third Amended
Complaint 186 . Filed by City of Portland. (Sheffield, Naomi) (Entered: 10/20/2020)
191 Declaration of Naomi Sheffield in Support of Motion for Extension of Time to Answer. Filed by City of Portland. (Related document(s): Motion for Extension of Time to Answer a Complaint/Petition 190 .) (Sheffield, Naomi) (Entered: 10/20/2020)
192 Declaration of Robert Yamachika. Filed by City of Portland. (Related
document(s): Response to Motion 158 .) (Attachments: # 1 Exhibit) (Yamachika, Robert) (Entered: 10/20/2020)
193 Scheduling Order by Judge Marco A. Hernandez. The Evidentiary Hearing set for TODAY, 10/21/2020 at 09:00AM, is RESET AS TO LOCATION ONLY and will occur in Portland Courtroom 9A before Judge Marco A. Hernandez. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 10/21/2020)
194 ORDER: Granting Motion for Extension of Time to Answer 190 . Answer to the Third Amended Complaint is due by 11/9/2020. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 10/21/2020)
195 Supplemental Declaration of Robert Yamachika. Filed by City of
Portland. (Related document(s): Response to Motion 158 .) (Attachments: # 1 Exhibit) (Yamachika, Robert) (Entered: 10/21/2020)
196 MINUTES of Proceedings: Oral Argument held regarding Plaintiffs'
Amended Motion for Order to Show Cause 145 . Witnesses sworn and evidence adduced. ORDER: Oral Argument is continued to 10/22/2020 at 9:00AM in Courtroom 9A before Judge Marco A. Hernandez. Alexander Meggitt, Franz Bruggemeier, Juan Chavez, Victoria Safarian, and Jesse Merrithew present as counsel for plaintiff(s). J. Scott Moede, Naomi Sheffield and Robert Yamachika for City Defendants, and B. Andrew Jones for County Defendants (via video), Court Reporter: Nancy Walker. Judge Marco A. Hernandez presiding. (jp) (Entered: 10/21/2020)
197 MINUTES of Proceedings: Evidentiary Hearing held. Witnesses sworn and evidence adduced. The Court took the matter under advisement today. Alexander Meggitt, Franz Bruggemeier, Juan Chavez, Jessica Ashlee Albies, Jesse Merrithew present as counsel for plaintiff(s). J. Scott Moede, Naomi Sheffield and Robert Yamachika for City Defendants. Court Reporter: Nancy Walker. Judge Marco A. Hernandez presiding. (jp) (Entered: 10/23/2020)
198 Supplemental Declaration of Naomi Sheffield (Second Supplemental). Filed by City of Portland. (Related document(s): Response to Motion
158 .) (Attachments: # 1 Exhibit M) (Sheffield, Naomi) (Entered: 10/27/2020)
199 This filing includes a conventionally filed Physical Exhibit: Thumb Drive. This conventional filing is maintained in the Clerk's Office but

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cannot be made a part of the court's electronic record in CM/ECF. Exhibit 'M' re: Declaration 198 . Filed by City of Portland. (sb) (Entered: 10/30/2020)
203 MINUTES of Proceedings: Settlement Conference held. Case does not settle. Settlement negotiations ongoing. Counsel present for plaintiff J. Ashlee Albies, Jesse Merrithew, Juan Chavez, Franz Bruggemeier, Viktoria Lo (formerly Safarian), Maya Rinta, and Alex Meggitt. Counsel present for defendants Jessica Bird, Kristin Dennis, Ron Mason, Bryan Parman, Craig Dobson, Chris Davis, Naomi Sheffield, J. Scott Moede, Robert Yamachika, Clair Warnock, Verity Sturdavant, Andy Jones, Lindsay Byrne, Nicole Morrisey, Scott Morse, Naomi Sheffeild, and Rob Yamachika. Judge Michael J. McShane presiding. (cp) Modified on to correct docket text, resent NEF 11/30/2020 (cp). (Entered: 11/30/2020)
200 Answer to 186 Amended Complaint and Affirmative Defenses. Filed by Multnomah County. (Jones, B.) (Entered: 11/09/2020)
201 Answer to 186 Amended Complaint and Affirmative Defenses. Filed by City of Portland. (Sheffield, Naomi) (Entered: 11/09/2020)
202 Notice of Supplemental Authority Filed by City of Portland. (Sheffield, Naomi) (Entered: 11/12/2020)
204 OPINION & ORDER: The Court GRANTS in part Plaintiff's Amended Motion for Order to Show Cause 145 . The Court finds Defendant City of Portland in contempt of its June 26, 2020 Stipulated Additional
Temporary Restraining Order 43 . Remedies for the above-described violations of the Order will be determined separately. The parties shall contact the Courtroom Deputy within 3 days of this Order to set a date for a scheduling conference. Signed on 11/27/2020 by Judge Marco A. Hernandez. (jp) (Entered: 11/30/2020)
205 Scheduling Order by Judge Marco A. Hernandez. A telephone Scheduling Conference is set for 12/4/2020 at 03:00PM before Judge Marco A. Hernandez. Counsel shall confer about a possible schedule and approach to the remedies question in advance of the hearing. Counsel should also be prepared to discuss other case scheduling issues. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 12/02/2020)
206 MINUTES of Proceedings: Telephone Conference held. The Court held a hearing regarding how to proceed with the remedies portion of the contempt motion. ORDER: The parties shall confer and exchange remedy proposals with each other by 12/11/2020. The parties shall file a joint proposal with the Court by 12/18/2020. Oral Argument is set for 1/8/2021 at 09:00AM in Portland by video conference before Judge Marco A. Hernandez. Alexander Meggitt, Franz Bruggemeier, Jessica Ashlee Albies, Jesse Merrithew, Maya Rinta and Viktoria Safarian present as counsel for plaintiff(s). J. Scott Moede, Naomi Sheffield and Robert Yamachika present for City Defendants. B. Andrew Jones present for County Defendants. Court Reporter: Ryan White. Judge Marco A. Hernandez presiding. (jp) (Entered: 12/07/2020)

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207 Scheduling Order by Judge Marco A. Hernandez. Due to a conflict in the Court's schedule, the Oral Argument regarding the remedies portion of the contempt motion set for 1/8/2021 at 9:00AM is RESET to 1/13/2021 at 09:00AM in Portland by video conference before Judge Marco A. Hernandez. Counsel shall use the same video conference information provided for the 1/8/2021 hearing. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 12/10/2020)
208 Joint Response Proposal of Remedies to Contempt Order. Filed by City of Portland. (Related document(s): Opinion and Order,, 204 .) (Sheffield, Naomi) (Entered: 12/18/2020)
209 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Evidentiary hearing, Day 1. held on October 21, 2020 before Judge Marco A. Hernandez, Court Reporter Nancy M. Walker, telephone number 503-326-8186 or nancy_walker@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 from the Court Reporter or through PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/28/2020. Redaction Request due 1/11/2021. Redacted Transcript Deadline set for 1/21/2021. Release of Transcript Restriction set for 3/22/2021. (Walker, Nancy) (Entered: 12/21/2020)
210 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Evidentiary hearing, Day 2. held on October 22, 2020 before Judge Marco A. Hernandez, Court Reporter Nancy M. Walker, telephone number 503-326-8186 or nancy_walker@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 from the Court Reporter or through PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/28/2020. Redaction Request due 1/11/2021. Redacted Transcript Deadline set for 1/21/2021. Release of Transcript Restriction set for 3/22/2021. (Walker, Nancy) (Entered: 12/21/2020)
211 MINUTES of Proceedings: Video Conference Hearing held regarding
the Joint Proposal of Remedies in Response to Contempt Order 208 . Oral Argument held regarding the parties' unopposed and opposed remedies. The Court discussed the remedies it contemplated, and ordered the parties to file a response as stated on the record by 1/29/2020. A further hearing regarding remedies is set for 2/9/2020 at 3:00PM in Portland by video conference before Judge Marco A. Hernandez. Juan Chavez, Alexander Meggitt, Franz Bruggemeier, Jessica Ashlee Albies, and Jesse Merrithew present as counsel for plaintiff(s). J. Scott Moede, Naomi Sheffield and Robert Yamachika present for City Defendants. Lyndsay Byrne present for County Defendant. Court Reporter: Ryan White. Judge Marco A. Hernandez presiding. (jp) Modified on 1/14/2021 (jp). (Entered: 01/13/2021)
212 Motion for Extension of Time to Certify Class. Filed by All Plaintiffs.

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03/16/2021

(Chavez, Juan) (Entered: 01/13/2021)
213 Declaration of Counsel . Filed by All Plaintiffs. (Related document(s): Motion for Extension of Time 212 .) (Chavez, Juan) (Entered: 01/13/2021)
214 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Video Conference Hearing held on 1/13/2021 before Judge Marco A. Hernandez, Court Reporter Ryan White, telephone number 503-3268184 or ryan_white@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 from the Court Reporter or through PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/26/2021. Redaction Request due 2/9/2021. Redacted Transcript Deadline set for 2/19/2021. Release of Transcript Restriction set for 4/19/2021. (White, Ryan) (Entered: 01/19/2021)
215 Response to Motion for Extension of Time to Certify Class 212 . Filed by City of Portland. (Sheffield, Naomi) (Entered: 01/27/2021)
216 Response to Judge Hernandez's Proposed Remedies. Filed by City of Portland. (Related document(s): Contempt Hearing,,, 211 .) (Sheffield, Naomi) (Entered: 01/29/2021)
217 Report Plaintiffs' Positions on Court's Proposed Sanctions. Filed by All Plaintiffs. (Chavez, Juan) (Entered: 01/29/2021)
218 Declaration of J. Scott Moede in Support of Defendant City of Portland's Response to Judge Hernandez's Proposed Remedies. Filed by City of Portland. (Attachments: # 1 Exhibit 1) (Moede, J.) (Entered: 01/29/2021)
219 MINUTES of Proceedings: Video Conference hearing held regarding civil contempt remedies. The Court heard oral argument and took the matter under advisement as of 2/9/2021. Opinion and Order to follow. ORDER: As stated on the record, class certification will proceed prior to dispositive motions. The parties shall confer and forward a proposed briefing schedule to the Court. Jesse Merrithew, Juan Chavez, Franz Bruggemeier, Jessica Ashlee Albies, Maya Rinta and Viktoria Lowe (fka Safarian) present as counsel for plaintiffs. J. Scott Moede, Naomi Sheffield and Robert Yamachika present for City Defendants. B. Andrew Jones present for County Defendant. Court Reporter: Ryan White. Judge Marco A. Hernandez presiding. (jp) (Entered: 02/10/2021)
220 OPINION & ORDER: Having previously found Defendant City of Portland in contempt, see Opinion & Order 204 , the Court orders sanctions to obtain compliance with the Court's June 26, 2020 Stipulated
Temporary Restraining Order 43 . The provisions of the Order applicable to RRT grenadiers will not take effect until ten days after entry of this Order. These sanctions shall remain in effect until Defendant City of Portland demonstrates to the Court that it will comply with the Court's Order. Signed on 3/16/2021 by Judge Marco A.

03/24/2021
03/25/2021 03/29/2021 03/30/2021

Hernandez. (jp) (Entered: 03/16/2021)
221 Scheduling Order by Judge Marco A. Hernandez. As the Court discussed at the hearing on 2/9/2021, the parties were to confer and submit a proposed briefing schedule to the Court. The Court has yet to receive a schedule and sets a deadline to do so by close of business on 3/29/2021. A Telephone Conference is set for 3/30/2021 at 03:00PM before Judge Marco A. Hernandez. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 03/24/2021)
222 Declaration of Robert Yamachika . Filed by City of Portland. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Yamachika, Robert) (Entered: 03/25/2021)
223 Proposed Joint Case Management Schedule (Discovery and Briefing). Filed by City of Portland. (Sheffield, Naomi) (Entered: 03/29/2021)
224 MINUTES of Proceedings: Scheduling Conference held regarding Class Certification. Discovery related to class certification is to be completed by 7/1/2021. The Motion to Certify Class is due by 7/15/2021. The parties shall confer and notify the Court regarding the
outstanding Motion for Preliminary Injunction 45 by 4/9/2021. Juan Chavez, Franz Bruggemeier, and Jessica Ashlee Albies present as counsel for plaintiff(s). J. Scott Moede, Naomi Sheffield and Robert Yamachika present for City Defendants. B. Andrew Jones present for County Defendant. Reporter: Ryan White. Judge Marco A. Hernandez presiding. (jp) (Entered: 03/30/2021)

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 Case 3:20-cv-00917-HZ Document 1 Filed 06/05/20 Page 1 of 17
Jesse Merrithew, OSB No. 074564 Email: jesse@lmhlegal.com Viktoria Safarian, OSB No. 175487 Email: viktoria@lmhlegal.com Levi Merrithew Horst PC 610 SW Alder Street, Suite 415 Portland, Oregon 97205 Telephone: (971) 229-1241
Juan C. Chavez, OSB No. 136428 Email: jchavez@ojrc.info Brittney Plesser, OSB No. 154030 Email: bplesser@ojrc.info Alex Meggitt, OSB No. 174131 Email: ameggitt@ojrc.info Franz H. Bruggemeier, OSB No. 163533 Email: fbruggemeier@ojrc.info Oregon Justice Resource Center PO Box 5248 Portland, OR 97208 Telephone: 503 944-2270
J. Ashlee Albies, OSB No. 051846 Email: ashlee@albiesstark.com Whitney B. Stark, OSB No. 090350 Email: whitney@albiesstark.com Maya Rinta, OSB No. 195058 Email: maya@albiesstark.com Albies & Stark LLC 1 SW Columbia St. Suite 1850 Portland, Oregon 97204 Telephone: (503) 308-4770
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity, NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated, MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated
Plaintiffs v. CITY OF PORTLAND, a municipal corporation, Defendant.

Case No.
COMPLAINT (Violations of Civil Rights: 42 U.S.C. § 1983)
JURY TRIAL DEMANDED

Plaintiffs, by and through their attorneys, allege:

NATURE OF ACTION

1.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiffs bring this civil

rights action to stop the City of Portland from using chemical weapons against them in order to

suppress plaintiffs’ right to free speech. For the past seven days, plaintiffs, along with tens of

thousands of their fellow community members, and millions of other people around the world,

have taken to the streets to protest white supremacy and police violence in the United States

generally and in Portland specifically. The Portland Police Bureau (“PPB”), like police

departments all over the country, has responded with indiscriminate, unchecked, and

unconstitutional violence against protesters. In particular, PPB has repeatedly used chemical

agents (“tear gas”) against crowds of protesters, including plaintiffs who had committed no

criminal acts, posed no threat of violence to any person, and were merely engaged in protected

speech. The use of tear gas is particularly dangerous at the present time because it is specifically

designed to irritate the respiratory system and to cause people to expel mucus and aspirated

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saliva. In the midst of a global pandemic, the deadly novel COVID-19 virus is known to spread principally through aspirated saliva and mucus. The use of tear gas by the City violates plaintiffs’ rights under the First and Fourth Amendments to the United States Constitution. If this Court does not prohibit the City from continuing to violate the constitutional rights of plaintiffs, the City is likely to continue this conduct. Plaintiffs are entitled to a temporary restraining order, permanent injunction, and an award of attorneys’ fees and costs.
JURISDICTION AND VENUE 2.
This court has subject matter jurisdiction over plaintiffs’ claims of violation of federal constitutional rights pursuant to 28 U.S.C. §§ 1331(a) and 1343 because the causes of action arise under 42 U.S.C. § 1983.
3. Venue is proper in the District of Oregon pursuant to 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.
PARTIES 4.
Plaintiff Don’t Shoot Portland is a not for profit corporation, incorporated under the laws of the state of Oregon, whose principle place of business is Portland, Multnomah County, Oregon. Don’t Shoot Portland is a Black-led organization whose fundamental mission is to advocate for social and racial justice in Portland. Don’t Shoot Portland was formed in the wake of the Ferguson uprising stemming from the police killing of Michael Brown and community outrage at police violence directed at Black people. Don’t Shoot Portland provides support for grassroots organizing and education on issues of police brutality, the school to prison pipeline,

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and combatting white supremacy and racism. Don’t Shoot Portland holds ongoing events and trainings related to its mission such as bystander intervention trainings, and advocates for demilitarization of the police. Its programs include a children’s art and social justice council, community clothing tree, and community legal clinics. Don’t Shoot Portland also advocates for social justice and change though supporting direct action in a safe manner; participating, organizing and supporting protests; providing know your rights trainings and information; and providing jail support to people arrested during demonstrations. Don’t Shoot Portland recognizes that mass mobilizations and demonstrations are necessary for politicians and the general public to understand the importance of an issue in order to enact policies responsive to community demands in order to create and foster a more equitable City. Don’t Shoot Portland has devoted resources to identifying, counteracting, and addressing the practices alleged in this complaint, and this diversion of resources has frustrated its mission. As a result of the PPB’s unconstitutional policy, practice, and customs, as alleged herein, Don’t Shoot Portland must devote additional resources to educating, informing, and protecting protesters from unconstitutional practices, and this diversion of resources has frustrated its mission.
5. Plaintiff Nicholas J. Roberts, at the time of filing and all material times, was a resident of Portland, Multnomah County, Oregon.
6. Plaintiff Michelle “Misha” Belden (Pronouns: They/Them), at the time of filing and all material times, was a resident of Portland, Multnomah County, Oregon.
7. Defendant City of Portland is a political subdivision of the State of Oregon. The Portland Police Bureau (“PPB”) is a department or division of the City. As a local governmental entity,

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the City of Portland is a suable person under 42 U.S.C. § 1983. Every person who used tear gas, as described below, was an employee or agent of the City of Portland. On information and belief, each and every decision to indiscriminately use tear gas against plaintiffs was made at a sufficiently high level as to be policy decision of the City of Portland.
GENERAL ALLEGATIONS 8.
The disproportionate and excessive use of force against African Americans by police officers in the United States is a well-documented, systemic problem. It exists in every police department in this country, including the PPB. I. George Floyd
9. On May 25, 2020, in Minneapolis, Minnesota, a Black man named George Floyd was murdered on video by Officer Derek Chauvin of the Minneapolis Police Department while three of his fellow officers watched and did nothing to intervene. Officer Chauvin knelt on Mr. Floyd’s neck while Mr. Floyd pleaded for his life, repeatedly telling Chauvin that he could not breath. A bystander video of the murder quickly went viral, sparking outrage throughout the country.
10. For many Americans, and particularly Black Americans, the murder of George Floyd, in broad daylight while being openly filmed by a witness, was the proverbial straw that broke the camel’s back. Fed up with the empty platitudes and the endless yet ineffective “reforms” by their political and law enforcement leaders, millions of Americans took to the streets in protest, demanding an end to police violence and white supremacy, and refusing to leave those streets unless and until meaningful change is made.

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11. Protests against police violence have been met with police violence in nearly every city around the country. Videos shared in the press and on social media show the police in this country out of control: attacking journalists, attacking bystanders, threatening children, assaulting people for insulting them, engaging in drive-by attacks with “less lethal” weapons, planting weapons in the hands of people arrested, pulling off demonstrators’ CDC-recommended facemasks and macing them, kettling whole groups of protesters only to launch tear gas at them, driving their cars directly through crowds of people, using military helicopters in efforts to terrify civilians, discussing plans to shoot protesters, and above all, using massive amounts of tear gas in a massive systemic effort to stop people from protesting police violence. This violent police response has only strengthened the resolve of protesters. II. Portland
12. Beginning on May 29, 2020, and every night since then, Portlanders have been demonstrating in the streets demanding justice for George Floyd and demanding an end to police violence. The PPB, like police departments throughout the country, have met these demands with violence.
13. A focal point of conflict between PPB and protesters has been the “Justice Center” in downtown Portland, which is, as of the date of this filing, is completely surrounded by fencing. The building houses PPB’s central precinct, which includes command staff offices, a jail where hundreds of humans – disproportionately Black – are housed in small cage like cells, and a small number of courtrooms where the “business” of the criminal legal system perpetuating these

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racial inequalities continues every working day. It is, in short, a perfect symbol of the harms the protesters seek to address.
14. PPB is determined to keep the protesters away from the Justice Center, closing public streets, erecting fences, and guarded by lines of law enforcement officers wearing armor, helmets, and gas masks, and stocked with weapons. Every night since the protests began has ended with a standoff around the Justice Center between police and protesters, culminating in PPB indiscriminately spraying demonstrators with tear gas while launching aerial munitions into the air above their heads. The police then scatter the protesters throughout the streets of downtown Portland, continuing to assault them with more tear gas, rubber bullets, and aerial munitions. III. Tear Gas and COVID 19
15. Riot control agents (here referred to as “tear gas”) are chemical compounds that temporarily make people unable to function by causing irritation to the eyes, mouth, throat, lungs, and skin. Several different compounds are considered to be riot control agents, including chloroacetophenone (“CN”), hlorobenzylidenemalononitrile (“CS”), and oleoresin capsicum (“OC”). OC is derived from capsaicin and designed to be an irritant and inflammatory agent “primarily affect[ing] the respiratory tract.” CS is a nerve gas designed to inflict pain, and degrade the mucous membranes in a person’s eyes, nose, mouth, and lungs. The PPB uses both CS and OC, and possibly others.
16. PPB launches tear gas from canisters at protesters, which releases the chemical agent in gaseous form, exposing people through skin contact, eye contact, or breathing it in. Tear gas

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causes irritation to the area of contact within seconds of exposure, including eye burning, excessive tearing, blurred vision and redness; runny nose, and nasal burning and swelling; mouth burning, irritation, difficulty swallowing and drooling; chest tightness, coughing, choking sensation, wheezing, shortness of breath; burns and skin rash. Some people experience nausea and vomiting. Studies show that tear gas is linked to miscarriage and fetal harm. Moreover, the 1993 International Chemical Weapons Convention, Geneva, bans tear gas from use by military forces during war.
17. COVID-19, or Coronavirus, is a novel and serious respiratory virus which impacts the upper and lower respiratory system. It is spread primarily through droplets when an infected persons coughs or sneezes, or through droplets of saliva or discharge from the nose. For all these reasons, the CDC recommends people wear face coverings over the nose and mouth to help prevent the spread of COVID-19. There is no vaccine nor cure for COVID-19, and no one has prior immunity. As such, the virus has spread across the globe, and has been designated a global pandemic. Those infected with COVID-19 can experience no symptoms, mild symptoms, or severe symptoms. As such, and due to limited COVID-19 testing, the true rate of COVID-19 infections is unknown. Because of racism and its impact on economic and health disparities, Black people, Indigenous people, and people of color are more likely to develop, suffer, and face complications from COVID-19 than their white counterparts.1
18. Many recent reports link the use of tear gas to exacerbation of spreading of COVID-19. Indeed, Oregon Health and Science University (“OHSU”) President Danny Jacobs, M.D.,

1See https://multco.us/novel-coronavirus-covid-19/news/new-numbers-show-covid-19-damage-communities-colorleaders-call

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F.A.C.S., released a statement acknowledging that “Protests have long served as a positive agent
for social change in the U.S.,” and that PPB’s “use of tear gas and other chemical means to
control crowds has raised great concern among medical professionals as we simultaneously try to
manage a global pandemic.” The statement further opined:
While large gatherings in general provide increased opportunities for the transmission of COVID-19, the use of tear gas could significantly exacerbate the spread. Tear gas is a chemical that attacks the mucous membranes of the eyes, nose, throat and lungs and causes severe pain and irritation; exposure to tear gas can result in blindness, bleeding, crying and coughing. The release of airborne droplets through tear gas-induced coughing could accelerate the spread of COVID-19 and lead to a surge in new cases. Damage to the respiratory tract can put individuals at greater risk of adverse outcomes if they become infected with COVID-19.2
19.
The use of tear gas is, by its very nature, indiscriminate. Everyone must breathe, and
anyone who breathes in the area where police have used tear gas will be harmed by the gas. The
City of Portland knew this when it decided to procure the tear gas, arm police with the tear gas,
and authorize police to use tear gas in its downtown core on protesters. The City knew that the
gas would harm people who were not engaged in any unlawful activity and where PPB had no
probable cause that individuals had committed any crimes.
IV. Don’t Shoot Portland
20.
Don’t Shoot Portland has been participating the local demonstrations and providing
assistance and support to protesters. It has participated in, monitored, and amplified calls to end
racist policing and the violent police response to nonviolent protesters. It strongly opposes the
use of tear gas and any force against protesters.

2Available at https://news.ohsu.edu/2020/06/05/statement-on-tear-gas-and-nonviolentprotests?linkId=90165009 (last visited 6/4/20).

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V. Nicholas J. Roberts 21.
Nicholas J. Roberts is an Oregonian who lives in downtown Portland. He attended his first protest on May 29, 2020, because he wanted to protest police brutality and the oppression of Black people. He took precautions because of COVID-19, putting on gloves, face masks, and safety glasses, and tried to practice social distancing. Mr. Roberts attended demonstrations on May 29, 30, 31 and June 1, and saw peaceful protesters. Mr. Roberts was not engaging in any unlawful activity when the PPB began launching tear gas into the largely peaceful crowd protesting police violence in front of the Justice Center. He was physically harmed and frightened by PPB’s use of tear gas. Mr. Roberts attended protests on May 30, May 31, and June 2, and had a similar experience: PPB launched tear gas at peaceful protesters demonstrating against police violence at the Justice Center who were not engaged in any unlawful conduct. VI. Michelle “Misha” Belden
22. Mx. Belden had attended the protest in Downtown Portland on June 2, 2020. They were protesting against the brutality the country witnessed when George Floyd of Minneapolis, MN was murdered by a Minneapolis Police Officer. They wished to be with their community as it protested against police violence and racism. They were attending the march from SE Portland to Pioneer Plaza in Downtown Portland. There, they heard a few explosions in the distance. They arrived at the area around SW 3rd and SW Salmon. They found a crowd chanting, and mostly calm. Suddenly, there was a flash bang then tear gas. Everyone started scattering. They were trapped between walls of gas, a fence, and lines of police officers. The air was thick with tear gas. They believed the police were trying to kill them. This continued for several blocks until they reached safety around SW Naito and Harvey MLK.

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CLASS ALLEGATIONS 23.
Plaintiffs Nicholas J. Roberts and Misha Belden bring this action pursuant to Rules 23(a)

and 23(b)(1) and (2) of the Federal Rules of Civil Procedure on behalf of themselves and a class

of similarly situated individuals.

24.

The proposed class is defined as follows: all individuals who currently or who will in the future engage in protest activities that follow the death of George Floyd opposing police violence and white supremacy.
25. The class period commences on May 25, 2020 and extends to the date on which PPB is enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice, and custom of using indiscriminate excessive force, including but not limited to the use of tear gas, irrespective of the individualized conduct of specific protesters. Specifically excluded from the class are Defendant and any and all of their respective affiliates, legal representatives, heirs, successors, employees, or assignees.
26. This action has been brought and may properly be maintained as a class action under

Federal law and satisfies numerosity, commonality, typicality, and adequacy requirements for

maintaining a class action under Fed. R. Civ. P. 23(a).

27.

The Class is so numerous, on information and belief, over 1,000, that joinder is

impractical. Maintaining individual actions would create a risk of “inconsistent or varying

adjudications with respect to individual class members that would establish incompatible

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standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Multiple courts issuing multiple injunctions governing use of force standards for law enforcement would be untenable.
28. Common questions of law and fact exist as to all members of the class. These legal and factual questions include but are not limited to: • By engaging in the tactics alleged herein, has Defendant violated the First Amendment? • By engaging in the tactics alleged herein, has Defendant violated the Fourth
Amendment? • By allowing an unconstitutional pattern, practice, and custom of using indiscriminate
excessive force against protesters, has Defendant violated the First and Fourth Amendments? • Has Defendant exhibited a deliberate indifference to the unconstitutional conduct alleged herein? • By utilizing indiscriminate force, such as tear gas, has Defendant unlawfully chilled the speech rights of protesters?
29. Plaintiffs Robert’s and Belden’s claims are typical of the claims of the class members. The harms Plaintiffs suffered and will suffer, as a result of Defendant’s courses of conduct, are typical of the harms suffered by class members. “[T]he party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R. Civ. P.

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23(b)(1)(A). There is no allegation that Plaintiffs have been targeted because of anything unique to them as individuals.
30. Plaintiffs Roberts and Belden will fairly and adequately protect the interest of the Class. Plaintiffs have no interests adverse to the interests of the class. Plaintiffs retained counsel with experience and success in the prosecution of civil rights litigation. Counsel for Plaintiffs know of no conflicts among class members or between counsel and class members.
31. Plaintiffs Roberts and Belden seek injunctive and declaratory relief. Any injunction requiring Defendants to address their constitutional violations would prevent other litigants from seeking a different injunction. Plaintiffs Roberts and Belden seek class certification under Fed. R. Civ. P. 23(b)(1).
FIRST CLAIM FOR RELIEF (Excessive Force – Violation of Fourth Amendment – 42 U.S.C. § 1983 brought on behalf of Plaintiff Don’t Shoot Portland Individually and Plaintiffs Roberts and Belden Individually
and the Putative Class) 32.
Plaintiffs restate and incorporate herein all previous paragraphs of this Complaint. 33.
Count 1: Municipal Liability – Unlawful Practice or Policy Allowing Indiscriminate Use of Force as Tactic to Disperse Crowd.
The City of Portland has an official policy allowing the use of tear gas against a crowd whenever it determines that the crowd creates a “civil disturbance.” This policy has no relationship with the Graham v. Connor Fourth Amendment standard regulating the use of force against individuals. It expressly allows for the indiscriminate use of force against a crowd of people, in violation of the Fourth Amendment.

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Alternatively, even if the policy itself is constitutional, PPB’s actual practice and custom is to allow the use of tear gas against a crowd even when a substantial number of people in that crowd, or even the majority of that crowd, have engaged in no criminal acts and are not a danger to any person.
34. On May 29, 30, 31 and June 2 and 3, 2020, PPB deployed tear gas and other crowd control munitions on large crowds of peaceful protesters and continued to deploy tear gas at people running away. Videos documenting the indiscriminate nature of this force deployment are rampant.3 The City has tacitly and explicitly authorized the use of indiscriminate crowd control munitions on crowds of protesters by justifying uses of similar tactics, including tear gas shot indiscriminately into crowds of protesters, at protests on these dates. The City, acting pursuant to this policy, custom, or practice, unlawfully used tear gas against plaintiffs as alleged above.
35. Count 2: Municipal Liability – Action of Policymaking Officials
The decision to use tear gas against the crowds containing plaintiffs on May 29, 30, 31 and June 1, 2, and 3 was made by officials of the PPB who are sufficiently senior that the decision may fairly be said to represent official policy of the City of Portland. PPB Chief Jami Resch is the highest level of authority within the PPB, and Mayor of Portland Ted Wheeler, also the Police Commissioner, has acknowledged receiving minute-to-minute reports from PPB of events on the ground at the protest. The decision to use tear gas was made by official policy makers the Chief of PPB and the Mayor of Portland.
3 E.g. https://twitter.com/mrolmos/status/1268072714926878720?s=21; https://twitter.com/matcha_chai/status/1268043556913987584?s=21

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36. Count 3: Municipal Liability -- Ratification
PPB Chief Jamie Resch stated in a news conference on June 3 that the decision to use tear gas against a crowd of protesters the evening prior was made by incident commanders at the scene. As such, the decision to use tear gas against the crowds containing plaintiffs on May 29, 30, 31 and June 1, 2, and 3 was made by incident commanders on scene. As alleged above, these decisions to use tear gas were ratified by the Chief of PPB and the Mayor of Portland.
SECOND CLAIM FOR RELIEF (Violation of the First Amendment – 42 U.S.C. § 1983 brought on behalf of Plaintiff Don’t
Shoot Portland Individually and Plaintiffs Roberts and Belden Individually and the Putative Class) 37.
Plaintiffs restate and incorporate herein all previous paragraphs of this Complaint. 38.
Plaintiffs were engaged in constitutionally protected acts of free speech, including public demonstration opposing racism and police violence against Black people. Plaintiffs will continue to do so in the future.
39. PPB’s use of force against Plaintiffs for engaging in First Amendment protected activity and, in an effort, to deter future similar activity, evidences a pattern and practice of unconstitutional conduct that is certain to continue absent any relief.
40. Plaintiffs reasonably fear the PPB’s continued use of tear gas on protesters and PPB’s acts would chill a reasonable person from continuing to engage in protected First Amendment Activity.

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41. Municipal Liability – First Amendment
The City of Portland has a custom and practice of using militarized force against antipolice protesters, as demonstrated by the use of tear gas against those protesting outside the Justice Center, a significant symbolic representation of the issues being protested. The defendants’ use of force was intended to punish a group of protesters en masse for their political speech, and to deter further similar expressions of speech. The supervisory decision to fire tear gas indiscriminately into a crowd of protesters demonstrating outside the Justice Center was made in retaliation for the protesters’ protected speech condemning the police at the symbolic embodiment of the protest subject matter and to chill the expression of further similar speech.
42. The supervisor defendants who authorized, made, and ratified the decision to attack antipolice demonstrators are sufficiently senior so that their decision can fairly be said to be the official policy of the City of Portland.
REASONABLE ATTORNEY’S FEES AND COSTS 42 U.S.C. § 1988(b) allows “the prevailing party . . . a reasonable attorney’s fee as part of the costs. . .” in an action brought under 42 U.S.C. § 1983. Plaintiffs requests that the court grant reasonable attorneys’ fees in this action.
PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for their costs and disbursements incurred herein and for the following in accordance with the proof at trial:
1. A temporary restraining order, prohibiting the City of Portland from using tear gas as a crowd control measure;
/ / /

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2. A permanent injunction, prohibiting the City of Portland from using tear gas as a crowd control measure;
3. Attorney’s fees; and 4. Any other relief the court deems proper.

DATED this 5th day of June 2020

s/J. Ashlee Albies J. Ashlee Albies, OSB No. 051846 Whitney B. Stark, OSB No. 090350 Maya Rinta, OSB No. 195058 Albies & Stark LLC
Jesse Merrithew, OSB No. 074564 Viktoria Safarian, OSB No. 175487 Levi Merrithew Horst PC
Juan C. Chavez, OSB No. 36428 Brittney Plesser, OSB No. 154030 Alex Meggitt, OSB No. 174131 Franz H. Bruggemeier, OSB No. 163533 Oregon Justice Resource Center
Attorneys for Plaintiffs

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Jesse Merrithew, OSB No. 074564 Email: jesse@lmhlegal.com Viktoria Safarian, OSB No. 175487 Email: viktoria@lmhlegal.com Levi Merrithew Horst PC 610 SW Alder Street, Suite 415 Portland, Oregon 97205 Telephone: (971) 229-1241
Juan C. Chavez, OSB No. 136428 Email: jchavez@ojrc.info Brittney Plesser, OSB No. 154030 Email: bplesser@ojrc.info Alex Meggitt, OSB No. 174131 Email: ameggitt@ojrc.info Franz H. Bruggemeier, OSB No. 163533 Email: fbruggemeier@ojrc.info Oregon Justice Resource Center PO Box 5248 Portland, OR 97208 Telephone: 503 944-2270
J. Ashlee Albies, OSB No. 051846 Email: ashlee@albiesstark.com Whitney B. Stark, OSB No. 090350 Email: whitney@albiesstark.com Maya Rinta, OSB No. 195058 Email: maya@albiesstark.com Albies & Stark LLC 1 SW Columbia St. Suite 1850 Portland, Oregon 97204 Telephone: (503) 308-4770
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity, NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated, MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated
Plaintiffs

Case No. 3:20-cv-00917-HZ
FIRST AMENDED COMPLAINT (Violations of Civil Rights: 42 U.S.C. § 1983)

v.

JURY TRIAL DEMANDED

CITY OF PORTLAND, a municipal corporation,
Defendant.

Plaintiffs, by and through their attorneys, allege:

NATURE OF ACTION

1.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiffs bring this civil

rights action to stop the City of Portland from using excessive force against them in order to

suppress plaintiffs’ right to free speech. For the past nineteen days, plaintiffs, along with tens of

thousands of their fellow community members, and millions of other people around the world, have taken to the streets to protest white supremacy and police violence in the United States generally and in Portland specifically. The Portland Police Bureau (“PPB”), like police departments all over the country, has responded with indiscriminate, unchecked, and

unconstitutional violence against protesters. At first, PPB used chemical agents (“tear gas”)

against crowds of protesters, including plaintiffs, who had committed no criminal acts, posed no

threat of violence to any person, and were merely engaged in protected speech. Plaintiffs were

immediately concerned that the use of tear gas is particularly dangerous at the present time

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because it is specifically designed to irritate the respiratory system and to cause people to expel mucus and aspirated saliva. In the midst of a global pandemic, the deadly novel COVID-19 virus is known to spread principally through aspirated saliva and mucus. Plaintiffs sought and obtained a temporary restraining order prohibiting PPB from using tear gas except in narrow circumstances. Following that order, PPB changed tactics, and now use a variety of so-called “less lethal” weapons indiscriminately against plaintiffs in its continued effort to silence speech. Plaintiffs are entitled to a temporary restraining order, preliminary injunction, permanent injunction, damages, and an award of attorneys’ fees and costs.
JURISDICTION AND VENUE 2.
This court has subject matter jurisdiction over plaintiffs’ claims of violation of federal constitutional rights pursuant to 28 U.S.C. §§ 1331(a) and 1343 because the causes of action arise under 42 U.S.C. § 1983.
3. Venue is proper in the District of Oregon pursuant to 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.
PARTIES 4.
Plaintiff Don’t Shoot Portland is a not for profit corporation, incorporated under the laws of the state of Oregon, whose principle place of business is Portland, Multnomah County, Oregon. Don’t Shoot Portland is a Black-led organization whose fundamental mission is to advocate for social and racial justice in Portland. Don’t Shoot Portland was formed in the wake of the Ferguson uprising stemming from the police killing of Michael Brown and community

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outrage at police violence directed at Black people. Don’t Shoot Portland provides support for grassroots organizing and education on issues of police brutality, the school to prison pipeline, and combatting white supremacy and racism. Don’t Shoot Portland holds ongoing events and trainings related to its mission such as bystander intervention trainings, and advocates for demilitarization of the police. Its programs include a children’s art and social justice council, community clothing tree, and community legal clinics. Don’t Shoot Portland also advocates for social justice and change though supporting direct action in a safe manner; participating, organizing and supporting protests; providing know your rights trainings and information; and providing jail support to people arrested during demonstrations. Don’t Shoot Portland recognizes that mass mobilizations and demonstrations are necessary for politicians and the general public to understand the importance of an issue in order to enact policies responsive to community demands in order to create and foster a more equitable City. Don’t Shoot Portland has devoted resources to identifying, counteracting, and addressing the practices alleged in this complaint, and this diversion of resources has frustrated its mission. As a result of the PPB’s unconstitutional policy, practice, and customs, as alleged herein, Don’t Shoot Portland must devote additional resources to educating, informing, and protecting protesters from unconstitutional practices, and this diversion of resources has frustrated its mission.
5. Plaintiff Nicholas J. Roberts (Pronouns: he/him), at the time of filing and all material times, was a resident of Portland, Multnomah County, Oregon.
6. Plaintiff Michelle “Misha” Belden (Pronouns: They/Them), at the time of filing and all material times, was a resident of Portland, Multnomah County, Oregon.

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7. Defendant City of Portland is a political subdivision of the State of Oregon. The Portland Police Bureau (“PPB”) is a department or division of the City. As a local governmental entity, the City of Portland is a suable person under 42 U.S.C. § 1983. Every person who used tear gas and “less lethal” weaponry, including as described below, was an employee or agent of the City of Portland. On information and belief, each and every decision to indiscriminately use tear gas and other “less-lethal” weapons against plaintiffs was made at or ratified by a sufficiently high level as to be policy decision of the City of Portland.
GENERAL ALLEGATIONS 8.
Black Lives Matter. 9.
The disproportionate and excessive use of force against African Americans by police officers in the United States is a well-documented, systemic problem. It exists in every police department in this country, including the PPB. I. George Floyd
10. On May 25, 2020, in Minneapolis, Minnesota, a Black man named George Floyd was murdered on video by Officer Derek Chauvin of the Minneapolis Police Department while three of his fellow officers watched and did nothing to intervene. Officer Chauvin knelt on Mr. Floyd’s neck while Mr. Floyd pleaded for his life, repeatedly telling Chauvin that he could not breath. A bystander video of the murder quickly went viral, sparking outrage throughout the country.
11.

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For many Americans, and particularly Black Americans, the murder of George Floyd, in broad daylight while being openly filmed by a witness, was the proverbial straw that broke the camel’s back. Fed up with the empty platitudes and the endless yet ineffective “reforms” by their political and law enforcement leaders, millions of Americans took to the streets in protest, demanding an end to police violence and white supremacy, and refusing to leave those streets unless and until meaningful change is made.
12. Protests against police violence have been met with police violence in nearly every city around the country. Videos shared in the press and on social media show the police in this country out of control: attacking journalists, attacking bystanders, threatening children, assaulting people for insulting them, engaging in drive-by attacks with “less lethal” weapons, planting weapons in the hands of people arrested, pulling off demonstrators’ CDC-recommended facemasks and macing them, kettling whole groups of protesters only to launch tear gas at them, driving their cars directly through crowds of people, using military helicopters in efforts to terrify civilians, discussing plans to shoot protesters, and above all, using massive amounts of tear gas in a massive systemic effort to stop people from protesting police violence. This violent police response has only strengthened the resolve of protesters. II. Portland
13. Beginning on May 29, 2020, and every night since then, Portlanders have been demonstrating in the streets demanding justice for George Floyd and demanding an end to police violence. The PPB, like police departments throughout the country, have met these demands with violence.

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14. A focal point of conflict between PPB and protesters has been the “Justice Center” in downtown Portland, which is, as of the date of this filing, is completely surrounded by fencing. The building houses PPB’s central precinct, which includes command staff offices, a jail where hundreds of humans – disproportionately Black – are housed in small cage like cells, and a small number of courtrooms where the “business” of the criminal legal system perpetuating these racial inequalities continues every working day. It is, in short, a perfect symbol of the harms the protesters seek to address.
15. PPB is determined to keep the protesters away from the Justice Center, closing public streets, erecting fences, and guarded by lines of law enforcement officers wearing armor, helmets, and gas masks, and stocked with weapons. Every night since the protests began has ended with a standoff around the Justice Center between police and protesters, culminating in PPB using a variety of tactics, including indiscriminately spraying demonstrators with tear gas, rubber bullets, pepper balls, blast balls, Long Range Acoustic Device (“LRAD”), flash bangs, and other impact munitions, while launching aerial munitions into the air above their heads. The police then scatter the protesters throughout the streets of downtown Portland, often kettling them and continuing to assault them with more pepper spray, impact munitions, and aerial munitions.
16. Since this court entered a Temporary Restraining Order on June 9, 2020, limiting the PPB’s use of tear gas on protestors, PPB has escalated its use of rubber bullets, pepper balls, blast balls, flash bangs, and other impact munitions on the crowd in an indiscriminate manner. / / /

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III. Tear Gas and COVID 19 17.
Riot control agents (here referred to as “tear gas”) are chemical compounds that temporarily make people unable to function by causing irritation to the eyes, mouth, throat, lungs, and skin. Several different compounds are considered to be riot control agents, including chloroacetophenone (“CN”), hlorobenzylidenemalononitrile (“CS”), and oleoresin capsicum (“OC”). OC is derived from capsaicin and designed to be an irritant and inflammatory agent “primarily affect[ing] the respiratory tract.” CS is a nerve gas designed to inflict pain, and degrade the mucous membranes in a person’s eyes, nose, mouth, and lungs. The PPB uses both CS and OC, and possibly others.
18. PPB launches tear gas from canisters at protesters which releases the chemical agent in gaseous form, exposing people through skin contact, eye contact, or breathing it in. PPB also disharges chemical agents directly from handheld canisters, and by shooting FN303s with OC payload or 40mm impact munitions with OC payload. These weapons spread their OC payload upon impact with the ground or the body of person. Manufacturer’s materials for OC capsules fired from FN303s describe this feature and practice of firing at the ground as “area saturation.”
19. Tear gas causes irritation to the area of contact within seconds of exposure, including eye burning, excessive tearing, blurred vision and redness; runny nose, and nasal burning and swelling; mouth burning, irritation, difficulty swallowing and drooling; chest tightness, coughing, choking sensation, wheezing, shortness of breath; burns and skin rash. Some people experience nausea and vomiting. Studies show that tear gas is linked to miscarriage and fetal

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harm. Moreover, the 1993 International Chemical Weapons Convention, Geneva, bans tear gas from use by military forces during war.
20. COVID-19, or Coronavirus, is a novel and serious respiratory virus which impacts the upper and lower respiratory system. It is spread primarily through droplets when an infected persons coughs or sneezes, or through droplets of saliva or discharge from the nose. For all these reasons, the CDC recommends people wear face coverings over the nose and mouth to help prevent the spread of COVID-19. There is no vaccine nor cure for COVID-19, and no one has prior immunity. As such, the virus has spread across the globe, and has been designated a global pandemic. Those infected with COVID-19 can experience no symptoms, mild symptoms, or severe symptoms. As such, and due to limited COVID-19 testing, the true rate of COVID-19 infections is unknown. Because of racism and its impact on economic and health disparities, Black people, Indigenous people, and people of color are more likely to develop, suffer, and face complications from COVID-19 than their white counterparts.1
21. Many recent reports link the use of tear gas to exacerbation of spreading of COVID-19. Indeed, Oregon Health and Science University (“OHSU”) President Danny Jacobs, M.D., F.A.C.S., released a statement acknowledging that “Protests have long served as a positive agent for social change in the U.S.,” and that PPB’s “use of tear gas and other chemical means to control crowds has raised great concern among medical professionals as we simultaneously try to manage a global pandemic.” The statement further opined:

1See Multnomah County, New numbers show COVID-19 damage to communities of color; leaders call for better data collection, (May 1, 2020), available at https://multco.us/novel-coronavirus-covid-19/news/new-numbers-showcovid-19-damage-communities-color-leaders-call

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While large gatherings in general provide increased opportunities for the transmission of COVID-19, the use of tear gas could significantly exacerbate the spread. Tear gas is a chemical that attacks the mucous membranes of the eyes, nose, throat and lungs and causes severe pain and irritation; exposure to tear gas can result in blindness, bleeding, crying and coughing. The release of airborne droplets through tear gas-induced coughing could accelerate the spread of COVID-19 and lead to a surge in new cases. Damage to the respiratory tract can put individuals at greater risk of adverse outcomes if they become infected with COVID-19.2
22.
The use of tear gas is, by its very nature, indiscriminate. Everyone must breathe, and
anyone who breathes in the area where police have used tear gas will be harmed by the gas. The
City of Portland knew this when it decided to procure the tear gas, arm police with the tear gas,
and authorize police to use tear gas in its downtown core on protesters. The City knew that the
gas would harm people who were not engaged in any unlawful activity and where PPB had no
probable cause that individuals had committed any crimes.
V. Impact Munitions
23.
In addition to using chemical weapons, PPB uses a variety of so-called “riot control”
weapons, some of which also contain OC as a chemical irritant. PPB uses two different platforms
for launching these munitions: an 18 mm, 15-round capacity, shoulder fired weapon called an
FN303; and 40 mm, two round capacity, shotgun-style launcher. PPB uses the FN303 to deploy
munitions containing OC powder designed to cause chemical irritation to anyone around the
impact; munitions containing paint designed to both hurt the person and mark them with paint;
and munitions containing sand to both hurt the target and cause non-chemical irritation. PPB
uses the 40 mm launcher to fire foam tipped rounds designed to hurt people, foam tipped rounds

2 Danny Jacobs, M.D., M.P.H., FACS, Statement on tear gas and nonviolent protests, Oregon Health & Sciences University (June 4, 2020) available at https://news.ohsu.edu/2020/06/05/statement-on-tear-gas-and-nonviolentprotests?linkId=90165009

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with OC inside, and two types of “flash-bang” grenades: one that emits light and sound, and one that, in addition, spreads plastic shot over an area of people in order to hurt them. PPB also uses hand-held grenade-style weapons that accomplish the same purposes of 40 mm launched flashbangs. The manufacturer’s website advertises that one of these hand-thrown grenades will spread plastic projectiles over a 50 foot radius.
24. Neither the FN303s nor the 40 mm launchers are accurate at long distances, and become inaccurate altogether after several deployments. The use of FN303s and 40 mm launchers in crowd management settings has lead to the death of protesters, like in Boston.3 This fact has lead to some police departments to cease use of FN303s altogether, like the Boston Police Department, which repurposed these weapons by melting them into sewer caps.4 During the recent protests following George Floyd’s murder, projectiles fired from FN303s have resulted in the serious maiming of individuals.5
25. In the past and during the present protests, PPB has firing these impact munitions, particularly the FN303, indiscriminately into crowds of passively resisting, or other peaceful protesters, both before and after PPB has declared an unlawful assembly/civil disturbance, leaving large welts, bruises, and other similar injuries. Protesters outside of the Multnomah County Justice Center attest to being fired upon and hit by such munitions by officers standing at the top of the stairs across the street despite having not engaged in any behavior that was criminal, let alone threated anyone’s life or safety.

3 The New York Times, Boston Police to Destroy Pepper-Spray Guns (Feb. 23, 2007), available at https://www.nytimes.com/2007/02/23/us/23pepper.html 4 Id. 5 Kelli Kennedy, Protester hit in face by police rubber bullet wants answers, Houston Chronicle (June 12, 2020), available at https://www.houstonchronicle.com/news/article/Protester-hit-in-face-by-police-rubber-bullet15336813.php

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IV. Don’t Shoot Portland 26.
Don’t Shoot Portland has been participating the local demonstrations and providing assistance and support to protesters. It has participated in, monitored, and amplified calls to end racist policing and the violent police response to nonviolent protesters. It strongly opposes the use of tear gas, “less lethal” weapons, and any force against protesters. V. Nicholas J. Roberts
27. Nicholas J. Roberts is an Oregonian who lives in downtown Portland. He attended his first protest on May 29, 2020, because he wanted to protest police brutality and the oppression of Black people. He took precautions because of COVID-19, putting on gloves, face masks, and safety glasses, and tried to practice social distancing. Mr. Roberts attended demonstrations on May 29, 30, 31 and June 1, 2, 6, 10, 12 and 13, and saw peaceful protesters. Mr. Roberts was not engaging in any unlawful activity when the PPB began launching tear gas into the largely peaceful crowd protesting police violence in front of the Justice Center. Mr. Roberts attended protests on May 30, May 31, and June 2, 6, and 13, and had a similar experience: PPB launched tear gas and “less lethal” weapons at peaceful protesters demonstrating against police violence at the Justice Center who were not engaged in any unlawful conduct. Mr. Roberts has been attending demonstrations less since being subjected to PPB’s weaponry.
28. Mr. Roberts was physically harmed and frightened by PPB’s use of tear gas and “less lethal” weapons. /// ///

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VI. Michelle “Misha” Belden 29.
Mx. Belden had attended the protest in Downtown Portland on June 2, 2020. They were protesting against the brutality the country witnessed when George Floyd of Minneapolis, MN was murdered by a Minneapolis Police Officer. They wished to be with their community as it protested against police violence and racism. They were attending the march from SE Portland to Pioneer Plaza in Downtown Portland. There, they heard a few explosions in the distance. They arrived at the area around SW 3rd and SW Salmon. They found a crowd chanting, and mostly calm. Suddenly, there was a flash bang then tear gas. Everyone started scattering. They were trapped between walls of gas, a fence, and lines of police officers. The air was thick with tear gas. They believed the police were trying to kill them. This continued for several blocks until they reached safety around SW Naito and Harvey MLK.
30. Mx. Belden attended protests on June 9 and 10, 2020 as well, between the 9 pm-1 am at the Justice Center in Downtown Portland. On June 9, the crowd of approximately 500 was mostly peaceful, and some people rattled the fence erected outside the Justice Center. PPB administered a warning to back away from the fence, and while many protestors backed away, some stayed close to the fence, but stopped rattling the fence. At about midnight, when the crowd had dwindled to by approximately 40%, PPB fired flash bangs and OC munitions to disperse the crowd without any warning. To Mx. Belden and others, it looked and sounded like tear gas, despite the TRO entered in this case, causing Mx. Belden to believe the PPB will never stop using excessive force, and that protesters will all be subject to arrest and excessive force at all times, denying them an opportunity to have a peaceful protest. On June 10, one part of the fence was taken down, away from the Justice Center and where PPB was stationed. Protesters

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were simply standing around. Two people, one clothed,and one not, ran behind the fenced off area. After the first person went into the fenced area, PPB deployed chemical agents, impacting the nearby protestors. PPB then deployed “less lethal” weapons, including OC blasts, and flash bang. Mx. Belden left the scene, because they felt PPB was escalating and they did not want to be caught up in it, and did not want to get gassed again. As a result, Mx. Belden gave up on protesting for the rest of that week.
31. Mx. Belden was physically harmed and frightened by PPB’s use of tear gas and “less lethal” weapons.
CLASS ALLEGATIONS 32.
Plaintiffs Nicholas J. Roberts and Misha Belden bring this action pursuant to Rules 23(a) and 23(b)(1) and (2) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated individuals.
33. The proposed class is defined as follows: all individuals who currently or who will in the future engage in protest activities that follow the death of George Floyd opposing police violence and white supremacy. This include protesters who engage in passive resistance to the orders of police, but does not those who engage in conduct beyond passive resistance.
34. The class period commences on May 25, 2020 and extends to the date on which PPB is enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice, and custom of using indiscriminate excessive force, including but not limited to the use of tear gas and “less lethal” weapons, irrespective of the individualized conduct of specific protesters. Specifically

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excluded from the class are Defendant and any and all of their respective affiliates, legal representatives, heirs, successors, employees, or assignees.
35. This action has been brought and may properly be maintained as a class action under Federal law and satisfies numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
36. The Class is so numerous, on information and belief, over 1,000, that joinder is impractical. Maintaining individual actions would create a risk of “inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Multiple courts issuing multiple injunctions governing use of force standards for law enforcement would be untenable.
37. Common questions of law and fact exist as to all members of the class. These legal and factual questions include but are not limited to:  By engaging in the tactics alleged herein, has Defendant violated the First Amendment?  By engaging in the tactics alleged herein, has Defendant violated the Fourth
Amendment?  By allowing an unconstitutional pattern, practice, and custom of using indiscriminate
excessive force against protesters, has Defendant violated the First and Fourth Amendments?  Has Defendant exhibited a deliberate indifference to the unconstitutional conduct alleged herein?

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 By utilizing indiscriminate force, such as tear gas, pepper spray, and impact munitions,

has Defendant unlawfully chilled the speech rights of protesters?

38.

Plaintiffs Robert’s and Belden’s claims are typical of the claims of the class members.

The harms Plaintiffs suffered and will suffer, as a result of Defendant’s courses of conduct, are

typical of the harms suffered by class members. “[T]he party opposing the class has acted or

refused to act on grounds that apply generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R. Civ. P.

23(b)(1)(A). There is no allegation that Plaintiffs have been targeted because of anything unique

to them as individuals.

39.

Plaintiffs Roberts and Belden will fairly and adequately protect the interest of the Class.

Plaintiffs have no interests adverse to the interests of the class. Plaintiffs retained counsel with

experience and success in the prosecution of civil rights litigation. Counsel for Plaintiffs know of

no conflicts among class members or between counsel and class members.

40.

Plaintiffs Roberts and Belden seek injunctive and declaratory relief. Any injunction

requiring Defendants to address their constitutional violations would prevent other litigants from

seeking a different injunction. Plaintiffs Roberts and Belden seek class certification under Fed.

R. Civ. P. 23(b)(1).

FIRST CLAIM FOR RELIEF (Excessive Force – Violation of Fourth Amendment – 42 U.S.C. § 1983 brought on behalf of Plaintiff Don’t Shoot Portland Individually and Plaintiffs Roberts and Belden Individually
and the Putative Class)

41.

Plaintiffs restate and incorporate herein all previous paragraphs of this Complaint.

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42. Count 1: Municipal Liability – Unlawful Practice or Policy Allowing Indiscriminate Use of Force as Tactic to Disperse Crowd.
The City of Portland has an official policy allowing the use of “riot control” and “less lethal” weapons against a crowd whenever it determines that the crowd creates a “civil disturbance.” This policy has no relationship with the Graham v. Connor Fourth Amendment standard regulating the use of force against individuals. It expressly allows for the indiscriminate use of force against a crowd of people, including those engaging in passive resistance, in violation of the Fourth Amendment.
Alternatively, even if the policy itself is constitutional, PPB’s actual practice and custom is to allow the use of “riot control” and “less lethal” weapons against a crowd both before and after an “unlawful assembly” and/or a “civil disturbance” has been declared, even when a substantial number of people in that crowd, or even the majority of that crowd, are engaged only in the passive resistance to an order.
43. On May 29, 30, 31 and June 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, 2020, PPB deployed tear gas and/or other “less lethal” weapons on large crowds of peaceful protesters and continued to deploy tear gas and/or “less lethal” weapons at people running away. Videos documenting the indiscriminate nature of this force deployment are rampant.6 The City has tacitly and explicitly authorized the use of indiscriminate crowd control munitions on crowds of protesters by justifying uses of similar tactics, including “less lethal” weapons shot indiscriminately into crowds of protesters, at protests on these dates.

6 E.g. https://twitter.com/mrolmos/status/1268072714926878720?s=21; https://twitter.com/matcha_chai/status/1268043556913987584?s=21

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The City, acting pursuant to this policy, custom, or practice, unlawfully used tear gas and “less lethal” weapons against plaintiffs as alleged above.
44. Count 2: Municipal Liability – Action of Policymaking Officials
The decision to use riot control and “less lethal” weapons against the crowds containing plaintiffs on May 29, 30, 31 and June 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16 made by officials of the PPB who are sufficiently senior that the decision may fairly be said to represent official policy of the City of Portland. Former PPB Chief Jami Resch was, and PPB Chief Chuck Lovell is the highest level of authority within the PPB, and Mayor of Portland Ted Wheeler, also the Police Commissioner, has acknowledged receiving minute-to-minute reports from PPB of events on the ground at the protest. The decision to use riot control and “less lethal” weapons was made by official policy makers the Chief of PPB and the Mayor of Portland.
45. Count 3: Municipal Liability -- Ratification
Former PPB Chief Jamie Resch stated in a news conference on June 3 that the decision to use tear gas, other riot control, and “less lethal” weapons against a crowd of protesters the evening prior was made by incident commanders at the scene. As such, the decision to use tear gas and “less lethal” weapons against the crowds containing plaintiffs on May 29, 30, 31 and June 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16 was made by incident commanders on scene. As alleged above, these decisions were ratified by the Chief of PPB and the Mayor of Portland.
46. The above-described conduct was a proximate cause of harm to Plaintiffs. ///

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SECOND CLAIM FOR RELIEF (Violation of the First Amendment – 42 U.S.C. § 1983 brought on behalf of Plaintiff Don’t
Shoot Portland Individually and Plaintiffs Roberts and Belden Individually and the Putative Class) 47.
Plaintiffs restate and incorporate herein all previous paragraphs of this Complaint. 48.
Plaintiffs were engaged in constitutionally protected acts of free speech, including public demonstration opposing racism and police violence against Black people. Plaintiffs will continue to do so in the future.
49. PPB’s use of force against Plaintiffs for engaging in First Amendment protected activity and, in an effort, to deter future similar activity, evidences a pattern and practice of unconstitutional conduct that is certain to continue absent any relief.
50. Plaintiffs reasonably fear the PPB’s continued use of tear gas and “less lethal” weapons on protesters and PPB’s acts would, and did, chill a reasonable person from continuing to engage in protected First Amendment Activity.
51. Municipal Liability – First Amendment
The City of Portland has a custom and practice of using militarized force against antipolice protesters, as demonstrated by the use of tear gas and “less lethal” weapons against those protesting outside the Justice Center, a significant symbolic representation of the issues being protested. The defendants’ use of force was intended to punish a group of protesters en masse for their political speech, and to deter further similar expressions of speech. The supervisory decision to fire tear gas and “less lethal” weapons indiscriminately into a crowd of protesters

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demonstrating outside the Justice Center was made in retaliation for the protesters’ protected speech condemning the police at the symbolic embodiment of the protest subject matter and to chill the expression of further similar speech.
52. The supervisor defendants who authorized, made, and ratified the decision to attack antipolice demonstrators are sufficiently senior so that their decision can fairly be said to be the official policy of the City of Portland.
53. The above-described conduct was a proximate cause of harm to Plaintiffs.
DAMAGES As a direct and proximate result of the conduct of the Defendants, Plaintiffs suffered economic and noneconomic damages, including interference with their First Amendment rights, a greater distrust in the PPB and police in general, fear of increased exposure to the novel COVID-19 virus, emotional distress, physical pain, and discomfort and suffering.
REASONABLE ATTORNEY’S FEES AND COSTS 42 U.S.C. § 1988(b) allows “the prevailing party . . . a reasonable attorney’s fee as part of the costs. . .” in an action brought under 42 U.S.C. § 1983. Plaintiffs requests that the court grant reasonable attorneys’ fees in this action.
PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for their costs and disbursements incurred herein and for the following in accordance with the proof at trial:
1. A temporary restraining order, prohibiting the City of Portland from using tear gas as a crowd control measure;

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2. A temporary restraining order, prohibiting the City of Portland from using “less lethal” weapons, including but not limited to OC spray or munitions, impact munitions, LRAD, sound cannons, etc., against protestors who are only engaged in passive resistance, including passive resistance to an order to disperse. In any case where PPB uses less lethal weapons, it must insure that no person who is engaged in only passive resistance is impacted or effected by those weapons.
3. A permanent injunction, prohibiting the City of Portland from using tear gas as a crowd control measure;
4. A permanent injunction, prohibiting prohibiting the City of Portland from using “less lethal” weapons, including but not limited to OC spray or munitions, impact munitions, LRAD, sound cannons, etc., against protestors who are only engaged in passive resistance, including passive resistance to an order to disperse. In any case where PPB uses less lethal weapons, it must insure that no person who is engaged in only passive resistance is impacted or effected by those weapons;
5. Compensatory damages to Plaintiffs Roberts and Belden; 6. Attorney’s fees; and 7. Any other relief the court deems proper.

DATED this 18th day of June 2020.

s/J. Ashlee Albies J. Ashlee Albies, OSB No. 051846 Whitney B. Stark, OSB No. 090350 Maya Rinta, OSB No. 195058 Albies & Stark LLC

Jesse Merrithew, OSB No. 074564 Viktoria Safarian, OSB No. 175487 Levi Merrithew Horst PC

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Juan C. Chavez, OSB No. 136428 Brittney Plesser, OSB No. 154030
FIRST AMENDED COMPLAINT

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Alex Meggitt, OSB No. 174131 Franz H. Bruggemeier, OSB No. 163533 Oregon Justice Resource Center Attorneys for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity; NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated; and MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated,
Plaintiffs, v.
CITY OF PORTLAND,
Defendant.

No. 3:20-cv-00917-HZ ORDER

HERNÁNDEZ, District Judge: Plaintiffs Don’t Shoot Portland, Nicholas Roberts, and Michelle “Misha” Belden, on
behalf of themselves and all others similarly situated, bring this action against Defendant City of Portland. Compl. 1, ECF 1. Plaintiffs allege that Defendant, through the Portland Police Bureau,
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violated the First and Fourth Amendments by using oleoresin capsicum (“OC”) and orthochlorobenzalmalonitrile (“CS”) (collectively, “tear gas”) during recent and ongoing Portland protests. Plaintiffs also filed a Motion for a Temporary Restraining Order (“TRO”), asking this Court to prohibit the City of Portland from using tear gas as a crowd control measure. Pl. Mot. TRO (“Pl. Mot.”), ECF 2. For the reasons that follow, Plaintiffs’ motion is granted in part.
BACKGROUND On May 29, 2020, citizens of Portland, Oregon, joined nationwide protests against the death of George Floyd and other acts of violence perpetrated by police officers against the African American community. While many demonstrations have remained peaceful, violence and destruction have occurred. Plaintiffs in this case challenge the Portland Police Bureau (“PPB”)’s use of tear gas against protestors participating in these demonstrations. The Court has reviewed the declarations and video evidence submitted by the parties. Defendant highlights the destruction that occurred on the first night of demonstrations, including a fire instigated by protestors inside the Justice Center.1 Reese Decl. ¶ 6. Defendant also offers evidence of largely peaceful marches—without any police intervention—and of officers using tear gas in response to individuals shaking fences and throwing projectiles. See Sheffield Decl. Plaintiffs do not dispute that, in some instances, officers deployed tear gas after individuals, within a larger crowd of peaceful protestors, threw water bottles and fireworks. Wilbanks Decl.
1 According to Defendant, “[t]he Justice Center houses the Multnomah County Detention Center. The Multnomah County Detention Center serves as the initial booking facility for all arrestees in Multnomah County and houses adults in custody for the County, as well as state and federal inmates involved in court matters . . . . As of May 29th, the Justice Center held approximately 250 adults in custody.” Def. Resp. 4, ECF 17. 2 - ORDER

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¶ 8; Kruszewski Decl. ¶ 9; Khalsa Decl. ¶ 13.2 But they also offer evidence that, in certain incidents, officers fired cannisters of tear gas at protestors without warning or provocation both in front of the Justice Center and elsewhere in downtown Portland. See, e.g., Roberts Decl. ¶¶ 14–15, 22–23; Bezdek Decl. ¶¶ 11, 23, 24; Theus Decl. ¶ 9; Butera-Smith Decl. ¶¶ 8, 9; Rushton Decl. ¶¶ 10, 11. Plaintiffs also recount multiple occasions in which crowds were surrounded by tear gas without available avenues of escape. Roberts Decl. ¶ 15; Theus Decl. ¶ 11; Bezdek Decl. ¶ 23; Butera-Smith ¶¶ 14, 15. Tear gas was also fired at protesters attempting to comply with officers’ orders to leave the areas at issue. Wilbanks Decl. ¶¶ 14, 15; Bezdek Decl. ¶¶ 20, 23.
Defendant’s use of tear gas is governed by two internal policy directives: Directive 635.10, “Crowd Management/Crowd Control,”3 and Directive 1010.00, “Use of Force.”4 Additionally, on June 6, 2020, Mayor Ted Wheeler, as Commissioner of the Portland Police Bureau, imposed further limitations on the use of tear gas, directing that “gas should not be used unless there is a serious and immediate threat to life safety, and there is no other viable alternative for dispersal.” Dobson Decl. ¶ 13.
STANDARDS The standard for a temporary restraining order (TRO) is “essentially identical” to the standard for a preliminary injunction. Chandler v. Williams, No. CV 08-962-ST, 2010 WL 3394675, at *1 (D. Or. Aug. 26, 2010) (citing Stuhlbarg Int’l Sales Co., Inc. v. John D. Brushy & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)); see also Daritech, Inc. v. Ward, No. CV–11-570– BR, 2011 WL 2150137, at * 1 (D. Or. May 26, 2011) (applying preliminary injunction standard
2 Defendant also asserts that officers have been targeted with other projectiles, including “bricks, full cans of soup, frozen water bottles, full water bottles, rocks, steel sling shot balls, fireworks, bottles, beer cans, flares and many other items.” Schoening Decl. ¶ 15. 3 Directive 635.10 is available at: https://www.portlandoregon.gov/police/article/649358. 4 Directive 1010.00 is available at: https://www.portlandoregon.gov/police/article/751998. 3 - ORDER

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to motion for TRO). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking Ass’ns Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 21 (2008)). “The elements of [this] test are balanced, so that a stronger showing of one element may offset a weaker showing of another. For example, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Similarly, serious questions going to the merits, coupled with a balance of equities that tips sharply in a plaintiff’s favor, will support the issuance of an injunction if the other elements of the test are met. Id. at 1134–35 (internal citations omitted).
DISCUSSION Before turning to the TRO analysis, there are four points worth addressing. First, as Judge Jackson noted in resolving a similar motion just days ago in the District of Colorado, people have a right to demonstrate and protest the actions of governmental officials, including police officers, without fear for their safety. This right is enshrined in the First and Fourth Amendments of the Constitution. Second, police in this country have difficult, dangerous, and often traumatic jobs. As the Supreme Court has recognized, officers are often “forced to make split-second judgments [] in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 397 (1989). Third, this case arises in unprecedented times. COVID-19 is a highly contagious and deadly respiratory virus that has taken too many lives and upended communities throughout this country. Finally, like Judge Jackson, the Court recognizes the difficulty in drawing an enforceable line that permits police officers to use appropriate means
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to respond to violence and destruction of property without crossing the line into chilling free speech and abusing those who wish to exercise it. I. Likelihood of Success on the Merits
A. Fourth Amendment Claim The Fourth Amendment prohibits unreasonable searches and seizures. Excessive force claims are analyzed under the objective reasonableness standard of the Fourth Amendment. Graham, 490 U.S. at 395. The reasonableness of an officer’s conduct must be assessed “from the perspective of a reasonable officer on the scene,” recognizing the fact that the officer may be “forced to make split-second judgments” under stressful and dangerous conditions. Id. at 396– 97. The Fourth Amendment standard requires inquiry into the factual circumstances of every case. Id. Relevant factors include the severity of the crime, the potential threat posed by the suspect to the officer’s and others’ safety, and the suspect’s attempts to resist or evade arrest. Id. Here, Plaintiffs provide video evidence and declarations documenting the use of tear gas against protestors. While Defendant points to the destruction that occurred at the Justice Center on May 29, 2020, Plaintiffs offer evidence that tear gas was used indiscriminately in other instances throughout the city. In some of these instances, there is no evidence of any provocation. In others, individuals appear to have shaken fences and thrown water bottles and fireworks at the police. Either way, there is no dispute that Plaintiffs engaged only in peaceful and non-destructive protest. There is no record of criminal activity on the part of Plaintiffs. To the contrary, there is even evidence that some protesters were confronted with tear gas while trying to follow police orders and leave the demonstrations. Given the effects of tear gas, and the potential deadly harm posed by the spread of COVID-19, Plaintiffs have established a strong likelihood that Defendant engaged in excessive force contrary to the Fourth Amendment.
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B. First Amendment Claim The First Amendment provides that all citizens have a right to hold and express their personal political beliefs. See Cohen v. California, 403 U.S. 15, 23–24 (1971). Organized political protest is a form of “classically political speech.” Boos v. Barry, 485 U.S. 312, 318 (1988). “Activities such as demonstrations, protest marches, and picketing are clearly protected by the First Amendment.” Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996). However, “[i]n order to demonstrate a First Amendment violation, a plaintiff must provide evidence showing that ‘by his actions [the defendant] deterred or chilled [the plaintiff’s] political speech and such deterrence was a substantial or motivating factor in [the defendant’s] conduct.’” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999) (alterations in the original) (quoting Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994). There is a serious question as to whether Plaintiffs will succeed on their First Amendment claim. At this juncture, the parties’ sole dispute is whether Plaintiffs can demonstrate that their protected activity was a substantial or motivating factor in PPB’s conduct. Plaintiffs have submitted evidence demonstrating that officers indiscriminately used force against peaceful protestors on multiple occasions. On a few occasions, officers continued to fire tear gas canisters as people attempted to leave the protest area, effectively blocking their escape. One protestor was subjected to rubber bullets, tear gas, and a flash bang at close range as he was calmly walking towards the waterfront, trying to comply with officers’ orders. Another was confronted by a group of seven officers, who rolled tear gas down the street towards her even as she informed the officers she was trying to go home. These incidents demonstrate that preventing criminal activity near the Justice Center was not the sole purpose of PPB’s use of force. Instead, officers may
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have been substantially motivated by an intent to interfere with Plaintiffs’ constitutionally protected expression. II. Irreparable Harm
Plaintiffs must also “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. “Typically, monetary harm does not constitute irreparable harm.” Calif. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 851 (9th Cir. 2009), vacated and remanded sub nom. Douglas v. Indep. Living Ctr. of S. Calif., Inc., 565 U.S. 606 (2012). The deprivation of a constitutional right, however, may constitute irreparable injury. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (affirming the district court’s finding that, in the absence of an injunction, the plaintiffs faced irreparable harm where it was likely they would be unlawfully detained in violation of the Fourth Amendment); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). But see City of L.A. v. Lyons, 461 U.S. 95, 111 (1983) (holding that the plaintiff was not entitled to an injunction without a showing of any “real or immediate threat that the plaintiff will be wronged again”).
Plaintiffs have demonstrated a threat of immediate, irreparable harm in the absence of a TRO. Plaintiffs have shown a likelihood of success on the merits on their Fourth Amendment claim and at least a serious question as to whether they have been deprived of their First Amendment rights. There is a real and immediate threat that Plaintiffs will be deprived of these rights as protests continue. The declarations in this case show that PPB has regularly used tear gas to disperse peaceful protestors. It is likely that it will continue to do so. The risk of irreparable harm is further heightened by the context in which these protests are occurring. Despite the global coronavirus pandemic, Plaintiffs and other protestors throughout the
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country—frequently wearing protective face coverings—have taken to the streets to protest police brutality and systemic injustice after the killing of George Floyd. But the use of tear gas under these circumstances may put protestors’ health at risk, contributing to the increased, widespread infection of this lethal virus. Without a court order limiting the circumstances in which PPB may use tear gas, Plaintiffs are likely to suffer irreparable physical and constitutional injuries. III. Balance of Equities
Under the “balance of equities” analysis, a court must “balance the competing claims of injury” and “consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (internal quotation marks omitted). Defendant points to harm that includes “the breaking of the windows of the Justice Center and other buildings, setting off fireworks, property destruction, looting, setting fires in the Justice Center and other areas of downtown, throwing and launching deadly projectiles at the police, and attempting to dismantle a fence put up to protect the Justice Center.” Def. Resp. 22.
In theory, limits on the use of tear gas may impede officers’ ability to protect themselves against potential violence from demonstrators. But any harm in limiting Defendant’s use of tear gas is outweighed by the irreparable harm that Plaintiffs—engaged in peaceful protest—are likely to endure. The relief afforded limits but does not eliminate the use of tear gas. Accordingly, the balance of equities weighs in Plaintiffs’ favor. IV. Public Interest
“The public interest inquiry primarily addresses impact on non-parties rather than parties.” League of Wilderness Defs/Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014) (internal quotation marks omitted). The Ninth Circuit has found
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that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Melendres, 695 F.3d at 1002 (internal citations and quotations omitted); see also Cuviello v. City of Vallejo, 944 F.3d 816, 834 (9th Cir. 2019) (“We have consistently recognized the significant public interest in upholding free speech principles.” (internal quotations and brackets omitted)).
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. The community, however, also has an interest in allowing the police to do their jobs and to protect lives as well as property.
Here, there is evidence that officers have violated the constitutional rights of peaceful protestors, as well as their own department’s internal directives and guidelines. Limiting the use of tear gas may mean that officers are unable to stop some property damage. But the unconstrained use of tear gas cannot weigh in the public’s interest when this use is likely to exacerbate the transmission of COVID-19, for those engaged in peaceful protest as well as the community at large. The Court therefore finds that the public interest weighs in favor of granting a TRO in this case. V. Relief
While the Court acknowledges that Mayor Wheeler has issued additional guidance on the use of tear gas during these protests, Defendant has not submitted sufficient evidence to show that this guidance will be effective in preventing its use against peaceful protestors in violation of the First and Fourth Amendment. The Court also notes that a court order offers Plaintiffs additional recourse in the event that these violations continue. The Court therefore orders that PPB be restricted from using tear gas or its equivalent except as provided by its own rules generally. In addition, tear gas use shall be limited to situations in which the lives or safety of the
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Case 3:20-cv-00917-HZ Document 29 Filed 06/09/20 Page 10 of 10 public or the police are at risk. This includes the lives and safety of those housed at the Justice Center. Tear gas shall not be used to disperse crowds where there is no or little risk of injury.
This order will expire in 14 days unless extended, superseded, or vacated by a subsequent order. Plaintiffs are not required to post security.
CONCLUSION Plaintiffs’ Motion for a Temporary Restraining Order [2] is granted in part. IT IS SO ORDERED. Dated: ____________J_u_n_e__9_,_2_0_2_0_______________.
__________________________________________ MARCO A. HERNÁNDEZ United States District Judge
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Jesse Merrithew, OSB No. 074564 Email: jesse@lmhlegal.com Viktoria Safarian, OSB No. 175487 Email: viktoria@lmhlegal.com Levi Merrithew Horst PC 610 SW Alder Street, Suite 415 Portland, Oregon 97205 Telephone: (971) 229-1241
Juan C. Chavez, OSB No. 136428 Email: jchavez@ojrc.info Brittney Plesser, OSB No. 154030 Email: bplesser@ojrc.info Alex Meggitt, OSB No. 174131 Email: ameggitt@ojrc.info Franz H. Bruggemeier, OSB No. 163533 Email: fbruggemeier@ojrc.info Oregon Justice Resource Center PO Box 5248 Portland, OR 97208 Telephone: 503 944-2270
J. Ashlee Albies, OSB No. 051846 Email: ashlee@albiesstark.com Whitney B. Stark, OSB No. 090350 Email: whitney@albiesstark.com Maya Rinta, OSB No. 195058 Email: maya@albiesstark.com Albies & Stark LLC 1 SW Columbia St. Suite 1850 Portland, Oregon 97204 Telephone: (503) 308-4770
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity, NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated, MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated, ALEXANDRA JOHNSON, in an individual capacity and on behalf of themselves and all others similarly situated,

Case No. 3:20-cv-00917-HZ
SECOND AMENDED COMPLAINT (Violations of Civil Rights: 42 U.S.C. § 1983)
JURY TRIAL DEMANDED

Plaintiffs

v.

CITY OF PORTLAND, a municipal corporation, and MULTNOMAH COUNTY, a political subdivision of the State,

Defendant.

Plaintiffs, by and through their attorneys, allege:

NATURE OF ACTION

1.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiffs bring this civil

rights action to stop the City of Portland and Multnomah County from using excessive force

against them in order to suppress plaintiffs’ right to free speech. For the past three weeks,

plaintiffs, along with tens of thousands of their fellow community members, and millions of

other people around the world, have taken to the streets to protest white supremacy and police

violence in the United States generally and in Portland specifically. The Portland Police Bureau

(“PPB”), like police departments all over the country, has responded with indiscriminate,

unchecked, and unconstitutional violence against protesters. At first, PPB used chemical agents

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(“tear gas”) against crowds of protesters, including plaintiffs, who had committed no criminal acts, posed no threat of violence to any person, and were merely engaged in protected speech. Plaintiffs were immediately concerned that the use of tear gas is particularly dangerous at the present time because it is specifically designed to irritate the respiratory system and to cause people to expel mucus and aspirated saliva. In the midst of a global pandemic, the deadly novel COVID-19 virus is known to spread principally through aspirated saliva and mucus. Plaintiffs sought and obtained a temporary restraining order prohibiting PPB from using tear gas except in narrow circumstances. Following that order, PPB changed tactics and the Multnomah County Sheriff Office (“MCSO”) increased its role, and both now use a variety of so-called “less lethal” weapons indiscriminately against plaintiffs in their continued effort to silence speech. Plaintiffs are entitled to a temporary restraining order, preliminary injunction, permanent injunction, damages, and an award of attorneys’ fees and costs.
JURISDICTION AND VENUE 2.
This court has subject matter jurisdiction over plaintiffs’ claims of violation of federal constitutional rights pursuant to 28 U.S.C. §§ 1331(a) and 1343 because the causes of action arise under 42 U.S.C. § 1983.
3. Venue is proper in the District of Oregon pursuant to 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. / / / / / / / / /

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PARTIES 4.
Plaintiff Don’t Shoot Portland is a not for profit corporation, incorporated under the laws of the state of Oregon, whose principle place of business is Portland, Multnomah County, Oregon. Don’t Shoot Portland is a Black-led organization whose fundamental mission is to advocate for social and racial justice in Portland. Don’t Shoot Portland was formed in the wake of the Ferguson uprising stemming from the police killing of Michael Brown and community outrage at police violence directed at Black people. Don’t Shoot Portland provides support for grassroots organizing and education on issues of police brutality, the school to prison pipeline, and combatting white supremacy and racism. Don’t Shoot Portland holds ongoing events and trainings related to its mission such as bystander intervention trainings, and advocates for demilitarization of the police. Its programs include a children’s art and social justice council, community clothing tree, and community legal clinics. Don’t Shoot Portland also advocates for social justice and change though supporting direct action in a safe manner; participating, organizing and supporting protests; providing know your rights trainings and information; and providing jail support to people arrested during demonstrations. Don’t Shoot Portland recognizes that mass mobilizations and demonstrations are necessary for politicians and the general public to understand the importance of an issue in order to enact policies responsive to community demands in order to create and foster a more equitable City. Don’t Shoot Portland has devoted resources to identifying, counteracting, and addressing the practices alleged in this complaint, and this diversion of resources has frustrated its mission. As a result of the PPB’s and MCSO’s unconstitutional policy, practice, and customs, as alleged herein, Don’t Shoot Portland must devote additional resources to educating, informing, and protecting protesters from unconstitutional practices, and this diversion of resources has frustrated its mission.

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5. Plaintiff Nicholas J. Roberts (Pronouns: he/him), at the time of filing and all material times, was a resident of Portland, Multnomah County, Oregon.
6. Plaintiff Michelle “Misha” Belden (Pronouns: They/Them), at the time of filing and all material times, was a resident of Portland, Multnomah County, Oregon.
7. Plaintiff Alexandra Johnson (Pronouns: she/her), at the time of filing and all material times, was a resident of Portland, Multnomah County, Oregon.
8. Defendant City of Portland is a political subdivision of the State of Oregon. The Portland Police Bureau (“PPB”) is a department or division of the City. As a local governmental entity, the City of Portland is a suable person under 42 U.S.C. § 1983. The people who used tear gas and “less lethal” weaponry, including as described below, were employees or agents of the City of Portland. On information and belief, each and every decision to indiscriminately use tear gas and other “less-lethal” weapons against plaintiffs was made at or ratified by a sufficiently high level as to be policy decision of the City of Portland.
9. Defendant Multnomah County is a political subdivision of the State of Oregon. The Multnomah County Sherriff’s Office (“MCSO”) is a department or division of the County. As a local governmental entity, the County is a suable person under 42 U.S.C. § 1983. The people who used tear gas and “less lethal” weaponry, including as described below, were employees or agents of Multnomah County. On information and belief, each and every decision to indiscriminately use tear gas and other “less-lethal” weapons against plaintiffs was made and or

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ratified by a sufficiently high level as to be policy decision of Multnomah County. On information and belief, the MCSO deputies who used tear gas and other “less-lethal” weapons against plaintiffs were acting pursuant to the practice or policy of Multnomah County.
GENERAL ALLEGATIONS 10.
Black Lives Matter. 11.
The disproportionate and excessive use of force against Black people by police officers in the United States is a well-documented, systemic problem. It exists in every police department in this country, including the PPB and MCSO. I. George Floyd
12. On May 25, 2020, in Minneapolis, Minnesota, a Black man named George Floyd was murdered on video by Officer Derek Chauvin of the Minneapolis Police Department while three of his fellow officers watched and did nothing to intervene. Officer Chauvin knelt on Mr. Floyd’s neck while Mr. Floyd pleaded for his life, repeatedly telling Chauvin that he could not breathe. A bystander video of the murder quickly went viral, sparking outrage throughout the country.
13. For many Americans, and particularly Black Americans, the murder of George Floyd, in broad daylight while being openly filmed by a witness, was the proverbial straw that broke the camel’s back. Fed up with the empty platitudes and the endless yet ineffective “reforms” by their political and law enforcement leaders, millions of Americans took to the streets in protest,

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demanding an end to police violence and white supremacy, and refusing to leave those streets unless and until meaningful change is made.
14. Protests against police violence have been met with police violence in nearly every city around the country. Videos shared in the press and on social media show the police in this country out of control: attacking journalists, attacking bystanders, threatening children, assaulting people for insulting them, engaging in drive-by attacks with “less lethal” weapons, planting weapons in the hands of people arrested, pulling off demonstrators’ CDC-recommended facemasks and macing them, kettling whole groups of protesters only to launch tear gas at them, driving their cars directly through crowds of people, using military helicopters in efforts to terrify civilians, discussing plans to shoot protesters, and above all, using massive amounts of tear gas in a massive systemic effort to stop people from protesting police violence. This violent police response has only strengthened the resolve of protesters. II. Portland
15. Beginning on May 29, 2020, and every night since then, Portlanders have been demonstrating in the streets demanding justice for George Floyd and demanding an end to police violence. The PPB, like police departments throughout the country, have met these demands with violence.
16. A focal point of conflict between PPB and MCSO (collectively “law enforcement”) on one hand and protesters on the other has been the “Justice Center” in downtown Portland, which was for many weeks, completely surrounded by fencing. The building houses PPB’s central precinct, which includes command staff offices, a jail operated by MCSO where hundreds of

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humans – disproportionately Black – are housed in small cage like cells, and a small number of courtrooms where the “business” of the criminal legal system perpetuating these racial inequalities continues every working day. It is, in short, a perfect symbol of the harms the protesters seek to address.
17. PPB and MCSO are determined to keep the protesters away from the Justice Center, closing public streets, erecting fences, and guarding it with lines of law enforcement officers stocked with weapons and wearing armor, helmets, and gas masks. Every night since the protests began has ended with a standoff around the Justice Center between law enforcement and protesters, culminating in law enforcement using a variety of tactics, including indiscriminately spraying demonstrators with tear gas, rubber bullets, pepper balls, blast balls, Long Range Acoustic Device (“LRAD”), flash bangs, and other impact munitions, while launching aerial munitions into the air above their heads. After PPB and MCSO succeed in scattering protesters throughout the streets of downtown Portland, PPB often kettle protesters and continue to assault them with more pepper spray, impact munitions, and aerial munitions.
18. Since this court entered a Temporary Restraining Order on June 9, 2020, limiting the PPB’s use of tear gas on protestors, PPB has escalated its use of rubber bullets, pepper balls, blast balls, flash bangs, and other impact munitions on the crowd in an indiscriminate manner, and MCSO has done the same. III. Tear Gas and COVID 19
19. Riot control agents (here referred to as “tear gas”) are chemical compounds that temporarily make people unable to function by causing irritation to the eyes, mouth, throat,

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lungs, and skin. Several different compounds are considered to be riot control agents, including chloroacetophenone (“CN”), chlorobenzylidenemalononitrile (“CS”), and oleoresin capsicum (“OC”). OC is derived from capsaicin and designed to be an irritant and inflammatory agent “primarily affect[ing] the respiratory tract.” CS is a nerve gas designed to inflict pain, and degrade the mucous membranes in a person’s eyes, nose, mouth, and lungs. The PPB and the MCSO uses both CS and OC, and possibly other agents.
20. PPB launches tear gas from canisters at protesters which releases the chemical agent in gaseous form, exposing people through skin contact, eye contact, or breathing it in. PPB also disharges chemical agents directly from handheld canisters, and by shooting FN303s with OC payload or 40mm impact munitions with OC payload. These weapons spread their OC payload upon impact with the ground or the body of person. Manufacturer’s materials for OC capsules fired from FN303s describe this feature and practice of firing at the ground as “area saturation.”
21. Tear gas causes irritation to the area of contact within seconds of exposure, including eye burning, excessive tearing, blurred vision and redness; runny nose, and nasal burning and swelling; mouth burning, irritation, difficulty swallowing and drooling; chest tightness, coughing, choking sensation, wheezing, shortness of breath; burns and skin rash. Some people experience nausea and vomiting. Studies show that tear gas is linked to miscarriage and fetal harm. Moreover, the 1993 International Chemical Weapons Convention, Geneva, bans tear gas from use by military forces during war.
22. COVID-19, or Coronavirus, is a novel and serious respiratory virus which impacts the upper and lower respiratory system. It is spread primarily through droplets when an infected

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persons coughs or sneezes, or through droplets of saliva or discharge from the nose. For all these reasons, the CDC recommends people wear face coverings over the nose and mouth to help prevent the spread of COVID-19. There is no vaccine nor cure for COVID-19, and no one has prior immunity. As such, the virus has spread across the globe, and has been designated a global pandemic. Those infected with COVID-19 can experience no symptoms, mild symptoms, or severe symptoms. As such, and due to limited COVID-19 testing, the true rate of COVID-19 infections is unknown.
Because of racism and its impact on economic and health disparities, Black people, Indigenous people, and people of color are more likely to develop, suffer, and face complications from COVID-19 than their white counterparts.1
23. Many recent reports link the use of tear gas to exacerbation of spreading of COVID-19. Indeed, Oregon Health and Science University (“OHSU”) President Danny Jacobs, M.D., F.A.C.S., released a statement acknowledging that “Protests have long served as a positive agent for social change in the U.S.,” and that law enforcement’s “use of tear gas and other chemical means to control crowds has raised great concern among medical professionals as we simultaneously try to manage a global pandemic.” The statement further opined: While large gatherings in general provide increased opportunities for the transmission of COVID-19, the use of tear gas could significantly exacerbate the spread. Tear gas is a chemical that attacks the mucous membranes of the eyes, nose, throat and lungs and causes severe pain and irritation; exposure to tear gas can result in blindness, bleeding, crying and coughing. The release of airborne droplets through tear gas-induced coughing could accelerate the spread of COVID-19 and lead to a surge in new cases. Damage to the

1See Multnomah County, New numbers show COVID-19 damage to communities of color; leaders call for better data collection, (May 1, 2020), available at https://multco.us/novel-coronavirus-covid-19/news/new-numbers-showcovid-19-damage-communities-color-leaders-call

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respiratory tract can put individuals at greater risk of adverse outcomes if they become infected with COVID-19.2
24. The use of tear gas is, by its very nature, indiscriminate. Everyone must breathe, and anyone who breathes in the area where police have used tear gas will be harmed by the gas. The Defendants knew this when it decided to procure the tear gas, arm law enforcement with the tear gas, and authorize police to use tear gas in its downtown core on protesters. The Defendants knew that the gas would harm people who were not engaged in any unlawful activity and where law enforcement had no probable cause that individuals had committed any crimes. V. Impact Munitions
25. In addition to using chemical weapons, law enforcement uses a variety of so-called “riot control” weapons, some of which also contain OC as a chemical irritant. PPB uses two different platforms for launching these munitions: an 18 mm, 15-round capacity, shoulder fired weapon called an FN303; and 40 mm, two round capacity, shotgun-style launcher. PPB uses the FN303 to deploy munitions containing OC powder designed to cause chemical irritation to anyone around the impact; munitions containing paint designed to both hurt the person and mark them with paint; and munitions containing sand to both hurt the target and cause non-chemical irritation. PPB uses the 40 mm launcher to fire foam tipped rounds designed to hurt people, foam tipped rounds with OC inside, and two types of “flash-bang” grenades: one that emits light and sound, and one that, in addition, spreads plastic shot over an area of people in order to hurt them. PPB also uses hand-held grenade-style weapons that accomplish the same purposes of 40 mm

2 Danny Jacobs, M.D., M.P.H., FACS, Statement on tear gas and nonviolent protests, Oregon Health & Sciences University (June 4, 2020) available at https://news.ohsu.edu/2020/06/05/statement-on-tear-gas-and-nonviolentprotests?linkId=90165009

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launched flash-bangs. The manufacturer’s website advertises that one of these hand-thrown grenades will spread plastic projectiles over a 50 foot radius. MCSO also uses impact munitions against protestors in an indiscriminate manner.
26. Neither the FN303s nor the 40 mm launchers are accurate at long distances, and become inaccurate altogether after several deployments. The use of FN303s and 40 mm launchers in crowd management settings has lead to the death of protesters, like in Boston.3 This fact has lead to some police departments to cease use of FN303s altogether, like the Boston Police Department, which repurposed these weapons by melting them into sewer caps.4 During the recent protests following George Floyd’s murder, projectiles fired from FN303s have resulted in the serious maiming of individuals.5
27. In the past and during the present protests, from May 31 to the present, law enforcement has fired these impact munitions, particularly the FN303, indiscriminately into crowds of passively resisting, or other peaceful protesters, both before and after PPB has declared an unlawful assembly/civil disturbance, leaving large welts, bruises, and other similar injuries. Protesters outside of the Multnomah County Justice Center attest to being fired upon and hit by such munitions by law enforcement standing at the top of the stairs across the street despite having not engaged in any behavior that was criminal, let alone threated anyone’s life or safety. / / / / / /

3 The New York Times, Boston Police to Destroy Pepper-Spray Guns (Feb. 23, 2007), available at https://www.nytimes.com/2007/02/23/us/23pepper.html 4 Id. 5 Kelli Kennedy, Protester hit in face by police rubber bullet wants answers, Houston Chronicle (June 12, 2020), available at https://www.houstonchronicle.com/news/article/Protester-hit-in-face-by-police-rubber-bullet15336813.php

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IV. Don’t Shoot Portland 28.
Don’t Shoot Portland has been participating the local demonstrations and providing assistance and support to protesters. It has participated in, monitored, and amplified calls to end racist policing and the violent police response to nonviolent protesters. It strongly opposes the use of tear gas, “less lethal” weapons, and any force against protesters. V. Nicholas J. Roberts
29. Nicholas J. Roberts is an Oregonian who lives in downtown Portland. He attended his first protest on May 29, 2020, because he wanted to protest police brutality and the oppression of Black people. He took precautions because of COVID-19, putting on gloves, face masks, and safety glasses, and tried to practice social distancing. Mr. Roberts attended demonstrations on May 29, 30, 31 and June 1, 2, 6, 10, 12 and 13, and saw peaceful protesters. Mr. Roberts was not engaging in any unlawful activity when the PPB began launching tear gas into the largely peaceful crowd protesting police violence in front of the Justice Center. Mr. Roberts attended protests on May 30, May 31, and June 2, 6, and 13, and had a similar experience: law enforcement launched tear gas and “less lethal” weapons at peaceful protesters demonstrating against police violence at the Justice Center who were not engaged in any unlawful conduct. Mr. Roberts has been attending demonstrations less since being subjected to law enforcement’s weaponry.
30. Mr. Roberts was physically harmed and frightened by law enforcement’s use of tear gas and “less lethal” weapons.

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VI. Michelle “Misha” Belden 31.
Mx. Belden had attended the protest in Downtown Portland on June 2, 2020. They were protesting against the brutality the country witnessed when George Floyd of Minneapolis, MN was murdered by a Minneapolis Police Officer. They wished to be with their community as it protested against police violence and racism. They were attending the march from SE Portland to Pioneer Plaza in Downtown Portland. There, they heard a few explosions in the distance. They arrived at the area around SW 3rd and SW Salmon. They found a crowd chanting, and mostly calm. Suddenly, there was a flash bang then tear gas. Everyone started scattering. They were trapped between walls of gas, a fence, and lines of police officers. The air was thick with tear gas. They believed the police were trying to kill them. This continued for several blocks until they reached safety around SW Naito and Harvey MLK.
32. Mx. Belden attended protests on June 9 and 10, 2020 as well, between the 9 pm-1 am at the Justice Center in Downtown Portland. On June 9, the crowd of approximately 500 was mostly peaceful, and some people rattled the fence erected outside the Justice Center. Law enforcement administered a warning to back away from the fence, and while many protestors backed away, some stayed close to the fence, but stopped rattling the fence. At about midnight, when the crowd had dwindled to by approximately 40%, PPB fired flash bangs and OC munitions to disperse the crowd without any warning. To Mx. Belden and others, it looked and sounded like tear gas, despite the TRO entered in this case, causing Mx. Belden to believe the PPB will never stop using excessive force, and that protesters will all be subject to arrest and excessive force at all times, denying them an opportunity to have a peaceful protest. On June 10, one part of the fence was taken down, away from the Justice Center and where law enforcement

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were stationed. Protesters were simply standing around. Two people, one clothed and one not, ran behind the fenced off area. After the first person went into the fenced area, law enforcement deployed chemical agents, impacting the nearby protestors. Law enforcement then deployed “less lethal” weapons, including OC blasts, and flash bang. Mx. Belden left the scene, because they felt law enforcement was escalating and they did not want to be caught up in it, and did not want to get gassed again. As a result, Mx. Belden gave up on protesting for the rest of that week.

33. Mx. Belden was physically harmed and frightened by law enforcement’s use of tear gas and “less lethal” weapons. V. Alexandra Johnson
34. Alexandra Johnson has attended the protests in Downtown Portland every day since May 31, 2020, because Black Lives Matter and she wants to make her community safer and more equitable. Ms. Johnson has not witnessed any rioting or looting..
35. For example, on the night of June 15, 2020, Ms. Johnson was at the Justice Center where a crowd of about 100 to 200 people were gathered. The crowd was chanting, but she did not see anyone touch the fence or throw any projectiles. Although PPB announced that it was unlawful to point a laser at police officers, Ms. Johnson did not have a laser, and was merely chanting with the crowd and livestreaming some of the protest. Ten minutes later, the police began shining two high-powered flashlights directly into the eyes of protesters along the fence. PPB also made an announcement not to throw projectiles over the fence. Minutes later, PPB targeted her with multiple spotlights, including a powerful light pointing at her camera for 30 seconds straight. The

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light hurt her eyes even though she was more than 50 feet away from the police. When she stopped filming, the police stopped targeting her with their lights. After she moved to the intersection of SW 3rd Ave and Main, suddenly and without warning, law enforcement officers stationed above the crowd on an upper floor of the Justice Center began shooting “less lethal” munitions into the crowd. She began filming again and announced to the livestream that police had started firing into the crowd without indiscriminately and without warning. A moment later, a law enforcement officer about 30 feet away aimed directly at her and shot at her, ripping open her left hand and causing immediate pain and injury. Medics nearby washed her wound, applied pressure, wrapped it, and helped her calm her breathing. About five minutes later, PPB declared an unlawful assembly and ordered the crowd to disburse or be subject to arrest or force. As she tried to leave the area, the police began using flashbang grenades, which exploded just feet away from her. The crowd of protesters was also trying to disperse calmly and safely while the police continued to use explosive grenades and smoke grenades.
36. She eventually went to the hospital, where she received three stitches. Days later, when she removed the bandage, the swelling continued and her injuries were extensive. An x-ray revealed a broken bone in her hand. She is unable to close her fist and is in significant pain while doing small tasks, like pulling up my own pants or lifting a cup of coffee and must revert to only using her other hand. She also has major bruising on the palm of her hand and inside of her thumb making it difficult to perform her job duties. As a result of the above, she feels fearful of police, and has reduced her involvement in the protests.
37. Ms. Johnson was physically harmed and frightened by law enforcement’s use of tear gas and “less lethal” weapons.

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CLASS ALLEGATIONS 38.
Plaintiffs Nicholas J. Roberts, Misha Belden, and Alexandra Johnson bring this action pursuant to Rules 23(a) and 23(b)(1) and (2) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated individuals.
39. The proposed class is defined as follows: all individuals who currently or who will in the future engage in protest activities that follow the death of George Floyd opposing police violence and white supremacy. This include protesters who engage in passive resistance to the orders of police, but does not those who engage in conduct beyond passive resistance.
40. The class period commences on May 25, 2020 and extends to the date on which Defendants are enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice, and custom of using indiscriminate excessive force, including but not limited to the use of tear gas and “less lethal” weapons, irrespective of the individualized conduct of specific protesters. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees, or assignees.
41. This action has been brought and may properly be maintained as a class action under Federal law and satisfies numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
42. The Class is so numerous, on information and belief, over 1,000, that joinder is impractical. Maintaining individual actions would create a risk of “inconsistent or varying

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adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Multiple courts issuing multiple injunctions governing use of force standards for law enforcement would be untenable.
43. Common questions of law and fact exist as to all members of the class. These legal and factual questions include but are not limited to: • By engaging in the tactics alleged herein, have Defendants violated the First
Amendment? • By engaging in the tactics alleged herein, have Defendants violated the Fourth
Amendment? • By allowing an unconstitutional pattern, practice, and custom of using indiscriminate
excessive force against protesters, have Defendants violated the First and Fourth Amendments? • Have Defendants exhibited a deliberate indifference to the unconstitutional conduct alleged herein? • By utilizing indiscriminate force, such as tear gas, pepper spray, and impact munitions, have Defendants unlawfully chilled the speech rights of protesters?
44. Plaintiffs Robert’s, Belden’s, and Johnson’s claims are typical of the claims of the class members. The harms Plaintiffs suffered and will suffer, as a result of Defendants’ courses of conduct, are typical of the harms suffered by class members. “[T]he party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R. Civ.

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P. 23(b)(1)(A). There is no allegation that Plaintiffs have been targeted because of anything unique to them as individuals.
45. Plaintiffs Roberts, Belden, and Johnson will fairly and adequately protect the interest of the Class. Plaintiffs have no interests adverse to the interests of the class. Plaintiffs retained counsel with experience and success in the prosecution of civil rights litigation. Counsel for Plaintiffs know of no conflicts among class members or between counsel and class members.
46. Plaintiffs Roberts, Belden, and Johnson seek injunctive and declaratory relief. Any injunction requiring Defendants to address their constitutional violations would prevent other litigants from seeking a different injunction. Plaintiffs Roberts, Belden, and Johnson seek class certification under Fed. R. Civ. P. 23(b)(1).
FIRST CLAIM FOR RELIEF (Excessive Force – Violation of Fourth Amendment – 42 U.S.C. § 1983 brought on behalf of
Plaintiff Don’t Shoot Portland Individually and Plaintiffs Roberts, Belden, and Johnson Individually and the Putative Class) 47.
Plaintiffs restate and incorporate herein all previous paragraphs of this Complaint. 48.
Count 1: Municipal Liability – Unlawful Practice or Policy Allowing Indiscriminate Use of Force as Tactic to Disperse Crowd.
The City of Portland and Multnomah County each have an official policy allowing the use of “riot control” and “less lethal” weapons against a crowd whenever it determines that the crowd creates a “civil disturbance.” This policy has no relationship with the Graham v. Connor Fourth Amendment standard regulating the use of force against individuals. It expressly allows

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for the indiscriminate use of force against a crowd of people, including those engaging in passive resistance, in violation of the Fourth Amendment.
Alternatively, even if the policy itself is constitutional, PPB’s and MCSO’s actual practice and custom is to allow the use of “riot control” and “less lethal” weapons against a crowd both before and after an “unlawful assembly” and/or a “civil disturbance” has been declared, even when a substantial number of people in that crowd, or even the majority of that crowd, are engaged only in the passive resistance to an order.
49. On May 29, 30, 31 and June 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20, 2020, PPB and MSCO deployed tear gas and/or other “less lethal” weapons on large crowds of peaceful protesters and continued to deploy tear gas and/or “less lethal” weapons at people running away. Videos documenting the indiscriminate nature of this force deployment are rampant.6 The City and County have tacitly and explicitly authorized the use of indiscriminate crowd control munitions on crowds of protesters by justifying uses of similar tactics, including “less lethal” weapons shot indiscriminately into crowds of protesters, at protests on these dates. The City and County, acting pursuant to this policy, custom, or practice, unlawfully used tear gas and “less lethal” weapons against plaintiffs as alleged above.
50. Count 2: Municipal Liability – Action of Policymaking Officials
The decision to use riot control and “less lethal” weapons against the crowds containing plaintiffs on May 29, 30, 31 and June 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20, made by officials of the PPB or the County who are sufficiently senior that the decision

6 E.g. https://twitter.com/mrolmos/status/1268072714926878720?s=21; https://twitter.com/matcha_chai/status/1268043556913987584?s=21

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may fairly be said to represent official policy of the City of Portland or the County. Former PPB Chief Jami Resch was, and PPB Chief Chuck Lovell is the highest level of authority within the PPB, and Mayor of Portland Ted Wheeler, also the Police Commissioner, has acknowledged receiving minute-to-minute reports from PPB of events on the ground at the protest. The decision to use riot control and “less lethal” weapons was made by official policy makers the Chief of PPB and the Mayor of Portland.
51. Count 3: Municipal Liability -- Ratification
Former PPB Chief Jamie Resch stated in a news conference on June 3 that the decision to use tear gas, other riot control, and “less lethal” weapons against a crowd of protesters the evening prior was made by incident commanders at the scene. As such, the decision to use tear gas and “less lethal” weapons against the crowds containing plaintiffs on May 29, 30, 31 and June 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 was made by incident commanders on scene. As alleged above, these decisions were ratified by the Chief of PPB and the Mayor of Portland.
52. The above-described conduct was a proximate cause of harm to Plaintiffs.
SECOND CLAIM FOR RELIEF (Violation of the First Amendment – 42 U.S.C. § 1983 brought on behalf of Plaintiff Don’t Shoot Portland Individually and Plaintiffs Roberts, Belden, and Johnson Individually and
the Putative Class) 53.
Plaintiffs restate and incorporate herein all previous paragraphs of this Complaint. / / / / / / / / /

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54. Plaintiffs were engaged in constitutionally protected acts of free speech, including public demonstration opposing racism and police violence against Black people. Plaintiffs will continue to do so in the future.
55. PPB’s and the MCSO’s use of force against Plaintiffs for engaging in First Amendment protected activity and, in an effort, to deter future similar activity, evidences a pattern and practice of unconstitutional conduct that is certain to continue absent any relief.
56. Plaintiffs reasonably fear the PPB’s and the MCSO’s continued use of tear gas and “less lethal” weapons on protesters, and PPB’s the MCSO’s acts would, and did, chill a reasonable person from continuing to engage in protected First Amendment Activity.
57. Municipal Liability – First Amendment
The City of Portland and Multnomah County have a custom and practice of using militarized force against anti-police protesters, as demonstrated by the use of tear gas and “less lethal” weapons against those protesting outside the Justice Center, a significant symbolic representation of the issues being protested. The Defendants’ use of force was intended to punish a group of protesters en masse for their political speech, and to deter further similar expressions of speech. The supervisory decision to fire tear gas and “less lethal” weapons indiscriminately into a crowd of protesters demonstrating outside the Justice Center was made in retaliation for the protesters’ protected speech condemning the police at the symbolic embodiment of the protest subject matter and to chill the expression of further similar speech.

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58. The supervisor defendants who authorized, made, and ratified the decision to attack antipolice demonstrators are sufficiently senior so that their decision can fairly be said to be the official policy of the City of Portland.
59. The above-described conduct was a proximate cause of harm to Plaintiffs.
DAMAGES As a direct and proximate result of the conduct of the Defendants, Plaintiffs suffered economic and noneconomic damages, including interference with their First Amendment rights, a greater distrust in the PPB, MCSO, and law enforcement in general, fear of increased exposure to the novel COVID-19 virus, emotional distress, physical pain, and discomfort and suffering.
REASONABLE ATTORNEY’S FEES AND COSTS 42 U.S.C. § 1988(b) allows “the prevailing party . . . a reasonable attorney’s fee as part of the costs. . .” in an action brought under 42 U.S.C. § 1983. Plaintiffs requests that the court grant reasonable attorneys’ fees in this action.
PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for their costs and disbursements incurred herein and for the following in accordance with the proof at trial:
1. A temporary restraining order, prohibiting the City of Portland and Multnomah County from using tear gas as a crowd control measure;
2. A temporary restraining order, prohibiting the City of Portland and Multnomah County from using “less lethal” weapons, including but not limited to OC spray or munitions, impact munitions, LRAD, sound cannons, etc., against protestors who are only engaged in passive resistance, including passive resistance to an order to

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disperse. In any case where PPB and MCSO uses less lethal weapons, it must insure that no person who is engaged in only passive resistance is impacted or effected by those weapons. 3. A permanent injunction, prohibiting the City of Portland and Multnomah County from using tear gas as a crowd control measure; 4. A permanent injunction, prohibiting prohibiting the City of Portland and Multnomah County from using “less lethal” weapons, including but not limited to OC spray or munitions, impact munitions, LRAD, sound cannons, etc., against protestors who are only engaged in passive resistance, including passive resistance to an order to disperse. In any case where PPB and MCSO use less lethal weapons, they must insure that no person who is engaged in only passive resistance is impacted or effected by those weapons; 5. A declaration that Portland Police Bureau’s Crowd Control Directive, 0635.10, as written and/or as applied violates the Fourth Amendment to the United States Constitution; 6. Compensatory damages to Plaintiffs Roberts, Belden and Johnson; 7. Attorney’s fees; and 7. Any other relief the court deems proper.

DATED this 24th day of June 2020.

s/J. Ashlee Albies J. Ashlee Albies, OSB No. 051846 Whitney B. Stark, OSB No. 090350 Maya Rinta, OSB No. 195058 Albies & Stark LLC
Jesse Merrithew, OSB No. 074564 Viktoria Safarian, OSB No. 175487 Levi Merrithew Horst PC

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Juan C. Chavez, OSB No. 136428 Brittney Plesser, OSB No. 154030 Alex Meggitt, OSB No. 174131 Franz H. Bruggemeier, OSB No. 163533 Oregon Justice Resource Center Attorneys for Plaintiffs

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 Case 3:20-cv-00917-HZ Document 43 Filed 06/26/20 Page 1 of 3

J. SCOTT MOEDE, OSB 934816 Chief Deputy City Attorney scott.moede@portlandoregon.gov NAOMI SHEFFIELD, OSB 170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov ROBERT YAMACHIKA, OSB 065560 Senior Deputy City Attorney rob.yamachika@portlandoregon.gov Portland City Attorney’s Office 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity, NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated, MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated, ALEXANDRA JOHNSON, in an individual capacity and on behalf of themselves and all others similarly situated,

3:20-cv-00917-HZ STIPULATED ADDITIONAL TEMPORARY RESTRAINING ORDER

PLAINTIFFS,

v.

CITY OF PORTLAND, a municipal corporation, and MULTNOMAH COUNTY, a political subdivision of the State,

DEFENDANTS.

The parties hereby jointly stipulate to the following modification to the Temporary Restraining Order entered by this Court on June 9, 2020 (Dkt# 29), and extended through July 24, 2020 (Dkt #34) Page 1 – STIPULATED ADDITIONAL TEMPORARY RESTRAINING ORDER

PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

Case 3:20-cv-00917-HZ Document 43 Filed 06/26/20 Page 2 of 3

PPB is restricted in using the following munitions in connection with crowd control as follows:
(1) FN303s and 40MM less lethal launchers with or without OC payload are limited to use as outlined in PPB Use of Force Directive 1010, and in addition shall not be used where people engaged in passive resistance are likely to be subjected to the force.
(2) Rubber Ball Distraction Devices (“RBDD”) shall be limited to use as outlined in PPB Use of Force Directive 1010. In addition, use of RBDD shall be limited to situations in which the lives or safety of the public or the police are at risk and shall not be used to disperse crowds where there is no or little risk of injury.
(3) Aerosol restraints (handheld OC or “pepper spray”) shall not be used against persons engaged in passive resistance, and consistent with PPB Use of Force Directive 1010, members shall minimize exposure to non-targeted persons.
(4) Long Range Acoustical Devices (“LRAD”) shall be prohibited for use as a warning signal or distraction tactic and shall be used for announcements only.
“Passive resistance” as used above means a person’s non-cooperation with a member that does not involve violence or other active conduct by the individual.
This order shall remain in effect until July 24, 2020 or until the Court orders otherwise, or by agreement of the parties.

So stipulated:

/s/ J. Ashlee Albies J. Ashlee Albies, Franz Bruggemeier, Juan C. Chavez, Alex Meggitt, Jesse Alan Merrithew, Brittney Plesser, Viktoria Safarian and Whitney Stark Attorneys for Plaintiffs

/s/ J. Scott Moede

_

J. Scott Moede

Naomi Sheffield

Robert Yamachika

Attorneys for Defendant City of Portland

Page 2 – STIPULATED ADDITIONAL TEMPORARY RESTRAINING ORDER
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

Case 3:20-cv-00917-HZ Document 43 Filed 06/26/20 Page 3 of 3

 
 Case 3:20-cv-00917-HZ Document 55 Filed 06/30/20 Page 1 of 16
Jesse Merrithew, OSB No. 074564 Email: jesse@lmhlegal.com Viktoria Safarian, OSB No. 175487 Email: viktoria@lmhlegal.com Levi Merrithew Horst PC 610 SW Alder Street, Suite 415 Portland, Oregon 97205 Telephone: (971) 229-1241
Juan C. Chavez, OSB No. 136428 Email: jchavez@ojrc.info Brittney Plesser, OSB No. 154030 Email: bplesser@ojrc.info Alex Meggitt, OSB No. 174131 Email: ameggitt@ojrc.info Franz H. Bruggemeier, OSB No. 163533 Email: fbruggemeier@ojrc.info Oregon Justice Resource Center PO Box 5248 Portland, OR 97208 Telephone: 503 944-2270
J. Ashlee Albies, OSB No. 051846 Email: ashlee@albiesstark.com Whitney B. Stark, OSB No. 090350 Email: whitney@albiesstark.com Maya Rinta, OSB No. 195058 Email: maya@albiesstark.com Albies & Stark LLC 1 SW Columbia St. Suite 1850 Portland, Oregon 97204 Telephone: (503) 308-4770
Attorneys for Plaintiffs

Case 3:20-cv-00917-HZ Document 55 Filed 06/30/20 Page 2 of 16

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

DON’T SHOOT PORTLAND, et al.,

)

)

Plaintiffs

)

)

v.

)

)

CITY OF PORTLAND, a municipal

)

corporation, and MULTNOMAH COUNTY, )

a political subdivision of the State,

)

)

Defendants.

)

)

)

Case No. 3:20-cv-00917-HZ
PLAINTIFFS’ MOTION FOR FINDING OF CONTEMPT AND FOR SANCTIONS AGAINST DEFENDANT CITY OF PORTLAND
Oral Argument Requested

LR 7-1 CERTIFICATION

Counsel for plaintiffs hereby certify that they contacted counsel for defendants and

attempted to resolve this dispute but were unable to do so.

MOTION

Plaintiffs move this Court for an order finding the Defendant City of Portland (“City”) in

contempt and imposing remedial sanctions. In particular, on June 27, 2020, and into the morning

hours of June 28, 2020, Portland Police Bureau members used “less lethal weapons” in violation

of this Court’s order entered on June 26, 2020. Plaintiffs ask this Court to impose sanctions that

are reasonably calculated to prevent future contemptuous conduct by the City. This Court has

wide discretion in determining the appropriate sanction. Plaintiffs suggest that the following

options should be considered by the Court:

1. A complete ban on the use of certain “less lethal weapons” in any crowd control

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2. A requirement that any use of “less lethal weapons” must be specifically authorized by a politically accountable leader, such as Mayor Ted Wheeler, the commissioner of the Portland Police Bureau.
3. Prohibiting the individual members who violated this Court’s order from participating in any future crowd control operations.
4. Compensatory fines of sufficient size to compensate the individual class members for their injuries and deter future violations. FACTS
The protests sparked by the May 25, 2020, police killing of George Floyd have continued across the globe and in Portland. For over a month, people have attended demonstrations in Portland to express concerns about ongoing racial inequality; to protest police brutality; to support the message of defunding the police; to express disapproval of systemic racism and state brutality inflicted on Black people, Indigenous people, and other people of color (“BIPOC”); to stop the continued police killings of Black people; to protest the Portland Police; to stand up for our rights; and because Black Lives Matter. Declaration of Donnie Yarn (“Yarn Decl.”) at ¶ 3; Declaration of Gillian Herrera (“Herrera Decl.”) at ¶ 16; Declaration of Thaddeus O’Connell (“O’Connell Decl.”) at ¶ 2; Declaration of Alexandra Johnson (“Johnson Decl.”) at ¶ 10, 11; Declaration of Camilla Ruth Kaplan (“Kaplan Decl.”) at ¶ 15; Declaration of Frederick Garlick (“Garlick Decl.”) at ¶ 3; Declaration of Natalie Ann Norcross (“Norcross Decl.”) at ¶ 13. This Court has entered two restraining orders governing the City’s use of force at these protests. See Dkt. No. 29, 43. Plaintiffs now seek enforcement of those orders.

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I. Thursday, June 25, 2020

a. Demonstration at the Justice Center

On Thursday, June 25, 2020, protesters held a candlelight vigil at the Justice Center for

all those who have been killed by police. Declaration of Aubrey Danner (“Danner Decl.”) at ¶ 2.

That evening, law enforcement officers jumped out of the plywood doors covering the Justice

Center, and indiscriminately shot whoever happened to be standing near by, and then

immediately retreated back inside the doors. Declaration of Princess Blair Unicorn (“Unicorn

Decl.”) at ¶ 10.

b. Demonstration at the Portland Police Bureau’s North Precinct

On Thursday, June 25, 2020, at around 9:00pm, a group of demonstrators marched from

Fernhill Park and arrived at the Portland Police Bureau’s North Precinct (“North Precinct” or

“the precinct”). Herrera Decl. at ¶ 2. The protesters chose to gather near the precinct to directly

express their grievances about police brutality toward Black people and to be heard by police

officers patrolling historically Black and African American neighborhoods. Herrera Decl. at ¶ 2.

A crowd of protesters peacefully assembled on NE Martin Luther King, Jr. Boulevard (“MLK”),

chanting, giving speeches, playing music, and expressing themselves. Herrera Decl. at ¶ 3;

O’Connell Decl. at ¶ 3.

At the parking lot on the corner of MLK and NE Emerson, some people held a Potlach

ceremony. O’Connell Decl. at ¶ 4; Herrera Decl. at ¶ 3. A Potlatch is a traditional Indigenous

ceremony practiced by Indigenous groups in the Pacific Northwest. Herrera Decl. at ¶ 3. It

involves the sharing and giving of wealth. O’Connell Decl. at ¶ 4; Herrera Decl. at ¶ 3. One of

the hosts of the Potlatch set up their grill, prayer cards, tables, and chairs, and started grilling

salmon, corn, zucchini, and other vegetables, and gave food out to people. O’Connell Decl. at ¶

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4. There were signs all around the parking lot explaining the purpose and status of the ceremony, including that it was a protected ceremony under the American Indian Religious Freedom Act. O’Connell Decl. at ¶ 4; Herrera Decl. at ¶ 3. It was obvious that the Potlatch ceremony was separate and apart from the main crowd of people at MLK. Herrera Decl. at ¶ 3.
After a couple hours, without provocation, law enforcement officers charged at the protesters on MLK with batons. Herrera Decl. at ¶ 4; Unicorn Decl. at ¶ 6, 8. Officers also fired munitions and flash bang grenades into the crowd, and released cannisters of OC pepper spray into the crowd. Herrera Decl. at ¶ 4; Unicorn Decl. at ¶ 6, 8. Prior to this use of force, no one had thrown anything at the officers and no one had set any fires. Herrera Decl. at ¶ 5. People were simply standing on MLK when officers charged, shot, and OC sprayed the crowd. Herrera Decl. at ¶ 5.
After police engaged in the above-described conduct, protesters announced to the crowd that a dumpster and a boarded-up window of Mid-K Beauty store, a Black-owned business, were on fire, and the protesters called for the fires to be put out. Herrera Decl. at ¶ 7. At least one person heard an explosion like a flashbang grenade come from the dumpster, which then caught fire. Unicorn Decl. at ¶ 9. That dumpster was adjacent to a boarded up window of the Mid-K Beauty store. Unicorn Decl. at ¶ 9. Almost immediately, protesters pulled the dumpster away from the building and tried to put out the dumpster fire. Unicorn Decl. at ¶ 9. Protesters also put out the fire of the Mid-K Beauty store board. Danner Decl. at ¶ 4.
At the time the dumpster was on fire, protesters were not throwing or breaking anything, and were not setting anything on fire. Declaration of Maggie Sisco (“Sisco Decl.”) at ¶ 4. Police

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announced that the crowd should “go the other way,” but did not tell people where to go, and the

crowd was confused trying to figure out how to leave. Sisco Decl. at ¶ 4.

Either while protesters were trying to put the fire out, or after the fires were already out,

officers launched tear gas, rubber bullets, pepper balls, and flash bang grenades into the crowd.

Unicorn Decl. at ¶ 10; Herrera Decl. at ¶ 8; Sisco Decl. at ¶ 4; Danner Decl. at ¶ 5. Protesters

began running away and moving back. Danner Decl. at ¶ 5. As a result of the chemical agent and

munitions, protesters felt they could not breathe, and started gagging, coughing, and sneezing.

Unicorn Decl. at ¶ 11; Sisco Decl. at ¶ 4. Multiple people were actively bleeding from their

police-inflicted wounds. Unicorn Decl. at ¶ 11. Street medics treated protesters’ injuries as

smoke and gas continued to fill the air. Danner Decl. at ¶ 7.

On June 25, 2020, and into the morning hours of June 26, 2020, officers used tear gas,

flash bang grenades, and pepper balls to scatter protesters who were not engaged in any acts of

violence or property damage. Herrera Decl. at ¶ 12; Danner Decl. at ¶ 5. Officers shot protesters

with pepper balls even as they walked away from officers with their hands in the air, inflicting

pain and bruises. Herrera Decl. at ¶ 9; Danner Decl. at ¶ 6. Police officers sprinted towards

retreating protesters and charged at them. Danner Decl. at ¶ 7.

c. Police Violently Dispersed the Potlatch Ceremony

That same evening and into the morning hours, Portland police also violently dispersed

the Potlatch ceremony that was being conducted separate and apart from the protesters. At

around 12:40am, Portland police officers fired from the top of the roof onto the crowd below,

including those who had been peacefully partaking in the Potlatch ceremony. O’Connell Decl. at

¶ 4. At around 1:15am, when police ordered people to disperse, the host of the Potlach started

packing up their food, grill, table, chairs, and other equipment. About 10 minutes later, police

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rushed out of the precinct, firing rubber bullets and flash bang grenades, shoving people with batons, and destroying the Potlatch equipment and materials. O’Connell Decl. at ¶ 7.
As people were retreating and running away, officers launched tear gas into the crowd. O’Connell Decl. at ¶ 8; Herrera Decl. at ¶ 13. At no point had any of the people engaging in the peaceful religious ceremony done anything to provoke or threaten the officers. O’Connell Decl. at ¶ 4; Herrera Decl. at ¶ 14.
Throughout the evening, police officers appeared to target people’s heads and vital organs with their weapons. Herrera Decl. at ¶ 14; O’Connell Decl. at ¶ 9. Officers pushed, tackled, and beat protesters with fists and batons—including those people who had fallen on the ground. O’Connell Decl. at ¶ 9. On at least one occasion, a police officer punched a protester in the face point-blank. O’Connell Decl. at ¶ 9.
As a result of police use of tear gas that evening, some protesters suffered respiratory distress and exacerbated asthma symptoms. Sisco Decl. at ¶ 5. Others were traumatized by the police use of force—particularly against people who had done nothing wrong, who were attempting to comply with police commands, and who had done nothing but peacefully attend an Indigenous ceremony and exercise their religious freedom. O’Connell Decl. at ¶ 10.
Law enforcement’s above-described conduct had a chilling effect on people’s First Amendment rights: people now fear for their life and safety at the hands of the police, and worry that they will be injured—or injured again—at a subsequent demonstration. Herrera Decl. at ¶ 16. Others have not attended another demonstration: after June 26, O’Connell planned to attend another event, but after they were stopped by the police, they were so frightened that they turned around and went home. O’Connell Decl. at ¶ 11.

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II. Friday, June 26, 2020

On the evening of Friday, June 26, 2020, as it got dark, a large crowd of protesters—

perhaps up to 200 people—gathered in the street on SW 3rd Avenue in front of the Justice

Center and chanted. Garlick Decl. at ¶ 8; Lake Decl. at ¶ 3. The Justice Center was covered with

plywood boards. Lake Decl. at ¶ 3. Law enforcement officers occasionally looked at protesters

from the inside of the Justice Center through holes in the plywood which covered the building.

Garlick Decl. at ¶ 7; Lake Decl. at ¶ 3, video available at:

https://www.youtube.com/watch?v=v2XWwopy2MI.

At around 11:00pm, without provocation, law enforcement officers started shooting at

protesters from the south side of the Justice Center. Garlick Decl. at ¶ 10. About a dozen or so

protesters were standing there with their hands up. Garlick Decl. at ¶ 11. Yet law enforcement

officers shot impact munitions through the holes in the plywood at the crowd of protesters from

about three to ten feet away. Lake Decl. at ¶ 4. Later, officers ordered people to move away from

the corner of the building, only to come out of the Justice Center and fire pepper balls and impact

rounds/rubber bullets at the crowd five minutes later. Garlick Decl. at ¶ 11; Lake Decl. at ¶ 4.

Throughout the evening, law enforcement officers continued to point their weapons and

shoot at groups of protesters who were doing nothing more than standing near the building. For

example, in response to a group of protesters chanting on SW 3rd Avenue and Main Street, law

enforcement officers yelled and pointed their weapons at protesters through the plywood holes.

Garlick Decl. at ¶ 12. When some protesters knocked on the door, officers would open the door

to fire rubber bullets at the crowd. Id. Officers shot pepper balls and impact munitions at

children, including a 12-year-old child, who was injured; officers’ impact munitions split the

child’s leg open and it bled profusely. Id.

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Without warning, officers dropped a flash bang grenade into the crowd from a secondstory window of the Justice Center and fired rubber bullets into the crowd. Garlick Decl. at ¶ 13; Lake Decl. at ¶ 4. At least one person collapsed and was unresponsive after the flash bang grenade; another person fell from rubber bullet injuries. Garlick Decl. at ¶ 14; Danner Decl. at ¶ 9; Lake Decl. at ¶ 4.
Law enforcement’s above-described conduct had a chilling effect on people’s First Amendment rights: people now worry that if they go out to protest, or if they film the police, they will be injured or killed. Lake Decl. at ¶ 7.
III. Saturday, June 27, 2020 On Saturday, June 27, 2020, there was another large demonstration at the Justice Center.
Some protesters, aware of this Court’s temporary restraining order, relied on that order to protect them from law enforcement’s use of chemical agents and munitions. Norcross Decl. at ¶ 1; Kaplan Decl. at ¶ 3. As such, some of the people were attending a protest for the first time. Norcross Decl. at ¶ 1.
That evening, there were hundreds of people protesting, including children and people of many different races. Yarn Decl. at ¶ 4; Kaplan Decl. at ¶ 4. At or around 10:00pm, a large group of protesters stood in the intersection of SW 3rd Avenue and Main Street. Norcross Decl. at ¶ 4. Protesters chanted, saying the names of George Floyd and Breonna Taylor, and supported one another by handing out snacks and cups of coffee. Norcross Decl. at ¶ 4; Yarn Decl. at ¶ 5; Kaplan Decl. at ¶ 4. Some protesters had placed barriers at SW 3rd Avenue as a safety precaution in the face of threats of violence and attacks by vehicles driving through the crowd. Unicorn Decl. at ¶ 13; Yarn Decl. at ¶ 5.

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At around 10:30pm, two vans of law enforcement officers in riot gear arrived at SW 3rd Avenue and Salmon Street. Garlick Decl. at ¶ 21; Kaplan Decl. at ¶ 5. Another group of officers came toward the crowd at SW 3rd Avenue from the south. Norcross Decl. at ¶ 4. Around this time, Portland police told protesters to leave SW 3rd. Declaration of Hilary Jepsen (“Jepsen Decl.”) ¶ 2. Some protesters tried to leave the area to the west but law enforcement launched a cannister of chemical agents and obstructed their path out. Norcross Decl. at ¶ 6; Jepsen Decl. at ¶ 4, 5, 6. The area was covered in thick smoke-like substance which caused a painful burning sensation in people’s lungs, choking, fits of severe coughing, shortness of breath, and caused people’s eyes to water. Norcross Decl. at ¶ 6, 7; Jepsen Decl. at ¶ 6, 8, 9. That is, whether or not the smoke-like substance was composed of CS, its actual effects were identical to tear gas. Jepsen Decl. at ¶ 7, 8, 14. Prior to officers’ use of the chemical agent, protesters had not thrown any items, set any fires, or otherwise threatened the life or safety of officers or others. Norcross Decl. at ¶ 12. To the contrary, protesters were following orders to leave or else engaged in passive resistance when law enforcement officers subjected them to chemical weapons. Jepsen Decl. at ¶¶ 10, 11, 12, 14.
As law enforcement officers in riot gear lined up on SW 3rd Avenue and Salmon Street, the crowd of demonstrators at SW Main Street yelled and chanted at them. The crowd put their hands up and saying, “Don’t Shoot!,” “We’re just talking to you!,” “We have First Amendment Rights!,” and “I don’t see no riot here, take off your riot gear!” Shortly after, and without warning, the line of law enforcement officers charged at a crowd of protesters. Kaplan Decl. at ¶ 6; Garlick Decl. at ¶ 22; Sisco Decl. at ¶ 6. Prior to the police charge, protesters had not thrown

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anything at officers, started fires, or otherwise acted aggressively or threateningly. Garlick Decl. at ¶ 22; Sisco Decl. at ¶ 8; Yarn Decl. at ¶ 8; Kaplan Decl. at ¶ 7.
Officers continued to charge the protesters, ripping away protesters’ umbrellas, signs, and shields so that officers could intentionally spray protesters in the face with OC. Garlick Decl. at ¶ 24; Unicorn Decl. at ¶ 15; Yarn Decl. at ¶ 8; Kaplan Decl. at ¶ 8; Trumbly Decl. at ¶ 10. Officers acted with the intent to injure and inflict terror: for example, officers shoved protesters to the ground, grabbed the goggles from their faces, and sprayed OC directly into their uncovered faces. Trumbly Decl. at ¶ 11. Officers also indiscriminately sprayed OC into the crowd of people. Id.
As the crowd retreated, officers continued to shove people and engage in excessive, aggressive and unprofessional conduct. Kaplan Decl. at ¶ 8. For example, at least one officer yelled, “get the fuck out of here!” Garlick Decl. at ¶ 24. In at least one case, as a protester walked backward and recorded the officers, another officer pushed that person down and kicked their cell phone away. Sisco Decl. at ¶ 6. In another case, an officer used their baton to hit a protester in the back and in the knee as that person was retreating. Unicorn Decl. at ¶ 18. Despite the fact that protesters yelled that they could not back up because there was no where to go, law enforcement officers continued to continued to push, shove, and deploy OC spray upon protesters—at times spraying the back of people’s heads—even as the crowd complied and were in retreat. Garlick Decl. at ¶ 25; Unicorn Decl. at ¶ 15; Kaplan Decl. at ¶ 9.
As the crowd retreated, officers also launched pepper ball munitions and flash bang grenades that exploded in the middle of the crowd. Garlick Decl. at ¶ 27; Kaplan Decl. at ¶ 10; Trumbly Decl. at ¶ 12, 13; Jepsen Decl. at ¶ 5. Shrapnel from the grenades injured at least one

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protester and added to their disorientation and confusion. Kaplan Decl. at ¶ 10. In addition, officers also launched smoke bombs into the crowd, including into a crowd of people near Main Street who were just standing there or trying to walk away. Unicorn Decl. at ¶ 15; Yarn Decl. at ¶ 9; Kaplan Decl. at ¶ 10; Jepsen Decl. at ¶ 3, 4, 5. The toxic smell and taste of the chemical caused a burning sensation in protesters’ eyes, nose, mouth, throat and lungs; coughing; and wheezing as some people felt like they could not breathe. Yarn Decl. at ¶ 10; Kaplan Decl. at ¶ 12; Jepsen Decl. at ¶ 6, 7, 8, 9.
Law enforcement officers’ indiscriminate use of chemical agents and munitions against the crowd was unprovoked: no one had thrown anything at the officers, no one had started a fire, or otherwise posed a threat. Kaplan Decl. at ¶ 11.
Later into the evening and early hours of June 28, officers continued to engage in excessive acts of violence. For example, at least one officer pushed a shopping cart back at an apparently unhoused person, hitting them in the stomach and knocking them down, even though that person appeared to be neurodiverse and was not part of the protests nor interfering with the police. Sisco Decl. at ¶ 7. As another example, another officer pointed a flashlight on the end of his gun at people’s faces, inches away, while smiling and laughing. Unicorn Decl. at ¶ 16.
Law enforcement officers’ conduct on the evening of June 27, 2020, into the morning of June 28, 2020, was frightening and dangerous. Norcross Decl. at ¶ 9, 10 11; Sisco Decl. at ¶ 8; Kaplan Decl. at ¶ 14. Throughout the evening, law enforcement used physical force, chemical agents, and impact munitions against people who were already complying and retreating. Kaplan Decl. at ¶ 14; Jepsen Decl. at ¶ 12, 13, 14, 15. Protesters witnessed officers purposely pepper spraying people’s faces and heads even as the crowd retreated. Garlick Decl. at ¶ 25; Unicorn

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Decl. at ¶ 15; Kaplan Decl. at ¶ 14. Law enforcement’s objectives were unclear—their conduct suggested their primary purpose was to attack and harm protesters. Kaplan Decl. at ¶ 14; Jepsen Decl. at ¶ 12.
Law enforcement’s conduct had a chilling effect on people’s First Amendment rights: people now worry that, if they go out to protest, they will face an increased risk of contracting COVID-19, and people fear that that continued participation in demonstrations will result in law enforcement officers continuing to attack, injure, and possibly kill them. Norcross Decl. at ¶ 13, 14; Sisco Decl. at ¶ 9; Yarn Decl. at ¶ 13.; Kaplan Decl. at ¶ 15; Jepsen Decl. at ¶ 18.
ARGUMENT This Court has broad inherent authority to enforce its orders. Spallone v. United States, 493 U.S. 265, 276 (1990). In addition, this Court has explicit statutory authority to enforce its orders through contempt, including the imposition of fines and confinement. See 18 U.S.C. § 401(3). Neither willfulness nor intent is required, and good faith is not a defense to a civil contempt finding. In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). Procedurally, plaintiff bears the initial burden of showing by clear and convincing evidence that defendant violated a specific and definite order of this Court. See Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th Cir. 1983). Once that burden is met, the burden shifts to defendant to show that they have taken all reasonable steps to avoid violating that order. Id. Only where a defendant has been in substantial compliance with a court order is the defense of “all reasonable steps” even available. In re Dual-Deck, 10 F.3d at 695. As demonstrated by the above facts, the City has violated this Court’s order by:

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a) Using tear gas on June 25 when there was no risk to the lives and safety of the police or community, and for the purpose of dispering the crowd; and,
b) Using FN303 and 40MM less lethal launchers, rubber ball distraction devices, and aerosol restraints against people who were both attempting to follow orders or engaged in only passive resistance on June 26 and June 27.1
A. Violation on June 25 On June 25, 2020, and into the morning hours of June 26, 2020: after firing on a peaceful crowd partaking in an Indigenous religious ceremony, as people were retreating and running away, officers launched tear gas into crowd. O’Connell Decl. at ¶ 4, 8; Herrera Decl. at ¶ 13, 14. Officers also used tear gas, flash bang grenades, and pepper balls to scatter protesters who were not engaged in any acts of violence or property damage. Herrera Decl. at ¶ 12; Danner Decl. at ¶ 5. This Court’s order prohibits the use of tear gas except in “situations in which the lives or safety of the public or the police are at risk.” Dkt. No. 29, at 9-10. In addition, the Court ordered that “Tear gas shall not be used to disperse crowds where there is no or little risk of injury.” Id. at 10. As the evidence submitted shows, this clear, definite order was violated on June 25. B. Violations on June 26 and June 27 The evidence from June 26 and June 27 show repeated, systemic violations of the order. Rubber bullets and other impact munitions have been used, more often than not, against people who are engaged only in passive resistance, if any resistance at all. Garlick Decl. at ¶ 11, 27; Lake Decl. at ¶ 4; Kaplan Decl. at ¶ 10; Trumbly Decl. at ¶ 12, 13. A child was struck with an impact muntion. Garlick Decl. at ¶ 12; see PPB Directive 1010.6.2.1 (prohibiting the use of any
1 The stipulated order from June 26 incorporates PPB Use of Force Directive 1010. That directive is included in full in the appendix to this motion. Page 14 PLAINTIFFS’ MOTION FOR FINDING OF CONTEMPT AND FOR
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less lethal weapons against children under the age of 15). Rubber ball distraction devices have

been used where no lives or safety are at risk, and indeed seem to serve no legitimate law

enforcement purpose whatsoever. Kaplan Decl. at ¶ 10. There does not appear to be any effort to

avoid exposing entire crowds of people to pepper spray; indeed, officers appear at times to be

acting in open defiance of that prohibition. Garlick Decl. at ¶ 25; Unicorn Decl. at ¶ 15; Kaplan

Decl. at ¶ 14; Jepsen Decl. at ¶ 3, 4, 5, 12, 13, 14, 15.

However, the invidual violations pale in comparison to the overall theme: the City is

using force as a means of dispersing protests, in clear violation of the United States Constitution

and this Court’s orders. Individual law breakers in the crowd of protesters are merely the excuse

used for imposing group punishment. There is little or no effort to arrest people. The intent of

the officers is clear from the overall practice, as well as the words of the officers themselves in

video recordings from the ground. The officers repeatedly tell people that if they do not leave an

area, the officers will use force against them to make them leave an area. The officers have no

intention of arresting anyone and allowing a court of law to figure out whether the person broke

the law. People who do not leave when told to do so are simply beaten until they leave. People

who are prevented from moving any faster by the crowd behind them are beaten, people who

cannot move quickly enough away from the police line are beaten, and people who stumble

because of a police shove or tripping over another person are beaten as they fall to the ground.

This theme is directly in opposition to the overall purpose of both of this Court’s orders: that

people engaged in passive resistance should not be subjected to these high levels of force. This

Court must act to remedy the contempt.

C. No Defense to Contempt

Regardless of what steps the City took to comply with the Court’s order, this Court

should find that the defense of “all reasonable steps” is unavailable to them because they have

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never been in substantial compliance with the order. The ink was barely dry on the order before the City violated it. In such a situation, there can be no claim of substantial compliance. In Re Dual-Deck, 10 F.3d at 695.
D. Remedy and Sanction Federal courts have broad remedial powers to address noncompliance. Stone v. City and County of San Francisco, 968 F.2d 850, 861-62 (9th Cir. 1992) (affirming court’s power to authorize sheriff to override state law); See also, e.g., Brown v. Plata, 563 U.S. 493 (2011) (imposing prison population limit); Nat’l Org. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536 (9th Cir. 1987) (affirming appointment of a Special Master). When the least intrusive measures fail to rectify the problems, more intrusive measures are justifiable. Stone, 968 F.2d at 861 (citing Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978)). Here, the Court has a valid basis to use its broad powers to compel Defendant to comply with the Court’s orders.

DATED this 30th day of June 2020

s/Jesse Merrithew
Jesse Merrithew, OSB No. 074564 Viktoria Safarian, OSB No. 175487 Levi Merrithew Horst PC
J. Ashlee Albies, OSB No. 051846 Whitney B. Stark, OSB No. 090350 Maya Rinta, OSB No. 195058 Albies & Stark LLC
Juan C. Chavez, OSB No. 36428 Brittney Plesser, OSB No. 154030 Alex Meggitt, OSB No. 174131 Franz H. Bruggemeier, OSB No. 163533 Oregon Justice Resource Center
Attorneys for Plaintiffs

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PLAINTIFFS’ MOTION FOR FINDING OF CONTEMPT AND FOR SANCTIONS AGAINST DEFENDANT CITY OF PORTLAND

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1010.00, Use of Force Refer: • Graham v. Connor, 490 U.S. 386 (1989) • ORS § 161.015, General Definitions • DIR 315.30, Satisfactory Performance • DIR 330.00, Internal Affairs, Complaint Intake and Processing • DIR 333.00, Criminal Investigations of Police Bureau Employees • DIR 345.00, Employee Information System • DIR 416.00, Critical Incident - Temporary Altered Duty • DIR 630.05, Vehicle Interventions and Pursuits • DIR 630.45, Emergency Medical Custody Transports • DIR 630.50, Emergency Medical Aid • DIR 631.70, Investigation of Animal Problems • DIR 635.10, Crowd Management/Crowd Control • DIR 640.02, Photography and Digital Imaging • DIR 850.20, Mental Health Crisis Response • DIR 900.00, General Reporting Guidelines • DIR 1010.10, Deadly Force and In-Custody Death Reporting and Investigation Procedures • DIR 1020.00, Weapons Administration • DIR 1021.00, Weapons Qualifications • PPB Canine Unit Standard Operating Procedures Definitions: • Active Aggression: A threat or overt act of an assault (through physical or verbal means), coupled with the present ability to carry out the threat or assault, which reasonably indicates that an assault or injury to any person is about to happen, unless intervention occurs. • Administrative Review: A written determination that requires the gathering and evaluating of information to develop a course of action. • After Action Report: A written report that describes a police action and assesses its adherence to policy through critique and evaluation using required criteria. • Arcing: Activating a conducted electrical weapon (CEW) without discharging the probes or making contact with a subject, to serve as a warning to the subject. • Boxing In: A coordinated tactic of making contact between police vehicles and a subject’s vehicle to stop or prevent the start of a pursuit. • Complaint of Improper Force: A complaint by a subject or person at the scene, or while in police custody, of improper force during a police action. Complaints of improper force include complaints of inappropriate and/or excessive force. • Complaint of Physical Injury: An assertion by a person that a member caused the person physical injury.

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• Conducted Electrical Weapon (CEW): A weapon, including Tasers, designed primarily to discharge electrical charges into a subject that will cause involuntary muscle contractions and overrides the subject’s voluntary motor responses.
• CEW Application: The contact and delivery of an electrical impulse to a subject using a CEW. • CEW Cycle: An activation of the CEW for a duration of up to five seconds. • Constitutional Force Standard: Under Graham v. Connor and subsequent cases, the federal
courts have established that government use of force must comply with the “reasonableness” requirement of the Fourth Amendment. Under this standard, members must choose from the objectively reasonable force options at a scene. See the definition of “objectively reasonable” below. • Cover Fire: When a member discharges a firearm in a tactical situation in response to the ongoing threat of the use of deadly physical force by a subject, and direct action against the subject is not feasible. Cover fire is not intended to strike a subject, but is meant only to prevent a subject from taking further action against the police or others that could result in death or serious physical injury. Cover fire can be dangerous and must be used with extreme caution. Cover fire is also intended to allow officers to take actions to resolve the situation, such as effecting a rescue, advancing or retreating, or delivering chemical agents. • Critical Firearm Discharge: Each discharge of a firearm by a member. This term includes discharges at persons where no one is struck. This term is not intended to include discharges at the range or in training, or negligent discharges not intended as an application of force, which are still subject to administrative investigation. • Deadly Force, also known as Lethal Force: Any use of force likely to cause death or serious physical injury, including the use of a firearm, carotid neck hold, or strike to the head, neck or throat with a hard object. • De-escalation: A deliberate attempt to prevent or reduce the amount of force necessary to resolve the confrontation. • Drive Stun: The process of applying energy to a subject through the terminal on a cartridge or conducted electrical weapon. • Force: Physical coercion used to effect, influence or persuade an individual to comply with an officer, to include the intentional pointing of a firearm at an individual. Control holds and handcuffing without resistance do not constitute force. • Immediate Cover: A member who stands ready to deploy additional control if needed (e.g., the CEW is ineffective or it fails to function properly). • Improper Use of Force: The application of force where there is insufficient justification for its use, where the use of force is more than is objectively necessary or that violates policy. • Involved Member: For the purposes of this directive, 1010.00, Use of Force, an involved member is a Bureau member who is involved in the application of force or directs another to use force.

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• Less Lethal Force: A force application that is not intended or expected to cause death or serious injury and that is commonly understood to have less potential for causing death or serious injury than conventional, more lethal police tactics. Nonetheless, use of less-lethal force can result in death or serious injury.
• Less Lethal Weapons: Weapons designed and intended to apply less lethal force. These weapons include, but are not limited to, CEWs, impact weapons, impact munitions, aerosol restraints.
• Mental Health Crisis: An incident in which someone with an actual or perceived mental illness experiences intense feelings of personal distress (e.g., anxiety, depression, anger, fear, panic, hopelessness), a thought disorder (e.g., visual or auditory hallucinations, delusions, sensory impairment or cognitive impairment), obvious changes in functioning (e.g., neglect of personal hygiene) and/or catastrophic life events (e.g., disruptions in personal relationships, support systems or living arrangements; loss of autonomy or parental rights; victimization or natural disasters), which may, but not necessarily, result in an upward trajectory of intensity culminating in thoughts or acts that are dangerous to self and/or others.
• Mental Illness: Health conditions that are characterized by alterations in thinking, mood, or behavior (or some combination thereof) associated with distress and/or impaired functioning. Alterations in thinking, mood, or behavior contribute to a host of problems-patient distress, impaired functioning, or heightened risk of death, pain, disability, or loss of freedom.
• Misconduct: Conduct by a member that violates Bureau regulations, orders, directives, or other standards of conduct required of City employees.
• Necessary: No objectively reasonable effective alternative exists to affect a lawful purpose. • Non-Disciplinary Corrective Action: Action other than discipline taken by a PPB supervisor to
enable or encourage a member to improve their performance. • Objectively reasonable: The reasonableness of a use of force is based on the totality of
circumstances known by an officer at the time of action or decision-making. It shall be judged from the perspective of a reasonable officer on the scene, without the clarity of 20/20 hindsight after the event has concluded. The measure of reasonableness gives consideration to the reality that officers are often forced to make split-second decisions in circumstances that are tense, uncertain and rapidly evolving. In the application or evaluation of the use of force, uses of the terms reasonable and reasonably in this policy refer to objective reasonableness. • Passive Resistance: A person’s non-cooperation with a member that does not involve violence or other active conduct by the individual. • Physical Injury: As defined in ORS § 161.015 (7), the impairment of a person’s physical condition or causing a person substantial pain. Substantial pain refers to degree and duration of the pain suffered by the victim; the pain must be considerable and must be more than momentary.

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• Physical Resistance: A person’s physical attempt to evade a member’s control that does not rise to the level of active aggression.
• Probe Cartridge: A device that contains two probes connected to light gauge wire that is propelled and attaches to the subject upon activation of the CEW.
• Pursuit Intervention Techniques (PIT): A driving technique designed to stop a fleeing motorist safely and quickly by making contact with the fleeing car at a specific point on the vehicle, which throws the car into a spin and brings it to a stop.
• Ramming: The use of an emergency (police) vehicle, other than in a pursuit intervention technique or boxing-in maneuver to purposely cause contact with another vehicle in order to disable the vehicle.
• Serious Physical Injury: As defined in ORS § 161.015(8), physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of function of any bodily organ.
• Serious Use of Force: (1) all uses of force by a member that reasonably appear to create or do create a substantial risk of death, serious disfigurement, disability, or impairment of the functioning of any body part or organ; (2) all critical firearm discharges by a member; (3) all uses of force by a member resulting in a significant injury, including a broken bone, an injury requiring hospitalization, or an injury deemed to be serious by a member’s supervisor; (4) all head, neck and throat strikes with an object or carotid neck holds; (5) force used upon juveniles known or reasonably assumed to be under fifteen or individuals known or reasonably assumed to be pregnant; (6) all uses of force by a member resulting in a loss of consciousness; (7) more than two applications of a CEW on an individual during a single interaction, regardless of the mode or duration of the application, regardless of whether the applications are by the same or different officers, and regardless of whether the CEW application is longer than 15 seconds, whether continuous or consecutive; (8) any strike, blow, kick, electronic control weapon system cycle, or similar use of force against a handcuffed, otherwise restrained, under control, or in custody subject, with or without injury; and (9) any use of force referred by a member’s supervisor to Professional Standards Division (PSD) which PSD deems serious.
• Takedown: Physical coercion used by a member to affect, direct, or influence a person to go to the ground not under their own control.
• Warning shot: Discharge of a firearm for the purpose of compelling compliance from an individual, but not intended to cause physical injury.
• Witness member: For the purposes of this directive, 1010.00, Use of Force, a witness member is a Bureau member who observes or has firsthand knowledge of the events surrounding the use of force by another member, and other than observing the incident, did not use force themselves. Additionally, a member who observes or has knowledge of the events surrounding a member’s direction to another to use force. Policy:

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1. The Portland Police Bureau is committed to upholding the civil rights of all individuals, protecting human life and property, and maintaining civil order. The Bureau’s commitment to public safety includes ensuring the welfare of members of the public, its officers and professional staff, with an emphasis on the sanctity of life and policing with respect. 2. The Portland Police Bureau recognizes that this commitment may require members to use force. The community expects and the Portland Police Bureau requires that members use only the objectively reasonable force necessary to perform their duties and overcome the threat or resistance of the subject under the totality of the circumstances. Members who violate these values by using objectively unreasonable force erode the confidence of the community and may expose themselves, those present, and the greater population to unnecessary danger; thus, objectively unreasonable uses of force shall result in corrective action and/or discipline, up to and including termination. 3. While the ultimate objective of every law enforcement encounter is to protect the public, nothing in this policy requires a member to retreat or be exposed to possible physical injury before applying reasonable force. 4. Over the course of their careers, the Bureau expects members to develop and use skills and abilities that allow them to regularly resolve confrontations while minimizing the need to use force. Members are to be aware that this Directive is more restrictive than state or federal laws. 5. The Bureau is dedicated to providing training in all categories of force and de-escalation techniques, as well as providing sufficient resources, to help members safely and effectively resolve confrontations through the application of de-escalation tools and lower levels of force. When feasible, members are expected to use de-escalation tactics in order to avoid the need for or reduce the amount of force. However, the Bureau recognizes that each situation is unique and presents its own challenges. Members are expected to adapt and apply Bureau training principles reasonably in unanticipated situations. 6. Members shall attempt to avoid or minimize the use of force against individuals in perceived behavioral or mental health crisis or those with mental illness and direct such individuals to the appropriate services, where possible. 7. Member accountability is integral to building and maintaining community trust. The Bureau is committed to institutionalizing systems of accountability and establishing transparent reporting practices. When force is used, the Bureau is dedicated to reviewing, reporting and investigating member actions to determine if the force used was in accordance with Bureau training and policy. This policy establishes reporting and investigative guidelines for all use of force. It includes the specific reporting requirements for all force incidents and the completion of police reports and After Action reports, as defined in this Directive. 8. The Bureau recognizes that the use of force may have an emotional impact on all involved. Members are encouraged to take proactive steps to mitigate these impacts through positive interactions with subjects and concerned community members following such an event.

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Procedure: 1. De-escalation:
1.1. Members shall use de-escalation techniques, when time and circumstances reasonably permit. De-escalation techniques provide members the opportunity to stabilize the scene or reduce the necessity for or intensity of force so that more time, options and resources are available to resolve the confrontation. Members shall take proactive steps to eliminate the immediacy of the threat, establish control and minimize the need for force.
1.1.1. De-escalation techniques include, but are not limited to: 1) using verbal techniques to calm an agitated subject and promote rational decision making; 2) allowing the subject appropriate time to respond to direction; 3) communicating with the subject from a safe position using verbal persuasion, advisements, or warnings; 4) decreasing exposure to a potential threat by using distance, cover, or concealment; 5) placing barriers between an uncooperative subject and an officer; 6) ensuring there are an appropriate number of members on scene; 7) containing a threat; 8) moving to a safer position; and 9) avoiding physical confrontation, unless immediately necessary.
1.1.2. When practical and appropriate, members shall consult with and/or call specialized units to respond, including but not limited to those related to behavioral health, tactics and/or negotiation, to assist in de-escalating the situation or devising a disengagement strategy or otherwise assist in safely resolving the incident.
1.1.3. To avoid confusion, members shall establish and maintain one-on-one communication with the subject and avoid giving simultaneous directions or having multiple members verbally engaging the subject.
1.2. Members shall consider whether a subject’s lack of compliance is a deliberate attempt to resist or an inability to comply based on factors including, but not limited to: 1) medical conditions; 2) mental impairment; 3) developmental disability; 4) physical limitation; 5) language barrier; 6) drug or alcohol impairment; and 7) mental health crisis.
1.3. Members shall consider a disengagement plan when the benefits to be gained by police intervention are clearly outweighed by the risks associated with the call.
1.4. When responding to and managing scenes involving persons in mental health crisis and when time and circumstances permit, members shall consider using disengagement and deescalation techniques, as well as devising a response plan through the ROADMAP tool. Members shall refer to Directive 850.20, Police Response to Mental Health Crisis, for

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additional guidance regarding ROADMAP and encounters with individuals with known or perceived mental illnesses or experiencing mental health crisis.
1.4.1. Tactics in ROADMAP can be used as a stand-alone tactic, or they may be overlapped with other tactics to create a plan. Plans may need to be altered several times during an incident as it evolves, and members should be prepared to switch to other tactics as the totality of the circumstances changes.
1.4.1.1. When safe under the totality of circumstances, members shall consider disengagement as a tactic to reduce undue safety risks to the member, the involved person(s) or others.
1.5. When force is used, the amount of force used, including the number of members who use force, shall be reduced as resistance decreases. Only the amount of force reasonably calculated to maintain control shall be used.
1.6. Members shall refrain from using force against individuals who are already under control by officers or who express verbal discontent with officers, but do not otherwise pose a threat to officers or others, or impede a valid law enforcement function. Members must balance the governmental interest to take action in service of the public against the rights of individuals involved.
2. Authorized Use of Force.
2.1. Members are authorized to use force when permitted by this policy in order to:
2.1.1. Prevent or terminate the commission or attempted commission of an offense;
2.1.2. Lawfully take a person into custody, make an arrest or prevent an escape;
2.1.3. Prevent a suicide or serious self-inflicted injury;
2.1.4. Defend the member or other person from the use of physical force; or,
2.1.5. Accomplish some official purpose or duty that is authorized by law or judicial decree.
3. Warning Issuance.
3.1. Unless it would present a danger to the member(s) or others, members shall issue a clear and intelligible verbal warning or attempt to utilize hand signals where there is a language barrier or the subject is deaf or hard of hearing, prior to using any force.

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3.1.1. Members shall provide a description of the warning given in their use of force reports. If no warning was given, members shall provide a justification for the lack of warning.
3.1.1.1. No written justification is necessary for the lack of a warning for the following:
3.1.1.1.1. Vehicle intervention techniques; and
3.1.1.1.2. Category IV force.
3.2. Prior to using a less lethal weapon, members shall, when feasible, warn or announce to other members their intent to use the tool, in an attempt to avoid sympathetic fire.
4. Prohibited Use of Force.
4.1. Members shall not use force against people who engage in passive resistance that does not impede a lawful objective. Physically moving a subject engaged in passive resistance is permitted when it is necessary and objectively reasonable.
4.2. Members are prohibited from using force for interrogation or torture.
4.3. Under no circumstances will a member use force solely because another member is using force. 5. Graham Standard: Force Performance Requirements.
5.1. To comply with this Directive and satisfy the constitutional standard, members shall only use force that is objectively reasonable under the totality of circumstances. When determining to use any force, members must balance the individual’s Fourth Amendment rights against the government’s interest. Members shall at least consider the following three criteria in making a decision to use force:
5.1.1. Threat. Whether the individual poses an immediate threat to the safety of the officers or others. The extent and immediacy of the threat are the most important determining factors when considering the need for and type of force that may be reasonable during an encounter. 5.1.2. Severity. The severity of the crime at issue. 5.1.3. Active Resistance or Evading. Whether the individual is actively resisting control or attempting to evade. When force is used, the amount of force used, shall be reduced as resistance decreases. Only the amount of force reasonably calculated to maintain control shall be used.
5.2. Though the above three factors are of primary consideration, a reasonableness inquiry is not limited to these factors and force will be evaluated under the totality of the circumstances.

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5.3. Member Considerations for Use of Force.
5.3.1. Members should recognize that their approach to confrontations may influence whether force becomes necessary and the amount force that must be used.
5.3.2. Members must not precipitate a use of force by placing themselves or others in jeopardy through actions that are inconsistent with the Bureau’s training without a substantial justification for variation from recommended practices.
5.3.3. When feasible, members shall allow individuals time to submit to arrest before force is used.
5.4. Other Member Responsibilities.
5.4.1. Members must individually justify each independent application of force. When feasible, members shall re-evaluate the need for continued force in between independent uses of force.
5.4.2. Members have a duty to reasonably intercede to prevent the use of unlawful force by another member.
5.4.3. Members shall take into account all available information, including observed behavior, reports from other members or witnesses, known mental health history and perceived mental illness or mental health crisis.
5.4.4. During a confrontation with an individual known or perceived to be in mental health crisis, members must recognize and reasonably balance the governmental interest in providing care to the individual with the need for force. Members shall call in specialized units when practical.
5.4.5. Members shall refer to Directive 850.20, Police Response to Mental Health Crisis, for intervention techniques regarding individuals with known or perceived mental illnesses or experiencing a mental health crisis.
6. Less Lethal Force. 6.1. Less lethal force provides members with additional tactics or options for managing encounters with threatening or actively resistive subjects. However, members shall consider that the use of less lethal force can still result in death or serious injury. 6.2. Members shall not use less lethal weapons on the following persons unless the person is armed with a dangerous or deadly weapon, or is about to commit suicide, or is in the act of causing harm to themselves or others, or the member has probable cause that the subject has committed a Measure 11 crime: 6.2.1. Children who are known to be, or are obviously under the age of fifteen.

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6.2.2. An individual who is known to be, or is obviously pregnant. 6.2.3. A person who is known to be, or is obviously medically fragile. 6.3. Members shall not use any less lethal weapons against individuals who are handcuffed or otherwise restrained, and under control. 6.4. Additional rules for Bureau-authorized less lethal weapons are outlined below: 6.4.1. Impact Weapons. 6.4.1.1. Authorized Uses. 6.4.1.1.1. In response to active aggression. 6.4.1.1.1.1. When striking, members should only use the Bureau-issued baton. Use of any other impact tool is strongly discouraged and is appropriate only when the member reasonably believes that other authorized physical force responses are not available. 6.4.1.1.1.2. Members shall make reasonable efforts to ensure that impact weapons are used on preferred target areas, including arms and legs. 6.4.1.2. Restricted Uses. 6.4.1.2.1. Members striking or jabbing with a baton shall not deliberately target the head or throat, neck, spine, or groin unless deadly force would be authorized. 6.4.1.2.1.1. Unintentional or inadvertent strikes to these restricted areas require following all other reporting procedures, with the addition of explicitly verbally notifying a supervisor that this has occurred. Reports must specifically address the circumstances and actions that related to striking restricted areas. 6.4.2. Impact Munitions. 6.4.2.1. Authorized Uses. 6.4.2.1.1. In response to active aggression; 6.4.2.1.2. To prevent suicide or immediate physical harm when reasonable in light of available options; 6.4.2.1.3. To avoid the use of a higher level of force; or,

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6.4.2.1.4. To effect the capture or prevent the escape of a subject when the member reasonably believes that the subject presents an immediate risk of physical injury to the public, members or themselves, or the escape of the subject presents a significant danger to the public, members or themselves. Mere flight from an officer is not sufficient cause for the use of the impact munitions.
6.4.2.1.5. Members shall make reasonable efforts to ensure that impact munitions are used on preferred target areas. Under seven yards, members will aim for the legs. Over seven yards, members will aim anywhere below the waist line except the groin.
6.4.2.1.6. Members may use impact munitions on vicious or aggressive animals when the presence of those animals interferes with the safety of the members or the public, the execution of a police function, or completion of a mission.
6.4.2.2. Restricted Uses.
6.4.2.2.1. Members shall not deliberately target a subject’s head, neck, throat, or groin area, unless deadly force is authorized.
6.4.2.2.2. Members are prohibited from using impact munitions against an individual for the purpose of crowd control or crowd management, except at the direction of a supervisor and with the approval of the Incident Commander (IC), unless there are exigent circumstances requiring deployment to prevent the threat of death or serious injury to a person.
6.4.3. Aerosol Restraints.
6.4.3.1. Authorized Uses.
6.4.3.1.1. When a person(s) engages in physical resistance or indicates the intent to engage in physical resistance.
6.4.3.1.2. Members may use aerosol restraints on vicious or aggressive animals, when the presence of those animals interferes with the safety of the members or the public, the execution of a police function, or completion of a mission.
6.4.3.2. Restricted Uses.
6.4.3.2.1. Aerosol restraints shall not be used on the operator of a motor vehicle that is immediately capable of being driven unless there is a substantial justification for doing so and no reasonable alternative is apparent.

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6.4.3.2.2. When deploying aerosol restraints, members shall attempt to minimize exposure to non-targeted persons.
6.4.3.3. Actions Following the Use of Aerosol Restraints.
6.4.3.3.1. Members shall make a reasonable effort to ensure that affected individuals are exposed to fresh air. Members shall, as soon as practicable, relieve the subject’s discomfort by washing aerosol spray from the subject’s eyes with water, unless the subject refuses by words or action.
6.4.3.3.2. Members shall notify the receiving agency of aerosol restraint exposure, and the condition of the exposed individual taken into custody shall be continuously monitored. If the individual’s condition appears to worsen, members shall notify medical personnel.
6.4.4. Conducted Electrical Weapon System (CEW).
6.4.4.1. Authorized Uses.
6.4.4.1.1. In response to active aggression;
6.4.4.1.2. To prevent suicide or immediate physical harm when reasonable in light of available options;
6.4.4.1.3. To avoid the use of a higher level of force; or,
6.4.4.1.4. To effect the capture or prevent the escape of a subject when the member reasonably believes that the subject presents an immediate risk of physical injury to the public, members or themselves, or the escape of the subject presents a significant danger to the public, members or themselves. Mere flight from an officer is not sufficient cause for the use of the CEW.
6.4.4.1.5. Members may also utilize warning tactics such as arcing or activating the CEW lasers in an attempt to gain compliance. Members should point the CEW in a safe direction when arcing and never intentionally direct the lasers into the eyes of a person.
6.4.4.1.6. Members may use a CEW on vicious or aggressive animals when the presence of those animals interferes with the safety of the members or the public, the execution of a police function, or completion of a mission.
6.4.4.2. Restricted Uses.
6.4.4.2.1. Members shall avoid the use of more than three CEW applications against the same individual, unless exigent circumstances (immediate and serious bodily harm to a person or persons is about to occur) warrant use. Members shall not use a CEW for pain compliance

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against those a reasonable officer would believe have an actual or perceived mental illness or are in mental health crisis, except in exigent circumstances and then only to avoid the use of a higher level of force.
6.4.4.2.2. Members shall not use a CEW to threaten or coerce a person except for the purpose of managing a potential or actual physical confrontation.
6.4.4.2.3. Members shall not use a CEW when there is a significantly heightened risk of secondary injury (e.g., uncontrolled fall, drowning) to the subject or others unless the member reasonably believes the threat or danger posed by the subject outweighs the risk of injury that might occur as a result of loss of control.
6.4.4.2.4. Members shall not use a CEW on a handcuffed or otherwise restrained subject, unless doing so is necessary to prevent them from causing serious physical injury to themselves or others, and/or to avoid greater application of use of force and no reasonable alternative is apparent. Where practical and safe to do so, members shall obtain supervisory authorization before deploying a CEW on a handcuffed subject.
6.4.4.2.5. Members shall not draw both a firearm and a CEW at the same time.
6.4.4.2.6. Members shall not use a CEW for crowd control or management purposes.
6.4.4.2.7. Members shall not deliberately target the head, face, or groin. When tactically feasible and time reasonably permits, members shall target lower-center mass for front shots.
6.4.4.2.8. Members shall not use a CEW on subjects who are known or who the member should have reasonably known to have come in contact with flammables or those in areas where flammables are present.
6.4.4.3. Additional considerations when using a CEW.
6.4.4.3.1. Members shall visually and physically confirm that the weapon they are holding is a CEW and not a firearm.
6.4.4.3.2. Only one member may intentionally deploy a CEW at any given time on a subject, except where lethal force would be permitted.
6.4.4.3.3. Members deploying a CEW operationally, if feasible, should be supported by at least one member capable of providing immediate cover.

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6.4.4.3.4. Members shall make every reasonable effort to attempt handcuffing during or between each CEW cycle.
6.4.4.3.5. After one standard CEW cycle, the member shall re-evaluate the situation to determine if subsequent cycles are necessary; members shall issue a warning prior to each additional cycle and wait a reasonable amount of time to allow the subject to comply, unless doing so would present a danger to the member(s) or others. Members shall describe and explain the reasonableness of each CEW cycle in their use of force reports.
6.4.4.4. Actions following the use of a CEW.
6.4.4.4.1. Involved member responsibilities:
6.4.4.4.1.1. If possible, members shall photograph consistent with Directive 640.02, Photography and Digital Imaging, the areas of probe strikes, whether probes penetrated the person’s skin, left visible marks or only penetrated the person’s clothing, before and after probe removal, as well as any marks, or lack of marks, left by drive stun. Consent should be obtained before photographing personally sensitive areas. All photographs shall be placed into evidence in accordance with Bureau policy.
6.4.4.4.2. Supervisor responsibilities:
6.4.4.4.2.1. Verify evidence of CEW deployment is collected, including photographs of tags, cartridges, and probes.
6.4.4.4.2.2. Verify appropriate medical services are summoned, if necessary.
6.4.5. Canine Deployment.
6.4.5.1. Authorized Uses.
6.4.5.1.1. To protect the canine officer, the police canine or members of the community from an immediate threat.
6.4.5.1.2. To apprehend or control subjects reasonably believed to be involved in a crime.
6.4.5.1.3. To apprehend a fleeing criminal subject when the canine officer reasonably believes that probable cause exists to arrest a subject for a crime.
6.4.5.1.4. To apprehend hiding subjects when it would be unsafe for officers to proceed into an area.

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6.4.5.1.5. Members shall refer to the Canine Unit SOPs for additional guidance.
6.4.5.2. Restricted Uses.
6.4.5.2.1. Members shall not use canines for crowd control or management purposes.
6.4.6. Riot Control Agents (RCAs) or Area Impact Munitions. 6.4.6.1. Authorized Uses in Crowd Control. 6.4.6.1.1. Under the direction of the Crowd Management Incident Commander (CMIC), to disperse a crowd, when a demonstration or event becomes a civil disturbance, as defined in Directive 635.10, Crowd Management/Crowd Control. 6.4.6.1.2. To stop or disrupt a group of individuals committing a crime or about to commit a crime, when other more discriminate methods are not feasible or reasonable, and uninvolved parties are unlikely to be subjected to the use of force.
6.4.6.1.3. When a person(s) engages in physical resistance or indicates the intent to engage in physical resistance.
6.4.6.1.4. In exigent circumstances to defend the member or others from physical injury when other, more discriminate methods of applying force are not feasible and uninvolved parties are unlikely to be subjected to the use of force. 6.4.6.2. Restricted Use. 6.4.6.2.1. Members shall not use RCAs or area impact munitions on a crowd engaged in passive resistance that does not impede a lawful objective.
6.4.6.2.2. Members shall not deploy RCAs or area impact munitions to disperse a crowd when avenues of escape are unavailable to the crowd.
6.5. Restraint Device.
6.5.1. Hobble Restraint.
6.5.1.1. Authorized Uses.
6.5.1.1.1. To control a subject beyond the capability of handcuffs.
6.5.1.1.1.1. The hobble restraint may be used to supplement handcuffs. It shall not be used in lieu of handcuffs.
6.5.1.1.2. If a subject has demonstrated the intent to slip their handcuffs to the front, hobble restraints may be used on the upper arms or legs to prevent such an action.

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6.5.1.1.3. Hobble restraints (straight leg restraint) may be used to secure a combative subject’s legs together to prevent kicking.
6.5.1.1.4. A hobble may be used to secure an animal.
6.5.1.2. Restricted Uses.
6.5.1.2.1. Members shall not use the maximum restraint technique (i.e., securing a subject’s knees or ankles in a straight leg restraint, then fastening the hobble to the handcuffs).
6.5.1.2.2. Once secured, a subject shall not be placed on their stomach for an extended period. If feasible, the subject should be placed the subject’s side or in a seated position. 7. Police Vehicle Intervention Strategies.
7.1. Intentional contact between a police vehicle and another occupied vehicle shall constitute a use of force for purposes of this policy. These techniques include, but are not limited to, Pursuit Intervention Technique maneuver (PIT), boxing in, and ramming.
7.2. Use of vehicle intervention strategies shall require use of force reporting and After Action review pursuant to the reporting sections in this directive. Members should refer to the applicable force categories for reporting requirements.
7.3. Members shall refer to Directive 630.05, Vehicle Interventions and Pursuits, for additional guidance on the authorized use of these vehicle intervention strategies. 8. Deadly Force.
8.1. Authorized uses of deadly force:
8.1.1. Members may use deadly force to protect themselves or others from what they reasonably believe to be an immediate threat of death or serious physical injury; or,
8.1.2. If necessary to prevent escape, a member may use deadly force where the member has probable cause to believe that the subject has committed a felony crime involving the infliction or threatened infliction of serious physical harm, and the member reasonably believes the subject poses an immediate threat of death or serious physical injury to the member or others.
8.2. The member shall give a verbal warning to the subject, if time, safety, and circumstances permit.

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8.2.1. Members should be mindful of the risks inherent in employing deadly force, which may endanger others. Reckless or negligent use of deadly force is not justified in this Directive or state statute.
8.2.2. Cover fire shall be investigated as a Category I use of deadly force and is only authorized if the member reasonably believes that an immediate threat of death or serious physical injury exists.
8.3. Restrictions on the use of firearms as deadly force:
8.3.1. Members are prohibited from firing warning shots.
8.4. Additional authorized uses for firearms:
8.4.1. A member is authorized to discharge a firearm to stop an aggressive animal that poses a danger to the member or others or end the suffering of a badly injured animal. Members shall refer to Directive 631.70, Investigation of Animal Problems, for additional guidance.
8.5. Moving Vehicles.
8.5.1. A moving vehicle does not presumptively constitute a deadly force threat.
8.5.2. Members shall not shoot at a moving or fleeing vehicle unless an immediate risk of death or serious physical injury to the member or others exists.
8.5.3. Members are prohibited from intentionally positioning themselves in the path of a moving vehicle or in a location that is clearly vulnerable to vehicular attack.
8.5.4. When feasible, members shall move out of the path of a vehicle rather than discharging a firearm at the vehicle or its occupants.
8.5.5. Members shall consider whether the threat to the member or other persons (including all vehicle occupants) is increased by incapacitating the vehicle operator. If the operator is incapacitated, the unguided vehicle may remain a threat to anyone in its path. Members shall weigh the threat of incapacitating the driver against the threat posed by allowing the driver to maintain control of the vehicle.
8.5.6. Members must be aware that shooting at a moving vehicle presents unique challenges of target and backstop.
8.5.7. Members must be aware that shooting from a moving vehicle creates additional challenges of stability and aiming that must be considered in the decision to employ deadly force.

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8.5.8. Members shall not use poor tactics or positioning as justification for shooting at or from a moving vehicle.
8.5.9. Members are prohibited from entering an occupied vehicle that is readily capable of being driven (i.e., engine running or keys in the ignition) without substantial justification.
8.6. Members shall refer to Directives 1020.00, Weapons Administration, and 1021.00, Weapons Qualifications, for additional guidelines regarding the issuance, qualification requirements, and secure storage of Bureau-issued weapons.
9. Post-force Medical Requirements.
9.1. Members shall summon medical services at the earliest available opportunity when a subject is injured, complains of injury following any use of force, or is a person in a prohibited category (i.e., children under the age of fifteen; an individual who is known to be, or is obviously pregnant; a person who is known to be, or is obviously medically fragile) who sustains Category I through III force (See Section 10). If an individual refuses medical evaluation, the refusal must be documented in an appropriate report. Members shall refer to Directive 630.45, Emergency Medical Custody Transports, for additional guidance.
9.2. When safe to do so, members shall render emergency first aid within the limits of their individual skills, training and available equipment until professional medical care providers arrive on the scene.
9.3. The member shall continually monitor the person for changes in skin or lip color, breathing and levels of consciousness. If the individual’s condition deteriorates, the member shall immediately notify Emergency Medical Services (EMS).
9.4. Members shall provide known and reasonably necessary information to facilitate the injured person’s transport to a medical facility for additional treatment if recommended by EMS. Refer to Directive 630.45, Emergency Medical Custody Transports, for additional guidance on transporting injured subjects.
9.5. When transporting a person from hospital treatment to a correctional facility, members shall notify a corrections staff member of the extent of the person’s injuries and medical treatment given, and provide the corrections staff with the person’s medical release forms from the medical facility.
9.6. If a person complains of or appears to be experiencing respiratory distress (e.g., positional asphyxia), members shall perform the following as soon as practical:

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9.6.1. If a member’s body weight is impeding a subject’s breathing, the member shall remove their body weight.
9.6.2. Summon EMS.
9.6.3. Check and continue to monitor the person’s breathing and pulse until EMS arrives.
9.6.4. If medically appropriate, place the person in a seated position or position the person on their side to facilitate breathing.
9.7. Members shall follow protocols developed by the Bureau, in conjunction with medical professionals, on their responsibilities following CEW use. Conditions requiring medical treatment after deployment:
9.7.1. When a CEW is deployed in probe mode:
9.7.1.1. If the probes are embedded in the skin, Portland Fire and Rescue shall be summoned to remove the probes and provide medical treatment, if necessary. If the CEW is deployed outside of Portland Fire and Rescue’s response area and medical treatment is mandated by this Directive or other injury, the fire department or EMS with jurisdiction shall be summoned.
9.7.1.2. Portland Fire and Rescue shall be the first responder to CEW deployments that require only the removal of probes and no other medical treatment, other than removal and treatment of the wound caused by the CEW probes. To ensure a response from Portland Fire and Rescue only, members must advise the Bureau of Emergency Communications that Portland Fire and Rescue is needed to remove the CEW probes.
9.7.2. When the CEW is deployed on a person in drive stun mode and no probes are deployed, EMS is not required on the scene, unless medical treatment is otherwise necessary.
9.7.2.1. Members shall summon EMS if the CEW is deployed in drive stun mode on a person in a prohibited category (i.e., children under the age of fifteen; an individual who is known to be, or is obviously pregnant; a person who is known to be, or is obviously medically fragile).
9.8. When any force is used on a person suffering or perceived to be suffering from excited delirium (before, during or after the application of force), members shall summon EMS to the scene. Members shall ensure the subject is examined at the scene. If in custody and EMS recommends transport, the subject will be transported to the hospital. If not in custody, and EMS declares the individual mentally competent, the individual can refuse treatment and transport.
10. Categories of Review.

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10.1. Reporting and investigating requirements are determined by the type of force deployed, injury sustained, and/or complaint of injury. A supervisor who receives notification of a use of force shall respond to the scene to determine the appropriate level of investigation pursuant to the categories listed below. If the force used does not clearly align with any of the categories, the on-scene Sergeant’s immediate supervisor shall determine the degree of the investigation.
10.2. Category I: The application of deadly force, an in-custody death, and death that occurs as a result of member(s)’ use of force. 10.2.1. Category I force includes, but is not limited to:
10.2.1.1. All critical firearm discharges by a member, except as authorized to stop an aggressive animal or end the suffering of a badly injured animal.
10.2.1.2. In-custody deaths;
10.2.1.3. Death as a result of member(s)’ use of force;
10.2.1.4. Carotid neck holds; and
10.2.1.5. All intentional head, neck, and throat strikes with a hard object or when a member strikes the head of a subject against a hard object.
10.2.2. Category I Review.
10.2.2.1. The level of investigative response for Category I Force is governed by Directive, 1010.10, Deadly Force and In-Custody Death Reporting and Investigation Procedures.
10.3. Category II: Other than deadly force, force resulting in hospital treatment or admission; force that is reasonably likely to cause enduring: pain, physical injury, disability or impairment of any body part, but does not result in death. 10.3.1. Category II force includes, but is not limited to:
10.3.1.1. All uses of force by a member resulting in a significant injury, including a broken bone, an injury requiring hospital treatment, or an injury deemed to be serious by a member’s supervisor;
10.3.1.2. Any uses of force by a member on a subject that require hospital admission due to the force applied by a member;
10.3.1.3. More than one simultaneous intentional CEW application on a subject at a time;
10.3.1.4. Three or more CEW applications to the same person;

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10.3.1.5. CEW deployments on individuals who have an actual or perceived mental illness, or who are in mental health crisis;
10.3.1.6. All launched impact munitions with contact;
10.3.1.7. Impact weapon, with injury requiring hospital treatment;
10.3.1.8. Firearm discharges to stop an aggressive animal;
10.3.1.9. Canine bites;
10.3.1.10. Takedown that causes injury requiring hospital treatment;
10.3.1.11. Riot control agents and/or area impact munitions;
10.3.1.12. Force used upon restricted persons (i.e., children under the age of fifteen, pregnant individuals, medically fragile);
10.3.1.13. Force resulting in a loss of consciousness;
10.3.1.14. Any strike, blow, kick or similar use of force against a handcuffed, otherwise restrained, under control, or in-custody subject, with or without injury; and
10.3.1.15. Ramming as a vehicle intervention strategy.
10.3.2. Category II Review. 10.3.2.1. For all force resulting in hospital admission, supervisors shall notify the Detective Division of the incident, and a detective shall respond to assist in the investigation of the use of force. The involved member’s supervisor shall complete the use of force After Action report. 10.3.2.2. For all force involving more than one simultaneous intentional CEW application on a subject, supervisors shall notify the Detective Division of the incident, and a detective may respond to assist in the investigation of the use of force. The involved member’s supervisor shall complete the use of force After Action report. 10.3.2.3. The use of force After Action report shall be reviewed through the chain of command, up to and including the Assistant Chief. 10.4. Category III: Force that is reasonably likely to cause non-enduring: pain, disorientation, physical injury, or the complaint of pain. 10.4.1. Category III force includes, but is not limited to:
10.4.1.1. CEW deployment of one (1) or two (2) applications;
10.4.1.2. CEW deployment regardless of successful application or member intent;

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10.4.1.3. Use of aerosol restraints; 10.4.1.4. Chemical agents used by SERT; 10.4.1.5. Use of impact weapon, without injury; 10.4.1.6. Physical injury or complaint of injury; 10.4.1.7. Complaint of improper force; 10.4.1.8. Launched impact munitions, without contact; 10.4.1.9. Takedown; 10.4.1.10. Strikes with the hands or feet; and 10.4.1.11. PIT maneuver as a vehicle intervention strategy. 10.4.2. Category III Review. 10.4.2.1. The use of force After Action report shall be reviewed through the chain of command, up to and including the RU Manager. 10.5. Category IV: Force that is intended to establish control of a resistant subject, though not intended or reasonably likely to cause persistent pain or physical injury. 10.5.1. Category IV force includes, but is not limited to: 10.5.1.1. Non-striking use of baton; 10.5.1.2. Takedown performed in a completely controlled manner where there is minimal resistance and no injury; 10.5.1.3. Handcuffing against resistance or control against resistance; 10.5.1.4. Pointing of a firearm; 10.5.1.5. Use of hobble restraint; 10.5.1.6. Use of a less lethal weapon to stop a vicious or aggressive animal; 10.5.1.7. Firearm discharges to end the suffering of a badly injured animal; and 10.5.1.8. Boxing In maneuver as a vehicle intervention strategy.

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10.5.2. Category IV Review.
10.5.2.1. The use of force After Action report shall be reviewed through the chain of command, up to and including the Sergeant’s immediate supervisor.
10.6. Additional Considerations.
10.6.1. Supervisors have the discretion to elevate the category of any force investigation.
10.6.2. When multiple force options are used during an incident, the investigation shall be conducted at the highest applicable category.
10.6.3. If the force used does not clearly align with any of the categories, the on-scene Sergeant’s immediate supervisor shall determine the degree of the investigation.
10.6.4. An on-scene supervisor who reasonably believes that a use of force involves significant misconduct by a member shall immediately notify their immediate supervisor and PSD. The oncall PSD Lieutenant shall determine the degree of investigation required.
10.6.5. Force incidents that involve a vehicle may be classified under any category of force; the appropriate category will be determined by a member’s supervisor and will depend on the totality of the circumstances. Refer to Directive 630.05, Vehicle Interventions and Pursuits, for additional guidance.
10.6.6. Specialty units, such as the Special Emergency Response Team (SERT), Rapid Response Team (RRT) or others, are not exempt from use of force reporting procedures, as defined in this directive.
11. Reporting
11.1. Member Reporting of Force.
11.1.1. Members shall immediately notify a supervisor regarding any use of force, or any negligent or unintentional discharge of a less lethal weapon.
11.1.2. All members will notify a supervisor as soon as practical when a complaint of improper force, a complaint of physical injury, or actual injury to a subject in custody as defined within this Directive occurs or they become aware of the same.
11.1.3. All members involved in a Category II through IV use of force shall provide a candid and detailed verbal account of the event at the scene.

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11.1.4. All members involved in a Category II through IV use of force shall submit use of force reports in a timely manner, which include a candid and detailed account of the event, to facilitate a thorough review of the incident in question by supervisory members. Involved members shall submit use of force reports prior to the conclusion of the shift, unless incapacitated. Involved members shall report all uses of force whether or not the subject is struck or affected by any weapon. 11.1.4.1. Members who use force in any police action while off duty shall comply with the reporting requirements of this section. 11.1.5. Members involved in a Category I use of force shall refer to Directive 1010.10, Deadly Force and In-Custody Death Reporting and Investigation Procedures, for reporting and investigation requirements for deadly force incidents.
11.1.6. All members who witness any use of force shall provide a candid and detailed verbal account of the event at the scene. Members who witness a Category I through III use of force shall also submit appropriate reports in a timely manner, which include a candid and detailed account of the event, to facilitate a thorough review of the incident in question by supervisory members. Witness members shall submit reports prior to the conclusion of the shift, unless incapacitated. Witness members shall report all uses of force whether or not the subject is struck or affected by any weapon.
11.1.7. Reports shall demonstrate that the member(s) made diligent efforts to locate witnesses and explain when circumstances prevented them from doing so or obtaining contact information. Reports shall also include all available identifying information for anyone who refuses to provide a statement.
11.1.8. All reports related to use of force shall follow Directive 900.00, General Reporting Guidelines, regarding formatting, timeliness of completion, and submission.
11.1.9. In addition to those guidelines, regardless of force category or type, involved members shall also include a description of the following in their use of force reports:
11.1.9.1. The reason for the initial police presence.
11.1.9.2. The unique characteristics of the event.
11.1.9.3. Whether the individual or subject was known by the member to be mentally ill or in mental health crisis. If mental illness was present, members shall describe how they took that into account and how it impacted their decision making.

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11.1.9.4. A description of the decision-making at each significant point leading up to and during the event.
11.1.9.5. The force used, to include descriptive information regarding the use of any weapon.
11.1.9.6. Any observable injury to the subject, any complaint of injury or the absence of injury, including information regarding any medical aid or on-scene medical evaluation provided or refused by the subject, when applicable.
11.1.9.7. The level of resistance encountered by each officer that led to each separate use of force and, if applicable, any injuries to the subject(s) or member(s).
11.1.9.8. What, if any, de-escalation techniques were used and whether or not they were effective. If not used, the member shall provide justification as to how time and circumstances did not reasonably permit the member to utilize de-escalation techniques.
11.1.9.9. Members shall include all relevant considerations found within this, and other appropriate, directives in their reports.
11.1.10. For force Categories I through III, members shall provide a narrative account of the force they observed another member apply.
11.1.10.1. Members shall immediately notify an on-duty supervisor of any use of force by another member that violates the constitutional standard as soon as safe to do so.
11.2. Additional Reporting Guidelines for Less Lethal Weapon & Munition Use.
11.2.1. The member shall complete and submit a use of force report documenting the incident. The use of force report shall contain:
11.2.1.1. The specific circumstances that led to the discharge of the weapon.
11.2.1.2. The name of the supervisor who was verbally notified, as well as the name of the responding supervisor, if different.
11.2.1.3. A description of the warning given. If no warning was given, members shall state why.
11.2.2. If the member who discharged the weapon is injured and unable to submit a use of force report, the reporting requirement for involved members can be delayed until the member is capable of completing the report. The member shall, in a timely manner, provide their supervisor with a Work Status Report which identifies any restrictions or limitations on the member until a specified date.

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11.2.3. Reporting of CEW Use. 11.2.3.1. The report shall document: 11.2.3.1.1. The specific circumstances leading to the use of the CEW. 11.2.3.1.2. All warnings given to members and the subject. If no warnings were given, members shall document their justification for not issuing a warning. 11.2.3.1.3. The distance from which the CEW was used. 11.2.3.1.4. The location on the subject’s body of the probe strike and the impact points. 11.2.3.1.5. The serial numbers of all cartridges expended. 11.2.3.1.6. The serial number of the CEW used. 11.2.3.1.7. The name of the member designated as immediate cover, if applicable or present. 11.2.3.1.8. The name of the supervisor who was verbally notified as well as the responding supervisor, if different. 11.2.3.1.9. Whether EMS responded and the results of any medical evaluation, if applicable. If EMS was not summoned, the member shall provide a justification. 11.2.3.1.10. Any evidence or complaints of injury or illness by the subject. 11.2.4. Reporting of Canine Use. 11.2.4.1. Canine handlers shall also complete a use of force report for all bites. 11.2.4.2. Canine unit supervisors shall complete an After Action report for all directed and unintentional canine bites through channels to the appropriate Assistant Chief. 12. Supervisor Reporting and Investigation. 12.1. A supervisor who receives notification of a use of force shall respond to the scene unless extraordinary circumstances exist. In rare circumstances, safety or other practicality reasons may prevent a supervisor from responding directly to the scene, and instead necessitate that the supervisor respond to a proximate location. 12.2. Where necessary, the supervisor shall ensure that the subject upon whom force was used receives medical attention from an appropriate medical provider.

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12.3. The supervisor shall conduct an administrative review and a thorough investigation of the use of force, consistent with this policy, gathering applicable evidence described in Section 13.4. of this policy.
12.3.1. If a supervisor is involved in the use of force, they shall contact another supervisor to conduct the administrative review of the incident.
12.4. Supervisors shall personally speak to the involved member and make an inquiry sufficient to determine the nature of the event and the member’s justification for the use of force.
12.5. Supervisors shall personally speak to the witness member(s) and make an inquiry sufficient to describe the nature of the force.
12.6. Supervisors shall interview members and witnesses individually and not in groups.
12.7. Supervisors shall make diligent efforts to document witness observations.
12.8. Supervisors shall immediately notify the shift supervisor and PSD regarding any use of force that could appear, to a reasonable supervisor, to violate the Constitutional Force standard; all members’ Serious Use of Force; any use of force against persons who have actual or perceived mental illness; or any suspected significant member misconduct.
12.9. In the event that the supervisor suspects possible criminal conduct, the supervisor shall notify their shift supervisor, the on-call PSD Lieutenant, the branch Assistant Chief, and the Bureau’s Detective Division.
13. Force After Action Reports.
13.1. For Category II-IV force incidents, the supervisor shall document the findings of the review and investigation in an After Action report, and forward the report through the chain of command.
13.2. The After Action report form serves as a checklist to ensure that supervisors carry out force investigation responsibilities. The Inspector, or Chief’s designee, shall review the form for adequacy and relevance, at least annually, and revise as needed.
13.3. For Category II-IV force incidents, supervisors shall complete an After Action report within 72 hours of the use of force.

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13.4. All force After Action reports or, in use of deadly force incidents, the investigator’s report shall contain a detailed description and comprehensive account of the force. The report(s) shall include:
13.4.1. Summary: a short one or two paragraph narrative that describes the significant facts of the event.
13.4.2. Involved Member statement: a narrative that describes the use of force.
13.4.3. Investigation: a description of what actions supervisors took and directions they gave on scene.
13.4.4. Discussion of force: a description of the nature of the force and the member’s justification for the use of force.
13.4.5. Injuries: a description and photographs of the presence or absence of injuries to the subject or Bureau member involved in the use of force and if any medical treatment was administered, and by whom.
13.4.6. Subject statement: supervisors shall make an attempt to obtain a statement from the subject detailing the event and any injuries.
13.4.7. Witness Member statement: supervisors shall obtain a statement from the witness member(s) detailing their observation of the event.
13.4.8. Non-member witness statements: supervisors shall make an attempt to locate witnesses to the event and obtain and document complete statements. If any information from the witness statements needs to be documented in a criminal report, the supervisor shall ensure that the witness statements are documented in the appropriate report. Supervisors shall document circumstances that prevent them from identifying witnesses or obtaining contact information. Reports shall include all available identifying information for anyone who refuses to provide a witness statement.
13.4.9. Physical evidence: supervisors shall ensure that the administrative review includes collecting any physical or photographic/video evidence that may assist other reviewers in the chain of command in understanding the scene and event.
13.4.10. Critique Findings and Recommendations: the critique of findings and recommendations shall contain a thorough analysis of the incident. It shall address any applicable directives, whether or not members complied with such directives and any recommendations or actions

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taken to address issues encountered on-scene or during the reporting process. Supervisors may also modify findings as appropriate and document modifications. 13.4.10.1. The authoring supervisor shall: 13.4.10.1.1. Review all use of force reports to ensure that they include information required per Bureau policy; 13.4.10.1.2. Evaluate the weight of the evidence; 13.4.10.1.3. Use a decision-point approach to analyze each use of force; 13.4.10.1.4. Determine whether the member’s actions appear consistent with Bureau policy; 13.4.10.1.5. Determine whether there was legal justification for the original stop and/or detention; 13.4.10.1.6. Implement corrective action whenever there are material omissions or inaccuracies in the members’ use of force reports, and for failing to report a use of force, whether applied or observed; and 13.4.10.1.7. Document any non-disciplinary corrective action, training deficiencies, policy deficiencies or poor tactical decisions and ensure that they discuss poor tactical decisions with the member and that the discussion is documented in the Employee Information System (EIS). 13.4.10.2. Supervisors in the chain of command review shall: 13.4.10.2.1. Ensure the authoring supervisor met all the requirements of 13.4.10.; 13.4.10.2.2. Review after action report findings using a preponderance of the evidence standard; 13.4.10.2.3. Review after action reports to ensure completeness and order additional investigation, when necessary; 13.4.10.2.4. Assess the incident for tactical and training implications, including whether the use of force may have been avoided through the use of de-escalation techniques or less force options; 13.4.10.2.5. Modify findings as appropriate and document modifications; 13.4.10.2.6. Order additional investigation when it appears that there is additional relevant evidence that may assist in resolving inconsistencies or improve the reliability or credibility of the findings and counsel the investigator;

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13.4.10.2.7. Implement corrective action whenever there are material omissions or inaccuracies in the members’ use of force reports, and for failing to report a use of force, whether applied or observed;
13.4.10.2.8. Document any non-disciplinary corrective action, training deficiencies, policy deficiencies or poor tactical decisions and ensure that the authoring supervisor discusses poor tactical decisions with the member and that the discussion is documented in EIS;
13.4.10.2.9. Suspend an investigation immediately and notify the branch Assistant Chief, the oncall PSD Lieutenant and the Detectives Division whenever the investigation supervisor, shift commander or Division commander finds evidence of apparent criminal conduct by a member; and
13.4.10.2.10. Report a matter to the on-call PSD Lieutenant for review and investigation whenever an investigating supervisor, shift commander or precinct commander finds evidence of significant misconduct by a member or employee.
13.4.10.3. The use of force After Action report shall be completed through the RU within twenty-one days of the event.
13.5. If a supervisor determines that there were performance deficiencies not rising to the level of misconduct, supervisors shall determine whether additional training or counseling is warranted. The Bureau shall provide such counseling or training, consistent with Bureau policies.
13.6. Supervisors shall ensure that EIS tracks all comments, findings, and corrections related to the After Action Reports. Members shall refer to Directive 345.00, Employee Information System (EIS), for additional guidelines.
13.7. All supervisors in the chain of command shall be held accountable for inadequate reports and analysis. As a result, all supervisors shall be subject to corrective action or discipline for the accuracy and completeness of After Action reports completed by other supervisors under their command. Corrective or disciplinary action may include training, demotion, and/or removal from a supervisory position, based on repeated deficient after action reviews at any level of command.
13.8. When, after investigation, a use of force is found to violate policy, the Bureau shall ensure that investigative findings regarding member misconduct are adequately addressed and that appropriate corrective action is taken fairly and expeditiously to resolve the issue.

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13.9. Where the use of force indicates policy, training, tactical or equipment concerns, the immediate supervisor shall notify, through channels, the Inspector and the Chief, who shall ensure that the Bureau timely conducts necessary training and/or resolves the policy, tactical or equipment concern.
13.10. The Chief, or designee, and the PSD have the discretion to reassign a use of force investigation to the Detective Division or any Bureau supervisor, thereby taking it out of the after action chain of command as described.
13.11. The Inspector’s Office shall routinely audit force-related After Actions and the associated reports. The Chief, or a designee, shall refer to the Inspector’s audits to identify trends related to deficient reporting and investigations or problematic use of force patterns. The Chief, or a designee, shall take appropriate corrective action throughout the chain of command when use of force reports, force investigations conducted by supervisors, force-related After Action reports and Command reviews are not completed in accordance with Bureau policy and practices.
13.12. The RU Manager shall ensure that the narrative section of the use of force After Action report is forwarded to the Multnomah County District Attorney’s Office in a timely fashion.
13.13. Additional Supervisor Reporting Responsibilities.
13.13.1. An on-duty supervisor shall respond to the scene of all negligent or unintentional discharges of a firearm and notify the Detective Division, which will assume investigative responsibility, except at Bureau authorized training events, where no injury occurs. At training events, as long as no injury occurs, the Training Division shall have responsibility for investigating and reporting the negligent discharge.
13.13.2. An on-duty supervisor shall investigate all negligent or unintentional discharges of less lethal weapons and document the incident in an after action report.
13.13.2.1. Supervisors shall investigate negligent or unintentional discharges of less lethal weapons that strike another person in the same manner as a use of force. History: - Originating Directive Date: 01/01/14 - Last Revision Signed: 12/20/19
- Effective Date: 01/19/20 - Next Review Date: 01/19/21

 
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J. SCOTT MOEDE, OSB 934816 Chief Deputy City Attorney scott.moede@portlandoregon.gov NAOMI SHEFFIELD, OSB 170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov ROBERT YAMACHIKA, OSB 065560 Senior Deputy City Attorney rob.yamachika@portlandoregon.gov Portland City Attorney’s Office 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity, NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated, MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated, ALEXANDRA JOHNSON, in an individual capacity and on behalf of themselves and all others similarly situated,

Case No. 3:20-cv-00917-HZ
DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

PLAINTIFFS,

v.

CITY OF PORTLAND, a municipal corporation, and MULTNOMAH COUNTY, a political subdivision of the State,

DEFENDANTS.

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DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
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Table of Contents
I. INTRODUCTION ...............................................................................................................1 II. FACTUAL BACKGROUND ..............................................................................................1
A. Less lethal munitions used by PPB rapid response team. ........................................2 B. PPB’s Policy Regarding Use of Riot Control Agents and Federal Oversight .........3
1. Tear Gas and RBDDs...................................................................................3 2. Impact Munitions .........................................................................................5 3. Aerosol Restraints ........................................................................................6 C. Protests Beginning May 29, 2020 to June 20, 2020 ................................................7 1. May 29, 2020-May 30, 2020........................................................................8 2. May 30, 2020-May 31, 2020........................................................................9 3. May 31, 2020-June 1, 2020........................................................................11 4. June 1, 2020 ...............................................................................................14 5. June 2, 2020 ...............................................................................................14 6. June 15, 2020 .............................................................................................16 7. June 25, 2020-June 26, 2020......................................................................18 8. June 26, 2020-June 27, 2020......................................................................19 9. June 27, 2020 .............................................................................................20 III. PLAINTIFFS CANNOT MEET THE TEST FOR A PRELIMINARY INJUNCTION...21 A. Plaintiffs Cannot Demonstrate a Likelihood of Success on the Merits. ................22 1. Defendant does not have a practice or custom of violating protestors’
Fourth Amendment Rights.........................................................................23 2. PPB has acted with the intent to promote, not limit, First Amendment
expression. .................................................................................................28 B. Plaintiffs Will Not Be Irreparably Harmed Without a Preliminary Injunction. ....31 C. Plaintiffs Have Not Established and Cannot Establish that the Balance of
Equities Weighs in Their Favor or that a TRO is in the Public Interest. ...............32 D. If This Court Considers a Preliminary Injunction, Plaintiffs’ Proposal is Too
Restrictive. .............................................................................................................34 IV. CONCLUSION..................................................................................................................34

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Table of Authorities

Page(s)

Federal Cases

AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631 (9th Cir. 2012) .................................................................................................... 22
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .................................................................................................. 21
Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858 (9th Cir. 2016) .................................................................................................... 28
Arpin v. Santa Clara Valley Transp. Agency, 261 F3d. 912 (9th Cir. 2001) .................................................................................................... 24
Barnett v. BAC Home Loan Servicing, L.P., 772 F. Supp. 2d 1328 (D. Or. 2011) ......................................................................................... 21
Barney v. City of Eugene, 20 F. App'x 683 (9th Cir. 2001)................................................................................................ 27
Bernini v. City of St. Paul, 665 F.3d 997 (8th Cir. 2012) .................................................................................................... 24
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993).................................................................................................................. 25
Campbell v. City of Oakland, 2011 WL 5576921 (N.D. Cal. Nov. 16, 2011) ......................................................................... 22
Cantwell v. Connecticut, 310 U.S. 296 (1940).................................................................................................................. 23
Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) .................................................................................................... 22
City of Los Angeles v. Lyons, 461 U.S. 95 (1983).................................................................................................................... 31
Cohen v. California, 403 U.S. 15 (1971).................................................................................................................... 28
Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011) .................................................................................................... 22
Felarca v. Birgeneau, 891 F.3d 809 (9th Cir. 2018) ........................................................................................ 23, 24, 25
Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) ................................................................................................ 26
Forrester v. City of San Diego, 25 F.3d 804 (9th Cir. 1994) ................................................................................................ 24, 26
Graham v. Connor, 490 U.S. 386 (1989)............................................................................................................ 23, 24
Grayson v. County of Marin, 2015 WL 2452808 (N.D. Calif. May 21, 2015)........................................................................ 31

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Hadley v. City of Beaverton, 2010 WL 1257609 (D. Or. 2010).............................................................................................. 23
Headwaters Forest Def. v. Cty. of Humboldt, 276 F.3d 1125 (9th Cir. 2002) .................................................................................................. 26
Hodgers-Durgin v. de la Vino, 199 F.3d 1037 (9th Cir. 1999) .................................................................................................. 31
Jackson v. City of Bremerton, 268 F.3d 646 (9th Cir. 2001) .................................................................................................... 24
Johnson v. City of Berkeley, 2016 WL 928723 (N.D. Cal. Mar. 11, 2016)............................................................................ 30
Jurkowski v. City of Seattle, 2017 WL 4472859 (W.D. Wash. 2017) .............................................................................. 24, 27
Keating v. City of Miami, 598 F.3d 753 (11th Cir. 2010) .................................................................................................. 30
Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) .................................................................................................. 22
Lalonde v. Cty. of Riverside, 204 F.3d 947 (9th Cir. 2000) .................................................................................................... 26
Marbet v. City of Portland, 2003 WL 23540258 (D. Or. Sept. 8, 2003) .............................................................................. 26
Mazurek v. Armstrong, 520 U.S. 968 (1997)...................................................................................................... 21, 22, 31
McCarthy v. Barrett, 804 F. Supp. 2d 1126 (W.D. Wash. 2011)................................................................................ 30
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283 (9th Cir. 1999) .................................................................................................. 28
Molokai Veterans Caring for Veterans v. Cty. of Maui, 2011 WL 1637330 (D. Haw. Apr. 28, 2011) ............................................................................ 29
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).................................................................................................................. 29
Multi-Ethnic Immigrant Workers Org. Network v. City of L.A., 246 F.R.D. 621 (C.D. Cal. 2007) .............................................................................................. 30
Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012) ........................................................................................ 23, 26, 27
Schmidt v. Lessard, 414 U.S. 473 (1974).................................................................................................................. 34
Sierra Forest Legacy v. Rey, 577 F.3d 1015 (9th Cir. 2009) .................................................................................................. 21
Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310 (9th Cir. 1989) .................................................................................................. 29
Sternberg v. Town of Danville, 2015 WL 9024340 (N.D. Cal. Dec. 16, 2015) .......................................................................... 22
Tennessee v. Garner, 471 U.S. 1 (1985)...................................................................................................................... 23
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Webb v. Sloan, 330 F.3d 1158 (9th Cir. 2003) .................................................................................................. 22
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008).......................................................................................................... 21, 22, 32
State Cases City of Portland v. Hemstreet,
119 Or App 239 (1993)............................................................................................................. 23 Federal Rules Fed. R. Civ. P. 65(d)(1)................................................................................................................. 34 Ninth Circuit Rule 36-3 ................................................................................................................ 27 Other Authorities HB 4208 ................................................................................................................................ 5, 6, 31

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DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
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I. INTRODUCTION There have been over thirty-five straight days and nights of protests in Portland.
Thousands of people have turned up to have their voices heard and ensure that much needed changes are made in policing. The City and the Portland Police Bureau (“PPB”) have encouraged and supported these protests. A much smaller number of people have shown up to break windows, spray paint businesses, light fires, throw items at police, barricade police inside buildings, and launch fireworks at police and buildings—they have shown up to riot. PPB officers have the unenviable task of ensuring that peaceful protestors have a full and free opportunity to exercise their constitutional rights, while preventing rioters from injuring people and doing significant damage to property. Over the last month, this obligation has subjected PPB officers have been subjected to a nightly barrage of rocks, fireworks, glass bottles, water bottles, knives, and full cans of food, resulting in head injuries, burns, and cuts.
This case is not about the thousands of people peacefully protesting. It is also not about hateful words or anti-police protests. The City and PPB support protestors’ expression; regardless of content. This case is about the ability of PPB to respond to a nightly deluge of dangerous objects thrown and launched at them and at occupied buildings, nightly fires, and widespread criminal activity.
Plaintiffs have not met their burden of demonstrating a likelihood of success on the merits, irreparable harm, that the balance of hardships weighs in their favor, or that an injunction would be in the public interest. For these reasons, the Court should deny the plaintiffs’ request for a preliminary injunction.

II. FACTUAL BACKGROUND Plaintiffs allege that “[a]t first, PPB used chemical agents (“tear gas”) unchecked against
crowds of protestors,” but following issuance of the temporary restraining order related to tear gas, “PPB changed tactics . . . and . . . now use a variety of so-called less lethal weapons

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DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
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indiscriminately against plaintiffs.” (Plaintiff’s Second Amended Complaint, Dkt. 38, ¶ 1). The City responds to these allegations, and the contentions of plaintiffs’ declarants. The City supplements the factual record set forth in its previous filings. (Dkts. 18-21).
A. Less lethal munitions used by PPB rapid response team. PPB’s rapid response team (“RRT”) are officers specially trained in responding to large crowd management and crowd control events. Each rapid response team squad has a squad leader, an assistant squad leader, and three additional officers who are trained in the use of less lethal munitions. These less lethal munitions include:
• Hand-tossed or launched canisters containing CS or OC: Trained officers may carry 2-chlorobenzalmalononitrile “CS gas,” Oleoresin Capsicum Pyrotechnic “OC pyrotechnic,” OC vapor, and rubber ball distraction devices (“RBDDs”) containing OC. ((Declaration of Franz Schoening (“Schoening Decl.”), Dkt. 18, ¶¶ 4-5)).1 For this brief, these are collectively referred to as “tear gas.”
• Rubber ball distraction devices: Trained officers may carry three types of rubber ball distraction devices. “Inert” RBDDs deliver a blast of light and sound, but do not project either rubber balls or OC. “Live” RBDDs deliver a blast of light and sound and project approximately 180 rubber balls (approximately .81 cm each) in an approximately 50-foot radius from the location of the explosion. OC RBDDs deliver a blast of light and sound and also project a cloud of OC.
• Direct impact munitions: Trained officers may carry an FN303 less lethal launcher and a 40MM less lethal launcher. o The 40MM less lethal launcher may be used to launch tear gas. It is more commonly used to launch foam-tipped impact projectiles, marking rounds
1 Tear gas colloquially refers to chloroacetophenone (CN gas), which Portland Police Bureau (“PPB”) does not utilize, and CS gas. Page 2 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION
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containing paint or powder, or OC rounds. o The FN303 less lethal launcher launches a fin stabilized projectile with
bismuth (nontoxic) powder in the nose and a payload in the rear, which can be paint, powder marking, training or OC. • Handheld OC: Commonly referred to as pepper spray, this is a hand-held canister that delivers short, target-specific bursts of concentrated OC. (Schoening Decl., Dkt. 18, ¶¶ 4-5). Riot control agents and area impact munitions, such as tear gas and RBDDs, are a valuable non-lethal and minimally injurious “area denial” tool that can be deployed from a distance. (Id. at ¶ 18). This minimizes the risk of injury to both demonstrators and officers. (Id.). Without these tools, law enforcement's ability to disburse an unlawful assembly would require more significant physical force. (Id.).

B. PPB’s Policy Regarding Use of Riot Control Agents and Federal Oversight The Portland Police Bureau has directives that specify the requirements for the use of riot control agents during crowd control and crowd management. The policies relating to use of force in crowd management and crowd control situations are captured in PPB Directive 635.10 (“Crowd Management/Crowd Control Directive”) and PPB Directive 1010.00 (“Use of Force Directive”). Both of these policies are subject to review and oversight by the United States Department of Justice in connection with the 2012 Settlement Agreement between the City and the United States. United States v. City of Portland, 3:12-cv-02265-SI, Dkt. 4-1 (Dec. 17, 2012).

1. Tear Gas and RBDDs. Tear Gas and RBDDs are riot control agents or area impact munitions, both governed by

PPB Directive 1010.00, § 6.4.6:

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6.4.6.1. Authorized Uses in Crowd Control.
6.4.6.1.1. Under the direction of the Crowd Management Incident Commander (CMIC), to disperse a crowd, when a demonstration
DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
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or event becomes a civil disturbance, as defined in Directive 635.10, Crowd Management/Crowd Control.
6.4.6.1.2. To stop or disrupt a group of individuals committing a crime or about to commit a crime, when other more discriminate methods are not feasible or reasonable, and uninvolved parties are unlikely to be subjected to the use of force.
6.4.6.1.3. When a person(s) engages in physical resistance or indicates the intent to engage in physical resistance.
6.4.6.1.4. In exigent circumstances to defend the member or others from physical injury when other, more discriminate methods of applying force are not feasible and uninvolved parties are unlikely to be subjected to the use of force.
6.4.6.2. Restricted Use.
6.4.6.2.1. Members shall not use RCAs or area impact munitions on a crowd engaged in passive resistance that does not impede a lawful objective.
6.4.6.2.2. Members shall not deploy RCAs or area impact munitions to disperse a crowd when avenues of escape are unavailable to the crowd.
Directive 635.10 similarly contemplates the use of tear gas and RBDDs in very limited
circumstances:
9.1. Pursuant to ORS §131.675, the IC may order the crowd dispersed when a demonstration or special event becomes a civil disturbance.
9.1.1. Before giving the order to disperse, the IC must consider whether dispersal unduly endangers the public, police or participants in the crowd.
9.1.2. Prior to taking police action to disperse the crowd, and when tactically feasible and time reasonably permits, members shall issue a minimum of two warnings at reasonable intervals to allow the crowd to comply.
9.2. When the crowd has been ordered to disperse and does not heed repeated warnings, and no reasonable alternative is apparent, riot control agents (RCAs) and/or special impact munitions may be deployed to prevent violence, injury or property damage and to avoid a greater application of force.
9.2.1. These weapons shall only be used at the direction of the

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CMIC and when avenues of escape (i.e., clear path or route) are available to the crowd. Pursuant to this policy and Directive 1010.00, Use of Force, members must issue warnings prior to deployment. 9.3. Force shall only be used in accordance with Directive 1010.00, Use of Force. Police Commissioner, Mayor Ted Wheeler, additionally imposed even greater limitations on the use of CS gas, directing PPB that “gas should not be used unless there is a serious and immediate threat to life safety, and there is no other viable alternative for dispersal.” (Dobson Decl., Dkt. 19, ¶ 16). Mayor Wheeler instructed that “gas should not be used to disperse crowds of non-violent protestors or for general crowd management purposes. It should only be used in response to violence that threatens life safety.” (Id.). Further, Oregon House Bill 4208, signed by Governor Brown on June 30, 2020, additionally restricts the use of tear gas (“HB 4208”). HB 4208 limits OC, CS, and “other similar chemicals meant to accomplish the same effect.” HB 4208, 80th Leg. Assembly, 2020 Spec. Sess. (Or. 2020). It applies when those chemicals are “administered by any shell, cartridge or bomb capable of being discharged or exploded, when the discharge or explosion will cause or permit the release or emission of the chemicals.” (Id). HB 4208 prohibits the use of tear gas for crowd control except “in circumstances constituting a riot, as described in ORS 166.015.” HB 4208 further requires announcements and an opportunity for individuals to evacuate the area.

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2. Impact Munitions
PPB Directive 1010 constrains the use of FN303s and 40MM less lethal munitions:
6.4.2. Impact Munitions.
6.4.2.1. Authorized Uses.
6.4.2.1.1. In response to active aggression;
6.4.2.1.2. To prevent suicide or immediate physical harm when reasonable in light of available options;
6.4.2.1.3. To avoid the use of a higher level of force; or,
6.4.2.1.4. To effect the capture or prevent the escape of a subject
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when the member reasonably believes that the subject presents an immediate risk of physical injury to the public, members or themselves, or the escape of the subject presents a significant danger to the public, members or themselves. Mere flight from an officer is not sufficient cause for the use of the impact munitions.
6.4.2.1.5. Members shall make reasonable efforts to ensure that impact munitions are used on preferred target areas. Under seven yards, members will aim for the legs. Over seven yards, members will aim anywhere below the waist line except the groin.
6.4.2.1.6. Members may use impact munitions on vicious or aggressive animals when the presence of those animals interferes with the safety of the members or the public, the execution of a police function, or completion of a mission.
6.4.2.2. Restricted Uses.
6.4.2.2.1. Members shall not deliberately target a subject’s head, neck, throat, or groin area, unless deadly force is authorized.
6.4.2.2.2. Members are prohibited from using impact munitions against an individual for the purpose of crowd control or crowd management, except at the direction of a supervisor and with the approval of the Incident Commander (IC), unless there are exigent circumstances requiring deployment to prevent the threat of death or serious injury to a person.
Use of impact munitions is further limited for crowd control: “Members shall not deploy
specialty impact munitions or aerosol restraints indiscriminately into a crowd.” (Directive
635.10, ¶ 10.2). Moreover, the restriction imposed by HB 4208, limiting the use of tear gas,
applies to impact munitions with OC payloads.

3. Aerosol Restraints
PPB Directive 1010 also constrains the use of handheld OC (pepper spray):
6.4.3. Aerosol Restraints. 6.4.3.1. Authorized Uses. 6.4.3.1.1. When a person(s) engages in physical resistance or indicates the intent to engage in physical resistance. 6.4.3.1.2. Members may use aerosol restraints on vicious or aggressive animals, when the presence of those animals interferes with the safety of the members or the public, the execution of a

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police function, or completion of a mission. 6.4.3.2. Restricted Uses. 6.4.3.2.1. Aerosol restraints shall not be used on the operator of a motor vehicle that is immediately capable of being driven unless there is a substantial justification for doing so and no reasonable alternative is apparent. 6.4.3.2.2. When deploying aerosol restraints, members shall attempt to minimize exposure to non-targeted persons. 6.4.3.3. Actions Following the Use of Aerosol Restraints. 6.4.3.3.1. Members shall make a reasonable effort to ensure that affected individuals are exposed to fresh air. Members shall, as soon as practicable, relieve the subject’s discomfort by washing aerosol spray from the subject’s eyes with water, unless the subject refuses by words or action. 6.4.3.3.2. Members shall notify the receiving agency of aerosol restraint exposure, and the condition of the exposed individual taken into custody shall be continuously monitored. If the individual’s condition appears to worsen, members shall notify medical personnel.
Additionally, like impact munitions, aerosol restraints may not be deployed
indiscriminately into a crowd. (Directive 635.10, § 10.2).
C. Protests Beginning May 29, 2020 to June 20, 2020
Protests in Portland have continued every night since May 28, 2020. These protests were
ignited by the tragic death of George Floyd at the hands of Minneapolis police officers. Tens of
thousands of protestors in Portland, and millions more around the country and the world have
joined together to demand an end to racism and to fight for justice in connection with police
violence. In Portland, many of these protests have been the largest that the City has addressed in
recent history. Many have successfully occurred without intervention or involvement by law
enforcement. (Declaration of Craig Dobson (“Dobson Decl.”), ¶ 16-17); Declaration of Chris
Davis (“Davis Decl.”), ¶ 4). Thousands of people, every night for weeks, marched on the
freeways, the streets, and the bridges. There were large gatherings in public parks and vigils

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around the City. The vast majority of those protesting did so passionately but peacefully. (Id.). In contrast to these large peaceful protests, nearly nightly some demonstrators have
congregated and engaged in criminal activity. These individuals have lit well over 100 fires requiring response by Portland Fire and Rescue. (Declaration of Jason Andersen (“Anderson Decl.”), ¶ 2, Ex. 3). They have thrown rocks, fireworks, glass bottles, and other objects that have injured PPB officers and officers from other jurisdictions. (Declaration of Damon Simmons (“Simmons Decl.”), ¶ 3); Davis Decl., ¶¶ 5, 6, 9; Declaration of Anthony Passadore (“Passadore Decl.”), ¶¶ 44, 45, 51, 53; Declaration of Michael Reese (“Reese Decl.”), Dkt. 21, ¶ 10). People attempted to burn down North Precinct after trying to barricade officers inside. (Passadore Decl., ¶¶ 28, 33, 40, 41). People, almost nightly, have sought to damage the Justice Center, barricaded doors, broken windows, lit fires, and spray-painted security cameras. (Passadore Decl., ¶¶ 20-21; Dobson Decl., ¶¶ 21-33). Recently, protestors have launched fireworks at the Justice Center and the Federal Courthouse. On July 2, July 3, and July 4, federal law enforcement2 officers have deployed tear gas and other munitions to protect the Federal Courthouse and those inside from protestors. (Dobson Decl., ¶¶ 77-114).
Below, the City addresses the events of the specific days set forth in plaintiffs’ declarations.
1. May 29, 2020-May 30, 2020 Protests began peacefully on May 29, 2020 with a large gathering at Peninsula Park. (Dobson Decl., ¶ 34). However, later in the evening of May 29, 2020 and into the early morning of May 30, 2020, many of the individuals began to engage in dangerous criminal activity and rioting. (Id. at ¶¶ 34-40). Some protestors graffitied buildings and broke windows as they marched along NE MLK Boulevard to downtown. (Schoening Decl., ¶ 5; Dobson Decl., ¶ 34-
2 On July 4, 2020, following deployment of tear gas by federal law enforcement, PPB also used tear gas while trying to disperse the rioting crowd. Page 8 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION
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35). At one point a gun shot was fired following a confrontation after an individual drove his car into the march. (Id.).
At approximately 11:00 p.m., the sound truck announced an unlawful assembly and instructed people to disperse. (Dobson Decl., ¶ 35). Demonstrators were warned that force may be used. (Declaration of Naomi Sheffield in Support of Response to Preliminary Injunction (“Sheffield Decl.”), ¶ 1). Just minutes after these announcements, flares were thrown into the Justice Center, starting a fire. (Dobson Decl., ¶ 36). Tear gas was used to disperse the group. (Dobson Decl., ¶ 37; Declaration of Brandon Haase (“Haase Decl.”), ¶¶ 5-10; Young Decl., ¶¶ 611; Elam Decl., ¶¶ 6-8).
After the fire at the Justice Center, groups broke apart, sometimes breaking windows and stealing. (Andersen Decl., ¶ 2, Exhibit 3 (“Fire Spreadsheet”); Schoening Decl., ¶¶ 6-7; Haase Decl., ¶¶ 6-7; Declaration of John Young (“Young Decl.”), ¶¶ 7-10; Declaration of Charles Elam (“Elam Decl.”), ¶¶ 6-7). Fires were set around downtown. (Sheffield Decl., ¶ 2; Dobson Decl., ¶ 38). Portland Fire and Rescue identified over twenty fires that night. (Andersen Decl., ¶ 2, Ex. 3). In addition to the property damage and fires, some individuals repeatedly sought to harm officers who were urgently responding to the criminal activity. (Young Decl., ¶¶ 7, 9, 10; Haase Decl., ¶¶ 6-7; Elam Decl., ¶ 7).
After midnight, PPB declared a riot, and closed downtown, ordering everyone to disperse. (Sheffield Decl., ¶ 3). Between 12:41 a.m. and 3:30 a.m. on May 30, sound trucks announced that the assembly was unlawful and directed people to return home (Dobson Decl., ¶ 38). PPB tweeted: “All persons in downtown Portland: it is not safe, it is dangerous, there is rioting, leave now.” (Sheffield Decl., ¶ 4).

2. May 30, 2020-May 31, 2020 Following the events of May 29, Mayor Wheeler imposed an 8:00 p.m. curfew for the entire City. (Sheffield Decl., ¶ 5). Early in the evening on May 30, the Incident Commander

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staged officers largely out of sight because he did not want officers’ presence to cause any problem. (Dobson Decl., ¶ 41).
Shortly after 6:30 p.m., some protestors began climbing the fence that had been erected to protect the critical downtown infrastructure, including the Justice Center. (Dobson Decl., ¶ 42). Officers observed projectiles thrown at them by people in the crowd. (Id.). There was a large group at the intersection of SW Taylor and SW 3rd, and some cars had gotten stuck within the group of protestors. (Id.). The sound truck instructed protestors to clear the intersection and move to the sidewalks. (Id.). These announcements continued for ten minutes. As officers began to move individuals from the intersection, people within the group again threw projectiles at the officers. (Id. at ¶ 43). These included cans and glass and plastic bottles. (Id.; Declaration of Brent Taylor (“Taylor Decl.”), ¶ 5). PPB officers used munitions, including tear gas, while pushing the crowd north from the intersection. The sound truck announced an unlawful assembly and ordered protestors to leave. (Dobson Decl., ¶ 43; Sheffield Decl., ¶ 6). Police eventually pushed protestors north while some protestors threw objects at officers. (Sheffield Decl., ¶ 7). Officers used munitions, including tear gas. (Dobson Decl. ¶ 43).
At 8:00 p.m., PPB announced that the Mayor’s curfew was in place and that people needed to go home or be subject to arrest. (Dobson Decl., ¶ 44; Sheffield Decl., ¶ 8). PPB received reports about fights, including protestors and counter-protestors fighting over an American flag. (Dobson Decl., ¶ 44). Officers had rocks thrown at them from protestors. (Id.). At approximately 8:25 p.m., officers were authorized to use tear gas if needed. (Id.). Officers used tear gas, and the large group began to break up into smaller groups. (Declaration of Erik Kammerer (“Kammerer Decl.”), ¶ 11).
After protestors dispersed the area around the Justice Center, many regrouped in different areas downtown and in the Lloyd District. (Dobson Decl., ¶ 45). Portland Fire and Rescue received reports of ten fires the night of May 30, 2020. (Andersen Decl. ¶ 2, Ex. 3). Numerous

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officers had rocks, bottles, and other objects thrown at them. (Dobson Decl., ¶¶ 44-45, Haase Decl., ¶ 12-14; Elam Decl., ¶¶ 10-11). Just before 9:00 p.m., PPB was informed that business owners were armed with rifles prepared to defend their businesses. (Dobson Decl., ¶ 45). At approximately 11:35 p.m., aerial fireworks were launched at the Multnomah County Courthouse. (Dobson Decl., ¶ 46). Officers used tear gas at different locations to disperse groups that had ignored orders to disperse, were violating the curfew, and were engaged in theft, vandalism, and other criminal activity. (Kammerer Decl., ¶¶ 9-12; Haase Decl., ¶¶ 13-15; Elam Decl., ¶¶ 9-10; Schoening Decl., ¶ 8).

3. May 31, 2020-June 1, 2020 Protests on May 31, 2020 started in the early afternoon. Protestors asked to speak with officers, and PPB believed that there was an agreement that the protestors would remain out of the street on the sidewalk and in the parks to allow traffic through. (Declaration of Mike Krantz, (“Krantz Decl.”), ¶ 6(a)). At approximately 2:20 p.m., protestors asked officers to take a knee, which they did. (Sheffield Decl., ¶ 9.) At 3:33 p.m., the sound truck began “Please honor our agreement, move to the sidewalk, and into the park now.” (Krantz Decl., ¶ 6(a)). This group appeared to largely comply with that request. (Id.). However, just after 4:00 p.m., individuals began throwing bottles and other projectiles at officers. (Id. at 6(c)). The sound truck announced: “If you remain in the roadway and show the intent to engage in physical resistance to removal, or if emergency circumstances require, you may be subject to uses of force, including riot control agents and impact weapons.” (Id.). Following these announcements, a violent group began to advance on officers, causing them to move backward, and the Incident Commander received reports that officers were taking more projectiles. (Id.). He authorized the use of CS gas at approximately 4:18 p.m. (Id.). Officers continued to have projectiles thrown at them, including batteries. (Krantz Decl., ¶ 6(d)). The protest liaison spoke with an individual in the crowd and told them that PPB would

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pull back, if the group would stay out of the streets. (Id.). PPB allowed a protestor to use the City’s public address system to ask protestors to move into the parks. (Id.). At approximately 5:19 p.m., PPB tweeted “Portland Police appreciates demonstrators who have moved out of the street and remained peaceful.” (Sheffield Decl., ¶ 10).
Just before 6:30 p.m., a few thousand protestors began marching from Laurelhurst Park. The sound truck announced “We have the roads blocked for your safety. Please continue on your path to the east. We want to facilitate your march. Continue east with the rest of your group. We are here to facilitate your march to the east safely.” (Krantz Decl., ¶ 7). At almost 7:00 p.m., PPB tweeted “Significant amount of marchers walking East on SE Burnside Drivers please use cautions.” And also tweeted: “Significant number of demonstrators also downtown on SW 3rd between Madison and Main. Drivers use caution.” (Sheffield Decl., ¶ 11). When demonstrators sat in the street, PPB again tweeted that drivers should use caution. (Sheffield Decl., ¶ 12).
At 8:00 p.m., PPB announced via Twitter “The Mayor’s curfew is now in effect.” Just after the curfew announcement, officers began taking multiple glass bottles from the crowd downtown. (Dobson Decl., ¶ 51). At approximately 8:10 p.m., the sound truck announced that the event had become an unlawful assembly and that police would begin efforts to disperse the crowd, warning “if you do not leave now, you may be subject to uses of force, including riot control agents and impact munitions.” (Dobson Decl., ¶ 51; Declaration of Brittany Bezdek (“Bezdek Decl.”), Dkt. 4, ¶ 18). Shortly thereafter, officers began using tear gas to disperse the crowd. (Declaration of John Oliphant (“Oliphant Decl.”), ¶ 4; Taylor Decl., ¶ 10; Declaration of Andrew Kofoed (“Kofoed Decl.”), ¶ 4; Declaration of Craig Lehman (“Lehman Decl.”), ¶ 9; Elam Decl., ¶ 14; Haase Decl., ¶ 18; Young Decl., ¶ 15). Members of the crowd began throwing cannisters of tear gas back at officers. (Dobson Decl., ¶ 51).
PPB continued to distinguish between the crowd throwing projectiles and the peaceful protestors who continued to march. At 8:41 p.m., PPB tweeted: “Police dispersed the crowd who

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were throwing projectiles at police near the Justice Center. A march is still occurring westbound on SE Burnside. Thank you to all the participants for remaining peaceful.” (Sheffield Decl., ¶ 13).
Just after 9:30 p.m., the Incident Commander authorized force to protect the Justice Center, but cautioned officers to only respond to protestors when necessary. (Dobson Decl., ¶ 53). Throughout this time, officers continued to have projectiles, including glass, thrown at them. (Id.; Oliphant Decl., ¶¶ 5, 9; Declaration of Heather Martley (“Martley Decl.”), ¶ 7; Taylor Decl., ¶ 12; Kofoed Decl., ¶ 4; Lehman Decl., ¶ 11; Elam Decl., ¶ 13). PPB warned the crowd that engaging in criminal behavior and throwing objects could result in the use of impact munitions and chemical agents and requested that the crowd remain calm and peaceful. (Dobson Decl., ¶ 53; Sheffield Decl., ¶ 14).
PPB received reports that glass was being broken at the Federal Courthouse, that individuals entered the building, and that a flare was thrown into the building around 10:45 p.m. (Dobson Decl., ¶ 56). PPB sought to move people away from the Federal Courthouse so federal protection services could investigate and evacuate if necessary. PPB tweeted this information, instructed people to leave the building immediately, and advised the crowd to disperse to the west. (Sheffield Decl., ¶ 15; Declaration of Kevin Wilbanks (“Wilbanks Decl.”), Dkt. 12, ¶ 6; Declaration of Hari Khalsa (“Khalsa Decl.”), ¶ 14). As officers sought to clear this area, they began taking significant projectiles from the crowd, including glass. (Dobson Decl., ¶ 56; Taylor Decl., ¶ 13; Kofoed Decl., ¶ 4; Elam Decl., ¶ 13; Haase Decl., 19.) At this point, some officers deployed tear gas. (Oliphant Decl., ¶ 6; Taylor Decl., ¶ 13; Kofoed Decl., ¶ 4; Elam Decl., ¶ 13; Haase Decl., ¶ 19).
Shortly thereafter, federal protection services determined that nobody had entered the courthouse. At approximately 11:00 p.m., PPB shared this information with the crowd. The sound truck informed the crowd that they could move back in front of the Justice Center.

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(Dobson Decl., ¶ 57; Khalsa Decl., ¶ 15). The group continued to throw bottles, sticks, and other projectiles at officers from approximately 11:15 p.m. to 11:25 p.m. Aerial fireworks were also launched at officers. (Dobson Decl., ¶ 57); Wilbanks Decl., ¶ 8). PPB announced a civil disturbance at 11:30 p.m. and warned the crowd of riot control agents. (Dobson Decl., ¶ 57; Sheffield Decl., ¶ 16); Khalsa Decl., ¶ 15).
Following the unlawful assembly announcements, members of the crowd continued to start fires, throw projectiles at officers, and launch fireworks toward officers. (Dobson Decl., ¶ 58; Martley Decl., ¶ 13; Taylor Decl., ¶ 14; Kofoed Decl., ¶¶ 5-6; Lehman Decl., ¶ 11; Elam Decl., ¶ 14; Young Decl., ¶ 16. Officers deployed tear gas to disperse the crowd that had become violent. (Martley Decl., ¶ 14; Taylor Decl., ¶ 14; Kofoed Decl., ¶¶ 5-6; Lehman Decl., ¶ 11; Elam Decl., ¶ 14; Young Decl., ¶ 16). Smaller groups broke up around downtown for the next several hours. The PPB sound trucks continued to announce that this was an unlawful assembly and instructed people to leave. (Dobson Decl., ¶ 58). Many people broke windows, vandalized buildings and otherwise engaged in criminal activity. (Dobson Decl., ¶ 58; Sheffield Decl., ¶¶ 17-19). Officers traveled around downtown until approximately 2:00 a.m. to address these groups engaged in criminal activity, including with tear gas. (Dobson Decl., ¶ 58; Martley Decl., ¶ 14; Kofoed Decl., ¶¶ 6-7; Lehman Decl., ¶¶ 4-7; Elam Decl., ¶ 14; Young Decl., ¶ 20).

4. June 1, 2020 PPB did not deploy tear gas on June 1, 2020. (Dobson Decl., ¶ 60).

5. June 2, 2020 Two groups gathered on June 2, 2020 at around approximately 6:00 p.m., one at Pioneer Square and a second at Revolution Hall. (Dobson Decl., ¶ 63). Many thousands marched downtown from Revolution Hall, stopping briefly to lie down across the Burnside bridge. These groups peacefully demonstrated for several hours. (Id.). Several hundred protestors also gathered at the fence that had been erected around the

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critical infrastructure downtown. (Dobson Decl., ¶ 64). Some members of this group attempted to breach the fence and threw projectiles, including fireworks, glass bottles, and baseball bats. (Id.). At approximately 9:00 p.m., PPB, through the sound truck and Twitter, admonished protestors not to tamper with the fence and warned that force may be used. (Dobson Decl., ¶ 64; Sheffield Decl., ¶ 20).
At approximately 9:15 p.m., the sound truck announced that the demonstration at the fence had become a civil disturbance and protestors were required to leave. It again warned of the use of riot control agents. (Dobson Decl., ¶ 65). Protestors stayed and some continued to throw projectiles at officers. Following these announcements, officers began to deploy tear gas to disperse the protestors who had not left. (Id.).
Knowing that there was a significant group of peaceful protestors at Pioneer Square, the Incident Commander directed officers not to push the group from the fence line into Pioneer Square or to deploy tear gas at Pioneer Square. (Dobson Decl., ¶ 66). At approximately 9:33 p.m., PPB tweeted “We continue to appreciate the thousands who are gathered peacefully in Pioneer Courthouse Square, while another smaller group is causing destruction and throwing projectiles at officers on 4th and Taylor. That has been declared an unlawful assembly.” (Sheffield Decl., ¶ 21).
Protestors continued to throw bottles, flares, and other projectiles at officers. They also threw riot control agents back at police. (Dobson Decl., ¶ 67; Elam Decl., ¶¶ 19-20; Haase Decl., ¶ 29; Kofoed Decl., ¶ 8; Declaration of Mark Duarte (“Duarte Decl.”), ¶¶ 9, 13; Declaration of Justin Damerville (“Damerville Decl.”), ¶ 4; Declaration of Randy Kuykendoll, Jr. (“Kuykendoll Decl.”), ¶ 6). The sound trucks continued to announce the unlawful assembly and directed protestors to leave for the next two hours. (Dobson Decl., ¶ 67).
At approximately 11:12 p.m., the crowd returned to the fence line around the Justice Center. (Dobson Decl., ¶ 68). At approximately 11:30 p.m., officers were hit with batteries

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thrown from the upper deck of a parking garage. (Id.). The sound trucks announced that the event had again become a civil disturbance and directed people to leave to the north, warning of a use of force for failing to leave. (Id.). Individuals within the crowd continued to throw objects at officers. (Sheffield Decl., ¶¶ 22, 23). Tear gas was again used to disperse the group. (Dobson Decl., ¶ 68; Elam Decl., ¶ 17; Kofoed Decl., ¶9; Duarte Decl., ¶ 11; Damerville Decl., ¶ 5).
As the larger group broke up, smaller groups formed. Some of these groups lit explosives, fireworks, and some small fires. (Dobson Decl., ¶ 69). Individuals continued to throw objects at police as they tried to direct people to leave. (Id.). Two sound trucks drove around directing people to leave. (Id.). At approximately 12:35 a.m. on June 3, the Incident Commander directed all units to disengage and ordered all officers back within the fence line. (Id.). He hoped that removing officers from the equation would de-escalate the anger. (Id.). By approximately 2:00 a.m. the demonstration had largely ended. (Id.).

6. June 15, 2020 Plaintiffs and Plaintiffs’ declarants describe incidences of less lethal force at two locations on June 15, 2020. First, Plaintiff Johnson describes force near the Justice Center at SW 3rd and SW Main. She indicates that police were standing “above” her, presumably on the portico of the Justice Center, when they fired impact munitions. (Declaration of Alexandra Johnson (“Johnson Decl.”), Dkt. 48, ¶¶ 19-21). She also contends that a “flash bang” exploded feet away from her and her friend. (Johnson Decl., ¶ 24). Declarant Reinhardt heard the dispersal announcements and went to SW Broadway. He asserts that while at SW Broadway, outside of the closed area, a PPB officer indiscriminately fired impact munitions with OC at the crowd for no reason. (Declaration of Zack Reinhardt (“Reinhardt Decl.”), ¶ 14). On the evening of June 15, a crowd gathered on the SW 3rd Avenue side of the Justice Center, near the fence that had been erected. (Declaration of Erica Hurley (“Hurley Decl.”), ¶ 7). This crowd launched projectiles at Multnomah County deputies who were guarding the Justice

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Center. (Hurley Decl., ¶ 7). A few blocks north of the Justice Center, protestors lit debris on fire, requiring a fire engine to extinguish the blaze to protect life and property. (Hurley Decl., ¶ 9). Multnomah County deputies took a number of projectiles from the crowd after they addressed subjects in the crowd who had lit a fire. (Hurley Decl., ¶ 7).
At approximately 10:30, the Incident Commander declared an unlawful assembly, directing persons to leave downtown. (Hurley Decl., ¶¶ 9-10). When the crowd did not disperse, PPB officers began moving the crowd. Protestors continued to throw projectiles, including glass bottles, rocks, and full cans of beverages, and used shields, barricades and other objects to impede the officers’ attempts to disperse the crowd. (Hurley Decl., ¶ 10; Kuykendoll Decl., ¶ 15; Duarte Decl., ¶ 20). A Clark County Sheriff deputy was hit in the back of the head with a softball size rock from behind the line of officers; he was transported to the hospital. (Hurley Decl., ¶ 9).
PPB officers Kuykendoll, Duarte and Wands utilized the types of munitions described by Declarants Johnson and Reinhardt on June 15. (Kuykendoll Decl., ¶ 15; Duarte Decl., ¶ 20). At SW 3rd and SW Main, Officer Kuykendoll deployed an RBDD in response to multiple subjects throwing projectiles in order to deter the group from throwing projectiles and disperse them from the area. (Kuykendoll Decl., ¶ 15). Officer Kuykendoll also deployed 3-4 OC rounds from his FN303 at a female as she attempted to pick up a smoke canister and throw it back at the police. (Id.).
Officer Wands deployed three OC round from his FN303 at a known male who was threatening officers. (Declaration of Jason Wands (“Wands Decl.”), ¶ 22). These rounds struck the intended person. (Id.). The individual was shining a high intensity light in officers’ eyes which prevented them from seeing while members of the crowd were throwing objects at them. (Id.). He then jabbed Officer Wands with the metal tip of his umbrella, and when Officer Wands tried to arrest him, he began punching at Officer Wands in the head. (Id.). The individual hit by Officer Wands’ FN303 rounds was taken into custody. (Id.).

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Office Duarte deployed two OC rounds from his FN303 toward an individual at SW Salmon and SW 5th Avenue who had thrown a projectile at the police. (Duarte Decl., ¶ 20). In another instance, a group of 15-20 people began to advance in the street toward Officer Duarte and police vans. Officer Duarte was concerned for his safety and the safety of the individuals in the vans. (Id.). He deployed a single RBDD in the middle of the street directly behind the vans to stop the group’s advance. (Id.).
7. June 25, 2020-June 26, 2020 Early in the evening on June 25, a group of several hundred protestors gathered in Fernhill Park. (Passadore Decl., ¶ 25). These protestors marched to PPB’s North Precinct. (Id. at ¶ 26). At approximately 10:00 p.m., several hundred protestors gathered around the intersection of NE Emerson and NE MLK. They began building a fence and erecting a barricade. (Id. at ¶ 27). While erecting the barricade, some protestors began throwing projectiles, including glass bottles, at police officers. (Id.). At around midnight on June 26, demonstrators had barricaded the doors of North Precinct using drills. (Id. at ¶ 31). By 12:30 a.m., demonstrators had obscured the building’s security cameras. (Id. at ¶ 32). As the Incident Commander waited for more officers, some demonstrators began shining green lasers in officers’ eyes3 and ramming dumpsters into the North Precinct doors. Fireworks were also thrown at officers over the barricade that protestors had erected. (Id. at ¶ 33). At approximately 1:00 a.m., PPB declared an unlawful assembly because of concerns for the life and safety of officers and persons in custody within North Precinct. (Id. at ¶¶ 34-35). At approximately 1:20 a.m., officers began moving the crowd from the immediate area. (Id. at ¶ 36). As this happened, demonstrators threw water bottles, glass bottles, and paint at officers, who were then unable to see from their face shields. (Id.). At 1:40 a.m., a firework was launched onto
3 United States Food & Drug Administration, Frequently Asked Questions About Lasers (March 7, 2018), available at https://www.fda.gov/radiation-emitting-products/laser-products-andinstruments/frequently-asked-questions-about-lasers. Page 18 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION
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the roof of North Precinct. (Id. at ¶ 39). Officers Rethemeier, Taylor, Kammerer, Domka, Whitmore, and Westerlund all
deployed impact munitions, including FN303 rounds, 40MM less lethal rounds, and RBDDs at individuals engaged in active aggression. These impact munitions were used to respond to individuals throwing glass bottles, jars of paint, and other projectiles at officers; pushing and shoving police officers and wrapping themselves around an officer’s legs; pointing lasers into the eyes of officers; moving dumpsters and other barricades into the street; and throwing gas back at officers. (Schoening Decl., ¶¶ 10-11; Declaration of Taylor Rethemeier (“Rethemeier Decl.”), ¶¶ 2-4; Declaration of London Westerlund (“Westerlund Decl.”), ¶¶ 2-3; Declaration of Zachary Domka (“Domka Decl.”), ¶¶ 19-20; Taylor Decl., ¶¶ 15, 19; Declaration of Anthony Whitmore (“Whitmore Decl.”), ¶ 3 ). Officers Billard and Westerlund both deployed bursts of handheld OC at individuals. (Declaration of Susan Billard (“Billard Decl.”), ¶ 3; Westerlund Decl., ¶ 3). Officer Billard deployed OC at an individual that was stoking the flames of the dumpster fire that had been lit. (Billard Decl., ¶ 3). Officer Westerlund deployed OC at an individual that had grabbed an officer by the vest and attempting to pull the officer into the crowd. (Westerlund Decl., ¶ 3).
Protestors began to light a large dumpster fire on NE MLK, which PPB monitored, but did not respond to because it remained contained. (Passadore Decl., ¶ 40). By 2:14 a.m., demonstrators had set fire to the north side of the building where North Precinct is located. (Id. at ¶ 41). Once the Incident Commander received reports of the fire, he determined that it was necessary to use tear gas to disperse the crowd. (Id. at ¶ 42). Officers Schoening and Taylor each deployed tear gas to disperse the crowd. (Schoening Decl., ¶ 11; Taylor Decl., ¶ 21). After the crowd dispersed, Portland Fire and Rescue was brought in to assess the building and put out the dumpster fire. (Passadore Decl., ¶ 44).

8. June 26, 2020-June 27, 2020

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Plaintiffs’ declarants assert that PPB shot projectiles from the Justice Center on June 26, 2020. (Declaration of Frederick Garlick (“Garlick Decl.”), Dkt. 50, ¶¶ 13, 14; Declaration of Mason Lake (“Lake Decl.”), Dkt. 61, ¶ 4; Declaration of Aubrey Danner (“Danner Decl.”), Dkt. 56, ¶ 9). No PPB officers deployed munitions from either inside the Justice Center or from the portico in front of the Justice Center on June 26, 2020. (Dobson Decl., ¶ 71).

9. June 27, 2020 On June 27, demonstrators came to the Justice Center at around 7:30 p.m. (Dobson Decl., ¶ 72). They immediately began blocking SW 3rd Ave. at SW Main with chained plastic barricades. (Id.). At approximately 10:25 p.m., PPB declared an unlawful assembly in order to re-open SW 3rd and remove the barricades that had been erected. (Dobson Decl., ¶ 73). PPB brought in flatbed tow trucks to carry away the constructed barriers. (Id.). Seven minutes after the announcement, very few demonstrators had left the roadway. (Id.). PPB officers began to push the crowd up to SW 4th Ave. During this push, demonstrators threw rocks, glass bottles and paint at PPB officers. (Id., Lehman Decl., ¶ 29; Kammerer Decl., ¶ 56). They also shined lasers in officers’ eyes. (Kofoed Decl., ¶ 12; Domka Decl., ¶ 24). PPB deployed smoke to distract the crowd so officers could pull back from the area safely once the barricades had been removed. (Taylor Decl., ¶ 25). During this dispersal, two officers deployed RBDDs, both in the direction of small groups of people who were throwing items at the line of officers. (Kammerer Decl., ¶ 56; Kofoed Decl., ¶ 12). Additionally, two PPB officers used handheld OC spray. (Domka Decl., ¶ 23; Lehman Decl., ¶ 29). Just before 1:30 a.m., the demonstrators moved to the SW 2nd Avenue side of the Justice Center. (Dobson Decl., ¶ 75). Some individuals attempted to block the door to the precinct, as well as the roll-down gates. A police officer attempted to arrest one individual but was hit in the

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face with a skateboard. (Id.). At this point, the PPB Sound truck announced an unlawful assembly and directed protestors to leave the area. Officers attempted to move the crowd to SW 2nd and SW Main. (Id.). The crowd pulled two dumpsters from the corner of SW 2nd and SW Main into the street. (Id.). At that point, the Incident Commander closed the area from SW 1st to SW 6th from Clay to Morrison and officers began to push back the crowd. (Id.).
During this push two officers again deployed RBDDs. One deployed an RBDD to deter the individuals who were moving large dumpsters toward the police and another deployed an RBDD in response to persons throwing projectiles at the police. (Kofoed Decl., ¶ 12; Lehman Decl., ¶ 21). Additional smoke was deployed. (Kofoed Decl., ¶ 15). III. PLAINTIFFS CANNOT MEET THE TEST FOR A PRELIMINARY
INJUNCTION A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Barnett v. BAC Home Loan Servicing, L.P., 772 F. Supp. 2d 1328, 1333 (D. Or. 2011) (quoting Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008) citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). “The sole purpose of a preliminary injunction is to ‘preserve the status quo ante litem pending a determination of the action on the merits.’” Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009) (citations omitted). The Supreme Court established in Winter that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 555 U.S. at 20. Alternatively, a preliminary injunction is available where there are “serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff,” but only if plaintiff also “shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the

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Wild Rockies v. Cottrell, 632 F.3d 1127, 1132, 1135 (9th Cir. 2011). In each case, Courts “must balance the competing claims of injury and must consider the
effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (internal citations omitted). Plaintiffs bear the burden of proving each of the elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); see also Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”) (Emphasis in original). Plaintiffs burden of “substantial proof” for preliminary injunctive relief “is much higher” than even what is required in connection with summary judgment. Mazurek, 520 U.S. at 972.

A. Plaintiffs Cannot Demonstrate a Likelihood of Success on the Merits. “To prevail, plaintiffs must first show that they likely will succeed on the merits of their constitutional claims.” Campbell v. City of Oakland, 2011 WL 5576921, at *3 (N.D. Cal. Nov. 16, 2011) (citing Winter, 555 U.S. at 20). “To state a Monell claim, a plaintiff must establish: (1) that the plaintiff possessed a constitutional right of which he was deprived; (2) that the municipality had a policy, custom, or practice; (3) that the policy, custom, or practice amounted to deliberate indifference to the plaintiff’s constitutional rights; and (4) that the policy, custom, or practice was the moving force behind the constitutional violation.” Sternberg v. Town of Danville, 2015 WL 9024340, at *3 (N.D. Cal. Dec. 16, 2015) (citing Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011); AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)). A plaintiff may also establish a Monell claim where the employee who engaged in the allegedly unconstitutional act was a final policymaker. Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003). Plaintiffs must show that they were deprived of a constitutional right and that a custom or practice of the City, amounting to deliberate indifference, caused that constitutional deprivation.

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Plaintiffs can show neither. The four plaintiffs in this case, Don’t Shoot Portland, Nicholas J.
Roberts, Michelle “Misha” Belden and Alexandra Johnson, cannot show that they were subject
to less lethal force by PPB officers other than tear gas. Importantly, the evidence does not
support the conclusion that PPB has engaged in a pattern or custom of using less lethal force at protests in violation of protestors’ Fourth Amendment and First Amendment rights.4
1. Defendant does not have a practice or custom of violating protestors’ Fourth Amendment Rights.
Under the Fourth Amendment, a seizure results in a constitutional violation only if it is
unreasonable. Graham v. Connor, 490 U.S. 386, 395 (1989). The determination of
reasonableness requires an examination of “whether the totality of the circumstances justified
[the] seizure.” Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). “When the governmental interests at
stake are substantial, a greater intrusion upon the Fourth Amendment rights of the person may be
justified.” Nelson v. City of Davis, 685 F.3d 867, 878 (9th Cir. 2012).
The analysis of use of force is a fact-specific inquiry which looks at (1) the severity of the
crime, (2) the immediacy of the threat to the safety of officers or others, and (3) whether the
suspect was resisting arrest or attempting to evade arrest. Graham, 490 U.S. at 396. In the Ninth
Circuit, courts “may also consider the availability of less intrusive alternatives to the force
employed and whether warnings were given.” Felarca v. Birgeneau, 891 F.3d 809, 818 (9th Cir.
2018). “The reasonableness analysis must make ‘allowance for the fact that police officers are
forced to make split second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.’” Hadley v. City
4 Plaintiffs contend that PPB Directives 1010.00 and 635.0 are unconstitutional under the Fourth Amendment. (PI at 27-28). But plaintiffs omit relevant portions of both directives that further limit the use of area impact munitions and riot control agents. (Directive 635.10 at §9). They argue that the definition of civil disturbance is unconstitutional. Directive 635.10’s definition of a “civil disturbance” meets the constitutional standards, set for in City of Portland v. Hemstreet, 119 Or App 239, 242 (1993) (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)). Plaintiffs also contend that PPB officers’ actions were made or ratified by a policy maker. But they offer no evidence in support of these contention. Page 23 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION
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of Beaverton, 2010 WL 1257609 at *12 (D. Or. 2010) (quoting Graham, 490 U.S. at 396). Plaintiffs bear the burden of proving that the force used was unreasonable. Arpin v. Santa Clara Valley Transp. Agency, 261 F3d. 912, 922 (9th Cir. 2001).
a. PPB officers’ use of tear gas has been reasonable under the totality circumstances.
“What is reasonable in the context of a [potentially violent large-scale protest]” is different from what is reasonable in other, relatively calm, situations. See Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012); see also Jurkowski v. City of Seattle, 2017 WL 4472859, *9-10 (W.D. Wash. 2017) (citing Bernini, 665 F.3d at 1003). In certain circumstances, the City has a “legitimate interest in quickly dispersing and removing lawbreakers with the least risk of injury to police and others.” Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994). More specifically, the government has a safety interest in controlling large groups of people, and force can be justified when protestors substantially outnumber officers and refuse to obey commands to disperse. See Jackson v. City of Bremerton, 268 F.3d 646, 652-53 (9th Cir. 2001). Even if the potential for criminal activity involves only low-level misdemeanors, the government has a significant interest when the occurrence is widespread. See Forrester, 25 F.3d at 807.
In Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018), the Ninth Circuit considered a case where the government interest “began with an attempt by the police to remove the protestors’ tents.” The court acknowledged that “the tents themselves posed no threat and the protestors appeared guilty only of misdemeanors,” but explained that “the university was not required to permit the ‘organized lawlessness’ conducted by the protestors.” Id. at 817-18. In Felarca, the protestors substantially outnumbered officers, refused to obey commands to disperse, shouted at the officers, and engaged in verbal and physical altercations. Id. The Court found that this justified the officers repeatedly jabbing plaintiffs with their batons, including to

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the neck and face. Id. The Court further concluded that the use of an overhand baton strike was reasonable under the Fourth Amendment because the actions that plaintiff admitted doing— “throwing leaves and shaking his fist . . . were unequivocally attempts at provocation.” Id. at 818-19.
Here, each night that PPB deployed tear gas, protestors far outnumbered officers and protestors ignored orders to disperse. Over the first three nights of protests, and on June 2, 2020, PPB’s interest was not just in protecting the Justice Center, but in addressing widespread criminal activity occurring throughout the City. Protestors here were not “throwing leaves,” like in Felarca; they were throwing fireworks, rocks, boards, glass bottles, water bottles, and paint. They were also not erecting tents, but rather lighting fires, breaking windows, graffitiing buildings, and attempting to overcome a barricade set up to keep persons in custody safe. The City’s interests were, and are, significant. See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 287 (1993) (Kennedy, J., concurring) (“[T]he wholesale commission of common statelaw crimes creates dangers that are far from ordinary. Even in the context of political protest, persistent, organized, premeditated lawlessness menaces in a unique way the capacity of a State to maintain order and preserve the rights of its citizens.”).
PPB used tear gas on June 25, 20205 after protestors surrounded North Precinct, spray painted the security cameras on the outside of the precinct, barricaded multiple doors to the precinct, and set the building on fire. Use of tear gas in this situation was necessary to protect the lives and safety of people inside. It was also reasonable under the totality of the circumstances.
Plaintiffs contend that the government interest is low because most protest arrests are for minor crimes. (PI at 21-22). This argument fails for two reasons. First, the Ninth Circuit has held that the “[C]ity’s interest in preventing [the] widespread occurrence [of misdemeanors is]
5 PPB has subsequently used tear gas two other occasions, (Dobson Decl., ¶ 100; Passadore Decl., ¶ 56), but those have not been put at issue by plaintiffs. Page 25 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION
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significant.” Forrester, 25 F.3d at 807 (1994). Second, the arrest data from a protest is not
entirely representative of the activity that took place. Serious criminal activity, like arson,
assault, battery, theft, and criminal mischief may occur without officers successfully arresting the
subject.
Plaintiffs cite cases where officers: shot someone in the eye with a pepper ball, Nelson,
685 F.3d 867 (2012) (summary judgment); left pepper spray on a person’s face for twenty to
thirty minutes after he had surrendered, Lalonde v. Cty. of Riverside, 204 F.3d 947 (9th Cir.
2000) (summary judgment); applied pepper spray with a q-tip to the corner of the eyes of sitting
protestors, Headwaters Forest Def. v. Cty. of Humboldt, 276 F.3d 1125 (9th Cir. 2002)
(summary judgment); “intentionally applied pepper spray and shot rubber bullets at” persons
engaged in lawful protest activities, Marbet v. City of Portland, 2003 WL 23540258 at *10 (D.
Or. Sept. 8, 2003) (motion to dismiss); and used tear gas to disperse a group whose only crime
was being in the street, Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (summary
judgment). These cases are distinguishable on their facts because PPB officers deployed tear gas
in response to widespread criminal activity and violence.
Conversely, the Ninth Circuit has explained that tear gas in circumstances similar to those
faced by PPB did not constitute excessive force: The protesters were allowed to conduct their activities peacefully for several hours before the crowd refused to move back when ordered to do so for their safety. Violence then erupted and the protesters were allowed to remain after the situation settled. The protesters were warned repeatedly to clear the street or tear gas would be deployed, and there is no dispute that a small group of the crowd became violent. The tear gas was used in response to these conditions. Thus, Barney has provided no basis to create a material issue of fact that her exposure to tear gas and any effect on her First Amendment activities were anything other than the unintended consequence of an otherwise constitutional use of force under the circumstances.

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Barney v. City of Eugene, 20 F. App'x 683, 685 (9th Cir. 2001).6 Just as the use of tear gas was a constitutional in Barney, the use of tear gas by PPB officers to address ongoing violent, criminal activity after warnings and a refusal to disperse, was constitutional.
b. PPB officers’ use of other less lethal munitions has been reasonable under the totality of the circumstances.
Only Plaintiff Johnson contends that she was impacted by a less lethal munition other than tear gas. She states that officers standing on the portico of the Justice Center shot into the crowd, and one officer “step[ped] out from behind a pillar above me on the JC, about 30 ft away. He aimed directly at me and shot me in the back of my left hand.” (Johnson Decl., ¶¶ 19-21). No PPB officers fired munitions from the Justice Center on June 15, 2020. Plaintiff Johnson also contends that police began using flash bangs and one exploded “just feet away from my friend and me as we walked to my car.” (Johnson Decl., ¶ 24). However, an RBDD exploding near Ms. Johnson is not a seizure under the Fourth Amendment. See Jurkowski, 2017 WL 4472859, at *9.
Plaintiffs also cite Declarant Reinhardt’s assertion that officers shot at crowds of passive individuals who had already retreated, as officers themselves retreated. While the City cannot speak to Mr. Reinhardt’s recollection of what allegedly happened to his friends, the PPB officers who used force on June 15, 2020 did not do so at the location where Mr. Reinhardt remembers seeing force. The officers who used force on June 15, 2020 directed that force at individuals who were engaged in active aggression, not individuals who were compliant, passively resistant, or retreating.
Plaintiffs rely on Nelson, where the court found it significant that the defendants “did not see anyone in Nelson’s group throwing bottles or engaging in any other threatening or dangerous behavior.” 685 F.3d at 880 (2012). However, the exact opposite is true with respect to PPB’s use
6 The City previously chose not to cite Barney because of Ninth Circuit Rule 36-3. However, the Court at the hearing on the TRO noted the case, which is directly on point. For this reason, the City has elected to include it, notwithstanding the rule. Page 27 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION
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of non-tear gas, “less lethal” munitions. The declarations of PPB officers support the conclusion that their uses of impact munitions, handheld OC, and RBDDs were directed at individuals engaged in criminal activity and reasonable under the totality of the circumstances. The use of these weapons is not, as plaintiffs assert, indiscriminate. Rather, these are directed specifically at individuals and small groups engaged in active aggression (impact munitions) and physical resistance (pepper spray). These were used to stop people who had picked up objects or previously deployed munitions to throw at officers and physically fighting or resisting officers.
Plaintiffs condemn the City’s “[a]ttempts to pit the actions of ‘bad’ protestors versus ‘good’ protestors.” (Plaintiff’s Motion for Preliminary Injunction (“PI”), Dkt. 45, at 22). But that is exactly what PPB is obligated to do—facilitate the First Amendment rights of persons engaged in peaceful protest and address persons engaged in criminal activity.
2. PPB has acted with the intent to promote, not limit, First Amendment expression.
The First Amendment protects the rights of persons to express their opinions and beliefs in the manner they see fit. See Cohen v. California, 403 U.S. 15, 24-26 (1971). To succeed on a claim of First Amendment retaliation, plaintiffs must show that (1) they “engaged in constitutionally protected activity; (2) [the City’s] actions would ‘chill a person of ordinary firmness’ from continuing to engage in the protected activity; and (3) the protected activity was a substantial motivating factor in the [City’s] conduct—i.e., that there was a nexus between the [City’s] actions and an intent to chill speech.” Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016). Assuming without conceding that plaintiffs have shown the first two elements, there is no evidence of the third. While the intent by the City to inhibit plaintiffs’ speech can be demonstrated either through direct or circumstantial evidence, Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300-01 (9th Cir. 1999), here, all evidence is to the contrary.

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Even if plaintiffs present evidence that defendant’s actions were motivated to deter speech, the City then “may rebut Plaintiffs’ allegation of a retaliatory motive by showing that Defendants would have engaged in the same conduct even in the absence of [any plaintiffs] protected activities.” Molokai Veterans Caring for Veterans v. Cty. of Maui, 2011 WL 1637330, at *16 (D. Haw. Apr. 28, 2011) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314-15 (9th Cir. 1989).
Plaintiffs argue that their speech was anti-police in support of their contention that the actions of PPB officers were motivated by an intent to silence them. Plaintiffs contend that it is pretextual to assert that the officers acted because things were thrown. In support of this conclusion, they cite their own declarations that indicate that projectiles were being thrown, but only by “one, two or a few individuals.” (PI at 24). The video, officer declarations, and injuries that officers have suffered suggest otherwise. Many nights, individual officers were hit multiple times by projectiles. The facts show that when protestors were engaged in violence and significant criminal activity, officers used force. But when these same protestors engaged safely with minimal criminal activity, and when thousands of other protestors did so peacefully, PPB not only did not use force, but facilitated the activity.
Plaintiffs also contend that one unidentified officer, among hundreds, may have smiled prior to someone using force and another used an expletive while trying to get a resistive crowd to disperse. While the use of an expletive may demonstrate an officer’s frustration with the crowd’s refusal to comply with police orders, it does not demonstrate that his actions were motivated by plaintiffs’ speech. There is no indication that this alleged statement was motivated by the content of the protestors’ speech or, in fact, protestors’ speech at all.
This limited evidence regarding two officers, whom plaintiffs do not contend used force, must be weighed against the significant evidence that PPB sought to facilitate, not disrupt, free

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speech activity nightly for over a month. For example, on May 30, 2020, PPB was concerned that a large group marching around SE Precinct may be intent on causing damage or trying to enter the precinct. But PPB officers nonetheless reached out to organizers, observed the behavior of people marching, and did not intervene. Rather, as the very large group continued their march, PPB facilitated the movement by blocking roads.
Again on June 2, even as officers used tear gas to address a crowd that was throwing projectiles at police and trying to tear down a fence at the Justice Center, PPB messaged publicly that the unlawful assembly declaration did not apply to the large group engaged in a peaceful protest in Pioneer Square. They internally also messaged not to push the crowd that was being dispersed into or use tear gas on that group of peaceful protestors.
PPB’s continued attempts to de-escalate further demonstrates that PPB did not intend to inhibit any protestor’s speech. A fence was erected around the Justice Center in order to provide protection while minimizing police presence that may create conflict. Officers attempted to move out of sight to not incite the crowd. When the fence itself became a focal point of frustration and conflict, it was removed. The lower windows of the Justice Center were boarded up to prevent the risk that projectiles would break windows. Police tried to remain inside the building, and out of sight. These steps were taken, in part, to eliminate the role PPB’s presence may have had in agitating the crowd.
Plaintiffs contend that courts have sided in favor of plaintiffs in similar contexts. But these cases were decided on motions to dismiss or summary judgment, where allegations are assumed true and facts are viewed in the light most favorable to the plaintiff. McCarthy v. Barrett, 804 F. Supp. 2d 1126, 1137 (W.D. Wash. 2011) (summary judgment); Johnson v. City of Berkeley, 2016 WL 928723, *4-6 (N.D. Cal. Mar. 11, 2016) (motion to dismiss); Keating v. City of Miami, 598 F.3d 753, 767 (11th Cir. 2010) (motion to dismiss); Multi-Ethnic Immigrant Workers Org. Network v. City of L.A., 246 F.R.D. 621, 634 (C.D. Cal. 2007) (motion for class

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certification). In contrast, for this preliminary injunction motion, plaintiffs must put forth substantial proof of their claims, a standard that “is much higher” than even summary judgment. Mazurek, 520 U.S. at 972. Plaintiffs have not done so with respect to their First Amendment claim.

B. Plaintiffs Will Not Be Irreparably Harmed Without a Preliminary Injunction. To obtain a temporary restraining order, plaintiffs must show that they will suffer immediate and irreparable injury in the absence of the requested relief. Hodgers-Durgin v. de la Vino, 199 F.3d 1037, 1042 (9th Cir. 1999). “The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff[s] will be wronged again – a ‘likelihood of substantial and immediate irreparable injury.’” Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). “[A] federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.” City of Los Angeles v. Lyons, 461 U.S. at 111. An injunction “is unavailable . . . where there is no showing of any real or immediate threat that the plaintiff will be wronged again.” Id. In Lyons, the Court concluded that it was “surely no more than speculation” for Mr. Lyons to assert that because he had been wronged by police misconduct once, he would be involved in another “unfortunate instance[]” of police misconduct. Id. at 108. See also Grayson v. County of Marin, 2015 WL 2452808 (N.D. Calif. May 21, 2015) (dismissing plaintiff’s claim for injunctive relief enjoining Marin County from allowing deputies to patrol without reasonably monitoring deputies’ psychiatric conditions. Plaintiff had been shot three times by deputy during police encounter.) Since this Court’s temporary restraining order regarding tear gas, Oregon has enacted a law that restricts PPB and all other law enforcement in their use of tear gas. (HB 4208). It is in some sense broader and in other ways narrower than this Court’s temporary restraining order. But it nonetheless eliminates the likelihood that plaintiffs would be harmed by an

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unconstitutional use of tear gas. With respect to PPB’s use of less lethal force other than tear gas, there is no evidence that
any plaintiffs were ever harmed by such force, let alone a real or immediate threat that they would be harmed again. And plaintiffs offer no argument to the contrary. (PI at 30-32 (largely discussing tear gas)). Plaintiffs’ only passing reference to other less lethal munitions is of a reporter testifying to Congress that she was lost an eye as a result of being hit by an impact munition in Minneapolis. This reporter was purportedly struck in Minneapolis. She was hit in the eye, which is inconsistent with PPB policy and the evidence of PPB’s use of impact munitions in the record. (Directive 1010.00, ¶ 6.4.2.2.1).
Any injury caused by their alleged Fourth Amendment violations related to tear gas is not likely to continue given the new State law on the use of tear gas. And there is no evidence that plaintiffs were harmed by alleged Fourth Amendment violations related to the use of impact munitions and other less lethal munitions. Plaintiffs’ inability to demonstrate irreparable harm precludes the relief they request.
C. Plaintiffs Have Not Established and Cannot Establish that the Balance of Equities Weighs in Their Favor or that a TRO is in the Public Interest.

A plaintiff seeking a preliminary injunction must establish not only that he is likely to succeed on the merits and is likely to suffer irreparable harm 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 (2008). “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).
The plaintiffs undeniably have an interest in continuing to protest free from excessive force. And they can do so. Peaceful protests continue without response or intervention by PPB. Moreover, the City must protect, not violate, plaintiffs’ Constitutional rights regardless of any

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order from this Court. However, nearly nightly clashes with a small group of individuals who relentlessly seek
to destroy property and endanger the lives and safety of others also continue. Dozens of officers have reported injuries from objects thrown by and interactions with aggressive protestors. (Davis Decl., ¶ 5). Officers from PPB and other law enforcement agencies have sought medical treatment for injuries. (Dobson Decl., ¶ 22; Hurley Decl., ¶ 8). The City has a strong interest in maintaining public safety. This is particularly true as some protestors have escalated their criminal behavior in a manner that could have catastrophic consequences, like barricading people in a building and attempting to light it on fire.
On the three nights leading up to and including July 4, protestors have launched commercial grade fireworks at the Federal Courthouse and Justice Center. Each of these nights federal law enforcement agencies have utilized tear gas in response. In addition to the fireworks, officers had rocks, bottles, flammables, and other projectiles fired at them. PPB declared a riot and continued to warn protestors to leave as they threw fireworks, rocks, and bottles at officers. Later in the night, PPB officers deployed CS gas. During the protest, an individual got out of his car with a gun and pointed it at the Federal Courthouse. A separate individual, who was arrested, was also illegally carrying a loaded handgun. In the early morning hours of July 5, 2020, federal law enforcement arrested someone carrying materials for a pipe bomb. (Dobson Decl., ¶¶ 77114).
PPB has spent millions in overtime pay responding to these protests. On July 4, PPB limited its responses to calls for service to emergencies City-wide because so many resources were required to address the rioting crowd downtown. (Sheffield Decl., ¶ 25). Every additional limitation that this Court imposes on the tools that officers have to address dangerous, criminal behavior puts them at greater risk, the public at greater risk, and requires more human resources to respond to the same protests. Any restrictions on these tools will be in place for at least one to

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two years, impacting PPB’s ability to respond not just to these protests, but all protests during this time period. The public interest and balance of equities favors PPB having all of the tools they need to address dangerous, riotous behavior.
D. If This Court Considers a Preliminary Injunction, Plaintiffs’ Proposal is Too Restrictive.
A preliminary injunction is not warranted. However, if this Court concludes that plaintiffs met the burden for equitable relief, their requested relief is overbroad and unworkable. If this Court issues an injunction, it must “state its terms specifically; and [] describe in reasonable detail—and not by referring to the complaint or other document-- the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1). This rule “was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.” Schmidt v. Lessard, 414 U.S. 473, 476 (1974).
The City’s interest has been and remains ensuring that demonstrators are able to peacefully demonstrate while maintaining the safety of all persons in Portland. If this Court believes injunctive relief is necessary, the City has proposed language in Exhibit A that would provide further restraints on PPB’s use of less lethal force during crowd control events without creating conflict with existing PPB Directives or state law. (Sheffield Decl., ¶ 26, Ex. 43). IV. CONCLUSION
Plaintiffs argue that the City “seek[s] to cast the entire Portland activist movement in the same light,” based on the fire lit at the Justice Center on May 29. Nothing could be further from the truth. Activists in Portland have come out by the thousands night after night. They have peacefully protested. A far smaller group of individuals has also come out every night to set fires, break windows, and throw projectiles at the police. The Portland activist community is vibrant, expressive, and forcing essential changes during this difficult time. PPB seeks to

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facilitate the speech of the community, but must address the individuals who continue to engage
in violence and criminal activity.
For all these reasons, the Court should deny the Plaintiffs’ Motion for a Preliminary
Injunction.
Dated: July 6, 2020.
Respectfully submitted,
/s/ Naomi Sheffield____________ J. SCOTT MOEDE, OSB 934816 Chief Deputy City Attorney scott.moede@portlandoregon.gov NAOMI SHEFFIELD, OSB 170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov ROBERT YAMACHIKA, OSB 065560 Senior Deputy City Attorney rob.yamachika@portlandoregon.gov Portland City Attorney’s Office 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

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DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

J. SCOTT MOEDE, OSB #934816 Chief Deputy City Attorney scott.moede@portlandoregon.gov NAOMI SHEFFIELD, OSB #170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov ROBERT YAMACHIKA, OSB #065560 Senior Deputy City Attorney rob.yamachika@portlandoregon.gov Portland City Attorney’s Office 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity, NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated, MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated, ALEXANDRA JOHNSON, in an individual capacity and on behalf of themselves and all others similarly situated,

Case No. 3:20-cv-00917-HZ
DECLARATION OF CRAIG DOBSON
(In Support of Defendant City of Portland’s Response to Plaintiffs’ Motion for Preliminary Injunction and Motion for Contempt)

PLAINTIFFS,

v.

CITY OF PORTLAND, a municipal corporation, and MULTNOMAH COUNTY, a political subdivision of the State,

DEFENDANTS.

/// /// Page 1 – DECLARATION OF CRAIG DOBSON

PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

I, Captain Craig Dobson, declare as follows: 1. I am employed by the City of Portland as a Captain in the Portland Police Bureau
(“PPB” or “the Bureau”). I have been a police officer for the City of Portland since 1998. Currently, in addition to my role as Captain, I am also frequently in the role of Incident Commander for crowd management/crowd control occurrences that take place within the City.
2. By way of background, I attended the State of Oregon’s Police Academy in 1998. This was approximately a 10-week program. While I have been employed with the City of Portland, I have attended the Bureau’s annual in-service trainings, which typically last about one week. The annual in-service training will cover various law topics.
3. I have received training both from the state police academy and from the Bureau’s Training Division at annual in-service training.
4. I have also received training both from the state police academy and from the City of Portland’s Police Bureau’s Training Division at annual in-service training, regarding the lawful use of physical force or control.
5. From 2010 until November of 2013, I was assigned to the Bureau’s Central Precinct as the Bureau’s downtown Special Events coordinator. Part of my duties as Special Events coordinator involved meeting with event organizers for demonstrations, large scale gatherings and visits by high profile dignitaries. This includes workings together to create a safety plan with event organizers, creating a PPB incident action plan and executing the plan to ensure the event occurs as planned.
6. I have also received special training in crowd management/crowd control management and have used that training in my role as a crowd management Incident Commander. Among other things, I completed the Government Training Institute’s Public Order Management course, and I have taken FEMA’s Emergency Management Institute All-hazards Operations Section Chief, FEMA’s Field Force Command course and designated as a Department of Homeland Security Certified Instructor for the Center for Domestic Preparedness
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

and I am an instructor for public order classes for PPB. 7. The City’s Crowd Management/Crowd Control policy is numbered 0635.10
(“Directive 635.10”). Directive 635.10 is available at: https://www.portlandoregon.gov/police/article/649358
8. The City’s Use of Force policy is numbered 1010.00 (“Directive 1010.00”). Directive 1010.00 is available at: https://www.portlandoregon.gov/police/article/751998
9. Incident Commander (“IC”) is defined in the Policy. The IC is the individual responsible for all incident activities, including the development of strategies and tactics and the ordering and release of resources. The IC has the overall authority and responsibility for conducting incident operations and is responsible for the management of all incident operations at the incident site.
10. The cornerstones of the Policy are set forth in the description of the purpose of the Policy and is a powerful statement understanding the history of Portland. Notably, the Policy requires that “Member 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.”
11. I emphasize the importance of facilitating First Amendment activity, and I instruct officers on that requirement every time I am the IC. I have observed the same from all PPB ICs. This emphasis can be found in the Incident Action Plan that sets out Incident Objectives and Priorities and are communicated to all command staff, supervisors, and police officers in the field. In accordance with the Policy, “Free Speech” and the need and requirement to “facilitate the lawful exercise of free speech in and around events” has been emphasized to all Police Bureau employees.
12. Annually, the Portland Police Bureau facilitates hundreds of demonstrations and crowd events in the City of Portland involving a wide variety of subject matters and political
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

issues, including numerous events related to incidents of police force and advocating for major police reforms. These events have involved thousands of people, often without any police intervention or use of force.
13. Beginning on May 29, 2020 to the present, I have been serving as the Incident Commander for the demonstrations in Portland and I have acted and instructed officers under my direction to act consistent with all Portland Police Bureau Directive. I have regularly highlighted the requirements of Directive 635.10 and Directive 1010.00, and effective June 6, 2020, the requirements set forth by Mayor Wheeler, effective June 9, 2020, the requirements of Judge Hernandez’s Order, and effective June 26, 2020 the requirements of Judge Hernandez’s additional Order and then effective on June 30, 2020 the requirements of the new state law on the use of tear gas and Judge Simon’s Order of July 2, 2020.
14. Throughout these demonstrations, one of the Portland Police Bureau’s goals has been to facilitate lawful First Amendment activity by all persons in the City of Portland.
15. Since May 29, 2020, the Bureau has strived to achieve this goal by reaching out to protestors and encouraging peaceful assembly through words directly from officers to demonstrators, PPB’s twitter feed and other social media platforms, demonstration liaison teams, demonstration liaison, and the Sound Truck.
16. During the demonstrations since May 29, 2020, at a variety of locations, thousands of demonstrators have freely exercised their First Amendment rights with minimal police involvement. For example, from May 29, 2020 through approximately the weekend of June 27, 2020 and 28, 2020, thousands of demonstrators typically gathered at Revolution Hall and the adjacent park (and other locations) and there was minimal involvement from PPB. PPB did not direct this group to disperse and did not use or threaten the use of tear gas. Similarly, thousands of demonstrators marched from Revolution Hall, across the bridge (many lying in the streets at different times) to Waterfront Park and also gathered in Pioneer Square. Demonstrators have also on occasion blocked the freeways through downtown Portland. Again, there was been
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

minimal involvement from PPB on these bridges, at Waterfront Park, at Pioneer Square or at the freeways. The same is true for multiple other locations throughout Portland.
17. These thousands of protestors, protested peacefully, without endangering the life or safety of others or destroying property. It is my understanding that these protestors are advocating for police reform and criticizing police practices. PPB has encouraged these protestors, expressed appreciation for these protestors, offered to speak with these protestors, has not declared these protests unlawful or ordered dispersal, and has not used force against these protestors. I have directed minimal to no PPB presence at these protests because it is not needed.
18. Pursuant to Directive 635.10, the IC must authorize the use of riot control agents to disperse a crowd.
19. Riot control agents include CS gas, which is commonly known as tear gas. 20. In contrast with the Peaceful demonstrators, there has been a nightly group of demonstrators since at least May 30, 2020 that have acted very differently from the group of peaceful demonstrators. 21. The group acting differently from the Peaceful demonstrators continue to show various types of serious violence on a near nightly basis. I would group the actions of this violent group in the following categories: A. Use of Projectiles; B. Fires; C. Extreme property damage including looting; D. Direct Assaults against police officers resulting in injuries; E. Extreme Tactics that include barricading ingress and egress from occupied buildings and at times lighting fires inside and outside the buildings, disabling security cameras and using locks to prevent ingress and egress; F. Illegal commercial and industrial fireworks as weapons; G. Breaking into buildings with unknown intent; H. Citizen assaults; I. Barricading streets and blocking traffic and then Cars driving through crowds of protestors and fires at the barricade points; J. People carrying firearms, who have engaged in gun pointing and actual discharges within the City limits; K. Improvised Explosive Devices; L. Lasers to temporarily or permanently blind officers.
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

22. With respect to use of projectiles as weapons, this violent group of demonstrators repeatedly throw projectiles at police and property. Many of the projectiles pose an imminent risk of serious physical injury to police. The projectiles include rocks, frozen water bottles, full water bottles, launched full soup cans, unopened beer cans and bottles, steel pellets from sling shots, bricks, fist size rocks, knives, frozen fruit and commercial and industrial fireworks. This has resulted in injuries requiring medical attention to PPB officers and offices from other police jurisdictions that have provided assistance to PPB. Many of these projectiles that have been thrown at officers at the Justice Center and other locations downtown have caused injury to police officers. PPB has over 30 reports of injury including one officer being hit in the face with a projectile that resulted in multiple stitches and one officer that caught fire after being hit by an incendiary device.
23. With respect to fires, over 140 of these have been set throughout the city, including one inside the Justice Center, and at North Precinct on another occasion when security cameras were disabled, ingress and egress was blocked by protestors with dumpsters and by nailing boards over doors and then lit a fire that charred the outside of the precinct all while there were in custodies and police officers inside the building.
24. With respect to extreme property damage including looting, I understand from reports I have read and damage I have seen, that damage is in the millions of dollars and it is obvious throughout the City and various locations including downtown Portland and along demonstration routes and at other protest locations.
25. With respect to direct assaults against police officers, I have witnessed and had voluminous reports that the assaults come from projectiles, and other weapons against police officers many of which have resulted in injury.
26. With respect to extreme tactics, I have observed and had reports that the violent group of protestors have used barricading ingress and egress from occupied buildings and at times lighting fires inside and outside the buildings, disabling security cameras and using locks
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

to prevent ingress and egress; and used projectiles to break windows followed by the use of fireworks/incendiary devices to try and create fires inside the structures. Additionally, some protesters have been organized and employed group tactics assigning various roles to fellow protesters to coordinate their activity against the police. See Exhibit 43
27. With respect to commercial and industrial fireworks used as weapons, I have witnessed and had reports of the use of hundreds of fireworks launched at police officers and others in buildings, including at least one instance where a police officer’s clothing caught fire and luckily was quickly extinguished. These fireworks have also included multiple launches at the Federal Courthouse, Justice Center and many other locations throughout the city.
28. With respect to breaking into buildings with unknown intent; the most serious of which was when violent protestors entered the inside the Justice Center destroyed office space and lit fires that needed to be extinguished. In addition, multiple banks throughout downtown have been broken into and fires have been lit.
29. With respect to citizen assaults, there have been multiple assaults on citizens, for example PPB has had reports of violent demonstrators beating a man on June 24, 2020 at 4 a.m. at 4th Avenue and Morrison Street. The video is captured here. Exhibit 42.
30. With respect to barricading streets and blocking traffic, on multiple nights protesters have used nearby materials to create barricades and block traffic. Some of these barricades have been lit on fire. This activity has resulted in some vehicles driving through crowds of protesters presenting a public safety issue. Additionally, protestors have used vehicles to block streets, harass the police and interfere with police operation.
31. With respect to firearms, individuals have illegally load firearms, pointed them at protesters, occupied buildings and discharged firearms in and around protest events.
32. With respect to improvised explosive devices, PPB has knowledge of IEDs being seized by law enforcement.
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

33. Depending upon the circumstances, each of these categories of violence all present situations in which the property, lives and/or safety of the public or police are at risk. May 29, 2020
34. On May 29, 2020, protests began peacefully with a large gathering at Peninsula Park. During the initial gatherings at Peninsula Park and downtown Portland, police kept a minimal presence away from the protesters and allowed them to exercise their First Amendment Rights. The protesters then marched towards downtown along NE MLK Boulevard and as they did so, some damaged property along the way by breaking out windows and writing graffiti. The Wells Fargo on MLK had its windows broken out and several other businesses were vandalized. The Nike Outlet on MLK also had it windows broken and was spray painted. The sound truck reported that almost every block had graffiti and windows broken for the 20 blocks driven. Prior to the protesters reaching downtown, several warnings were issued by the sound truck advising those involved to refrain from committing crimes and to remain peaceful.
35. At one point while the march was still on NE MLK Boulevard there was a report that a gun shot was fired following a confrontation after an individual drove his car into the protest. Later, at Legacy Emanuel hospital, a gunshot victim claiming he was shot by a protester on MLK, sought treatment. Once downtown a large group gathered in front of the Justice Center. At approximately 11:00 p.m., the sound truck announced: “There has been significant vandalism and a shooting connected to this protest. People need to go home. If you are downtown, within the demonstration with children, you are advised to leave. Any further vandalism and violence will be declared an unlawful assembly and PPB will begin efforts to disperse.” Some protesters continued to break windows and set fires. Just after that, the demonstration was declared an unlawful assembly, and demonstrators were warned that force may be used to disperse.
36. Just minutes after this announcement, protesters smashed a window at the Justice Center, which houses the Multnomah County Detention Center (“MCDC”) and proceeded enter
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

and destroy office space and threw flares starting a fire. At any given time, the Justice Center typically houses approximately 300 people incarcerated at MCDC and an additional 100 personnel that work there. Hence, the possibility of fire in a building that houses a jail could have catastrophic consequences.
37. This was the first instance during the protests beginning May 29, 2020 that I authorized the use of CS gas to remove individuals who had broken into the MCDC. It was only at this point, after hours of vandalism and dangerous criminal activity, that tear gas was deployed. But neither the dispersal orders nor the tear gas stopped the unlawful activity which continued into the early morning of May 30, 2020, with individuals engaging in dangerous criminal activity and rioting.
38. A fire was set at the Apple store and just after 11:30 p.m. a fire was started in the middle of the street. A vehicle was fully engulfed in flames near SW Main and SW 3rd. After midnight, PPB declared a riot, and closed all of downtown to traffic, pedestrians and vehicles— ordering everyone to disperse. Announcements were repeatedly made directing the crowd to “Disperse Now!” and “Move North!” For approximately three hours between 12:41 a.m. and 3:30 a.m. on May 30, one sound truck announced “Portland Police Bureau has declared this a riot. The following area is closed to all pedestrian and vehicular traffic. SW Naito to SW 13th Ave, SW Lincoln to NW Everett. You must disperse now or you’ll be subject to gas, projectiles and other means necessary for dispersal.” Another sound truck similarly announced that there was a riot, directed people to leave to the north and warned that people may be subject to gas. PPB tweeted: “All persons in downtown Portland: it is not safe, it is dangerous, there is rioting, leave now.” Attached as Exhibit 20 are the Sound Truck Reports for May 29, 2020 - May 30 2020.
39. Portland Fire and Rescue identified over twenty fires that night. Pioneer Place and other business downtown were broken into and looted. Several banks were set on fire including the Wells Fargo on SW 6th and Morrison, Chase Bank on SW 6th and Yamhill, Capital One Bank
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

on SW Broadway and Morrison. These activities continued until after 4:00 a.m. after PPB was able to quell the violence. Sporadic looting continued to occur.
39. Attached as Exhibit 21 are video clips showing the break-in, destruction, rioting, and fire set to the Justice Center this night.
40. Attached as Exhibit 22 are video clips of some of the projectiles being thrown from the hostile crowd this evening.
41. Attached as Exhibit 23 are videos clips of some of the fires throughout downtown that protesters were setting.
42. Attached as Exhibit 24 are videos clips of the breaking in and looting of downtown stores this evening.
40. Following the events of the night of May 29 and early morning of May 30, a fence and other barricades were erected around the Justice Center and other critical infrastructure in the downtown area. Additionally, Commissioner Hardesty, and later Mayor Wheeler imposed a 8:00 pm curfew for the entire City. Exhibit 25 May 30, 2020
41. Protests downtown on May 30, 2020 began in the afternoon, while workers were erecting a fence around the area from SW 1st to SW Salmon to SW 5th to SW Jefferson. The fence was erected to protect critical infrastructure. For the first few hours, protestors marched in downtown and across the bridges with little or no interaction with police. At 6:00 p.m., PPB was still receiving reports that the crowd, while in the street at times, was “not violent” and had just engaged in some tagging, RRT held off on any response. At just before 6:15 p.m., there were radio reports that members of the crowd were shaking bottles and possibly passing around projectiles, I instructed officers to move a block away to get out of possible projectile range and continue to observe. I had instructed officers that I did not want the police presence to incite the crowd and cause anything to happen, and therefore staged PPB members out of sight or as far back as possible to observe.
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

42. At approximately 6:30 p.m., some protestors began climbing the fence that had been erected to protect the critical downtown infrastructure, including the Justice Center. Officers were authorized to use pepper spray if people tried to breach the fence. At approximately 6:40 p.m., targeted impact munitions were authorized for people that are throwing projectiles. During this time, more projectiles were being thrown. PPB also received reports that 15 cars were trapped in the crowd. At this point, the sound truck gave instructions for protestors to clear the intersection and move to the sidewalks. These announcements continued for ten minutes. These announcements continued for ten minutes. Attached as Exhibit 26 are the Sound Truck Reports for May 30, 2020 – May 31, 2020.
43. Officers began to move individuals from the intersection, and people within the group began throwing projectiles at the officers. This included cans, water bottles, and glass bottles. The sound truck announced that the event had become an unlawful assembly and officers were authorized to use tear gas and other munitions. PPB tweeted “Portland Police has declared an unlawful assembly; you are ordered to disperse. Everyone must leave the area between SW Naito Pkwy to 13th Ave. and Lincoln St. to N. Everett. Failure to do so could result in arrest and use of force including riot control agents and impact weapons.” The sound truck repeatedly announced the unlawful assembly and directed protestors to leave to the North. Throughout this time, PPB directed officers in cars to redirect traffic to avoid the blocks of protestors in the street. PBB was able to eventually push protesters north while some protesters threw objects at the police. RRT member used munitions, including tear gas during this time period.
44. At 8:00 p.m., PPB announced that the Mayor’s curfew was in place, and that people needed to go home or be subject to arrest. [twitter and sound truck]. Shortly after the curfew was announced there were reports about the crowd getting violent fighting each other punching and knocking people to the ground, including protestors and counter-protestors fighting over an American flag. At approximately 8:20 p.m., the sound truck announced that the Mayor’s
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

curfew was in effect and directed “Go home now. Failure to comply may result in arrest or the use of force against you.” At approximately 8:24, officers had rocks thrown at them. At approximately 8:25 p.m., officers were authorized to use tear gas, and deployed tear gas to break up the large crowd into small groups and keep them from regrouping. RRT was able to move a large group into Waterfront Park and move them north and prevent them from crossing over Naito to go back into downtown.
45. After protestors dispersed the area around the Justice Center, many protestors regrouped in different areas downtown and in the Lloyd District. Portland Fire and Rescue received reports of ten fires on the night of May 30, 2020. There were numerous reports of people throwing objects at officers. Just before 9:00 p.m., PPB was informed that “business owners armed with rifles and handguns wearing vests” and were protecting their businesses near NW Couch and Davis area.
46. At approximately 11:35 p.m., aerial mortars and fireworks were thrown at the Multnomah County Courthouse. At numerous locations during the evening, officers used tear gas to disperse groups that had ignored orders to disperse and were violating the curfew. Many of these groups were also engaged in looting, vandalism, and other criminal activity, including breaking doors or windows at the Northface store, Starbucks at 11th and Alder, and Target. PPB members returned back to precincts at about 2:40 a.m.
47. Attached as Exhibit 27 are videos of the continued criminal behavior that occurred this evening. May 31, 2020
48. I reviewed the activity log maintained in the incident command post for the afternoon of May 31, 2020. It indicated as follows:
a. Protests on May 31, 2020 started in the early afternoon. At approximately 1:40, there were a number of people in the street on SW 3rd Avenue and Main Street on the westside of the MCDC. The sound truck announced that SW 3rd Avenue was
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

open to traffic and instructed 100 protestors to leave the roadway about 12 people were sitting or lying in the road. Approximately 20 minutes later, at 2:00 p.m., officers began to clear the roadway, and move people into the park as the sound truck made announcements. Just after 2:00 p.m., a protestor asked to speak with officers, and Sgt. Sutton had a dialogue with that person. Based on this dialogue PPB believed that it had reached an agreement that the protestors would remain out of the street on the sidewalk and in the parks to allow traffic through. At approximately 2:20, protestors asked offices to take a knee, which they did. At 3:33 p.m., the sound truck announced “Please honor our agreement, move to the sidewalk, and into the park now.” PPB observed that this crowd appeared to largely comply with that request, estimating that 90% of the group had moved out of the street. b. Just after 4:00 p.m., the IC received reports that some individuals in the crowd began throwing bottles and other projectiles at officers. The sound truck announced three times that “If you remain in the roadway and show the intent to engage in physical resistance to removal, or if emergency circumstances require, you may be subject to uses of force, including riot control agents and impact weapons.” After the crowd did not respond to the announcements and continued to throw projectiles, the IC authorized the use of CS gas at 4:18 pm. Attached as Exhibit 28 are the Sound Truck Reports for May 31, 2020 – June 1, 2020. c. At approximately 4:30 p.m. the IC received reports that officers continued to have projectiles thrown at them, including large D size batteries. At 4:55 p.m. the protest liaison again spoke to the crowd and let them know that PPB would pull back it’s resources if the group would stay out of the streets. PPB even allowed a protestor to use the City’s public address system to ask fellow protestors to move into the Lownsdale and Chapman parks.
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

d. At approximately 5:18 p.m. protesters started marching out of the parks and moving northbound towards Pioneer Square and then marched back towards SW 3rd Avenue and SW Main. PPB tweeted “Portland Police appreciates demonstrators who have moved out of the street and remained peaceful.” Again at 5:31 p.m., PPB tweeted “Demonstrators are complying with the order to vacate the area of SW 3rd Avenue and SW Main Street. Portland Police will not interfere with their peaceful march as long as it remains civil.”
49. At approximately 5:52 p.m., another group of protestors began gathering at Laurelhurst Park. By 6:21 p.m. about 1000 people had gathered at Laurelhurst Park and began marching to SE Precinct. The sound truck announced “We have the roads blocked for your safety. Please continue on your path to the east. We want to facilitate your march Continue east with the rest of your group. We are here to facilitate your march to the east safely.” Similar announcements were made to this group. PPB estimated that this group involved over a couple of thousand people.
50. By 7:17 p.m. a large group had gathered at 47th and Burnside at the SE Precinct. This group grew in size to about 1,500 to 2,000 and at 7:54 p.m. was loud but for the most part remained peaceful and did not require much PPB intervention. This crowd began marching westbound toward downtown and met up with another large protest group already near the Justice Center. At 8:38 p.m. the protesters left SE precinct and traffic in the area was moving freely.
51. Meanwhile at the Justice Center another large group had gathered earlier. At 8:00 p.m., PPB announced via twitter “The Mayor’s curfew is now in effect.” Just after the curfew announcement, officers on the ground reported taking multiple glass bottles from the crowd downtown. At that that time a large crowd of about 300-400 were in the park area with about 50 dressed in BlackBloc attire wear congregated in the middle with traffic cones. Based on my experience and knowledge I know that protesters will often use traffic cones and put them on top
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

of tear gas canisters to keep them from emitting its contents. At approximately 8:08 p.m. PPB tweeted “Demonstrators downtown are throwing glass water bottles at police. Sound truck is advising that this is now an unlawful assembly. Police will begin efforts to disperse the crowd. Leave now.” At approximately 8:10 p.m., the sound truck announced that the event had become an unlawful assembly and that police would begin efforts to disperse the crowd. “If you do not leave now, you may be subject to uses of force, including riot control agents and impact munitions.” This was broadcast a total of eleven times. Shortly thereafter, officers began using tear gas to disperse the crowd near the Justice Center. RRT deployed tear gas near SW 3rd Avenue and SW Madison Street to clear the area. Members of the crowd began throwing cannisters of tear gas back at officers, and the group split into several hundred going north and several hundred going south. Tear gas was also deployed near 10th Avenue and Columbia. The large group had largely been broken up into four or five smaller groups.
52. PPB attempted to clarify on twitter, explaining at 8:41 p.m., “Police dispersed the crowd who were throwing projectiles at police near the Justice Center. A march is still occurring westbound on SE Burnside. Thank you to all the participants for remaining peaceful.” Officers continued to have objects, including rocks, thrown at them, and deployed force in response. Some individuals were breaking windows downtown.
53. Just after 9:30 p.m., I directed that officers should not let the protestors take the Justice Center, and authorized force to stop that from happening. However, I also cautioned not to respond to the protestors unless necessary to defend the Justice Center. Throughout this time, officers continued to report that projectiles, including glass, were being thrown at them. The sound truck announced this to the crowd and warned “Anyone who is involved in criminal behavior including throwing of objects will be subject to force up to and including impact munitions and chemical agents.” Similarly, on twitter, PPB explained that the “Crowd is throwing projectiles at police. PPB Sound Truck is asking people to [sic] remain stop. Remain calm and keep this a peaceful assembly.”
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

54. PPB had previously been informed that local downtown business owners had armed themselves and were protecting their stores. At approximately 10:00 p.m., PPB received reports stating that business owners who were armed and “police friendly” were wearing black hats with a “T” logo and yellow vests.
55. At approximately 10:09 p.m., there was an explosion caused by protestors on SW 3rd Avenue. About a minute later, the sound truck announced “This is the Portland Police. We would like to inform you that the explosion you heard was not due to police actions. It came from within the crowd or somewhere else, it was not the police.”
56. At approximately 10:43 p.m., there were reports of broken glass at the federal courthouse, individuals enter the building, and a flare being thrown into the building. PPB tweeted this information and instructed people to leave the building immediately and advised the crowd to disperse to the west. The sound truck also directed the crowd to move west and leave the area around the federal courthouse. The sound truck warned “If you fail to move, you may be subject to arrest or use of force.” PPB sought to move people away from the federal courthouse so federal protection services could investigate and evacuate if necessary. As officers sought to clear this area, they began taking significant projectiles from the crowd, including glass. At this point, some officers deployed tear gas.
57. Shortly thereafter, federal protection services determined that nobody had entered the courthouse, and at approximately 11:00 p.m., PPB shared this information with the crowd. The sound truck informed the crowd that they could move back in front of the Justice Center and continue. The group continued to throw bottles, sticks, and other projectiles at officers from approximately 11:15 p.m. to 11:25 p.m. Aerial mortars were also being launched at officers. The order to disperse the crowd was given and RRT began to do so. The sound truck announced at approximately 11:30 p.m., that “This is a civil disturbance and we have declared an unlawful assembly. Leave the area now or you will be subject to uses of force, to include riot control
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

agents and impact munitions. Leave now.” Similar announcements were made at 11:35 p.m. over twitter.
58. Following the unlawful assembly announcements, members of the crowd continued to start fires, throw projectiles at officers, and launch fireworks and mortars toward officers. Officers deployed tear gas to disperse the crowd that had become violent. Smaller groups broke up around downtown for the next several hours. The PPB sound trucks continued to announce that this was an unlawful assembly and instructed people to leave. Fires were set around downtown. Many people were observed breaking windows, vandalizing or otherwise engaged in criminal activity. Officers traveled around downtown attempting to address these groups that were engaging in criminal activity. Tear gas was used to address these groups. This continued until approximately 2:00 a.m.
59. Portland Fire and Rescue responded to approximately 15 fires during the night of May 31 into the early morning of June 1, 2020. During the night, Sergeant Oliphant was struck with a glass bottle that broke upon impact, a milk jug filled with paint. June 1, 2020
60. From my own independent knowledge and after review of the force data collection reports, on the evening of June 21, 2020, the Portland Police bureau did not deploy any munitions through the holes in plywood from inside the Justice Center nor come out of the Justice Center and fire munitions at demonstrators nor deploy any munitions from the portico at the Justice Center. Additionally, I did not authorize and PPB did not deploy tear gas on June 1, 2020.
61. Exhibit as Exhibit 29 are video clips of projectiles being thrown at officers on this night.
62. Exhibit as Exhibit 30 are video samples of the criminal activity that took place this evening. ///
Page 17 – DECLARATION OF CRAIG DOBSON
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

June 2, 2020 63. Two organized groups gathered on June 2, 2020 at around approximately 6:00
p.m. One gathered at Pioneer Square and a second gathered at Revolution Hall. Many thousands marched from Revolution Hall, stopping briefly to lie down across the Burnside bridge. These groups peacefully demonstrated for several hours.
64. Several hundred protestors also gathered at the fence that had been erected around the of the critical infrastructure downtown. Some members of this group attempted to breach the fence and threw projectiles, including mortars, fireworks, glass bottles, and baseball bats. At approximately 9:00 p.m., PPB, through the sound truck and twitter admonished protestors not to tamper with the fence and warned that force may be used.
65. At approximately 9:15 p.m., the sound truck announced that the demonstration at the fence had become a civil disturbance and protestors were required to leave. It again warned of the use of riot control agents. Protestors stayed and some continued to throw projectiles at officers. Following these announcements, officers began to deploy tear gas to disperse the protestors who had not left. Attached as Exhibit 31 are the Sound Truck Reports for June 2, 2020 – June 3, 2020.
66. Knowing that there was a significant group of peaceful protestors at Pioneer Square, I directed officers not to push the group from the fence line into Pioneer Square or to deploy tear gas at Pioneer Square. At approximately 9:33 p.m., PPB tweeted “We continue to appreciate the thousands who are gathered peacefully in Pioneer Courthouse Square, while another smaller group is causing destruction and throwing projectiles at officers on 4th and Taylor. That has been declared an unlawful assembly.”
67. Protestors continued to throw bottles and other projectiles at officers. These included bottles being thrown off the top of a parking structure, protestors throwing riot control agents back at police, and protestors throwing flares. The sound trucks continued to announce the unlawful assembly and directed protestors to leave for the next two hours.
Page 18 – DECLARATION OF CRAIG DOBSON
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

68. At approximately 11:12 p.m., the crowd returned to the fence line around the Justice Center. PPB tweeted “The crowd is moving toward the Justice Center. The sound truck is advising not to tamper or interfere with the fence. We want everyone to remain peaceful.” At approximately 11:30 p.m. officers were hit with batteries thrown from the upper deck of a parking garage. The sound trucks announced that the event had again become a civil disturbance and directed people to leave to the north, warning of a use of force for failing to leave. Individuals within the crowd continued to throw objects at officers. Tear gas was again used to disperse the group.
69. As the larger group broke up, smaller groups formed. Some of these groups lit explosives, fireworks, and some small fires. Individuals continued to throw objects at police as they tried to direct people to leave. Two sound trucks drove around directing people to leave. At approximately 12:35 a.m. on June 3, 2020, I directed all units to disengage and ordered all officers back within the fence line. I hoped that removing officers from the equation would deescalate the anger. By approximately 2:00 a.m. the demonstration had largely ended.
70. Attached as Exhibit 32 are video clips of projectiles being thrown at officers on this night. June 26
71. From my own independent knowledge and after review of the force data collection reports, on the evening of June 26, 2020, the Portland Police bureau did not deploy any munitions through the holes in plywood from inside the Justice Center nor come out of the Justice Center and fire munitions at demonstrators nor deploy any munitions from the portico at the Justice Center. June 27
72. Demonstrators came to the Justice Center at about 7:30 p.m. on June 27. They immediately began blocking SW 3rd Ave. at SW Main by forming a human chain and passing
Page 19 – DECLARATION OF CRAIG DOBSON
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

plastic barricades that appeared chained together out of a pit at SW 2nd Ave and SW Salmon. I understand there were calls for violent resistance from the crowd.
73. At approximately 10:25 p.m., PPB declared an unlawful assembly in order to reopen SW 3rd. PPB brought in flatbed tow trucks to carry away the constructed barriers. Seven minutes after the announcement, very few demonstrators had left the roadway. PPB officers began to push the crowd up to SW 4th Ave. During this push, demonstrators threw rocks, glass bottles and paint at PPB officers. They also shined lasers in officers’ eyes. PPB deployed smoke to distract the crowd so officers could pull back from the area safely once the barricades had been removed. Most of the crowd moved back to the area around SW 3rd and SW Main. Attached as Exhibit 36 are the Sound Truck Reports for June 27, 2020 – June 28, 2020.
74. During the initial dispersal, officers deployed munitions in the direction of small groups of people who were throwing items and the line of officers. Additionally, officers used handheld OC spray when confronted by a violent crowd, fights and fires.
75. The City’s fire medics responded to one person injured during the fight. At approximately 12:30 a.m. on June 28, a group of the crowd took down and burned Multnomah County’s flags. And just before 1:30 a.m., the demonstrators moved to the SW 2nd Avenue side of the Justice Center. Some individuals attempted to block the door to the precinct, as well as the roll-down gates. A police officer attempted to arrest one individual but was hit in the face with a skateboard. At this point, PPB Sound truck announced another unlawful assembly and directed protestors to leave the area. Officers attempted to move the crowd to SW 2nd and SW Main. The crowd pulled two dumpsters from the corner of SW 2nd and SW Main. At that point, I closed the area from SW 1st to SW 6th from Clay to Morrison and PPB personnel began to push back the crowd.
76. Attached as Exhibit 37 are clips from livestream video from June 23, 2020. /// ///
Page 20 – DECLARATION OF CRAIG DOBSON
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

Over Fourth of July Holiday Weekend 77. As the Portland Twitter account conveyed and I have witnessed, “Portland
neighborhoods have experienced demonstrations for over a month. While many have been peaceful and non-violent, we continue to experience one group with many participants who engage in nightly violence and destruction directed at police and public safety facilities. In the past week, individuals have thrown baseball-sized rocks, full aluminum beverage cans and frozen water bottles at officers. Projectiles have also been launched at high speeds from sling shot devices, including marbles, blades, rock, and other items. On numerous occasions, commercial grade fireworks have been directed at police. And individuals have set fires and have attempted to burn buildings with people inside. These actions could result in significant injury or loss of life and have catastrophic consequences. The damage and destruction have not been limited to police, however. Windows have been broken and items have been stolen from small and large businesses, including businesses opened by people of color. Closed businesses are not just empty buildings at night. They represent lives and livelihoods of hard-working people. There has been an increase in vandalism to public and private buildings and calls to murder police officers. These are not examples of peaceful protest.”
78. The dynamics of the demonstrations over the July 4th weekend, beginning July 2, 2020, have become a waiting game for what type of violence will be directed at personnel and the buildings at the corner of SW 3rd Avenue and Main Street. The two locations that are the main target of demonstrators are the Federal Courthouse just North of Main and west of SW 3rd Avenue and the Justice Center which is to the south of Main and the west of SW 3rd avenue. The evenings of July 2, 3 and 4, 2020 reflect the challenges of responding to violent demonstrators that are causing very real life and safety issues. I understand from reports and information provided to me, on each of these nights a riot was declared at these locations /// ///
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

July 2 79. On July 2/3, 2020, the Federal Courthouse was attacked with projectiles and
mortars and a riot was declared. CS gas was deployed by federal personnel, but PPB did not deploy CS gas.
80. Specifically, a group of a couple hundred demonstrators gathered near the Justice Center on July 2, 2020. The group blocked the streets, chanting and speaking for several hours. Several demonstrators shot off commercial grade fireworks during the speeches. The tenor of the group shifted when demonstrators broke into the north side doors of the Justice Center located on Southwest Main Street. Soon after, the group moved back to Southwest 3rd Avenue and broke glass doors on the Federal Court House building.
81. Around 11:42 p.m., Federal officers inside the courthouse came outside to protect the integrity of their building. While federal officers were outside, demonstrators began launching projectiles at the officers with sling shots. These projectiles included large rocks, full cans, and bottles. Demonstrators also threw lit commercial grade fireworks, which landed inside the broken glass doors of the federal courthouse. Simultaneously, demonstrators began setting a fire nearby on Southwest Main Street.
82. The sound truck made an admonishment telling demonstrators that they must cease the criminal activity of throwing projectiles and fireworks. Demonstrators were also warned if they did not cease the illegal actions and back away from the building, they would be subject to use of force, to include crowd control munitions. Even though the demonstrators were given several warnings by the sound truck, their criminal actions continued.
83. To protect the life and safety of personnel both inside and outside of the Federal Court House, at 11:52 p.m., a riot was declared. The sound truck admonished the crowd letting demonstrators know a riot had been declared. Demonstrators were told they needed to leave the area to the south and west immediately. If demonstrators did not leave the area, they were subject
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

to tear gas and crowd control munitions. The sound truck gave this admonishment several times, however, demonstrators continued to stay in the area.
84. Officers began dispersing the crowd in an effort to move them from the immediate area. During this lawful action, the demonstrators were very hostile and violent towards officers. An open pocketknife was thrown at an officer, coming within inches from striking them. Demonstrators continued to throw large rocks and full cans, as well as shot off commercial grade fireworks towards officers. During this time, several arrests were made. Once demonstrators were at Southwest 6th Avenue and Southwest Main Street, officers disengaged the crowd.
85. Around 12:46 a.m., demonstrators returned to the west side of the federal courthouse. Once again, demonstrators were warned by the sound truck that the riot declaration was still in effect and they needed to leave the area. At this time, demonstrators started launching mortars towards the federal courthouse and a fire erupted inside of the building where the glass doors had been broken.
86. Because of these immediate life safety issues, officers once again began to disperse the crowd. As they dispersed the crowd, demonstrators continued to throw rocks, cans, and commercial grade fireworks and mortars towards officers. Because of the violent nature of the demonstrators while officers cleared the area, crowd control munitions were used and several arrests were made. As officers began to disengage the crowd at Southwest Main Street and Southwest Broadway Avenue, commercial grade fireworks were once again thrown at officers.
87. Several demonstrators trickled back in to the Lownsdale and Chapman Park but eventually dispersed over the next several hours.
88. No CS gas was used by Portland Police Bureau officers during this event. 89. Attached as Exhibit 38 are video clips of from the evening of July 2, 2020. /// ///
Page 23 – DECLARATION OF CRAIG DOBSON
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

July 3 90.

On July 3rd and 4th 2020, again, the Federal courthouse was attacked, and

projectiles and flammables launched at the building and at 4 am a riot was declared. Again,

federal personnel used CS gas, but PPB did not use CS gas.

91. A group of a couple hundred demonstrators gathered near the Justice Center on

July 3, 2020. For several hours, the group blocked the street on Southwest 3rd Avenue between

Southwest Main and Southwest Madison Street. During this time, some demonstrators set off

commercial grade fireworks on Southwest Main Street where the elk statue used to stand.

92. Around 11:00 p.m., demonstrators began marching to Waterfront Park. For about

45 minutes, demonstrators rallied in the park. At 11:45 p.m., demonstrators marched back to

Southwest 3rd Avenue and gathered in the street from Southwest Salmon to Southwest Madison

Street.

93. Around 12:53 a.m., a few of the demonstrators began throwing rocks at the

Federal Courthouse building. Some of these rocks broke windows. At around 1:30 a.m., some

demonstrators began shooting the commercial grade fireworks towards the Justice Center. Many

demonstrators were carrying makeshift shields and sticks.

94. Some individuals began dragging fencing material and barricades and

constructing a fence in the area of Southwest 3 Avenue and Main Street. Several small fires were

lit throughout the night, including some dumpster fires, but Portland Fire & Rescue personnel

were not required. There were also several arguments and physical fights within the group of

demonstrators, but they all broke up without police intervention.

95. In on-going efforts to de-escalate the situation, PPB members stayed away from

the demonstrators, as there was not an identified life safety risk.

96. At about 4 a.m., the Federal courthouse was again attacked. A riot was declared,

and efforts were made to get the crowd to disperse, including numerous warnings to leave the

area or be subject to arrest or force.

Page 24 – DECLARATION OF CRAIG DOBSON

PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

97. PPB did not deploy CS gas at any point during these overnight demonstrations. 98. Attached as Exhibit 39 are video clips of from the evening of July 3, 2020. July 4, 2020 99. On July 4/5, 2020, the violence continued over a period of several hours. The Federal Courthouse was attacked again and projectiles fired at the courthouse, flammables, windows broken and federal personnel deployed CS gas. The Justice Center was also attacked with violent demonstrators shooting fireworks and mortars at the Justice Center. Police had rocks, bottles, flammables, mortars and other projectiles fired at them. A riot was declared and the crowd ordered to disperse. Rather than dispersing, multiple instances of property damage, looting, and fires were set requiring police operations that continued into 4/5 am. 100. This was an extremely long night. The evening started out as expected with lots of energy and by 10 pm commercial grade fireworks and other fireworks were launched at the Justice Center creating a very real fire concern. We gave a couple warnings to not shoot things at the JC. At 10:41 pm, federal officers took someone into custody and deployed CS gas. This drew the crowd toward the Federal Courthouse. About 10 minutes later projectiles were flying at the Federal Courthouse and a window was broken out. The crowd moved to 2nd briefly and then back to 3rd where the barrage of projectiles intensified. We announced and gave warnings of Riot at 11:05 pm. At 11:10 pm, fireworks went through the broken window of the Federal Courthouse. Federal police again used cs gas and pushed to 4th. We closed 1st to Broadway and Columbia to Yamhill. During the push to Broadway PPB police took several mortar shells and rocks and bottles. We then reset and the group immediately came back toward the closed area. We warned not to continue and at 4th started the push again and PPB personnel were attacked with heavy projectiles, mortar shells and other flammables. Given life and safety issues and a very serious risk of physical injury, at 11:44 pm, CS gas was authorized and used to repel the violent demonstrators.
Page 25 – DECLARATION OF CRAIG DOBSON
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

101. By 12:11 am on now July 5, 2020, PPB personnel had pushed the main group of violent protestors to the Skidmore fountain area where we disengaged again and did a roll call to identify where squads were and if all squads had all their people. By then, PPB had 2 RRT officers injured by Mortar shells, a MFF officer with an injury to a shin. and CS gas had been deployed as outlined above. Many windows at the old county courthouse had been broken out and several businesses then been damaged as well. And several fires had been set.
102. At 12:45 am, I observed livestream and it was announced that the violent protesters were returning for, in their words “round 2”, and asking for anyone with “protective gear to the front”. They returned, focused on the Federal Courthouse. At this point, PPB issued more force warnings.
103. At 12:54 am, PPB personnel took into custody a robbery suspect at Third and Alder. My understanding is the burglary was in progress when personnel rolled up on it.
104. At or near this same time, there was a fire started at Third and Main with scaffolding material from Second and Columbia. There was a fire at the pioneer statue, and the former elk statue. More fireworks were launched at the fed building, appeared someone pouring liquid on boarded up section (possible flammable) and fireworks against building. Federal employees redeployed and pushed out to 4th at approximately 1:48 a.m. PPB announced again that the area closed. PPB cleared Chapman and the Portland Fire bureau arrived to put out fires. PPB stopped at Broadway and took more projectiles and widened the closure area and began pushing further taking custodies in the south park blocks. PPB personnel pushed the main group to Burnside then to 14th. Air 1 was lasered several times tonight and PPB arrested 5 for doing so on 2 different bridges. Federal personnel are looking to charge these individuals.
105. At 2:25 a.m., PPB had a custody of one individual with a handgun who fought violently to avoid arrest.
106. I started releasing units at 2:45 a.m. The violent group then returned to the park again, although significantly smaller.
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

107. At 4:15 a.m., federal personnel swept the park again, taking one into custody with a laser and later with Mortar shell and possible pipe bomb/homemade explosive device. I called out the bomb squad to handle the device.
108. Later that day when it became light out on July 5, 2020, I observed marks on the windows of Central Precinct from the fireworks launched at the building the night of July 4/5, 2020. Central Precinct is housed in the same building as the Justice Center. See Exhibit 40
109. The violence toward the Federal Courthouse, the Justice Center, and North Precinct implicate very serious life and safety issues for all the people inside the buildings. Launching projectiles at police and buildings, setting fires, disabling security cameras, causing injuries, using high powered lasers to blind officers, blocking ingress and egress to buildings, looting, damaging property, breaking windows and firing fireworks and mortars inside through broken windows are all life and safety issues. It also shows the dangers of waiting until life and safety issues are implicated only, rather than in defense of property like at North Precinct, the Federal Courthouse and Justice Center. Taking a crowd on earlier in accordance with PPB policies and directives is a tool to prevent violent demonstrations from escalating to the point of life and safety issues after a riot is declared.
110. Attached as Exhibit 41 are video clips of from the evening of July 4, 2020. 111. Frequently during the protests, I have received intelligence reports that there are individuals interested in seeing a police officer killed. While the person has only just been arrested, the homemade pipe bomb/improvised explosive device, if detonated near a police officer, is just the type of concern officers face when confronted by violent protestors. 112. In addition to the more serious arrests, the bulk of arrests that occur during protests are commonly for crimes such as disorderly conduct, ORS 166.025 and Interfering with a Peace Office. It is unusual to arrest individuals for assault or other more serious crimes because individuals who throw objects or fireworks are nearly impossible to arrest in a dynamic protest situation where they are often behind rows of other protestors. While officers can
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PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

sometimes identify individuals who are throwing or about to throw objects and deploy impact munitions to stop this behavior, it is much more difficult and dangerous for both officers and the crowd for small arrest teams to attempt to wade into the crowd to reach these individuals and make arrests.
113. Attached is a spreadsheet identifying the sources for video exhibits attached to this declaration.
114. I make this declaration in support of Defendant City of Portland’s Response to Plaintiffs’ Motion for Preliminary Injunction and Motion for Contempt.
I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.
DATED: July 6, 2020 Due to active links, see attached signature page
Craig Dobson
Page 28 – DECLARATION OF CRAIG DOBSON
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

som et im es iden t ify in dividu a ls wh o a r e t h r owin g or a bou t t o t h r ow object s a n d deploy im pa ct m u n it ion s t o st op t h is beh a vior , it is m u ch m or e difficu lt a n d da n ger ou s for bot h officer s a n d t h e cr owd for sm a ll a r r est t ea m s t o a t t em pt t o wa de in t o t h e cr owd t o r ea ch t h ese in dividu a ls a n d make arrests.
113. At t a ch ed is a spr ea dsh eet iden t ifyin g t h e sou r ces for video exh ibit s a t t a ch ed t o t h is decla r a t ion .
114. I m a k e t h is decla r a t ion in su ppor t of Defen da n t Cit y of P or t la n d's Respon se t o P la in t iffs' Mot ion for P r elim in a r y In ju n ct ion a n d Mot ion for Con t em pt .
I h er eby decla r e t h a t t h e a bove st a t em en t is t r u e t o t h e best of m y k n owledge a n d belief, a n d t h a t I u n der st a n d it is m a de for u se a s eviden ce in cou r t a n d is su bject t o pen a lt y for per ju r y.
DATE D: J u ly 6, 2020
P a ge 28 - DE CLARATION OF CRAIG DOBSON
P ORTLAND CIT/ATTORNE Y'S OF F ICE 1221 SW4TH AVE NUE , RM 430 P ORTLAND, ORE GON 97204 (503) 823^ 1047

 
 Case 3:20-cv-00917-HZ Document 158 Filed 09/04/20 Page 1 of 18
J. SCOTT MOEDE, OSB 934816 Chief Deputy City Attorney scott.moede@portlandoregon.gov NAOMI SHEFFIELD, OSB 170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov ROBERT YAMACHIKA, OSB 065560 Senior Deputy City Attorney rob.yamachika@portlandoregon.gov Portland City Attorney’s Office 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity, NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated, MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated, ALEXANDRA JOHNSON, in an individual capacity and on behalf of themselves and all others similarly situated,

Case No. 3:20-cv-00917-HZ
DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ AMENDED MOTION FOR FINDING OF CONTEMPT AND FOR SANCTIONS

PLAINTIFFS,

v.

CITY OF PORTLAND, a municipal
corporation, and MULTNOMAH COUNTY, a political subdivision of the State,

DEFENDANTS.

Page i –

DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ AMENDED MOTION FOR FINDING OF CONTEMPT AND FOR SANCTIONS
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

Case 3:20-cv-00917-HZ Document 158 Filed 09/04/20 Page 2 of 18
I. INTRODUCTION Plaintiffs move the Court for an order finding the Defendant City of Portland (“City”) in
contempt and seek remedial sanctions solely for alleged violations of the Court’s order restricting the use of impact munitions, RBDDs, and aerosol restraints (“Less Lethal Order”) (Dkt. 43, June 26, 2020). Specifically, plaintiffs argue in their Amended Motion for Finding of Contempt and for Sanctions Against Defendant City of Portland (“Amended Motion”) that on June 30, 2020, Portland Police Bureau (“PPB”) members used less lethal weapons in violation of the Less Lethal Order.
The City has not violated the Less Lethal Order. Plaintiffs’ declarants mostly offer vague descriptions of uses of force such that it is not possible to begin to evaluate whether the uses violate the Less Lethal Order. The limited times when plaintiffs describe specific instances of less lethal force, the force described is consistent with the Less Lethal Order, or, at a minimum, not in clear violation. A motion for contempt is not the forum for plaintiffs to seek redress for alleged Fourth Amendment violations. The City asks the Court to look specifically to whether PPB officers have complied with a reasonable interpretation of the Less Lethal Order—the standard that the Court must apply when considering the Amended Motion. The evidence shows that they have.
II. FACTS Plaintiffs, by filing the Amended Motion, limited the scope to June 30, 2020 and to
alleged violations of the Less Lethal Order.1 The City, therefore generally describes the events of that evening, and the officer uses of force that were subject to the Less Lethal Order. On June 30, 2020, PPB officers’ deployed impact munitions (40MM and FN303), OC spray, and a rubber
1 Plaintiffs’ prior Motion for Finding of Contempt and for Sanctions Against Defendant City of Portland (Dkt. 55) and Supplemental Memo in Support (Dkt. 122) sought sanctions for alleged violations of both the Less Lethal Order and this Court’s temporary restraining order regarding the City’s use of tear gas (Dkt. 29) (“Tear Gas Order”). Plaintiffs’ Amended Motion no longer requests a finding of contempt nor seeks remedial sanctions with respect to the Tear Gas Order. Page 1 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ AMENDED
MOTION FOR FINDING OF CONTEMPT AND FOR SANCTIONS
PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

Case 3:20-cv-00917-HZ Document 158 Filed 09/04/20 Page 3 of 18
ball distraction device (“RBDD”).2 Prior to the start of the event on June 30, 2020, Captain Anthony Passadore, the PPB
Incident Commander responsible for the event, instructed all supervisors to reiterate to all officers the requirements from the Tear Gas Order, the Less Lethal Order, and the new state law regarding the use of tear gas. (Declaration of Anthony Passadore (“Passadore Decl.”), Dkt. 111, ¶ 49). The Incident Commander also gave instructions over the radio, prior to the start of the event, instructing officers on the requirements of the orders and state law. (Declaration of Michael Pool (“Pool Decl.”), ¶ 13; Declaration of Naomi Sheffield (“Sheffield Decl.”) ¶ 2, Ex. I, Activity Log at 2). PPB officers were aware of the temporary restraining orders. (See Declaration of Nicholas Bianchini (“Bianchini Decl.”), ¶ 1; Declaration of Erik Kammerer (“Kammerer Decl.”), ¶ 6; Declaration of Zachary Domka (“Domka Decl.”), ¶ 5; Declaration of Charles Elam (“Elam Decl.”), ¶ 2; Declaration of Brandon Haase (“Haase Decl.”), ¶ 1; Declaration of Derek Harris (“Harris Decl.”), ¶ 2; Declaration of Andrew Kofoed (“Kofoed Decl.”), ¶ 3; Declaration of John Young (“Young Decl.”), ¶ 1; Declaration of Brent Taylor (“Taylor Decl.”), ¶ 2; Declaration of Craig Lehman (“Lehman Decl.”), ¶ 1).
On that evening, a large group of protesters peacefully gathered at Peninsula Park. (Pool Decl., ¶ 13). After the initial gathering, a large group from Peninsula Park began marching toward the Portland Police Association Union Hall (“Union Hall”). (Passadore Decl., ¶ 50). The Union Hall is located in a residential neighborhood of North Portland. Because of this location, the Incident Commander decided that it was important to deploy officers to the Union Hall to
2 In addition to the use of munitions that are subject to the Less Lethal Order, PPB officers did use CS gas and smoke on June 30, 2020. (Kammerer Decl., ¶¶ 4-5, 7-8; Bianchini Decl., ¶ 1; Domka Decl., ¶ 15; Elam Decl., ¶ 7; Haase Decl., ¶ 20; Kofoed Decl., ¶ 12; Taylor Decl., ¶ 8; Young Decl., ¶ 6). The City does not discuss those uses in detail since neither are subject to the Less Lethal Order. (Dkt. 43). OSP MRT officers also deployed CS gas and smoke, which are described in their police reports (Sheffield Decl., ¶ 1, Ex. H, Oregon State Police Reports (“OSP Reports”), Zepeda Rpt. at 2-5, Thomas Rpt. at 6-8), but are not discussed in the briefing because they are not the type of force that is the subject of Plaintiffs’ Amended Motion. Page 2 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ AMENDED
MOTION FOR FINDING OF CONTEMPT AND FOR SANCTIONS
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ensure that protesters did not try to light it on fire. (Passadore Decl., ¶¶ 49-50) Protesters arrived at the Union Hall just after 9:00 p.m. on June 30. (Pool Decl., ¶ 14; Ex.
I., Activity Log at 4). Within minutes of protesters arriving, Oregon State Police troopers, who were surrounding the Union Hall, had projectiles thrown at them. (Pool Decl., ¶ 14; Passadore Decl., ¶ 51; Sheffield Decl., ¶ 1, Ex. H, OSP Reports, Zepeda Rpt. at 2, Thomas Rpt. at 7, Denney Rpt. at 15, Gray Rpt. at 20, Marshall Rpt. at 22, Short Rpt. at 25, Low Rpt. at 27, Chaffin Rpt. at 38, Waldrop Rpt. at 40, Wolcott-Petersen Rpt. at 43, Henrick Rpt. at 46; Ex. I, Activity Log at 4). They reported “taking bottles,” “taking rocks,” and green lasers being shined in their eyes. (Pool Decl., ¶ 14; Kofoed Decl. ¶ 5; Ex. I, Activity Log at 4). Because of these reports, the Incident Commander declared an unlawful assembly, and directed protesters to disperse to the east at approximately 9:05 p.m. (Passadore Decl., ¶ 52). OSP troopers continued to report having rocks thrown at them, and when PPB RRT squads arrived, they similarly saw projectiles were being thrown. (Passadore Decl., ¶ 53-55; Ex. I, Activity Log at 4). At approximately 9:15 p.m., OSP troopers and PPB officers began moving the crowd east. (Pool Decl., ¶ 15; Declaration of Vance Nebling (“Nebling Decl.”), ¶ 5).
As officers moved east, individuals threw objects, including large rocks, full beverage cans and frozen water bottles at officers and shined green lasers (Ex. H, OSP Reports; Kofoed Decl., ¶ 6; Kammerer Decl., ¶ 3). After officers moved the crowd east a couple of blocks, they disengaged and returned to the Union Hall. (Kofoed Decl., ¶ 9). The main group of protesters also came back toward the Union Hall. (Kofoed Decl., ¶ 10).
After returning to the Union Hall, some protesters began pushing dumpsters and recycle bins into the street and set them on fire. (Kofoed Decl., ¶ 10; Passadore Decl., ¶¶ 53, 60, Ex. 15E at 1:12-3:59; Nebling Decl., ¶ 4, Ex. B; Ex. I, Activity Log at 4). Despite the repeated announcements to disperse to the east, the crowd had not left the area in front of the Union Hall. (Passadore Decl., ¶ 54). Officers again began to push the crowd east, past the dumpsters that had

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been lit on fire in the street so that Portland Fire and Rescue could put out the fires. (Kofoed Decl., ¶ 10; Nebling Decl., ¶ 4, Ex. B; Ex. I, Activity Log at 4).
By 10:00 p.m., officers were taking a continuous barrage of projectiles, mostly water bottles, but also glass bottles, rocks, fireworks, and full cans, and individuals in the crowd were shining green lasers in officers’ eyes. (Passadore Decl., ¶ 55; Nebling Decl., ¶ 10, Ex. C, Ex. D, Ex. E; Ex. I, Activity Log at 4). Multiple officers had been struck by rocks. (Id.). At approximately 10:10 p.m., the Incident Commander declared a riot due to significant concern that the projectiles would result in serious injury to an officer. (Passadore Decl., ¶ 55). In response to the announcement that there was a riot, dozens of additional projectiles were thrown at officers, including bottles, full cans, rock, and fireworks. (Id.). A protester began to shoot roman candles at the officers. (Id.; Greatwood Decl., Dkt. 148, Ex. 1, 44:59-45:13). After this response, at approximately 10:15 p.m., the Incident Commander directed the sound truck to make announcements for the use of tear gas. (Ex. I, Activity Log at 5). When those announcements were made, the Incident Commander authorized officers to deploy CS gas. (Id.; Passadore Decl., ¶ 55). After the sound truck gave the second warning for CS gas, the crowd cheered, and officers deployed CS gas. (Passadore Decl., ¶ 56; Ex. H, OSP Reports; Young Decl., ¶ 6; Bianchini Decl., ¶ 13; Haase Decl., ¶¶ 20-21; Kammerer Decl., ¶¶ 7-8; Domka Decl., ¶ 15; Greatwood Decl., Ex. 1, 45:15-45:35 (audio of protestors cheering the announcement of CS gas being used)).
The PPB sound truck continued to instruct the crowd to disperse and move east. At approximately 10:48 p.m., the Incident Commander instructed officers to disengage, but as they did so, they took more projectiles. (Passadore Decl., ¶ 57; Ex. I, Activity Log at 5). A smaller group remained in the street at NE Lombard and NE Albina. As officers began to make selective
3 The Declaration of Nicholas Bianchini was signed with a numbering error causing there to be duplicate numbers 1-2. This paragraph citation is to the second paragraph numbered “1”. Page 4 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ AMENDED
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arrests in this area, smaller groups of protesters began to disperse into the residential neighborhood; officers did not follow these groups into the residential neighborhood. (Passadore Decl., ¶ 58). Just after midnight on July 1, a group of approximately 60 protesters had reorganized and walked north on NE MLK toward PPB’s North Precinct. (Id.). The PPB sound truck continued to announce the unlawful assembly, while some members of the group started a dumpster fire and remained in the middle of the intersection of NE MLK and NE Killingsworth. (Id.; Kammerer Decl., ¶ 10; Passadore Decl., ¶ 60, Exs. 15-B and 15-C; Ex. I, Activity Log at 5). As officers pushed the crowd around North Precinct to the west, it broke up into small groups and officers disengaged.
Throughout the interactions with protesters on June 30, seven PPB officers deployed impact munitions. These officers deployed impact munitions in response to individuals throwing projectiles, kicking and throwing munitions back at officers, physically pushing and fighting with officers, and shining green lasers in officers’ eyes. (Bianchini Decl., ¶¶ 8, 10, 11, 12, 15, 16 (describing each use of his 40mm marking round targeted at and successfully hitting individuals below the waist or inanimate objects near the individuals who were throwing and kicking items (including smoke canisters) at police and lighting fires); Elam Decl., ¶ 6 (using a 40mm marking round in response to an individual who had just kicked a canister of smoke at the police and was running toward a canister of smoke, apparently to also kick it toward the police); Haase Decl., ¶¶ 6-7 (deploying 40MM less lethal marking rounds at individuals who were attempting to throw canisters of smoke or other deployed munitions back at police); Harris Decl., ¶ 6 (deploying FN303 pava rounds at a large dumpster that three individuals were pushing westbound toward a line of officers); Young Decl., ¶ 8 (deploying a single 40MM marking round at an individual who had picked up a still-ignited smoke canister to throw back at officers); Taylor Decl., ¶¶ 7-12 (deploying FN303 rounds in response to individuals engaging in pulling people out of an arrest (unarrest), throwing munitions, bottles, and other projectiles at police, and shining green lasers

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toward police); Lehman Decl., ¶¶ 11-13 (using a 40MM marking round on an individual who ran up to a smoke cannister to throw it and on an individual winding up to throw a bottle).
Five PPB officers deployed OC spray in response to individuals who were pushing officers, striking officers, grabbing officer batons, and otherwise fighting and resisting officers. (Bianchini Decl., ¶ 9 (describing the use of OC spray at two individuals actively shoving back at the line of officers as officers tried to move them east); Kofoed Decl., ¶¶ 7-8 (deploying single bursts of OC spray at individuals actively pushing against and hitting officers with a skateboard and an umbrella); Kofoed Decl. ¶¶ 15 (deploying two bursts of OC spray against an individual fighting and resisting against an officer who was taking him into custody); Middleton Decl., ¶ 6 (deploying a single burst of OC spray to the faces of two individuals who were attempting to grab and shove two unknown police officers); Lehman Decl., ¶¶ 7-9 (deploying OC spray at an individual that was actively struggling with an officer and pushing against the officer and at an individual who was actively trying to pull a person in custody away from police)).
Officer Domka deployed a single RBDD. (Domka Decl., ¶¶ 17-18). This RBDD was deployed toward a small group of individuals who were separated from the rest of the crowd and throwing projectiles at officers. (Id.).
In addition to the impact munitions and OC spray deployed by PPB officers, OSP troopers who responded on June 30 also deployed munitions.4 OSP troopers deployed Stinger rounds (similar to PPB’s RBDDs) and pepper balls. (Ex. H, OSP Reports, Zepeda Rpt. at 2-5, Mac Marshal Rpt. at 22-24 & Lewis Topinka Rpt. at 48-50). OSP troopers, like PPB officers, deployed these munitions at different times and locations during the evening in response to specific incidents of threatening and violent activity by certain protesters. (Id.).
4 The Less Lethal Order does not impose any restrictions on the use of force by OSP troopers. This information is included to provide a more complete picture, and to address assertions by plaintiffs’ declarants regarding uses of force that may not be identified with a particular PPB officer. Page 6 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ AMENDED
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During the protest on June 30, 2020, numerous officers were struck with projectiles thrown from individuals in the crowd. Officer Ariel Livingston was struck in the head with a water bottle during the initial push to move protesters east on N Lombard. (Declaration of Ariel Livingston (“Livingston Decl.”), ¶¶ 3-7). Criminalist Vance Nebling was struck in the arm with a fist-sized rock weighing approximately two pounds. (Nebling Decl., ¶¶ 6-7, 12; Ex. B, Ex. F, and Ex. G). Officer Bianchini was hit in the legs with multiple items while he stood on the police line. (Bianchini Decl., ¶ 3). OSP Trooper Zepeda was hit in the shin guard with an unopened can of beer and observed PPB officers getting hit with thrown objects. (Ex. H, OSP Reports at 4). OSP Trooper Thomas was hit in the right bicep with a nearly full beer can, had green lasers shined in his eyes, impacting his vision and causing temporary black spots, and witnessed Trooper Cordes get hit twice by rocks and be taken off the line to receive medical attention. (Id. at 7-8). Multiple OSP troopers described witnessing Sergeant Bailey being struck in the head with a large rock, which ultimately resulted in a concussion and him being off duty for a week. (Id., Thomas Rpt. at 8, McIlvenna at 36-37). Trooper Kendoll described being hit in the ribs with a large apple thrown at a high rate of speed, as well as green lasers, causing temporary blindness, pain, headaches, and temporary black spots in his vision. (Id. at 11). Trooper Butler was hit in the right thigh by a rock and struck by a water bottle. (Id. at 13). Trooper Short was struck in the thumb by a glass bottle that he tried to deflect away from hitting other line officers. (Id. at 26).

III. ARGUMENT A. Legal Standard “A Court may hold a party in civil contempt when the party has displayed ‘disobedience
to a specific and definite court order by failure to take all reasonable steps within the party’s power to comply.’” Calvillo Manriquez v. Devos, 411 F. Supp. 3d 535, 539 (N.D. Cal. 2019) (quoting In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)). Plaintiffs have “the burden of showing by clear and convincing evidence that the [City]

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violated a specific and definite order of the court.” F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v. City and Cty. of San Francisco, 968 F.2d 850, 856 n.9 (9th Cir. 1992)). Typically, “civil contempt ‘should not be resorted to where there is [a] fair ground of doubt as to the wrongfulness of the defendant’s conduct.” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801-02 (2019) (quoting Ca. Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618 (1885)). The Supreme Court has explained that “[t]his standard reflects the fact that civil contempt is a ‘severe remedy,’ and that principles of ‘basic fairness requir[e] that those enjoined receive explicit notice’ of ‘what conduct is outlawed’ before being held in civil contempt.” Id. (citations omitted).
Contempt does not require that a party’s conduct be willful, and there is no good faith exception, but “a person should not be held in contempt if his action ‘appears to be based on a good faith and reasonable interpretation of the [court’s order].’” Dual-Deck, 10 F.3d at 695 (quoting Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982)). Moreover, “‘[s]ubstantial compliance’ with the court order is a defense to civil contempt, and is not vitiated by ‘a few technical violations’ where every reasonable effort has been made to comply.” Id.; Century Indem. Co. v. Marine Group, LLC, 2013 WL 5838991, * 2 (D. Or. Oct. 29, 2013) (“[S]ubstantial compliance based on a reasonable interpretation of the court order is a defense to civil contempt.”).

B. June 30, 2020 Numerous declarants, and plaintiffs’ Amended Motion, describe the use of tear gas on June 30, 2020. (See Dkt. 145 at 13-15; Cleinman Decl., Dkt. 150, ¶¶ 10-11; Dicks Decl., Dkt. 119, ¶ 20; Dallas Decl., Dkt. 124, ¶¶ 14-15, 17, 19; Passmore Decl., Dkt. 118, ¶¶ 9-14, 16, 23; Herrera Decl., Dkt. 126, ¶¶ 20-21, 26, 30, 32; VanWeelden Decl., Dkt. 128, ¶¶ 8-10; Sharma Decl., Dkt. 117, ¶¶ 8-12, 15-17, 19). PPB’s use of tear gas is subject to the Tear Gas Order. However, the Amended Motion seeks contempt only for alleged violations of the Less Lethal

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Order. (Dkt. 145 at 2). The significant number of injuries experienced by officers and the threat presented by the persistent throwing of rocks, glass bottles, fireworks, and other projectiles presented a significant risk to the safety of officers. However, because plaintiffs no longer allege a violation of the Tear Gas Order, the City does not further address the use of tear gas in this Response.
Plaintiffs also draw significant attention to PPB’s use of smoke. (Dkt. 145 at 7, 8, 9, 12, 14, 16, 17). The Less Lethal Order addressed PPB’s use of specific less lethal munitions. It did not include smoke. In fact, plaintiffs’ counsel and the City’s counsel discussed smoke prior to agreement on the Less Lethal Order, and plaintiffs agreed to a temporary restraining order that did not include smoke. (Declaration of Scott Moede (“Moede Decl.”), Dkt. 132, ¶ 1, Ex. A). The City does not address each use of smoke, and the Court should not hold the City in contempt for use of an item that was knowingly excluded from the temporary restraining order.
Similarly, a significant number of the incidences of force described by plaintiffs’ declarants involved pushes and baton strikes, which are not subject to the Less Lethal Order. (Dkt. 145 at 6, 8, 9, 11, 16). In fact, plaintiffs concede that the individual violations they allege “pale in comparison to the overall theme.” (Dkt. 145, at 18). Plaintiffs’ expressed concerns appear to be captured by the repeated allegations that PPB officers “beat” protesters for no reason. (Id.). Any allegations of police misconduct, particularly involving the use of force, are serious. And the City is certainly responsible for evaluating each allegation of misconduct by PPB officers to ensure that the force used was appropriate under both law and PPB Directives. But such alleged uses of force—baton strikes and pushing—are indisputably outside the scope of the Less Lethal Order. A finding of contempt is a wholly unwarranted remedy to address these allegations. Affordable Media, 179 F.3d at 1239 (requiring violation of a “specific and definite

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order of the court”).5 Ultimately, plaintiffs’ declarants describe six instances where they were personally
impacted by force that is the subject of the Less Lethal Order. Declarant Cleinman states that he was impacted by OC spray. (Cleinman Decl., ¶ 6). The Less Lethal Order provides that OC spray “shall not be used against persons engaged in passive resistance, and consistent with PPB Use of Force Directive 1010, members shall minimize exposure to non-targeted persons.” (Less Lethal Order, Dkt. 43). Passive resistance “means a person’s non-cooperation with a member that does not involve violence or other active conduct by the individual.” (Id.).
Declarant Cleinman states that he was shoved by two officers. (Cleinman Decl., ¶ 6). He then describes another officer aiming OC spray “directly into my eyes” from “about 4-5 feet away.” (Id.). Declarant Cleinman’s own assertion—that the officer aimed directly at him from a short distance—confirms that the officer sought to minimize exposure to non-targeted persons. Declarant Cleinman asserts that prior to being hit with OC spray, he “did nothing to place people or property at risk.” (Cleinman Decl., ¶ 8). But that is not the standard set forth in the Less Lethal Order. Rather, it prohibits the use of OC spray against persons who are engaged in noncooperation “that does not involve violence or other active conduct.” It can be seen on the video provided by Declarant Cleinman that he grabs the baton of the first officer who shoved him. (Cleinman Ex. 1, 00:05-00:07 (showing Declarant Cleinman’s arms going back and forth as the officer tries to get his baton away)). A second officer pushes him so that he keeps moving, at which point Declarant Cleinman turns back to the police line. (Id. at 00:07-00:09). It is at this time that an officer uses OC spray. (Id. at 00:10-00:12). Declarant Cleinman was not engaged in passive resistance, but rather in active conduct with the officers on the line immediately prior to the use of OC spray.
5 Plaintiffs also contend that “officers used the LRAD close to the protesters.” (Dkt. 145 at 15, 17). The Less Lethal Order prohibits the use of the LRAD as a warning signal but allows for its continued use for announcements. (Dkt. 43). Page 10 – DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ AMENDED
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Declarant Passmore claims she breathed some OC spray because she was downwind from where it was sprayed. (Passmore Decl., ¶ 8). Although Declarant Passmore contends that officers “indiscriminately sprayed OC spray into the crowd,” she does not describe either the time or location of this incident. Moreover, her description that the officer did “not appear to spray at specific people,” (Id.), is inconsistent with the declarations of each of the City’s declarants who deployed OC spray. (Bianchini Decl., ¶ 9; Kofoed Decl. ¶¶ 7-8, 15; Middleton Decl., ¶ 6; Lehman Decl., ¶¶ 7-9). Assuming Declarant Passmore was exposed to residual OC spray, the Less Lethal Order does not require that non-targeted individuals are never impacted. Rather it requires officers to minimize exposure to non-targeted individuals. Based on her description, Declarant Passmore was not incidentally sprayed with OC spray, but rather may have been exposed to some residual chemical that remained in the air. This does not evidence a violation of the Less Lethal Order.
Four of plaintiffs’ declarants describe being impacted by impact munitions, which could have been FN303s, 40MMs, RBDDs or pepper balls. Pursuant to the Less Lethal Order, PPB officers must use these impact munitions consistent with Directive 1010.00, and they cannot “be used where people engaged in passive resistance are likely to be subjected to the force.” (Dkt. 43). Pursuant to Directive 1010.00, impact munitions are authorized in response to active aggression (Directive 1010.00, ¶ 6.4.2.1.1 (Sheffield Decl., Dkt. 141, Ex. 21)), which is defined as, “A threat or overt act of an assault (through physical or verbal means), coupled with the present ability to carry out the threat or assault, which reasonably indicates that an assault or injury to any person is about to happen, unless intervention occurs.”
Declarant Anglada Cordero was struck by an impact munition on his legs as he was running up to kick a smoke canister at the police for the second time. (Anglada Cordero Decl., Dkt. 146, ¶¶ 13-14). Declarant Haas similarly was moving to kick a smoke canister when she was struck in the legs by an impact munition. (Haas Decl., Dkt. 127, ¶ 13). Finally, Declarant

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Greatwood was struck with an impact munition when he walked toward a deployed munition that had been thrown by the police and bent down to examine it. (Greatwood Decl., ¶ 9). Plaintiffs assert that police shot Declarants Haas and Cordero with impact munitions “when they were at most passively resisting.” (Dkt. 145 at 17). But throwing or kicking a live munition at officers is not passive resistance; it is active aggression. The officers that deployed the munitions also appear to have struck their intended targets, suggesting that there was little risk to those individuals engaged in passive resistance. Notwithstanding that the uses of force described are not violations of the Less Lethal Order, with the limited information, it is not possible to determine whether the force described was deployed by PPB. As discussed above, OSP troopers also deployed pepper balls at protesters engaged in similar behavior as that described by these declarants. (Ex. H., OSP Reports at 48 (describing Trooper Topinka’s use of pepper balls in response to individuals kicking munitions and throwing objects at officers)).
Declarant Epker asserts that he was struck in the face by an impact munition as he was backing away from officers with his hands in the air. (Epker Decl., Dkt. 149, ¶ 7). He claims that this occurred after officers deployed CS gas and after protesters had been pushed east over I-5. (Id.). Declarant Epker did not see the officer who shot him or the munition that hit him. (Id.). There were very few uses of force at this point in the protest, although there was some force used by both PPB officers and OSP troopers (Haase Decl., ¶ 17; Domka Decl., ¶¶ 17-19; Bianchini Decl., ¶ 17; Ex. H, OSP Reports at 24, 50). None of the uses of force described around this time, appear consistent with Declarant Epker’s description. With this amount of information, the City is not certain whether Mr. Epker was struck by something deployed by an officer or whether he was struck by one of the many objects thrown by protesters.
Plaintiffs and their declarants describe other instances where they witnessed force, but there is insufficient information to conclude that the force violated the Less Lethal Order. For example, plaintiffs note that an officer deployed impact munitions at individuals that appeared to

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throw projectiles or reach for projectiles and munitions. (Dkt. 145 at 7; Dicks Ex. 5 at 00:1800:23 (deploying impact munitions at an individual who threw a bottle filled with a colored liquid at officers); Passadore Decl., Ex. 15-X at 58:54 (deploying impact munitions at an individual that approached an item in front of the crowd, reaching down to pick it up)). In short, plaintiffs describe an officer using impact munitions against individuals appearing to engage in active aggression, consistent with the Less Lethal Order.
Plaintiffs describe officers deploying impact munitions at individuals holding a large sign, refusing to disperse, blocking the police line from moving, and struggling against the police line. (Dkt. 145 at 6; Cleinman Ex. 1 at 00:27-00:35; Dicks Decl. Ex. 5 at 00:00 (showing an officer deploying an impact munition at individuals who are struggling with officers over a sign that was used to block the movement of the officers’ line). Declarant Dallas states that officers fired impact munitions at persons behind her in the crowd. (Dkt. 145 at 8; Dallas Decl., ¶ 10). Declarant Dallas does not appear to know who behind her was hit or what conduct they may have been engaged in when an officer deployed an impact munition.
Plaintiffs also cite to video where officers strike a dumpster with impact munitions that protesters were wheeling toward officers. (Dkt. 145 at 10). There is no reason to believe that these munitions struck any protester, and Officer Harris described deploying the munitions at the dumpster to stop the individuals from rolling the dumpster at the police line. (Harris Decl., ¶ 6); (Dicks Decl., Ex. 8 at 3:05; Comstock Decl., Dkt. 147, Ex. 2 at 24:12, 32:46; Passadore Decl., Ex. 15-X at 27:56) (each video showing impact munitions striking dumpster). During previous protests, protesters had rolled dumpsters toward officers in attempt to hit them with the dumpsters. (Harris Decl., ¶ 6).
Plaintiffs also include non-descript assertions that PPB officers used force inappropriately. (VanWeelden Decl., ¶¶ 5, 12 (“the police kept shooting or throwing smoke bombs into the crowd” and “[officers] were standing there calmly while other officers fired

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weapons at the protesters”); Herring Decl., Dkt. 123, ¶ 8 (explaining that munitions would likely hit people directly); Herrera Decl., Dkt. 126, ¶¶ 13-15 (describing witnessing officer deploying impact munitions at individuals without specifying whether the individuals were engaged in any activity beyond “using their voices to call out and criticize the officers”)). They similarly cite to video that depicts officers deploying smoke and the sound of impact munitions can be heard. It is not possible to see from this video at whom the impact munition is deployed or why. (Greatwood Decl., Ex. 1 at 31:52 (showing officers deploying smoke), 42:00-43:00 (showing smoke and audio that sounds like impact munitions); Passadore Decl., Ex. 15-X at 50:50 (showing smoke).
In short, plaintiffs have not shown a violation of the Less Lethal Order. But even if the Court determines that there were “a few technical violations” of the Less Lethal Order on June 30, it should not find the City in contempt where the City has made “every reasonable effort” to comply with the order. Dual-Deck, 10 F.3d at 695. The Incident Commander made repeated efforts to remind all officers of the requirements of the injunctions, including the Less Lethal Order. Notably, at 7:30 p.m., before officers deployed, the Incident Commander provided a detailed reminder of the limitations set forth in the June 26 less lethal order. (Ex. I, Activity Log at 2). And, as discussed above, multiple officers testified to their knowledge of the Less Lethal Order. Plaintiffs’ Amended Motion ultimately cites to a handful of instances over the two months since the Less Lethal Order has been in place. While they do not meet their burden of showing any violation of the Less Lethal Order, if the Court nonetheless finds a violation, it should not hold the City in contempt.
In the Amended Motion, plaintiffs argue their themes for the case that “the City is using force as a means of dispersing crowds” and “[t]here is little or no effort to arrest people.” (Dkt. 145 at 18). They also contend that the City is targeting journalists, legal observers, and others documenting the protests. (Id.). Plaintiffs then ask the Court to rule based on “the overall purpose of both of this Court’s orders.” (Id.). The City does not dispute that force was used on June 30,

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2020. And the City agrees that all uses of force must be reviewed and scrutinized. But plaintiffs have brought a motion for contempt of the Less Lethal Order. They have the burden of showing, by clear and convincing evidence, that the City violated that order—not the overall purpose of both orders. Affordable Media, 179 F.3d at 1239. Plaintiffs have not met their burden. The Court should deny their motion.

C. Remedies A “party’s good faith, even where it does not bar civil contempt, may help to determine an appropriate sanction.” Taggart, 139 S. Ct. at 1802. “[T]he use of the contempt power places an additional limitation on a district court’s discretion, for as the Court of Appeals recognized, ‘in selecting contempt sanctions, a court is obliged to use the ‘least possible power adequate to the end proposed.’” Spallone v. United States, 493 U.S. 265 (1990) (citation omitted). Here, PPB has demonstrated good faith compliance with the Less Lethal Order. Moreover, plaintiffs’ requested remedies demonstrate the difficulty in both structuring and enforcing an injunction regarding the lawful use of force by police officers. Plaintiffs’ requested remedies do not fit the alleged violations. First, plaintiffs request a “complete ban on the use of certain ‘less lethal weapons’ in any crowd control situation.” (Dkt. 145 at 2). While plaintiffs do not identify which weapons they seek to ban, a complete ban on less lethal tools would leave officers with more limited tools that could result in greater uses of force. (Schoening Decl., Dkt. 18, ¶ 18). This would constrain PPB officers far beyond any limitations of the Fourth Amendment and would severely inhibit their ability to respond to individuals engaged in violent criminal activity. Plaintiffs next ask that less lethal weapons be “authorized by a politically accountable leader, such as Mayor Ted Wheeler.” (Dkt. 145 at 3). This requested remedy would require that the Mayor, who is neither a trained law enforcement officer nor a lawyer, determine when and what level of force is necessary in a given situation. There is undoubtedly a role for policy

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DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ AMENDED MOTION FOR FINDING OF CONTEMPT AND FOR SANCTIONS
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makers in determining the range of tools available to law enforcement officers. However, placing a particular decision to use force in the hands of an individual who has no background or training that would allow him to make a determination consistent with constitutional requirements is inappropriate.
Plaintiffs ask the Court to prohibit individual members who violated the Court’s orders from participating in future crowd control operations. (Dkt. 145 at 3). Plaintiffs have not offered clear and convincing evidence that any individual members violated the Less Lethal Order. Plaintiffs offer general allegations regarding the use of force, but very limited descriptions of particular incidences of force that allegedly violated the temporary restraining orders. Given the limited information, it would be challenging or impossible to identify the officers who engaged in the specific alleged misconduct.
Finally, plaintiffs suggest fines to compensate the individual class members for their injuries and to deter future violations. Notwithstanding that plaintiffs have not applied for class certification and no class has been certified in this case, compensating individuals who are the subject of unconstitutional force is a remedy that exists notwithstanding this Court’s temporary restraining orders. Those individuals who are actually the subject of alleged excessive force can seek damages against the individual officer.
Plaintiffs’ motion for contempt and requested remedies are demonstrative of why injunctive relief regarding use of force is problematic. To analyze the constitutionality of any particular use of force, this Court must consider the totality of the circumstances. Graham v. Connor, 490 U.S. 386, 396 (1989) (the test for reasonable “requires careful attention to the facts and circumstances of each particular case”). The vast majority of the force plaintiffs’ declarants describe was witnessed, but there is no impacted individual asserting a violation. Plaintiffs are using the Less Lethal Order and this motion to ask this Court to act as a monitor of every use of force (including force not covered by the Less Lethal Order). But there are already processes in

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DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ AMENDED MOTION FOR FINDING OF CONTEMPT AND FOR SANCTIONS
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place for evaluating uses of force. There are also already legal remedies available to individuals
who are the subject of unconstitutional force. Coming before the Court to discuss every use of
force by any PPB officer at any protest, however, is an untenable outcome.
IV. CONCLUSION Plaintiffs’ have failed to present clear and convincing evidence that PPB officers violated
the Less Lethal Order. Based on the argument above, the City asks the Court to deny Plaintiffs’
Amended Motion for Finding of Contempt and for Sanctions Against Defendant City of
Portland.
Dated: September 4, 2020.
Respectfully submitted,
/s/ Naomi Sheffield____________ J. SCOTT MOEDE, OSB 934816 Chief Deputy City Attorney scott.moede@portlandoregon.gov NAOMI SHEFFIELD, OSB 170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov ROBERT YAMACHIKA, OSB 065560 Senior Deputy City Attorney rob.yamachika@portlandoregon.gov Portland City Attorney’s Office 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

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DEFENDANT CITY OF PORTLAND’S RESPONSE TO PLAINTIFFS’ AMENDED MOTION FOR FINDING OF CONTEMPT AND FOR SANCTIONS
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 Case 3:20-cv-00917-HZ Document 174 Filed 09/09/20 Page 1 of 18

J. SCOTT MOEDE, OSB 934816 Chief Deputy City Attorney scott.moede@portlandoregon.gov NAOMI SHEFFIELD, OSB 170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov ROBERT YAMACHIKA, OSB 065560 Senior Deputy City Attorney rob.yamachika@portlandoregon.gov Portland City Attorney’s Office 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity, NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated, MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated, ALEXANDRA JOHNSON, in an individual capacity and on behalf of themselves and all others similarly situated,

3:20-cv-00917-HZ
DEFENDANT CITY OF PORTLAND’S MOTION TO DISMISS DON’T SHOOT PORTLAND FROM THE SECOND AMENDED COMPLAINT

PLAINTIFFS,

v.

CITY OF PORTLAND, a municipal
corporation, and MULTNOMAH COUNTY, a political subdivision of the State,

DEFENDANTS.

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DEFENDANT CITY OF PORTLAND’S MOTION TO DISMISS DON’T SHOOT PORTLAND FROM THE SECOND AMENDED COMPLAINT
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CERTIFICATE PURSUANT TO LOCAL RULE 7-1 Counsel for defendant City of Portland certifies that counsel for defendants and counsel for plaintiffs have made good faith effort to resolve the issues in dispute and have been unable to do so.
MOTION Defendant City of Portland (“the City”) moves the Court to dismiss plaintiff Don’t Shoot Portland (“Don’t Shoot Portland”) from the Second Amended Complaint (“SAC”) pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1), or in the alternative, for a more definite statement pursuant to Rule 12(e). The SAC was originally filed by four named plaintiffs which includes Don’t Shoot Portland, a nonprofit corporation on its own behalf, and three other individual plaintiffs on behalf of themselves individually and all others similarly situated. In addition to Don’t Shoot Portland, Mr. Nicholas Roberts1, Mx. Michelle “Misha” Belden2, and Ms. Alexandra Johnson3 (collectively “Plaintiffs”) are named plaintiffs. Plaintiffs bring 42 U.S.C. § 1983 claims alleging excessive force in violation of the Fourth Amendment, as well as First Amendment claims. This motion concerns plaintiff Don’t Shoot Portland only and not the three individual plaintiffs. Specifically, the City moves the Court for an Order concerning Don’t Shoot Portland as follows: 1. Dismissing Don’t Shoot Portland from the SAC for failure to state a claim under Rule 12(b)(6).
1 The City’s Motion to Dismiss uses the pronouns “he” or “him” and prefix “Mr.” for Plaintiff [Nicholas Roberts] consistent with the pronouns indicated in Plaintiffs’ SAC. 2 The City’s Motion to Dismiss uses the pronouns “they” or “them” and prefix “Mx.” for Plaintiff [Michelle “Misha” Belden] consistent with the pronouns indicated in Plaintiffs’ SAC. 3 The City’s Motion to Dismiss uses the pronouns “she” or “her” and prefix “Ms.” for Plaintiff [Alexandra Johnson] consistent with the pronouns indicated in Plaintiffs’ SAC. Page 2 – DEFENDANT CITY OF PORTLAND’S MOTION TO DISMISS DON’T SHOOT
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2. Alternatively, dismissing Don’t Shoot Portland from the SAC for lack of constitutional standing pursuant to Rule 12(b)(1).
3. In the alternative, requiring an amended complaint containing a more definite statement of Don’t Shoot Portland’s claims pursuant to Rule 12(e).
BACKGROUND As noted in prior filings with this Court, thousands of Portlanders have joined with millions around the country to protest the injustices of police brutality and racism, highlighted by the police killing of George Floyd, an African-American man, by a white Minneapolis police officer on May 25, 2020. These protests are clearly protected First Amendment expression, subject to the lawful time, place and manner restrictions, associated with all protected expression. In fact, the City agrees with plaintiffs, including Don’t Shoot Portland, that peaceful protests are essential to advancing a long overdue need for meaningful reform and restorative justice. (See SAC, ¶ 4). The undeniably important message of these protests is not in dispute. This case does not relate to those thousands of people who have powerfully expressed these important values. Rather, the case involves the PPB’s response to a much smaller number of people who have not peaceably assembled, but have instead engaged in violent, destructive, life-threatening, criminal activity. To a notable degree, plaintiffs separate their conduct from those engaged in violence and destruction. In this regard, plaintiffs’ case is no different than other protest-related litigants: plaintiffs Mr. Roberts, Mx. Belden, and Ms. Johnson allege they have suffered physical and emotional injuries because law enforcement officers have chilled protected speech through their use of force, and because the police have used excessive force against them in the context of crowd management and control. (See SAC, ¶¶ 29-37.). On the other hand, as currently written, the City cannot discern what plaintiff Don’t Shoot Portland’s bases are for its Fourth Amendment excessive force and First Amendment

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DEFENDANT CITY OF PORTLAND’S MOTION TO DISMISS DON’T SHOOT PORTLAND FROM THE SECOND AMENDED COMPLAINT
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retaliation claims. Don’t Shoot Portland states in its Second Amended Complaint that it “is a Black-led organization whose fundamental mission is to advocate for social and racial justice in Portland.” SAC ¶ 4. An examination of Don’t Shoot Portland’s public corporate records reveals in its latest annual report filed September 5, 2019 and its reinstatement amendment filed September 8, 2020, that its core business activity is “grassroots community action plan-promote civic engagement and nonviolent action through art” and lists Tai Carpenter as President.4
As alleged in the SAC, Don’t Shoot Portland holds various community programs and trainings, including “a children’s art and social justice council, community clothing tree, and community legal clinics.” SAC ¶ 4. Additionally, Don’t Shoot Portland “advocates for social justice and change though supporting direct action in a safe manner; participating, organizing and supporting protests; providing know your rights trainings and information; and providing jail support to people arrested during demonstrations.” SAC ¶ 4. Besides a general description of its mission and related programs, activities, and use of resources, the only concrete and particularized one-paragraph statement alleged by Don’t Shoot Portland other than the plaintiff’s two claims for relief found in paragraphs 47-59 of the Second Amended Complaint can be fully quoted here in its three sentences: “Don’t Shoot Portland has been participating [in] the local demonstrations and providing assistance and support to protesters. It has participated in, monitored, and amplified calls to end racist policing and the violent police response to nonviolent protesters. It strongly opposes the use of tear gas, ‘less lethal’ weapons, and any force against protesters.” (SAC, ¶ 28.). /// ///
4 Oregon Secretary of State, Corporate Division, http://records.sos.state.or.us/ORSOSWebDrawer/Recordpdf/7555275; http://records.sos.state.or.us/ORSOSWebDrawer/Recordpdf/6899943 (Last visited September 9, 2020). Page 4 – DEFENDANT CITY OF PORTLAND’S MOTION TO DISMISS DON’T SHOOT
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STANDARDS Rule 12(b)(6) Under Rule 12(b)(6), a motion to dismiss may be granted where the plaintiff has failed to allege facts that, when accepted as true, give rise to a plausible inference that the defendants violated the plaintiff’s constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556–57 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 679 (quoting Twombly, 550 U.S. at 555). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). Rule 12(b)(1) Pursuant to Article III of the U.S. Constitution, federal courts may only hear cases if the plaintiffs can establish they have standing. Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011). “A plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). Otherwise, the court must dismiss the claims for lack of subject matter jurisdiction under Rule 12(b)(1). Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). Rule 12(e) “A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). Motions for more definite statements “attack the intelligibility

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DEFENDANT CITY OF PORTLAND’S MOTION TO DISMISS DON’T SHOOT PORTLAND FROM THE SECOND AMENDED COMPLAINT
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of the complaint, not the lack of detail.” Obsidian Fin. Grp., LLC v. Crystal Cox, No. CV-11-57-
HZ, 2011 WL 13253340, at *1 (D. Or. May 19, 2011).
DISCUSSION
I. Don’t Shoot Portland Has Not Alleged Plausible Fourth Amendment Monell
Claims
Plaintiff Don’t Shoot Portland’s Fourth Amendment Monell claims at paragraphs 47-52
fail to meet the Iqbal/Twombly pleading standard because Don’t Shoot Portland fails to plead any
facts supporting such a claim. The Supreme Court’s decisions in Iqbal/Twombly imposed a
demanding pleading standard, requiring plaintiffs to “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. The Supreme Court emphasized in Iqbal that conclusory
allegations are not entitled to the presumption of truth. 556 U.S. at 681. The Ninth Circuit has
interpreted Iqbal/Twombly as setting forth two essential principles:
First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Here, Don’t Shoot Portland’s allegations to support its Monell claim are conclusory, and
fail to plausibly support a claim for relief. To state a Monell claim, a plaintiff must allege facts
establishing: (1) that the plaintiff possessed a constitutional right of which he was deprived; (2)
that the municipality had an official policy, or pervasive custom or practice; (3) that the policy,
custom, or practice amounted to “deliberate indifference” to the plaintiff’s constitutional rights;
and (4) causation of such a degree that the deliberately indifferent policy, custom, or practice

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was the “moving force” behind the constitutional violation. City of Canton v. Harris, 489 U.S.
378, 380 (1989); Horton v. City of Santa Maria, 915 F.3d 592, 602–603 (9th Cir. 2019);
Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011).
As an initial and dispositive matter, Don’t Shoot Portland has not sufficiently plead that it
was deprived of a constitutional right. On this basis alone, the Court should dismiss Don’t Shoot
Portland’s Monell claims against the City. See City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986) (“If a person has suffered no constitutional injury at the hands of the individual police
officer, the fact that the departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point.”).
Notwithstanding this deficiency, Don’t Shoot Portland’s First Claim for Relief
nonetheless attempts to allege municipal liability based on an “Unlawful Practice or Policy
Allowing Indiscriminate Use of Force as Tactic to Disperse Crowd.” For example, the first part5
of Count 1 reads: The City of Portland and Multnomah County each have an official policy allowing the use of “riot control” and “less lethal” weapons against a crowd whenever it determines that the crowd creates a “civil disturbance.” This policy has no relationship with the Graham v. Connor Fourth Amendment standard regulating the use of force against individuals. It expressly allows for the indiscriminate use of force against a crowd of people, including those engaging in passive resistance, in violation of the Fourth Amendment. Alternatively, even if the policy itself is constitutional, PPB’s and MCSO’s actual practice and custom is to allow the use of

5 The second and final part of count 1 reads as follows: “On May 29, 30, 31 and June 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20, 2020, PPB and MSCO deployed tear gas and/or other “less lethal” weapons on large crowds of peaceful protesters and continued to deploy tear gas and/or “less lethal” weapons at people running away. Videos documenting the indiscriminate nature of this force deployment are rampant. The City and County have tacitly and explicitly authorized the use of indiscriminate crowd control munitions on crowds of protesters by justifying uses of similar tactics, including “less lethal” weapons shot indiscriminately into crowds of protesters, at protests on these dates. The City and County, acting pursuant to this policy, custom, or practice, unlawfully used tear gas and “less lethal” weapons against plaintiffs as alleged above.” (SAC, ¶ 49.).

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SAC at ¶ 48.

“riot control” and “less lethal” weapons against a crowd both before and after an “unlawful assembly” and/or a “civil disturbance” has been declared, even when a substantial numberof people in that crowd, or even the majority of that crowd, are engaged only in the passive resistance to an order.

These allegations do not state a claim on behalf of Don’t Shoot Portland. Don’t Shoot

Portland refers to the Graham v. Connor reasonableness of force standard in Count 1, claiming

that the City, through either an unconstitutional policy or unlawful practice “expressly” permits

the use of “indiscriminate” and excessive force for crowd control in violation of the Fourth

Amendment. SAC at ¶ 48. To state an excessive force claim, plaintiff must allege facts showing

that an officer’s conduct was “objectively [un]reasonable in light of the facts and circumstances

confronting them[.]” Mihailovici v. Snyder, No. 3:15-CV-01675-KI, 2016 WL 447842, at *4 (D.

Or. Feb. 4, 2016) citing Graham v. Connor, 490 U.S. 386, 397 (1989). Where plaintiff brings a

claim under 42 U.S.C. §1983, asserting that defendants used excessive force against them in

violation of their Fourth Amendment right to be secure against unreasonable seizures, the critical

question “is whether the use of force was 'objectively reasonable in light of the facts and

circumstances confronting' the ... officer[ ].” Sanchez v. Marion Cty., No. 6:14-CV-724-AA,

2016 WL 680814, at *2 (D. Or. Feb. 16, 2016), citing Blankenhorn v. City of Orange, 485 F.3d

463, 477 (9th Cir. 2007) (quoting Graham, 490 U.S. at 397).

The Ninth Circuit has articulated its Fourth Amendment analysis stating: “[o]ur analysis

involves three steps. First, we must assess the severity of the intrusion on the individual's Fourth

Amendment rights by evaluating ‘the type and amount of force inflicted.” Glenn v. Washington

Cty, 673 F.3d 864, 871 (9th Cir. 2011), quoting Espinosa v. City & County of San Francisco, 598

F.3d 528, 537 (9th Cir. 2010) (quoting Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.

2003)). “[E]ven where some force is justified, the amount actually used may be excessive.”

Glenn, 673 F.3d at 871, quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002). Second, we

evaluate the government's interest in the use of force. Graham, 490 U.S. at 396. Finally, “we

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balance the gravity of the intrusion on the individual against the government's need for that intrusion.” Miller, 340 F.3d at 964.
In this case, looking at the type and amount of force allegedly inflicted against Don’t Shoot Portland, there was none. Don’t Shoot Portland asserts its excessive force claim as fruit of either an unconstitutional policy or, in the alternative, a constitutionally-valid policy but otherwise unlawful practice. SAC, ¶¶ 48-49. Regardless of either alleged scenario, the Graham reasonableness force standard still applies for excessive force claims. Don’t Shoot Portland, unlike the three individual plaintiffs, Mr. Roberts, Mx. Belden, and Ms. Johnson, has not pled any facts that the City (through PPB) has inflicted any type or level of force against the nonprofit corporation whatsoever. For that reason alone, this claim fails the Iqbal/Twombly pleading standard. SAC, ¶¶ 28-37.
Don’t Shoot Portland’s Count 2 and 3 Monell claims based on the actions and ratification of the Chief of PPB and the Mayor of Portland should also be dismissed for similar reasons. SAC, ¶¶ 50-52. Here, Don’t Shoot Portland simply pleads no facts with which to establish that the City has harmed it or taken any specific action or ratification as to Don’t Shoot Portland. For example, without pleading an adequate factual basis going beyond merely identifying the policy or practice at issue, Don’t Shoot Portland cannot demonstrate that it was the “moving force” behind some injury (which it fails to allege), and there must be a direct causal link between the municipal action and the deprivation of federal rights. Don’t Shoot Portland must allege a sufficient causal connection between the policymaking officials’ actions, which means alleging that they “knew or reasonably should have known” that their action “would cause others to inflict a constitutional injury.” The Second Amended Complaint has failed to allege sufficient knowledge on the part of the Chief of PPB and the Mayor of Portland to establish that connection.

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DEFENDANT CITY OF PORTLAND’S MOTION TO DISMISS DON’T SHOOT PORTLAND FROM THE SECOND AMENDED COMPLAINT
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Don’t Shoot Portland cannot show that the City’s alleged excessive force against it was the product of a custom or policy of the City and was the moving force behind its alleged injury. In fact, Don’t Shoot Portland pleads no facts to support when it even attended the protests in question, let alone any inference of an injury. SAC, ¶¶ 4, 28, 47-59. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Accordingly, Don’t Shoot Portland’s Fourth Amendment Monell claims should be dismissed.
II. Don’t Shoot Portland’s First Amendment Municipal Liability Claim Fails the Iqbal/Twombly Pleading Standard
Don’t Shoot Portland’s allegations in paragraphs 53-59 also do not support a claim for First Amendment retaliation. Don’t Shoot Portland again fails to identify a policy or practice that caused it to be retaliated against for exercising its First Amendment rights. “To bring a First Amendment retaliation claim, the plaintiff must allege that (1) [they] engaged in constitutionally protected activity; (2) the defendant’s actions would ‘chill a person of ordinary firmness’ from continuing to engage in the protected activity; and (3) the protected activity was a substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and an intent to chill speech.” Ariz. Student’s Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016).
Don’t Shoot Portland states that it has “been participating [in] the local demonstrations and providing assistance and support to protesters.” SAC, ¶ 28. It is undisputed that participating in organized political protest is protected activity. See Black Lives Matter Seattle-King Cty. v. City of Seattle, Seattle Police Dep't, No. 2:20-CV-00887-RAJ, 2020 WL 3128299, at *4 (W.D. Wash. June 12, 2020). However, “[i]n order to demonstrate a First Amendment violation, a plaintiff must provide evidence showing that ‘by his actions [the City] deterred or chilled [Don’t Shoot
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Portland’s] political speech and such deterrence was a substantial or motivating factor in [the
City’s] conduct.’” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir.
1999) (alterations in the original) (quoting Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir.
1994)). Once again, unlike the other plaintiffs, Mr. Roberts, Mx. Belden, and Ms. Johnson, who
have provided greater factual bases for their claims, Don’t Shoot Portland’s retaliation claim fails
because there are no facts alleged to support its conclusory allegations that the City’s actions
would chill or silence a person of ordinary firmness—in this case Don’t Shoot Portland—from
continuing to engage in the protected activity, nor that the protected activity was a substantial
motivating factor in the City’s conduct. SAC, ¶¶ 28-37, 53-59.
Furthermore, the Ninth Circuit’s decision in Moss requires that Don’t Shoot Portland’s
claims alleging viewpoint discrimination under the First Amendment be dismissed for failure to
satisfy the Iqbal/Twombly pleading standard. In Don’t Shoot Portland’s Second Claim for Relief,
it alleges that the City has “a custom and practice of using militarized force against anti-police
protesters” and that “[t]he supervisor defendants who authorized, made, and ratified the decision
to attack anti-police demonstrators are sufficiently senior.” SAC, ¶¶ 57-58 (emphasis added).
The Moss court restated the following analysis from Iqbal: [A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Id. at 970 (quoting Iqbal, 556 U.S. at 679). The Ninth Circuit found that “[t]he bald allegation of
impermissible motive on the [officers’] part, standing alone, is conclusory and is therefore not
entitled to an assumption of truth.” Id. at 970.
Here too, Don’t Shoot Portland’s unsupported allegations that the City engaged in viewpoint
discrimination by targeting anti-police demonstrators is not sufficient and fails to plausibly allege Page 11 – DEFENDANT CITY OF PORTLAND’S MOTION TO DISMISS DON’T SHOOT
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a First Amendment claim. SAC, ¶¶ 57-58. On the facts that Don’t Shoot Portland allege, the City’s “use of force was intended to punish a group of protesters en masse for their political speech, and to deter further similar expressions of speech.” SAC, ¶ 57. As discussed above, the “use of force” that plaintiffs’ allege was intended to punish the group was not and could not have been used against Don’t Shoot Portland—a non-profit corporation. Without factual allegations that the City took any action against Don’t Shoot Portland, it cannot maintain a claim of First Amendment retaliation.
Don’t Shoot Portland has failed to plead facts that plausibly suggest a colorable First Amendment claim as opposed to the “mere possibility” of such a claim under Iqbal/Twombly. Id. at 971–72. Accordingly, Don’t Shoot Portland’s First Amendment claim alleging municipal liability should be dismissed.
III. The SAC Should be Dismissed Because Don’t Shoot Portland, as an Organization Suing on its Own Behalf, Lacks Article III Standing to Assert the First and Fourth Amendment Violations
Pursuant to Article III of the U.S. Constitution, federal courts may only hear cases if the plaintiffs can establish they have standing. Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011). A plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). Otherwise, the court must dismiss the claims for lack of subject matter jurisdiction under Rule 12(b)(1). Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). To establish Article III standing, a plaintiff must establish three elements:
(1) it has suffered an “injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and
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(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Arizona Christian Sch., 563 U.S. at 134 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). An organization suing on its own behalf can establish the first required prong — “injury in fact” — “when it suffered both a diversion of its resources and a frustration of its mission.” Sierra Club v. Trump, 963 F.3d 874, 884 (9th Cir. 2020) (citing La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010)). The organization is required to “show that it would have suffered some other injury if it had not diverted resources to counteracting the problem.” Id. Here too, Don’t Shoot Portland offers only a conclusory allegation through a formulaic recitation of the elements required to establish organizational standing on its own behalf by stating, with nothing more, that “Don’t Shoot Portland has devoted resources to identifying, counteracting, and addressing the practices alleged in this complaint, and this diversion of resources has frustrated its mission. As a result of the PPB’s . . . unconstitutional policy, practice, and customs, as alleged herein, Don’t Shoot Portland must devote additional resources to educating, informing, and protecting protesters from unconstitutional practices, and this diversion of resources has frustrated its mission.” SAC, ¶ 4 (emphasis added). For an organization to establish injury-in-fact, and thus have standing in its own right, it must suffer a “concrete” and “demonstrable” injury to the organization’s activities— “with the consequent drain on the organization's resources - constitu[ting] far more than simply a setback to the organization's abstract social interests.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S. Ct. 1114, 1124, 71 L. Ed. 2d 214 (1982) (citing Sierra Club v. Morton, 405 U.S., at 739, 92 S.Ct., at 1368.). For example, in Havens, the nonprofit HOME sued a residential development company, Havens Realty Corp. (Havens), under the Fair Housing Act, claiming that Havens had engaged in unlawful racial steering. HOME described itself as a nonprofit that pursued the goal of equal opportunity housing. In Havens, the Supreme Court found that HOME
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had organizational standing in its own right because: 1) the Fair Housing Act6 created a broad private right of action for an “aggrieved person,” who is “injured by a discriminatory housing practice (42 U.S.C. § 3602(i); 3613(a).); and 2) Haven’s housing discrimination practices threatened to make it more difficult for HOME to counsel people on where they might live if the organization didn't spend money fighting it. Id. The Havens court held that the unlawful racial steering practices had “perceptibly impaired HOME's ability to provide counseling and referral services for low-and moderate-income homeseekers,” and thus, “there can be no question that the organization has suffered injury in fact.” Id. See also Sierra Club v. Trump, 963 F.3d 874, 884 (9th Cir. 2020) (concluding that co-plaintiff SBCC had pled sufficient facts to establish a concrete and demonstrable injury from the diversion of resources it had dedicated to challenging the construction of a border wall because SBCC had provided detailed information regarding the “activities [that] have consumed the majority of SBCC staff's time, thereby interfering with SBCC's core advocacy regarding border militarization, Border Patrol law-enforcement activities, and immigration reform,” stating that it had no choice because it “must take these actions in furtherance of its mission to protect and improve the quality of life in border communities.”). Id.
In contrast, the Supreme Court in Sierra Club v. Morton held that Sierra Club, as an organization suing in its own right did not have standing because: 1) there was no specific statute “authorizing invocation of the judicial process” and 2) the Sierra Club did not suffer any concrete injury, but instead had a “special interest” in the dispute. 405 U.S. 727, 735, 92 S. Ct. 1361, 1366, 31 L. Ed. 2d 636 (1972) (stating where there is no private right of action, “the
6 The Fair Housing Act broadly defines “aggrieved person” to include any person who (1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur.” 42 U.S.C. § 3602(i); 3613(a). Under the Fair Housing Act, "Person" includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, jointstock companies, trusts, unincorporated organizations, trustees, trustees in cases under title 11 [of the United States Code], receivers, and fiduciaries. 42 U.S.C. § 3602.
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question of standing depends upon whether the party has alleged such a ‘personal stake in the outcome of the controversy,’ Id. (citing Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663), as to ensure that ‘the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.’”) Id. (citing Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947.) See also La Asociacion de Trabajadores de Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) (explaining that in failing to assert sufficient factual allegations regarding organizational standing in its complaint, an organization cannot establish standing “by simply choosing to spend money fixing a problem that otherwise would not affect the organization at all.”).
In Sierra Club v. Morton, Sierra Club sued to stop construction of a proposed ski resort and recreation area in a national game refuge and forest in the Sierra Nevada Mountains in contravention of federal laws, claiming that the development “would destroy or otherwise adversely affect the scenery, natural and historic objects and wildlife of the park and would impair the enjoyment of the park for future generations.” In claiming that it would be “vitally affected” and “aggrieved” by defendant’s acts, Sierra Club stated that “[o]ne of the principal purposes of the Sierra Club is to protect and conserve the national resources of the Sierra Nevada Mountains” and its activities and conduct were focused on the “conservation and the sound maintenance of the national parks, game refuges and forests of the country.” Id. In holding that the Sierra Club did not have standing because it had not suffered a concrete and demonstrable injury, the Supreme Court noted:
[I]f a ‘special interest’ in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide ‘special interest’ organization however small or shortlived. And if any group with a bona fide ‘special interest’ could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.
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Id. at 636. Those cases are dispositive as to “injury-in-fact” in this case. Don’t Shoot Portland offers
no factual allegations to establish injury-in-fact. As in Sierra Club v. Morton and La Asociacion de Trabajadores de Lake Forest, Don’t Shoot Portland has failed to establish standing on its own behalf because it has not suffered an organizational injury that warrants constitutional standing. At best, its inferred injury is “conjectural” and “hypothetical.” Even if Don’t Shoot Portland could plead facts to show some form of harm, Don’t Shoot Portland would have to plead a concrete and demonstrable harm beyond merely an ideological injury—in other words, beyond having a “special interest” in the matter. Don’t Shoot Portland cannot meet that burden.
Unlike in Havens, there is no statute granting a private right of action for Don’t Shoot Portland’s First and Fourth Amendment claims against the City, thus heightening the need for the pleading of facts to demonstrate “such a personal stake in the outcome of the controversy” Sierra Club v. Morton, at 636. Once again, Don’t Shoot Portland has pled no facts to demonstrate a concrete injury—that is, a diversion of its resources and frustration of its mission— “with the consequent drain on the organization's resources - constitu[ting] far more than simply a setback to the organization's abstract social interests.” Havens, at 379. Don’t Shoot Portland mentions in its complaint the different activities it engages in, which include “a children’s art and social justice council, community clothing tree, and community legal clinics.” SAC, ¶ 4. Like in Sierra Club v. Trump, it would be helpful to understand what precisely is Don’t Shoot Portland’s mission, how any additional expended resources have been diverted due to the alleged constitutional violations, and how this has frustrated its mission. Instead, Don’t Shoot Portland has shown that it merely has a special interest in the subject matter of this lawsuit—police use of force at crowd management events. Therefore, the SAC should be dismissed because Don’t Shoot Portland fails to plead injury-in-fact and lacks standing. ///
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IV. Rule 12(e) Motion for a More Definite Statement of Don’t Shoot’s Monell Claims
Lastly, in the alternative, Don’t Shoot Portland should be required to make a more definite statement of its Monell claims under Rule 12(e). Specifically, Don’t Shoot Portland must separately allege a Monell claim based on official actions done to it pursuant to an official custom and practice. The City cannot reasonably prepare a response to Don’t Shoot Portland’s Monell claims because they are not clear in their current form. The City cannot discern what Don’t Shoot Portland’s bases are for its Monell claims. The Ninth Circuit has recognized that complaints such as Don’t Shoot Portland’s “impose unfair burdens on litigants and judges” because both “must prepare outlines to determine who is being sued for what.” McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). As a practical matter, the City is “then put at risk that their outline differs from the judge’s.” Id. at 1180. Accordingly, the City cannot reasonably prepare a response and should not be required to reconstruct plaintiffs’ indefinite claim, and the Court should order Don’t Shoot Portland to clarify its claims.
CONCLUSION Based on the foregoing, the City respectfully requests that this Court dismiss Don’t Shoot Portland’s claims consistent with this Motion. In the alternative, the City requests that this Court order Don’t Shoot Portland to file a more definite and certain statement of its claims in a Third Amended Complaint under Rule 12(e). /// /// /// /// /// ///
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Dated: September 9, 2020

Respectfully submitted,
/s/ J. Scott Moede J. SCOTT MOEDE, OSB 934816 Chief Deputy City Attorney scott.moede@portlandoregon.gov NAOMI SHEFFIELD, OSB 170601 Deputy City Attorney naomi.sheffield@portlandoregon.gov ROBERT YAMACHIKA, OSB 065560 Senior Deputy City Attorney rob.yamachika@portlandoregon.gov Portland City Attorney’s Office 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

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 Case 3:20-cv-00917-HZ Document 204 Filed 11/27/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity; NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated; MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated; and ALEXANDRA JOHNSON, in an individual capacity and on behalf of themselves and all others similarly situated,
Plaintiffs, v.
CITY OF PORTLAND and MULTNOMAH COUNTY,
Defendants.
Jesse Merrithew Viktoria Safarian LEVI MERRITHEW HORST PC 610 SW Alder Street, Suite 415 Portland, OR 97205
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No. 3:20-cv-00917-HZ OPINION & ORDER

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Juan Chavez Brittney Plesser Alexander Meggitt Franz H. Bruggemeier OREGON JUSTICE RESOURCE CENTER PO Box 5248 Portland, OR 97208
Jessica Ashlee Albies Whitney B. Stark Maya Rinta ALBIES & STARK LLC 1 SW Columbia Street, Suite 1850 Portland, OR 97204
Attorneys for Plaintiffs
J. Scott Moede Naomi Sheffield Robert T. Yamachika PORTLAND CITY ATTORNEY’S OFFICE 1221 SW Fourth Avenue, Room 430 Portland, OR 97204
Attorneys for Defendant City of Portland
HERNÁNDEZ, District Judge:
Plaintiffs Don’t Shoot Portland, Nicholas Roberts, Michelle “Misha” Belden, and
Alexandra Johnson, on behalf of themselves and all others similarly situated, bring this case
against Defendants City of Portland and Multnomah County. Compl., ECF 1; Third Am. Compl.,
ECF 186. Plaintiffs allege that Defendants have violated the First and Fourth Amendments in
their use of less-lethal force during recent and ongoing Portland protests. On June 9, 2020, the
Court issued a Temporary Restraining Order barring the use of tear gas by Defendant City of
Portland except in situations in which the lives or safety of the public or the police are at risk.
Order, ECF 29. Based on the stipulation of the parties, the Court further restrained Defendant
City of Portland’s use of less-lethal munitions on June 26, 2020. Stip. Add’tl TRO, ECF 43.
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Plaintiffs now move for a finding of contempt and remedial sanctions against Defendant City of Portland (“Defendant”),1 alleging violations of the June 26, 2020 Stipulated Additional Temporary Restraining Order (“the Order”) by police officers on the evening of June 30, 2020. Pls.’ Am. Mot. Order Show Cause (“Pls.’ Mot.”), ECF 145. At the evidentiary hearing on October 21 and 22, 2020, Plaintiffs emphasized nine specific incidents in which they argued officers used less-lethal munitions in violation of the Order. Because Plaintiffs have shown by clear and convincing evidence that Defendant violated the Order three times on June 30, the Court grants in part Plaintiff’s Amended Motion for Order to Show Cause and finds Defendant in contempt.
BACKGROUND In the wake of the May 2020 killing of George Floyd by a Minneapolis police officer, individuals in Portland have taken to the streets to protest police brutality and racial inequality. These protests have ranged from peaceful gatherings and marches to violent clashes between protestors and the police. On the evening of June 30, 2020, 200 to 250 protestors gathered at Peninsula Park in Northeast Portland. The Peninsula Park gathering was peaceful and did not require any police intervention. Following the gathering, some of the protestors marched to the Portland Police Association (“PPA”) building, where they were met by a line of Oregon State Police (“OSP”) officers. From this point, things escalated quickly. I. PPB’s Initial Response to the June 30 Protest That evening—like many others before it—the Portland Police Bureau (“PPB”) deployed its Rapid Response Team (“RRT”). The RRT is an “all hazards team” within PPB. One of its
1 Plaintiffs bring this motion solely against Defendant City of Portland. Thus, as used throughout this Opinion, Defendant refers only to Defendant City of Portland.
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primary responsibilities is to assist with crowd management and crowd control. The RRT is divided into four squads of twelve to fifteen officers, including a few grenadiers. RRT grenadiers carry two types of less-lethal impact munitions: FN303s with marking or pava rounds and 40mm less-lethal launchers with marking rounds. Pool Decl. ¶ 6, ECF 170. According to PPB Officer Zachary Domka—a lead grenadier trainer who was present on the evening of June 30— grenadiers undergo thirty hours of initial training and refresher trainings twice a year. Because of the COVD-19 pandemic, however, no refresher trainings have been held for RRT grenadiers since the fall of 2019.
PPB also assigns a crowd management incident commander to assist in responding to large planned protest events. Captain Passadore was the crowd management incident commander on June 30. As the incident commander, he was responsible for—among other things—gathering information, setting priorities for the event, providing all assisting organizations with an operational briefing, and coordinating that evening’s crowd control activities from the incident command center. Because the Order was new to him on June 30, Captain Passadore testified that he took steps to ensure that all officers were familiar with the Order. Captain Passadore “directed all supervisors to make sure that all supervisors informed each individual officer of the requirements of both temporary restraining orders[.]” Corr. Passadore Decl. (“Passadore Decl.”) ¶ 49, ECF 111. Later, after calling for attention over the radio, he read a statement conveying the contents of the Order that was transmitted to all officers and supervisors assigned to the event. See Sheffield Decl. Ex. I (Activity Log) at 2, ECF 188-1; Pool Decl. ¶ 13.
The crowd at Peninsula Park remained calm and did not require any police intervention. However, early intelligence reports suggested that protestors were going to march to PPB’s North Precinct. This concerned Captain Passadore because protestors had previously set fire to
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police buildings in Portland. Accordingly, Captain Passadore preemptively sent officers and other resources to the North Precinct. But the crowd at Peninsula Park redirected its march to the PPA building, which houses the public service union for Portland police officers. In the hope that police presence would deter protestors from gathering outside the PPA, Captain Passadore instructed OSP units assisting PPB that evening to maintain a presence there. II. Protests Outside of the PPA on June 30
After protestors arrived at the PPA around 9:00 PM, the event quickly devolved into chaos. Upon arrival, protestors encountered a line of OSP officers dressed in “riot gear” holding batons and other less-lethal munitions. Video of the protest shows a group of individuals standing outside the PPA chanting and dancing. Passadore Decl. Ex. 15-X at 0:00–4:59. Water bottles thrown from the crowd of protestors can be seen landing near officers’ feet. Second Suppl. Sheffield Decl. Ex. M at 0:00–1:35, ECF 198. Radio communications from officers on the street described items being thrown at officers within a minute of the protestors’ arrival, including bottles and rocks. Sheffield Decl. Ex I (Activity Log) at 3; Pool Decl. ¶ 14. Captain Passadore recalls a change in the tone of the officers’ voices as the situation began to escalate. Because of these projectiles, Captain Passadore declared the protest an unlawful assembly only a few minutes after protestors arrived at the PPA building. See also Passadore Decl. Ex. 15-X at 4:59. In doing so, he authorized police to move and disperse the crowd to the east. Using the Long Range Acoustical Device, PPB announced that the event had been declared an unlawful assembly and instructed protestors to move east.
At some point PPB RRT officers joined OSP officers at the PPA building. See Sheffield Decl. Ex. I (Activity Log) at 2–3; Taylor Decl. ¶ 3, ECF 172. A video from a bystander shows police with batons and other munitions standing shoulder to shoulder in a line, moving protestors
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east down Lombard street and away from the PPA. Dicks Decl. Exs. 3, 4; see also Passadore Decl. Ex. 15-X at 7:00. In pushing the crowd of protestors away from the PPA building, officers used physical force and deployed less-lethal munitions. In videos of the protest, officers can be seen shoving protestors with their hands and batons. Suppl. Sheffield Decl. Ex. J at 2:40–4:48, ECF 187. One witness testified that officers indiscriminately fired munitions into the crowd as it moved backward, striking more than ten individuals. See Dallas Decl. ¶¶ 10–11, ECF 124.
A. Incident 1 (Andrew Cleinman) During the push east, officers deployed oleoresin capsicum (“OC spray”) against protestor Andrew Cleinman. Mr. Cleinman—a software engineer—was near the police line. As he was moving backward with the crowd, he noticed an officer without any visible identifying information on his uniform. He pointed at the officer and asked for his identifying number. The officer did not respond, but a different officer stepped forward from the line and pushed Mr. Cleinman with a baton. Cleinman Decl. Ex. 1 at 0:07–0:11, ECF 120. When the officer pushed Mr. Cleinman a second time using a downward motion, Mr. Cleinman felt like he was losing his footing and—without thinking—grabbed the officer’s baton to stop himself from falling. He testified that as soon as he realized what he had done, he let go. But seconds later, after Mr. Cleinman was pushed away by another officer, a PPB officer sprayed him in the face with OC spray as he turned his head back towards the police line. Id. B. Incidents 2 & 3 (Unknown Individuals Carrying a Banner) Around the same time, PPB Officer and RRT grenadier Brent Taylor deployed fifteen rounds from his FN303 in two incidents involving a struggle over a banner. According to Officers Domka and Taylor, signs and banners at protests can present a security threat to officers. Officer Taylor testified that in his experience banners and signs can be draped across
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plywood shields reinforced with nails and PVC pipes containing screws or concrete, which could be used as weapons to impale an officer. Whether a particular sign is assessed as a threat depends on the overall crowd dynamic, the behavior of the individuals holding the sign, and the materials from which the sign is constructed.
That night, a group of protestors carried a large banner with a PVC-pipe frame. Video shows the protestors carrying the banner moving slowly backwards with the rest of the crowd, in compliance with PPB’s commands to move east. Cleinman Decl. Ex. 1 at 0:16–0:25. Officer Taylor testified that as police moved the crowd, he observed other protestors trying to get behind the banner, suggesting that it might be used as a shield. In addition, he observed that some individuals that evening were dressed in all black, wore helmets and respirators, and had engaged in skirmishes with officers along the police line. According to Officers Domka and Taylor, the protestors carrying the banner were also slowing police efforts to move the crowd and interfering with the police formation.
Because of these circumstances, Officer Taylor attempted to take the banner from the protestors. Cleinman Decl. Ex. 1 at 0:25–0:28. A protestor on the opposite side of the banner from Officer Taylor refused to let go of the banner even after another officer hit the protestor’s wrist with a baton. Id. Officer Taylor testified that at this moment he suspected that the protestor was trying to retain the banner to use it as a weapon. Accordingly, he deployed five rounds of his FN303 at the protestor’s legs, causing them to release the banner and move back into the crowd. Id.
Officers continued to pull the banner away from the remaining protestors who were still holding on. One such protestor was an individual on roller skates wearing a backpack. At some point in the struggle over the banner, the individual fell to the ground, and officers appear to grab
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and shove the individual and pull them away from the sign. Cleinman Decl. Ex. 1 at 0:33–0:35; Suppl. Sheffield Decl. Ex. J at 4:58–5:04. Officer Taylor believed that the officers were attempting to take the individual on roller skates into custody because officers had their hands on the individual and were pulling them toward the police line. See Suppl. Sheffield Decl. Ex. J at 4:58–5:04. He also believed two other protesters were simultaneously attempting to “unarrest”— or stop the arrest of—the individual because they were pulling the individual back into the crowd. See id. According to Officer Taylor, unarrests are dangerous for both the individual being arrested and the officers involved in the arrest. To overcome the resistance of the protestors, officers may resort to higher levels of force against the arrestee, and officers may be harmed by the protestors seeking to effectuate the unarrest. Thus, to prevent an assault or the use of a higher level of force by the arresting officers, Officer Taylor deployed ten rounds from his FN303 against the legs of the protestors before the protestors succeeded in pulling the individual on roller skates into the crowd. Cleinman Decl. Ex. 1 at 0:35–0:38.
C. Incident 4 (Unknown Individual Throwing a Bottle) After moving the protestors a block or so to the east, the crowd stopped moving. But individuals in the crowd continued to throw items at police officers. See Sheffield Decl. Ex. I (Activity Log) at 3; Pool Decl. ¶ 16. For example, one individual attempted to throw a bottle at the police line, prompting officers to respond by deploying a few rounds from an FN303. Dicks Decl. Ex. 5 at 0:20–0:23. In an attempt to deescalate the situation and “reset,” Captain Passadore ordered his RRT units to return to the PPA building. To pull back safely, officers rolled smoke canisters toward the protest line to create a wall of smoke between officers and the protestors. /// ///
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D. Incident 5 (Pedro Anglada Cordero) Rather than allow the officers’ retreat, the deployment of smoke canisters led to the use of additional less-lethal munitions by the police. Pedro Anglada Cordero—a social worker attending the protest because of the history of white supremacy in Oregon and his own experiences with racism while living in Portland—spontaneously kicked a smoke canister away from himself and his wife when one was tossed in their direction. Anglada Decl. ¶ 5, ECF 146. He testified that he did so to keep himself, his wife, and others safe from exposure to smoke and chemical agents. Id. ¶ 12. But in doing so, Mr. Anglada kicked the canister twice in the direction of the police line. Id. ¶ 13. Officers responded by firing two 40mm less-lethal rounds at Mr. Anglada, striking him behind the knee and on his inner right thigh. Additional munitions were fired as he was retreating. See id. ¶ 14; Dicks Decl. Ex. 5 at 0:46–1:04. According to Officers Domka and Taylor, the act of kicking or throwing a smoke canister at the police amounts to a threat or act of assault. When thrown, smoke canisters become dangerous projectiles due to their weight and temperature. When kicked, the smoke encompasses officers instead of the protestors, limiting officers’ visibility. Officer Taylor testified that in his experience kicking canisters back at police can be part of a coordinated attack on the part of some protestors. By enveloping officers in smoke from their own munitions, protestors have a clear line of sight to throw projectiles at police officers. E. Incident 6 (Unknown Individual) Officers ultimately retreated to the PPA building, and the crowd followed, stopping less than a block away. Dicks Decl. ¶ 13, Ex. 7. After police pulled back, protestors moved recycling bins, trash cans, and dumpsters into the street, one of which was set on fire. Passadore Decl. Ex. 15-X at 26:00; Dicks Decl. Exs. 7, 8. Eventually, an individual lit an item on fire from one of the
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garbage bins and walked it to one of the unlit dumpsters. Dicks Decl. Ex. 8 at 2:39–3:11. In response, police fired a 40mm less-lethal green marking round at the individual. Officer Domka testified that the spread of the fire could create a more hazardous condition for officers. The smoke and heat distortion from fire makes it harder to see projectiles, and it was likely that officers would need to move their police line among the burning dumpsters and garbage cans because the crowd was not dispersing. Eventually, PPB officers moved past the dumpsters and pushed protestors further east. Dicks Decl. Ex. 8 at 5:51–6:32; Passadore Decl. Ex. 15-X at 29:06–50:59; Sheffield Decl. Ex. I (Activity Log) at 4; Pool Decl. ¶ 17. Protestors continued to throw rocks, bottles, full cans of beer, and smoke bombs at the police line. Sheffield Decl. Ex. I (Activity Log) at 4; Pool Decl. ¶ 17. Some protestors shined green lasers in the officers’ eyes. Id.
F. Incident 7 (Katrina Haas) After the sun had set, officers once again deployed smoke canisters, and protestors kicked the canisters back at the police line. Passadore Decl. Ex. 15-X at 50:52. Katrina Haas—who was protesting police brutality and documenting the protests for other individuals who could not attend due to their disabilities—moved to kick a smoke munition away after one landed near her feet. Haas Decl. ¶¶ 3, 13, ECF 127. She testified that she wanted to distance herself from the munition in order to prevent injury. In response, officers deployed an impact munition that injured her leg, causing her to leave the crowd and hang back on the sidewalk for the rest of the evening. G. Incident 8 (Eric Greatwood) Around the same time, Eric Greatwood—an air force veteran who had live streamed numerous protests that month—saw an inert smoke canister roll near his position toward the front of the crowd. Mr. Greatwood testified that he wanted to inspect the canister. Because he
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was managing bulky camera equipment, his movements were slow. He testified that he took a few steps forward to pick it up, slowly lunging to grab the munition. Mr. Greatwood testified he was hit in the groin with a munition before ever making contact with it. He also testified that another protestor picked up the munition. However, video of the incident shows Mr. Greatwood walking quickly toward the smoke canister and successfully picking it up. Ex. L at 1:31–1:36; Passadore Decl. Ex. 15-X at 50:59–51:04. Officer Taylor testified that he engaged Mr. Greatwood with an FN303 as he was picking up the munition because he was concerned that he would throw it back at the police line.
H. Incident 9 (Unknown Individual) About an hour after the protestors arrived , officers and protestors came to a standstill a couple blocks from the PPA building, with some distance between the police and the crowd. Passadore Decl. Ex. 15-X at 58:48. An individual walked out of the crowd in front of the line of protestors, approaching an unknown object in the street. Ex. L at 9:23–9:26; Passadore Decl. Ex. 15-X at 58:48–58:54. As the individual reached for the object, police fired impact munitions at the individual, and they quickly retreated into the crowd. Ex. L. at 9:26–9:29; Passadore Decl. Ex. 15-X at 58:54–58:57. Officer Domka testified that the use of force in this moment was appropriate because the individual—by stepping out in front of the protest and reaching down toward an object on the pavement—may have indicated that they were about to throw the object back at officers. In the minutes that followed, protestors continued to throw dangerous projectiles at the police line with increasing frequency and velocity. See Sheffield Decl. Ex. I (Activity Log) at 4– 5; Pool Decl. ¶ 18. Some officers were hit and required medical attention. Id. At around 10:10 that evening, Captain Passadore declared the event a riot due to the number of projectiles thrown
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and the danger that they posed to police and protestors. Id. PPB deployed CS gas to disperse the crowd, and protestors were pushed further east, into a more commercial neighborhood just east of Interstate 5. See Sheffield Decl. Ex. I (Activity Log) at 5. Hours later, the protest ended. Id. at 8.
STANDARDS The court has the inherent power to enforce compliance with its orders, but its authority to punish contempt is defined by federal statute: A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions; (3) Disobedience or resistance to its lawful writ, process, order, rule,
decree, or command. 18 U.S.C. § 401. Section 401 applies to both civil and criminal contempt. United States v. Powers, 629 F.2d 619, 624 (9th Cir. 1980). Section 401 “contains no limitation on the power of the district court to impose fine or imprisonment for a violation.” Id. The trial court’s decision is “reviewed for an abuse of discretion in setting punishment.” Id.
Whether a contempt is civil or criminal depends on the “character and purpose” of the punishment. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983). The question is: “what does the court primarily seek to accomplish by imposing [the sanction]?” Id. (alteration in original) (quoting Shillitani v. United States, 384 U.S. 364, 369 (1966)). Criminal contempt is intended to punish past defiance of the court’s authority and vindicate the court. Id. Civil contempt is designed to compel obedience or compensate the contemnor’s adversary for their injuries. Id. Contempt is “plainly civil in nature when the sanction imposed is
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wholly remedial, serves only the purpose of the complainant, and is not intended as a deterrent to offenses against the public.” Id.
DISCUSSION The events of this year have brought thousands of Portlanders to the streets demanding change. While many of these protests are peaceful, many also devolve into chaos, especially those that stretch late into the night. Individuals in crowds of otherwise peaceful protestors and activists have lit fires and launched bottles, cans, rocks, and fireworks from great distances at police officers. Officers have responded with significant force in wielding batons against protestors and deploying scores of less-lethal munitions, including CS gas. Both sides have caused significant injuries. The evening of June 30 was no exception. The evidence put forth by Plaintiffs and Defendant documents hours of violence, including threats to the safety of police and protestors alike. But despite its efforts to live up to the standards of the Order and exercise restraint in the face of such turmoil, PPB failed. In their use of impact munitions on June 30, PPB officers violated the Court’s June 26, 2020 Order governing Defendant’s use of less-lethal force.2 “‘Civil contempt . . . consists of a party’s disobedience to a specific and definite court order by failure to take all reasonable steps within the party’s power to comply.’” Inst. of Cetacean Rsch. v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir. 2014) (quoting In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)). “The contempt need not be willful, . . . . [b]ut a person should not be held in contempt if his
2 In their briefing, Plaintiffs discuss at length the use of other types of force, including physical force, batons, smoke, and CS gas. However, these are not covered by the Court’s June 26 Order, and Plaintiffs have not argued that the use of CS gas that evening violated the Court’s June 9, 2020 Order. Thus, at this point in the litigation, the Court offers no opinion as to the propriety of Defendant’s use of physical force, batons, smoke, and CS gas on the evening of June 30.
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action appears to be based on a good faith and reasonable interpretation of the court’s order.” In re Dual-Deck, 10 F.3d at 695 (internal citations and quotations omitted). The moving party bears the burden of showing that the “alleged contemnor violated the court’s order by ‘clear and convincing evidence,’ not merely a preponderance of the evidence.” Id. Thus, to succeed on a motion for civil contempt, the movant must show that the alleged contemnor: “(1) violated the court order, (2) beyond substantial compliance, (3) not based on a good faith and reasonable interpretation of the order, (4) by clear and convincing evidence.” Labor/Cmty. Strategy Ctr. v. L.A. Cty. Metro. Transp. Auth., 564 F.3d 1115, 1123 (9th Cir. 2009) (quoting In re Dual-Deck, 10 F.3d at 695). “‘Substantial compliance’ with the court order is a defense to civil contempt, and is not vitiated by ‘a few technical violations’ where every reasonable effort has been made to comply.” In re Dual-Deck, 10 F.3d at 695 (citing Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 891 (9th Cir. 1982)); see also Kelly v. Wengler, 822 F.3d 1085, 1096 (9th Cir. 2016) (“A contemnor in violation of a court order may avoid a finding of civil contempt only by showing it took all reasonable steps to comply with the order.”).
Plaintiffs seek a finding of civil contempt and remedial sanctions against Defendant, arguing that Defendant’s officers violated the Order no fewer than nine times on June 30, 2020.3 Pls.’ Mot. 2. In response, Defendant argues each of the identified uses of force complied with the Order and PPB’s Use of Force Directive.4 Def.’s Resp. Pls.’ Mot. (“Def.’s Resp.”) 14, ECF 158. In the alternative, Defendant argues that it made every reasonable effort to comply with the Order. Id. Because Plaintiffs have demonstrated by clear and convincing evidence that PPB
3 As the Court stated at the evidentiary hearing, it is only considering those events that were raised by the parties and pointed out to the Court in their opening statements at the hearing. 4 A copy of PPB’s Use of Force Directive 1010 was included as an appendix to Plaintiffs’ motion. See Pls.’ Mot. App. 1, ECF 145-1.
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officers violated the Order three times on June 30, and Defendant has not demonstrated that it took all reasonable steps to ensure its officers’ compliance, the Court finds Defendant City of Portland in contempt. I. Violations of the Order
At the evidentiary hearing, Plaintiffs argued that Defendant’s officers violated the Order in their use of less-lethal munitions no fewer than nine times on the evening of June 30.5 Eight of these incidents involved the use of impact munitions, including FN303s and 40mm less-lethal launchers. One incident involved the use of OC Spray, an aerosol restraint. The Order limits the PPB’s use of these munitions as follows:
(1) FN303s and 40MM less lethal launchers with or without OC payload are limited to use as outlined in PPB Use of Force Directive 1010, and in addition shall not be used where people engaged in passive resistance are likely to be subjected to the force. . . . .
(3) Aerosol restraints (handheld OC or “pepper spray”) shall not be used against persons engaged in passive resistance, and consistent with PPB Use of Force Directive 1010, members shall minimize exposure to non-targeted persons.
Stip. Addt’l TRO at 2. The Court addresses each type of munition in turn. A. Incidents Involving Impact Munitions As described above, FN303s and 40mm less-lethal launchers must be used “as outlined in
PPB Use of Force Directive 1010” and “shall not be used where people engaged in passive resistance are likely to be subjected to the use of force.” Stip. Addt’l TRO at 2. FN303s and 40mm less-lethal launchers are impact munitions governed by ¶ 6.4.2 of Use of Force Directive
5 In their briefing, the parties disputed whether Defendant could be held liable for the actions of OSP officers. The Court need not resolve this issue. In its closing argument at the evidentiary hearing, Defendant stated that all the incidents in question involved the use of force by PPB officers.
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1010. Paragraph 6.4.2.1 provides, in relevant part, that officers are authorized to use impact munitions: (1) “[i]n response to active aggression” and (2) “[t]o avoid the use of a higher level of force.” Use of Force Directive 1010 ¶ 6.4.2.1.1, .3. The Directive defines “active aggression” as “[a] threat or overt act of an assault (through physical or verbal means), coupled with the present ability to carry out the threat or assault, which reasonably indicates that an assault or injury to any person is about to happen, unless intervention occurs.” Id. (Definitions).
The Court finds that three of the eight incidents involving the use of impact munitions violated the Order. These three incidents include: (1) two deployments of fifteen rounds from an FN303 against individuals carrying a banner (Incidents 2 and 3) and (2) the deployment of a few rounds from an FN303 against an individual picking up an unknown object between the protest line and the police line (Incident 9). The remaining incidents did not violate the Order.
Turning first to Incident 2, the Court finds that Officer Taylor did not use his FN303 in response to active aggression. Officer Taylor testified that he deployed his FN303 against an individual holding onto a banner because he believed the banner would later be used as a weapon. Specifically, he cited the following circumstances in support of his belief that the banner may be dangerous: (1) the atmosphere of the protest that day; (2) the movement of protestors behind the sign as though it was a shield; (3) the slow pace of the protestors holding the banner, causing interference with the police formation; (4) the protestor’s refusal to let go of the banner; and (5) the use of PVC pipe as the banner’s frame, which he testified can be reinforced with cement or nails. But none of the circumstances cited by Officer Taylor suggested that this banner was a weapon or would be imminently used by protestors as a weapon. Police officers had ample opportunity to observe the banner before Officer Taylor deployed his munitions. See Suppl. Sheffield Decl. Ex. J at 3:25–4:50. The incident occurred while it was still
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light out, and video shows that the long PVC banner was flimsy. See id. Further, in the moments before Officer Taylor fired his FN303, the protestors carrying the banner were complying with PPB’s directions in moving with the rest of the crowd away from the PPA building. See id.; Cleinman Decl. Ex. 1 at 0:16–0:25. And—most importantly—nothing suggested that the individual Officer Taylor targeted was engaged in “[a] threat or overt act of an assault, . . . which reasonably indicate[d] that an assault or injury to any person was about to happen, unless intervention occur[ed].” Use of Force Directive 1010 (Definitions). At most, the record shows that the individual who was refusing to let go of their sign was engaged in passive resistance. Because more is required for the use of impact munitions, the Court finds that Officer Taylor’s use of force did not comply with Use of Force Directive 1010 and therefore violated the Order.
As to Incident 3, the Court also finds that Officer Taylor’s deployment of ten rounds from his FN303 against protestors trying to pull an individual on roller skates back into the crowd violated the Order. Officer Taylor testified that he deployed his FN303 in order to stop an unarrest and prevent an assault or the use of a higher level of force. He believed that officers were arresting the individual on roller skates because officers had their hands on this individual. He also believed that other protesters were attempting to unarrest the individual by pulling them back into the crowd, a situation that is dangerous for both officers and the arrestee. But video of this chaotic moment does not support Officer Taylor’s testimony. In video from the protestor’s vantage point, it is clear that no arrest is being made. See Cleinman Decl. Ex. 1 at 0:33–0:38. During the struggle over the banner, the individual on roller skates falls to the ground and protestors try to pull the fallen individual back into the crowd. Id. In video from the officer’s perspective, officers appear to grab and shove the individual. See Suppl. Sheffield Decl. Ex. J at 4:58–5:04. Aside from a few brief moments of physical contact, however, there is nothing to
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suggest that this individual was under arrest. At no point does an officer declare that the skater is under arrest. And in the moments before the scuffle began, the individual was complying with PPB’s orders to move to the east along with the rest of the crowd. None of the protesters are engaged in any physical or verbal acts that could constitute a threat or overt act of an assault. Though undoubtedly a chaotic and difficult moment for an officer in his position, the evidence shows that Officer Taylor did not deploy his FN303 in response to active aggression or to prevent the use of a higher level of force. Thus, Officer Taylor’s use of impact munitions during Incident 3 violated the Order.
Similarly, an unknown officer’s use of impact munitions against an individual approaching an item in the road (Incident 9) was not in response to active aggression. The individual walked out from the crowd of protestors towards an unknown object between the crowd and police line. Ex. L at 9:23–9:26. As they leaned down to grab the item, an officer deployed multiple rounds from an FN303 at them. Id. at 9:26–9:29. After reviewing this video, Officer Domka testified that the behavior of this individual—stepping out of the crowd towards the police line and reaching down to pick up an object from the pavement—may indicate that the protestor is about to throw an object at an officer. But it simply cannot be that any attempt by an individual to pick up an item off the ground at a protest constitutes a threat of assault to officers or others. There was nothing in this moment to suggest that the protestor was grabbing an item with the intent to throw it at the police. The individual moved slowly and was struck by a munition before they even had the object in their hands. Because this protestor was not engaged in active aggression, the officer’s use of impact munitions violated the Order.
As to the five remaining incidents involving impact munitions, however, Plaintiffs have not demonstrated that Defendant’s officers violated the Order. The deployment of impact
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munitions against Mr. Anglada, Ms. Haas, and Mr. Greatwood (Incidents 5, 7, and 8) all complied with Use of Force Directive 1010. Mr. Anglada and Ms. Haas both kicked smoke canisters in the direction of police officers. And Mr. Greatwood moved forward quickly, bent down, and successfully picked up a smoke canister. At the time of each incident, these three individuals were just a few of many protestors who were kicking or throwing smoke canisters and other projectiles at the police line. While Mr. Greatwood, Ms. Haas, and Mr. Anglada may not have subjectively intended to assault or threaten to assault officers that evening, kicking or throwing smoke canisters constitutes a threat or act of assault. As Officers Domka and Taylor both testified, smoke canisters are heavy, hot, and dangerous projectiles when thrown at officers. When kicked, smoke canisters can envelop officers in smoke, eliminating their line of sight and providing an opportunity for individuals to injure officers with projectiles. Thus, under these circumstances, officers reasonably perceived the actions of Mr. Anglada, Ms. Haas, and Mr. Greatwood as active aggression, and their use of impact munitions was appropriate under the Order.
Similarly, the deployment of munitions against an unknown individual who attempted to throw an item at police officers (Incident 4) and another individual who attempted to light a dumpster on fire (Incident 6) complied with PPB’s Use of Force Directive. Throwing items at police and starting fires at a protest reasonably constitute a threat or an overt act of assault and create a risk of injury to officers or others without intervention. Thus, in the moments that they deployed impact munitions, officers reasonably perceived that these individuals were engaged in active aggression. /// ///
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B. Incidents Involving Aerosols Aerosol restraints, including OC spray, are not to be used against persons engaged in passive resistance. Stip. Addt’l TRO at 2. In the Order, “passive resistance” is defined as “a person’s non-cooperation with a member that does not involve violence or other active conduct by an individual.” Id. Use of Force Directive 1010 also restricts PPB’s use of OC spray to incidents where “a person(s) engages in physical resistance or indicates the intent to engage in physical resistance.” Use of Force Directive 1010 ¶ 6.4.3.1.1. Physical resistance is “[a] person’s physical attempt to evade a member’s control that does not rise to the level of active aggression.” Id. (Definitions). The unknown officer’s use of OC spray against Mr. Cleinman (Incident 1) did not violate the Order. Both Mr. Cleinman’s testimony and video of the incident show that an officer deployed OC spray against Mr. Cleinman mere seconds after Mr. Cleinman grabbed an officer’s baton. Though this action may have been inadvertent and without any aggressive intent, there is no dispute that Mr. Cleinman grabbed an officer’s weapon during a physical altercation. As an officer reasonably could have interpreted Mr. Cleinman’s actions as more than passive resistance, the use of OC spray complied with the Order. II. Defenses to Contempt There is no “good faith” defense to contempt. In re Dual-Deck, 10 F.3d at 695. As noted above, however, “‘[s]ubstantial compliance’ with the court order is a defense to civil contempt, and is not vitiated by ‘a few technical violations’ where every reasonable effort has been made to comply.” Id. at 695 (citing Vertex Distrib., 689 F.2d at 891). In other words, “[i]f a violating party has taken ‘all reasonable steps’ to comply with the court order, technical or inadvertent
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violations of the order will not support a finding of civil contempt.” Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir. 1986).
In its briefing, Defendant argues that even if there were “a few technical violations” of the Order, Defendant took all reasonable steps to comply. Def.’s Resp. 14. Specifically, Defendant cites Captain Passadore’s “repeated efforts to remind all officers of the requirements of the injunctions,” including his radio broadcast that evening reciting the limitations of the Order. Id. Defendant also emphasizes that Plaintiffs’ motion only “cites to a handful of instances over the two months since [the Order] has been in place.” Id.
First, Defendant’s violations of the Court’s order on June 30 were not merely “technical” or “inadvertent” as Defendant suggests. During Incidents 2 and 3, Officer Taylor deployed fifteen rounds from his FN303 against a group of protestors carrying a large banner who were otherwise complying with PPB’s order to move away from the PPA building. When another officer fired his FN303 at an individual during Incident 9, nothing objectively indicated that this individual presented a threat to police officers. None of the individuals targeted by police in these incidents were engaged in active aggression, and the use of force did not reasonably prevent the use of a higher level of force. All three individuals appear to have been struck by police munitions. The Court cannot conclude that these three violations over an hour-long period were “merely technical.”
Second, Defendant has failed to demonstrate that it took all reasonable steps to comply with the Order. The Court acknowledges that Defendant took some steps to ensure compliance on June 30. Captain Passadore, for example, read the requirements of the Order over the radio after calling for attention from all officers involved in crowd control on the evening of June 30. There is also evidence in the record that Captain Passadore directed all supervisors to ensure that
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all officers were informed of the requirements of the Order. See Passadore Decl. ¶ 49. And the Court is cognizant that PPB has been stretched thin over the past few months with the same RRT officers working endless hours in response to ongoing protests. It is also aware of the effect the pandemic has had on PPB’s ability to conduct additional trainings. Nevertheless, the Court cannot conclude that a single radio transmission and a discussion with RRT officers and supervisors on June 30, 2020, constitutes “all reasonable steps” Defendant could have taken to ensure compliance with the Order that evening. Kelly, 822 F.3d at 1096 (affirming the district court’s contempt finding where the contemnor “emphasized[d] the steps it took to comply with the settlement agreement, but fail[ed] to mention other reasonable steps it could have taken”). Accordingly, the Court finds Defendant City of Portland in contempt.
CONCLUSION The Court GRANTS in part Plaintiff’s Amended Motion for Order to Show Cause [145]. The Court finds Defendant City of Portland in contempt of its June 26, 2020 Stipulated Additional Temporary Restraining Order [43]. Remedies for the above-described violations of the Order will be determined separately. The parties shall contact the Courtroom Deputy within 3 days of this Order to set a date for a scheduling conference. IT IS SO ORDERED.
DATED:_N__o_v_e_m__b_e_r_2_7_,_2_0__2_0_____.
_______________________________ MARCO A. HERNÁNDEZ United States District Judge
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Jesse Merrithew, OSB No. 074564 Email: jesse@lmhlegal.com Viktoria Safarian, OSB No. 175487 Email: viktoria@lmhlegal.com Levi Merrithew Horst PC 610 SW Alder Street, Suite 415 Portland, Oregon 97205 Telephone: (971) 229-1241
Juan C. Chavez, OSB No. 136428 Email: jchavez@ojrc.info Brittney Plesser, OSB No. 154030 Email: bplesser@ojrc.info Alex Meggitt, OSB No. 174131 Email: ameggitt@ojrc.info Franz H. Bruggemeier, OSB No. 163533 Email: fbruggemeier@ojrc.info Oregon Justice Resource Center PO Box 5248 Portland, OR 97208 Telephone: 503 944-2270
J. Ashlee Albies, OSB No. 051846 Email: ashlee@albiesstark.com Whitney B. Stark, OSB No. 090350 Email: whitney@albiesstark.com Maya Rinta, OSB No. 195058 Email: maya@albiesstark.com Albies & Stark LLC 1 SW Columbia St. Suite 1850 Portland, Oregon 97204 Telephone: (503) 308-4770
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity, NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated, MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated, ALEXANDRA JOHNSON, in an individual capacity and on behalf of themselves and all others similarly situated,

Case No. 3:20-cv-00917-HZ
THIRD AMENDED COMPLAINT (Violations of Civil Rights: 42 U.S.C. § 1983)
JURY TRIAL DEMANDED

Plaintiffs

v.

CITY OF PORTLAND, a municipal corporation, and MULTNOMAH COUNTY, a political subdivision of the State,

Defendant.

Plaintiffs, by and through their attorneys, allege:

NATURE OF ACTION

1.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiffs bring this civil

rights action to stop the City of Portland and Multnomah County from using excessive force

against them in order to suppress plaintiffs’ right to free speech. For the past four months,

plaintiffs, along with tens of thousands of their fellow community members, and millions of

other people around the world, have taken to the streets to protest white supremacy and police

violence in the United States generally and in Portland specifically. The Portland Police Bureau

(“PPB”), like police departments all over the country, has responded with indiscriminate,

unchecked, and unconstitutional violence against protesters. At first, PPB used chemical agents

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(“tear gas”) against crowds of protesters, including plaintiffs, who had committed no criminal acts, posed no threat of violence to any person, and were merely engaged in protected speech. Plaintiffs were immediately concerned that the use of tear gas is particularly dangerous at the present time because it is specifically designed to irritate the respiratory system and to cause people to expel mucus and aspirated saliva. In the midst of a global pandemic, the deadly novel COVID-19 virus is known to spread principally through aspirated saliva and mucus. Plaintiffs sought and obtained a temporary restraining order prohibiting PPB from using tear gas except in narrow circumstances. Following that order, PPB changed tactics and the Multnomah County Sheriff Office (“MCSO”) increased its role, and both now use a variety of so-called “less lethal” weapons indiscriminately against plaintiffs in their continued effort to silence speech. Plaintiffs are entitled to a temporary restraining order, preliminary injunction, permanent injunction, damages, and an award of attorneys’ fees and costs.
JURISDICTION AND VENUE 2.
This court has subject matter jurisdiction over plaintiffs’ claims of violation of federal constitutional rights pursuant to 28 U.S.C. §§ 1331(a) and 1343 because the causes of action arise under 42 U.S.C. § 1983.
3. Venue is proper in the District of Oregon pursuant to 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. / / / / / / / / /

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PARTIES 4.
Plaintiff Don’t Shoot Portland is a not for profit corporation, incorporated under the laws of the state of Oregon, whose principle place of business is Portland, Multnomah County, Oregon. Don’t Shoot Portland is a Black-led organization whose fundamental mission is to advocate for social and racial justice in Portland. Don’t Shoot Portland was formed in the wake of the Ferguson uprising stemming from the police killing of Michael Brown and community outrage at police violence directed at Black people. Don’t Shoot Portland provides support for grassroots organizing and education on issues of police brutality, the school to prison pipeline, combatting white supremacy and racism, and provides mutual aid to activists, organizers, and others protesting in Portland against police brutality. Don’t Shoot Portland holds ongoing events and trainings related to its mission such as bystander intervention trainings, and advocates for demilitarization of the police. Its programs include a children’s art and social justice council, community clothing tree, and community legal clinics. Don’t Shoot Portland also advocates for social justice and change though supporting direct action in a safe manner; participating, organizing and supporting protests; providing know your rights trainings and information; and providing jail support to people arrested during demonstrations. Don’t Shoot Portland recognizes that mass mobilizations and demonstrations are necessary for politicians and the general public to understand the importance of an issue in order to enact policies responsive to community demands in order to create and foster a more equitable City. Don’t Shoot Portland has devoted resources to identifying, counteracting, and addressing the practices alleged in this complaint, and this diversion of resources has frustrated its mission. As a result of the PPB’s and MCSO’s unconstitutional policy, practice, and customs, as alleged herein, Don’t Shoot Portland must

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devote additional resources to educating, informing, and protecting protesters from unconstitutional practices, and this diversion of resources has frustrated its mission.
5. Plaintiff Nicholas J. Roberts (Pronouns: he/him), at the time of filing and all material times, was a resident of Portland, Multnomah County, Oregon.
6. Plaintiff Michelle “Misha” Belden (Pronouns: They/Them), at the time of filing and all material times, was a resident of Portland, Multnomah County, Oregon.
7. Plaintiff Alexandra Johnson (Pronouns: she/her), at the time of filing and all material times, was a resident of Portland, Multnomah County, Oregon.
8. Defendant City of Portland is a political subdivision of the State of Oregon. The Portland Police Bureau (“PPB”) is a department or division of the City. As a local governmental entity, the City of Portland is a suable person under 42 U.S.C. § 1983. The people who used tear gas and “less lethal” weaponry, including as described below, were employees or agents of the City of Portland. On information and belief, each and every decision to indiscriminately use tear gas and other “less-lethal” weapons against plaintiffs was made at or ratified by a sufficiently high level as to be policy decision of the City of Portland.
9. Defendant Multnomah County is a political subdivision of the State of Oregon. The Multnomah County Sherriff’s Office (“MCSO”) is a department or division of the County. As a local governmental entity, the County is a suable person under 42 U.S.C. § 1983. The people who used tear gas and “less lethal” weaponry, including as described below, were employees or

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agents of Multnomah County. On information and belief, each and every decision to indiscriminately use tear gas and other “less-lethal” weapons against plaintiffs was made and or ratified by a sufficiently high level as to be policy decision of Multnomah County. On information and belief, the MCSO deputies who used tear gas and other “less-lethal” weapons against plaintiffs were acting pursuant to the practice or policy of Multnomah County.
GENERAL ALLEGATIONS 10.
Black Lives Matter. 11.
The disproportionate and excessive use of force against Black people by police officers in the United States is a well-documented, systemic problem. It exists in every police department in this country, including the PPB and MCSO.
12. For many years, advocates and activists have attempted, largely unsuccessfully, to get the City to address and reduce the Portland Police Bureau’s disproportionate use of force, stops, searches, seizures, and arrests of Black people, Indigenous people, and people of color. Efforts to address the Portland Police Bureau’s racial profiling dates back to the 1990s.1 And yet, despite all the recommendations, implemented or more often, not, PPB continues to engage in disproportionate stops, searches, seizures, and uses of force of Black people. I. George Floyd
13. On May 25, 2020, in Minneapolis, Minnesota, a Black man named George Floyd was murdered on video by Officer Derek Chauvin of the Minneapolis Police Department while three

1 https://www.portlandoregon.gov/police/article/32381

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of his fellow officers watched and did nothing to intervene. Officer Chauvin knelt on Mr. Floyd’s neck while Mr. Floyd pleaded for his life, repeatedly telling Chauvin that he could not breathe. A bystander video of the murder quickly went viral, sparking outrage throughout the country.
14. For many Americans, and particularly Black Americans, the murder of George Floyd, in broad daylight while being openly filmed by a witness, was the proverbial straw that broke the camel’s back. Fed up with the empty platitudes and the endless yet ineffective “reforms” by their political and law enforcement leaders, millions of Americans took to the streets in protest, demanding an end to police violence and white supremacy, and refusing to leave those streets unless and until meaningful change is made.
15. Protests against police violence have been met with police violence in nearly every city around the country. Videos shared in the press and on social media show the police in this country out of control: attacking journalists, attacking bystanders, threatening children, assaulting people for insulting them, engaging in drive-by attacks with “less lethal” weapons, planting weapons in the hands of people arrested, pulling off demonstrators’ CDC-recommended facemasks and macing them, kettling whole groups of protesters only to launch tear gas at them, driving their cars directly through crowds of people, using military helicopters in efforts to terrify civilians, discussing plans to shoot protesters, and above all, using massive amounts of tear gas in a massive systemic effort to stop people from protesting police violence. This violent police response has only strengthened the resolve of protesters. / / / / / /

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II. Portland 16.
Beginning on May 29, 2020, and every night since then, Portlanders have been demonstrating in the streets demanding justice for George Floyd and demanding an end to police violence. The PPB, like police departments throughout the country, have met these demands with violence.
17. A focal point of conflict between PPB and MCSO (collectively “law enforcement”) on one hand and protesters on the other has been the “Justice Center” in downtown Portland, which was for many weeks, completely surrounded by fencing. The building houses PPB’s central precinct, which includes command staff offices, a jail operated by MCSO where hundreds of humans – disproportionately Black – are housed in small cage like cells, and a small number of courtrooms where the “business” of the criminal legal system perpetuating these racial inequalities continues every working day. It is, in short, a perfect symbol of the harms the protesters seek to address.
18. PPB and MCSO are determined to keep the protesters away from the Justice Center, closing public streets, erecting fences, and guarding it with lines of law enforcement officers stocked with weapons and wearing armor, helmets, and gas masks. Every night since the protests began has ended with a standoff around the Justice Center between law enforcement and protesters, culminating in law enforcement using a variety of tactics, including indiscriminately spraying demonstrators with tear gas, rubber bullets, pepper balls, blast balls, Long Range Acoustic Device (“LRAD”), flash bangs, and other impact munitions, while launching aerial munitions into the air above their heads. After PPB and MCSO succeed in scattering protesters

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throughout the streets of downtown Portland, PPB often kettle protesters and continue to assault them with more pepper spray, impact munitions, and aerial munitions.
19. Since this court entered a Temporary Restraining Order on June 9, 2020, limiting the PPB’s use of tear gas on protestors, PPB has escalated its use of rubber bullets, pepper balls, blast balls, flash bangs, and other impact munitions on the crowd in an indiscriminate manner, and MCSO has done the same. III. Tear Gas and COVID-19
20. Riot control agents (here referred to as “tear gas”) are chemical compounds that temporarily make people unable to function by causing irritation to the eyes, mouth, throat, lungs, and skin. Several different compounds are considered to be riot control agents, including chloroacetophenone (“CN”), chlorobenzylidenemalononitrile (“CS”), and oleoresin capsicum (“OC”). OC is derived from capsaicin and designed to be an irritant and inflammatory agent “primarily affect[ing] the respiratory tract.” CS is a nerve gas designed to inflict pain, and degrade the mucous membranes in a person’s eyes, nose, mouth, and lungs. The PPB and the MCSO uses both CS and OC, and possibly other agents.
21. PPB launches tear gas from canisters at protesters which releases the chemical agent in gaseous form, exposing people through skin contact, eye contact, or breathing it in. PPB also discharges chemical agents directly from handheld canisters, and by shooting FN303s with OC payload or 40mm impact munitions with OC payload. These weapons spread their OC payload upon impact with the ground or the body of person. Manufacturer’s materials for OC capsules fired from FN303s describe this feature and practice of firing at the ground as “area saturation.”

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22. Tear gas causes irritation to the area of contact within seconds of exposure, including eye burning, excessive tearing, blurred vision and redness; runny nose, and nasal burning and swelling; mouth burning, irritation, difficulty swallowing and drooling; chest tightness, coughing, choking sensation, wheezing, shortness of breath; burns and skin rash. Some people experience nausea and vomiting. Studies show that tear gas is linked to miscarriage and fetal harm. Moreover, the 1993 International Chemical Weapons Convention, Geneva, bans tear gas from use by military forces during war.
23. COVID-19, or Coronavirus, is a novel and serious respiratory virus which impacts the upper and lower respiratory system. It is spread primarily through droplets when an infected persons coughs or sneezes, or through droplets of saliva or discharge from the nose. For all these reasons, the CDC recommends people wear face coverings over the nose and mouth to help prevent the spread of COVID-19. There is no vaccine nor cure for COVID-19, and no one has prior immunity. As such, the virus has spread across the globe, and has been designated a global pandemic. Those infected with COVID-19 can experience no symptoms, mild symptoms, or severe symptoms. As such, and due to limited COVID-19 testing, the true rate of COVID-19 infections is unknown. Because of racism and its impact on economic and health disparities, Black people, Indigenous people, and people of color are more likely to develop, suffer, and face complications from COVID-19 than their white counterparts.2 / / /

2See Multnomah County, New numbers show COVID-19 damage to communities of color; leaders call for better data collection, (May 1, 2020), available at https://multco.us/novel-coronavirus-covid-19/news/new-numbers-showcovid-19-damage-communities-color-leaders-call

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24.
Many recent reports link the use of tear gas to exacerbation of spreading of COVID-19.
Indeed, Oregon Health and Science University (“OHSU”) President Danny Jacobs, M.D.,
F.A.C.S., released a statement acknowledging that “Protests have long served as a positive agent
for social change in the U.S.,” and that law enforcement’s “use of tear gas and other chemical
means to control crowds has raised great concern among medical professionals as we
simultaneously try to manage a global pandemic.” The statement further opined:
While large gatherings in general provide increased opportunities for the transmission of COVID-19, the use of tear gas could significantly exacerbate the spread. Tear gas is a chemical that attacks the mucous membranes of the eyes, nose, throat and lungs and causes severe pain and irritation; exposure to tear gas can result in blindness, bleeding, crying and coughing. The release of airborne droplets through tear gas-induced coughing could accelerate the spread of COVID-19 and lead to a surge in new cases. Damage to the respiratory tract can put individuals at greater risk of adverse outcomes if they become infected with COVID-19.3
25.
The use of tear gas is, by its very nature, indiscriminate. Everyone must breathe, and
anyone who breathes in the area where police have used tear gas will be harmed by the gas. The
Defendants knew this when it decided to procure the tear gas, arm law enforcement with the tear
gas, and authorize police to use tear gas in its downtown core on protesters. The Defendants
knew that the gas would harm people who were not engaged in any unlawful activity and where
law enforcement had no probable cause that individuals had committed any crimes.
/ / /
/ / /
/ / /

3 Danny Jacobs, M.D., M.P.H., FACS, Statement on tear gas and nonviolent protests, Oregon Health & Sciences University (June 4, 2020) available at https://news.ohsu.edu/2020/06/05/statement-on-tear-gas-and-nonviolentprotests?linkId=90165009

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IV. Impact Munitions 26.
In addition to using chemical weapons, law enforcement uses a variety of so-called “riot control” weapons, some of which also contain OC as a chemical irritant. PPB uses two different platforms for launching these munitions: an 18 mm, 15-round capacity, shoulder fired weapon called an FN303; and 40 mm, two round capacity, shotgun-style launcher. PPB uses the FN303 to deploy munitions containing OC powder designed to cause chemical irritation to anyone around the impact; munitions containing paint designed to both hurt the person and mark them with paint; and munitions containing sand to both hurt the target and cause non-chemical irritation. PPB uses the 40 mm launcher to fire foam tipped rounds designed to hurt people, foam tipped rounds with OC inside, and two types of “flash-bang” grenades: one that emits light and sound, and one that, in addition, spreads plastic shot over an area of people in order to hurt them. PPB also uses hand-held grenade-style weapons that accomplish the same purposes of 40 mm launched flash-bangs. The manufacturer’s website advertises that one of these hand-thrown grenades will spread plastic projectiles over a 50-foot radius. MCSO also uses impact munitions against protestors in an indiscriminate manner.
27. Neither the FN303s nor the 40 mm launchers are accurate at long distances and become inaccurate altogether after several deployments. The use of FN303s and 40 mm launchers in crowd management settings has led to the death of protesters, like in Boston.4 This fact has led to some police departments to cease use of FN303s altogether, like the Boston Police Department, which repurposed these weapons by melting them into sewer caps.5 During the recent protests

4 The New York Times, Boston Police to Destroy Pepper-Spray Guns (Feb. 23, 2007), available at
https://www.nytimes.com/2007/02/23/us/23pepper.html 5 Id.

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following George Floyd’s murder, projectiles fired from FN303s have resulted in the serious maiming of individuals.6
28. In the past and during the present protests, from May 31 to the present, law enforcement has fired these impact munitions, particularly the FN303, indiscriminately into crowds of passively resisting, or other peaceful protesters, both before and after PPB has declared an unlawful assembly/civil disturbance, leaving large welts, bruises, and other similar injuries. Protesters outside of the Multnomah County Justice Center attest to being fired upon and hit by such munitions by law enforcement standing at the top of the stairs across the street despite having not engaged in any behavior that was criminal, let alone threated anyone’s life or safety.
29. On several occasions since 2017, demonstrations in support of police and against the Black Lives Matter movement have occurred in Portland. During these demonstrations, Defendants did not use tear gas, impact munitions, nor any force against these protestors. Instead, PPB provided escorts to maintain the safety and security of these protestors, an accommodation not afforded to those protesting police violence. For example, on August 17, 2019, a group of approximately 500 pro-fascist, pro-police, anti-Black activists from across the country held an unpermitted rally in Tom McCall Waterfront Park in downtown Portland. The stated aim of the rally organizers was to waste city funds and resources. PPB made extensive accommodations for the rally, including closing the Hawthorne Bridge to traffic, erecting concrete barriers around the site of the rally, and placing a heavily armed police presence between the fascist rally and counterprotesters. After the far-right rally in Tom McCall

6 Kelli Kennedy, Protester hit in face by police rubber bullet wants answers, Houston Chronicle (June 12, 2020), available at https://www.houstonchronicle.com/news/article/Protester-hit-in-face-by-police-rubber-bullet15336813.php

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Waterfront Park, PPB opened the Hawthorne Bridge for the exclusive use of the fascist rally. PPB declared a civil disturbance after the far-right rally dispersed, ultimately arresting 13 counterprotesters. The organizers of the fascist event announced they would return to Portland each month to continue to waste city resources.
Likewise, on August 22, 2020, many anti-Black Lives Matter protestors descended on Portland, armed with paintball guns, metal rods, aluminum bats, fireworks, pepperspray, rifles and handguns in an attempt to intimidate and rally against Black Lives Matter protestors. Defendants did not intervene or arrest these pro-police demonstrators for posing threats to Portland community members. Tusitala “Tiny” Toese, who had an outstanding warrant for his arrest, was present, seen, and identified by Defendants, but not arrested. In contrast, PPB members arrested Demetria Hester, Black Lives Matter leader and volunteer with Don’t Shoot Portland less than two weeks prior.
Similarly, on September 26, 2020, a group of approximately 200 pro-fascist, pro-police, anti-Black activists descended on Delta Park for a rally for the express purpose of provoking a violent confrontation with anti-fascist activists. They open-carried firearms within the park, in violation of city code, set up armed check points to control access to the park, and forcibly removed people they decided were not there to support their fascist cause. At least one individual was jumped and given a concussion by the violent mob. At one point, a vehicle arrived and delivered dozens of homemade shields. Despite the presence of dozens of police officers, including PPB “liaison officers” on foot in the park, defendants did not intervene in any way with this criminal activity. On the same day, at the same time, anti-fascist organizers held a rally three miles away in Peninsula Park. That rally was specifically designed to avoid violent confrontations with the fascist rally. No march was planned. Nevertheless, there was a heavy

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police presence from PPB, and PPB seized homemade shields from participants and arrested individual participants. V. Don’t Shoot Portland
30. Don’t Shoot Portland is a Black-led human rights organization advocating and educating on the issue of police violence and accountability. Its work includes educational workshops, free legal referrals, policy advocacy, conducting youth and community based events, it hosts a children’s art and social justice counsel, and other such work in support of its community action plan that provides services to the most marginalized community members.
31. Don’t Shoot Portland has been participating the local demonstrations and providing assistance and support to protesters. It has participated in, monitored, and amplified calls to end racist policing and the violent police response to nonviolent protesters. It strongly opposes the use of tear gas, “less lethal” weapons, and any force against protesters. Don’t Shoot Portland provides mutual aid to activists, organizers, and others protesting in Portland against police brutality. In the wake of the escalated police response to protestors, Don’t Shoot Portland has had to divert resources from other aspects of its mission, such as its community events, in order to distribute protective equipment like facemasks and hand sanitizer, first aid kits, and other resources to provide relief from tear gas and impact munitions, as well as assistance with shelter and food to demonstrators and others supporting the protests. In addition, Don’t Shoot Portland’s board members and volunteers have been participating in protests in support of Black Lives Matter in downtown Portland, and have been providing support to protestors injured by Defendants’ unlawful conduct. While engaging in this activity, Don’t Shoot Portland’s board members and volunteers have been subjected to Defendants’ unlawful use of force.

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32. Don’t Shoot Portland has facilitated scientific research demonstrating that tear gas is extraordinarily dangerous during COVID-19, especially to Black people, Indigenous people, and people of color. Even Defendant Multnomah County acknowledges that Black people, Indigenous people, and people of color bear a disproportionate burden of illness and death from COVID-19 than their white counterparts.7
33. Defendants have harmed Don’t Shoot Portland’s mission by destroying its mutual aid supplies with tear gas and physical destruction. Moreover, Defendants’ escalated police response has made it substantially more difficult for Don’t Shoot Portland to advance its mission of organizing, facilitating, and supporting First Amendment activity in the form of protests and direct action in support of Black Lives because people are reasonably fearful of engaging in these activities. Don’t Shoot Portland has had to divert resources from existing projects to educate its volunteers and members of the public about the ongoing demonstrations, and to address the physical and emotional risks that people face by engaging in protest in light of Defendants’ unlawful response, and to provide aid and support to those who have been harmed by the escalating police violence towards protestors. VI. Nicholas J. Roberts
34. Nicholas J. Roberts is an Oregonian who lives in downtown Portland. He attended his first protest on May 29, 2020, because he wanted to protest police brutality and the oppression of Black people. He took precautions because of COVID-19, putting on gloves, face masks, and

7 https://multco.us/novel-coronavirus-covid-19/news/new-numbers-show-covid-19-damage-communities-colorleaders-call

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safety glasses, and tried to practice social distancing. Mr. Roberts attended demonstrations on May 29, 30, 31 and June 1, 2, 6, 10, 12 and 13, and saw peaceful protesters. Mr. Roberts was not engaging in any unlawful activity when the PPB began launching tear gas into the largely peaceful crowd protesting police violence in front of the Justice Center. Mr. Roberts attended protests on May 30, May 31, and June 2, 6, and 13, and had a similar experience: law enforcement launched tear gas and “less lethal” weapons at peaceful protesters demonstrating against police violence at the Justice Center who were not engaged in any unlawful conduct. Mr. Roberts has been attending demonstrations less since being subjected to law enforcement’s weaponry.
35. Mr. Roberts was physically harmed and frightened by law enforcement’s use of tear gas and “less lethal” weapons. VII. Michelle “Misha” Belden
36. Mx. Belden had attended the protest in Downtown Portland on June 2, 2020. They were protesting against the brutality the country witnessed when George Floyd of Minneapolis, MN was murdered by a Minneapolis Police Officer. They wished to be with their community as it protested against police violence and racism. They were attending the march from SE Portland to Pioneer Plaza in Downtown Portland. There, they heard a few explosions in the distance. They arrived at the area around SW 3rd and SW Salmon. They found a crowd chanting, and mostly calm. Suddenly, there was a flash bang then tear gas. Everyone started scattering. They were trapped between walls of gas, a fence, and lines of police officers. The air was thick with tear gas. They believed the police were trying to kill them. This continued for several blocks until they reached safety around SW Naito and Harvey Milk.

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37. Mx. Belden attended protests on June 9 and 10, 2020 as well, between the 9 pm-1 am at the Justice Center in Downtown Portland. On June 9, the crowd of approximately 500 was mostly peaceful, and some people rattled the fence erected outside the Justice Center. Law enforcement administered a warning to back away from the fence, and while many protestors backed away, some stayed close to the fence, but stopped rattling the fence. At about midnight, when the crowd had dwindled to by approximately 40%, PPB fired flash bangs and OC munitions to disperse the crowd without any warning. To Mx. Belden and others, it looked and sounded like tear gas, despite the TRO entered in this case, causing Mx. Belden to believe the PPB will never stop using excessive force, and that protesters will all be subject to arrest and excessive force at all times, denying them an opportunity to have a peaceful protest. On June 10, one part of the fence was taken down, away from the Justice Center and where law enforcement were stationed. Protesters were simply standing around. Two people, one clothed and one not, ran behind the fenced off area. After the first person went into the fenced area, law enforcement deployed chemical agents, impacting the nearby protestors. Law enforcement then deployed “less lethal” weapons, including OC blasts, and flash bang. Mx. Belden left the scene, because they felt law enforcement was escalating and they did not want to be caught up in it and did not want to get gassed again. As a result, Mx. Belden gave up on protesting for the rest of that week.
38. Mx. Belden was physically harmed and frightened by law enforcement’s use of tear gas and “less lethal” weapons. / / / / / / / / /

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VIII. Alexandra Johnson 39.
Alexandra Johnson has attended the protests in Downtown Portland every day since May 31, 2020, because Black Lives Matter and she wants to make her community safer and more equitable. Ms. Johnson has not witnessed any rioting or looting.
40. For example, on the night of June 15, 2020, Ms. Johnson was at the Justice Center where a crowd of about 100 to 200 people were gathered. The crowd was chanting, but she did not see anyone touch the fence or throw any projectiles. Although PPB announced that it was unlawful to point a laser at police officers, Ms. Johnson did not have a laser, and was merely chanting with the crowd and livestreaming some of the protest. Ten minutes later, the police began shining two high-powered flashlights directly into the eyes of protesters along the fence. PPB also made an announcement not to throw projectiles over the fence. Minutes later, PPB targeted her with multiple spotlights, including a powerful light pointing at her camera for 30 seconds straight. The light hurt her eyes even though she was more than 50 feet away from the police. When she stopped filming, the police stopped targeting her with their lights. After she moved to the intersection of SW 3rd and SW Main, suddenly and without warning, law enforcement officers stationed above the crowd on an upper floor of the Justice Center began shooting “less lethal” munitions into the crowd. She began filming again and announced to the livestream that police had started firing into the crowd indiscriminately and without warning. A moment later, a law enforcement officer about 30 feet away aimed directly at her and shot at her, ripping open her left hand and causing immediate pain and injury. Medics nearby washed her wound, applied pressure, wrapped it, and helped her calm her breathing. About five minutes later, PPB declared an unlawful assembly and ordered the crowd to disburse or be subject to arrest or force. As she

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tried to leave the area, the police began using flashbang grenades, which exploded just feet away from her. The crowd of protesters was also trying to disperse calmly and safely while the police continued to use explosive grenades and smoke grenades.
41. She eventually went to the hospital, where she received three stitches. Days later, when she removed the bandage, the swelling continued and her injuries were extensive. An x-ray revealed a broken bone in her hand. She is unable to close her fist and is in significant pain while doing small tasks, like pulling up her own pants or lifting a cup of coffee and must revert to only using her other hand. She also has major bruising on the palm of her hand and inside of her thumb making it difficult to perform her job duties. As a result of the above, she feels fearful of police, and has reduced her involvement in the protests.
42. Ms. Johnson was physically harmed and frightened by law enforcement’s use of tear gas and “less lethal” weapons.
CLASS ALLEGATIONS 43.
Plaintiffs Nicholas J. Roberts, Misha Belden, and Alexandra Johnson bring this action pursuant to Rules 23(a) and 23(b)(1) and (2) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated individuals.
44. The proposed class is defined as follows: all individuals who currently or who will in the future engage in protest activities that follow the death of George Floyd opposing police violence and white supremacy. This include protesters who engage in passive resistance to the orders of police but does not those who engage in conduct beyond passive resistance.

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45. The class period commences on May 25, 2020 and extends to the date on which Defendants are enjoined from, or otherwise ceases, enforcing their unconstitutional policy, practice, and custom of using indiscriminate excessive force, including but not limited to the use of tear gas and “less lethal” weapons, irrespective of the individualized conduct of specific protesters. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees, or assignees.
46. This action has been brought and may properly be maintained as a class action under Federal law and satisfies numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
47. The Class is so numerous, on information and belief, over 1,000, that joinder is impractical. Maintaining individual actions would create a risk of “inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Multiple courts issuing multiple injunctions governing use of force standards for law enforcement would be untenable.
48. Common questions of law and fact exist as to all members of the class. These legal and factual questions include but are not limited to: • By engaging in the tactics alleged herein, have Defendants violated the First
Amendment?

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• By engaging in the tactics alleged herein, have Defendants violated the Fourth Amendment?
• By allowing an unconstitutional pattern, practice, and custom of using indiscriminate excessive force against protesters, have Defendants violated the First and Fourth Amendments?
• Have Defendants exhibited a deliberate indifference to the unconstitutional conduct alleged herein?
• By utilizing indiscriminate force, such as tear gas, pepper spray, and impact munitions, have Defendants unlawfully chilled the speech rights of protesters? 49. Plaintiffs Robert’s, Belden’s, and Johnson’s claims are typical of the claims of the class
members. The harms Plaintiffs suffered and will suffer, as a result of Defendants’ courses of conduct, are typical of the harms suffered by class members. “[T]he party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R. Civ. P. 23(b)(1)(A). There is no allegation that Plaintiffs have been targeted because of anything unique to them as individuals.
50. Plaintiffs Roberts, Belden, and Johnson will fairly and adequately protect the interest of the Class. Plaintiffs have no interests adverse to the interests of the class. Plaintiffs retained counsel with experience and success in the prosecution of civil rights litigation. Counsel for Plaintiffs know of no conflicts among class members or between counsel and class members. / / / / / /

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51. Plaintiffs Roberts, Belden, and Johnson seek injunctive and declaratory relief. Any injunction requiring Defendants to address their constitutional violations would prevent other litigants from seeking a different injunction. Plaintiffs Roberts, Belden, and Johnson seek class certification under Fed. R. Civ. P. 23(b)(1).
FIRST CLAIM FOR RELIEF (Excessive Force – Violation of Fourth Amendment – 42 U.S.C. § 1983 brought on behalf of
Plaintiff Don’t Shoot Portland Individually and Plaintiffs Roberts, Belden, and Johnson Individually and the Putative Class) 52.
Plaintiffs restate and incorporate herein all previous paragraphs of this Complaint. 53.
Count 1: Municipal Liability – Unlawful Practice or Policy Allowing Indiscriminate Use of Force as Tactic to Disperse Crowd.
The City of Portland and Multnomah County each have an official policy allowing the use of “riot control” and “less lethal” weapons against a crowd whenever it determines that the crowd creates a “civil disturbance.” This policy has no relationship with the Graham v. Connor Fourth Amendment standard regulating the use of force against individuals. It expressly allows for the indiscriminate use of force against a crowd of people, including those engaging in passive resistance, in violation of the Fourth Amendment.
Alternatively, even if the policy itself is constitutional, PPB’s and MCSO’s actual practice and custom is to allow the use of “riot control” and “less lethal” weapons against a crowd both before and after an “unlawful assembly” and/or a “civil disturbance” has been declared, even when a substantial number of people in that crowd, or even the majority of that crowd, are engaged only in the passive resistance to an order. / / /

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54. On the majority of dates from May 29, 2020 to the present, PPB and MSCO deployed tear gas and/or other “less lethal” weapons on large crowds of peaceful protesters and continued to deploy tear gas and/or “less lethal” weapons at people running away. Videos documenting the indiscriminate nature of this force deployment are rampant.8 The City and County have tacitly and explicitly authorized the use of indiscriminate crowd control munitions on crowds of protesters by justifying uses of similar tactics, including “less lethal” weapons shot indiscriminately into crowds of protesters, at protests on these dates and knew or reasonably should have known this would lead to constitutional violations alleged herein. The City and County, acting pursuant to this policy, custom, or practice, unlawfully used tear gas and “less lethal” weapons against plaintiffs as alleged above.
55. Count 2: Municipal Liability – Action of Policymaking Officials
The decision to use riot control and “less lethal” weapons against the crowds containing plaintiffs on the majority of dates from May 29 through the present made by officials of the PPB or the County who are sufficiently senior that the decision may fairly be said to represent official policy of the City of Portland or the County. Former PPB Chief Jami Resch was, and PPB Chief Chuck Lovell is the highest level of authority within the PPB, and Mayor of Portland Ted Wheeler, also the Police Commissioner, has acknowledged receiving minute-to-minute reports from PPB of events on the ground at the protest. The decision to use riot control and “less lethal” weapons was made by official policy makers the Chief of PPB and the Mayor of Portland who

8 E.g. https://twitter.com/mrolmos/status/1268072714926878720?s=21; https://twitter.com/matcha_chai/status/1268043556913987584?s=21

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knew or reasonably should have known this would lead to constitutional violations alleged herein..
56. Count 3: Municipal Liability -- Ratification
Former PPB Chief Jamie Resch stated in a news conference on June 3 that the decision to use tear gas, other riot control, and “less lethal” weapons against a crowd of protesters the evening prior was made by incident commanders at the scene. As such, the decision to use tear gas and “less lethal” weapons against the crowds containing plaintiffs on the majority of dates from May 29 through the present was made by incident commanders on scene. As alleged above, these decisions were ratified by the Chief of PPB and the Mayor of Portland who knew or reasonably should have known this would lead to constitutional violations alleged therein.
57. The above-described conduct was a proximate cause of harm to Plaintiffs.
SECOND CLAIM FOR RELIEF (Violation of the First Amendment – 42 U.S.C. § 1983 brought on behalf of Plaintiff Don’t Shoot Portland Individually and Plaintiffs Roberts, Belden, and Johnson Individually and
the Putative Class) 58.
Plaintiffs restate and incorporate herein all previous paragraphs of this Complaint. 59.
Plaintiffs were engaged in constitutionally protected acts of free speech, including public demonstration opposing racism and police violence against Black people. Plaintiffs will continue to do so in the future. / / / / / / / / /

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60. PPB’s and the MCSO’s use of force against Plaintiffs for engaging in First Amendment protected activity and, in an effort, to deter future similar activity, evidences a pattern and practice of unconstitutional conduct that is certain to continue absent any relief.
61. Plaintiffs reasonably fear the PPB’s and the MCSO’s continued use of tear gas and “less lethal” weapons on protesters, and PPB’s the MCSO’s acts would, and did, chill a reasonable person from continuing to engage in protected First Amendment Activity.
62. Municipal Liability – First Amendment
The City of Portland and Multnomah County have a custom and practice of using militarized force against anti-police protesters, as demonstrated by the use of tear gas and “less lethal” weapons against those protesting outside the Justice Center, a significant symbolic representation of the issues being protested. The Defendants’ use of force was intended to punish a group of protesters en masse for their political speech, and to deter further similar expressions of speech. The supervisory decision to fire tear gas and “less lethal” weapons indiscriminately into a crowd of protesters demonstrating outside the Justice Center was made in retaliation for the protesters’ protected speech condemning the police at the symbolic embodiment of the protest subject matter and to chill the expression of further similar speech.
63. The supervisor defendants who authorized, made, and ratified the decision to attack antipolice demonstrators are sufficiently senior so that their decision can fairly be said to be the official policy of the City of Portland, and they knew or reasonably should have known this would lead to the constitutional violations alleged herein.

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64. The above-described conduct was a proximate cause of harm to Plaintiffs.
65. As a result of Defendants’ unlawful policy and practice, participating in lawful protests against police violence has become more difficult and dangerous. Defendants conduct has made it substantially more difficult for Don’t Shoot Portland to advance and fulfill its mission of organizing, facilitating, and supporting First Amendment activity in support of Black Lives. Moreover, Defendants’ unlawful policy and practice has caused damage and destruction to Don’t Shoot Portland’s property, which then requires a further diversion of resources to replenish the destroyed property. Don’t Shoot Portland diverted its resources to provide additional protective equipment like face and gas masks, hand sanitizer, first aid kits, and other resources to provide relief from the impacts of Defendants’ use of tear gas and impact munitions, as well as assistance, including shelter and food to demonstrators and others supporting the protests. Such diversion of these resources diminishes Don’t Shoot Portland’s ability to advance other projects of Don’t Shoot Portland, such as their children’s art project and mutual aid efforts in response to COVID-19.
DAMAGES As a direct and proximate result of the conduct of the Defendants, Plaintiffs suffered economic and noneconomic damages, including interference with their First Amendment rights, a greater distrust in the PPB, MCSO, and law enforcement in general, fear of increased exposure to the novel COVID-19 virus, emotional distress, physical pain, and discomfort and suffering.
REASONABLE ATTORNEY’S FEES AND COSTS 42 U.S.C. § 1988(b) allows “the prevailing party . . . a reasonable attorney’s fee as part of the costs. . .” in an action brought under 42 U.S.C. § 1983.

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Plaintiffs requests that the court grant reasonable attorneys’ fees in this action. PRAYER FOR RELIEF
WHEREFORE, plaintiffs pray for their costs and disbursements incurred herein and for the following in accordance with the proof at trial:
1. A temporary restraining order, prohibiting the City of Portland and Multnomah County from using tear gas as a crowd control measure;
2. A temporary restraining order, prohibiting the City of Portland and Multnomah County from using “less lethal” weapons, including but not limited to OC spray or munitions, impact munitions, LRAD, sound cannons, etc., against protestors who are only engaged in passive resistance, including passive resistance to an order to disperse. In any case where PPB and MCSO uses less lethal weapons, it must insure that no person who is engaged in only passive resistance is impacted or effected by those weapons.
3. A permanent injunction, prohibiting the City of Portland and Multnomah County from using tear gas as a crowd control measure;
4. A permanent injunction, prohibiting the City of Portland and Multnomah County from using “less lethal” weapons, including but not limited to OC spray or munitions, impact munitions, LRAD, sound cannons, etc., against protestors who are only engaged in passive resistance, including passive resistance to an order to disperse. In any case where PPB and MCSO use less lethal weapons, they must insure that no person who is engaged in only passive resistance is impacted or effected by those weapons;

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5. A declaration that Portland Police Bureau’s Crowd Control Directive, 0635.10, as written and/or as applied violates the Fourth Amendment to the United States Constitution;
6. Compensatory damages to Plaintiffs Roberts, Belden and Johnson; 7. Attorney’s fees; and 8. Any other relief the court deems proper.

DATED this 7th day of October 2020.

s/J. Ashlee Albies J. Ashlee Albies, OSB No. 051846 Whitney B. Stark, OSB No. 090350 Maya Rinta, OSB No. 195058 Albies & Stark LLC
Jesse Merrithew, OSB No. 074564 Viktoria Safarian, OSB No. 175487 Levi Merrithew Horst PC
Juan C. Chavez, OSB No. 136428 Brittney Plesser, OSB No. 154030 Alex Meggitt, OSB No. 174131 Franz H. Bruggemeier, OSB No. 163533 Oregon Justice Resource Center
Attorneys for Plaintiffs

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 Case 3:20-cv-00917-HZ Document 208 Filed 12/18/20 Page 1 of 9

J. SCOTT MOEDE, OSB #934816 Chief Deputy City Attorney scott.moede@portlandoregon.gov NAOMI SHEFFIELD, OSB #170601 Senior Deputy City Attorney naomi.sheffield@portlandoregon.gov ROBERT YAMACHIKA, OSB #065560 Senior Deputy City Attorney rob.yamachika@portlandoregon.gov Portland City Attorney’s Office 1221 SW 4th Ave., Rm. 430 Portland, OR 97204 Telephone: (503) 823-4047 Facsimile: (503) 823-3089 Of Attorneys for Defendant City of Portland

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity, NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated, MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated, ALEXANDRA JOHNSON, in an individual capacity and on behalf of themselves and all others similarly situated,

3:20-cv-00917-HZ
JOINT PROPOSAL OF REMEDIES IN RESPONSE TO CONTEMPT ORDER

PLAINTIFFS,

v.

CITY OF PORTLAND, a municipal
corporation, and MULTNOMAH COUNTY, a political subdivision of the State,

DEFENDANTS.

Pursuant with this Court’s Order (Dkt. 206), counsel for the City of Portland and Counsel

for Plaintiffs exchanged remedy proposals to address this Court’s Contempt Order (Dkt. 204) on Page 1 – JOINT PROPOSAL OF REMEDIES IN RESPONSE TO CONTEMPT ORDER

PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

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December 11, 2020. Counsel for these parties have subsequently conferred regarding the proposed remedies. The following joint proposal outlines the agreed-upon legal standards, the City’s remedy proposals, and Plaintiffs’ remedy proposals.
I. Legal Standard “Civil contempt sanctions, by contrast [to criminal contempt sanctions], are employed for
two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992). Civil sanctions are “wholly remedial,” not punitive. Id. And “[g]enerally, the minimum sanction necessary to obtain compliance is to be imposed.” Because the sanctions are designed to coerce compliance, they are conditional. “If a sanction operates whether or not a party remains in violation of the court order, it does not coerce compliance.” Id. Because civil sanctions are conditional, the contemnor must be able to complete its sanction, and “purge itself of the contempt.” Id.; see also Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623, 629 (9th Cir. 2016) (“[T]he ability to purge is perhaps the most definitive characteristic of civil contempt.”); Turner v. Rogers, 564 U.S. 431, 442 (2011) (“And once a civil contemnor complies with the underlying order, he is purged of the contempt and is free.”); United States v. Ayres, 166 F.3d 991, 997 (9th Cir. 1999) (“Civil contempt sanctions, however, are only appropriate where the contemnor is able to purge the contempt by his own affirmative act and ‘carries the keys of his prison in his own pocket.’”).
Federal courts have broad remedial powers to address noncompliance with a restraining order. Stone v. City and County of San Francisco, 968 F.2d 850, 861-62 (9th Cir. 1992) (affirming court’s power to authorize sheriff to override state law); See also, e.g., Brown v.
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Plata, 563 U.S. 493 (2011) (imposing prison population limit); Nat’l Org. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536 (9th Cir. 1987) (affirming appointment of a Special Master). When the least intrusive measures fail to rectify the problems, more intrusive measures are justifiable. Stone, 968 F.2d at 861 (citing Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978)). II. City’s Proposed Remedies
The City proposes that the Court order the City take the following actions to remediate the violations raised by the Court’s Order of civil contempt with respect to three uses of an FN303 on June 30, 2020 (Dkt. 204). Plaintiffs have reviewed and agreed to these remedial measures.

• On December 4, 2020, all Rapid Response Team grenadiers and supervisors

(other than those on sick/vacation leave) received nine hours of training. At this

training, representatives from the City Attorney’s Office reviewed with the Rapid

Response Team grenadiers and supervisors the limitations on their use of force at

protest. This review included review of the less lethal temporary restraining order,

the requirements in PPB Directive 1010 regarding the use of force, this Court’s

Order of civil contempt, and the video evidence of the incidents discussed in the

Court’s Order.

•

The Internal Affairs Division of PPB or Independent Police Review in the Office

of the Auditor will investigate the allegations of misconduct by Brent Taylor from

June 30, 2020. Pending the resolution of this investigation, PPB will remove

Brent Taylor from policing crowd management/crowd control events.

/ / /
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• PPB will recirculate, through the learning management system, copies of this Court’s Order and the less lethal order and require all PPB members certify that they have read and understand each. Members will be invited to ask the City Attorney’s Office any questions regarding these documents.
• By December 31, 2021, the City will ensure that all sworn PPB members complete a 3-hour training regarding the use of force at protests. This training will include video, examples, and scenarios from the protests this summer both in Portland and around the country to assist officers in understanding how Directive 1010 applies, including consideration of the defined terms passive resistance, physical resistance, and active aggression.
III. Plaintiffs’ Proposed Remedies Judge Hernandez found the City in contempt in three particular instances that occurred
June 30, 2020. The Court found that two of these three instances involved the conduct Officer Brent Taylor deploying multiple rounds from his FN303 weapon against persons not exhibiting active aggression. (Dkt. 204, p. 16 (discussing Incidents 2 and 3)). The evidence appears to show that Officer Taylor was also responsible for the third instance of contempt in which an officer shot a person multiple times with an FN303 when the person slowly walked to an object on the ground and bent down to pick it up. (See Ex. L at around 9:25). Plaintiffs propose the following additional remedies. The City opposes these additional remedies as indicated in italics below.
A. A complete ban on the use of automatic and semi-automatic impact weapons for crowd control deployments, including the FN303.
Rapid fire of impact weapons is inconsistent with PPB’s constitutional obligation to insure that every use of force is independently justified under Graham. These impact weapons,
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especially FN303s, appear to primarily be used by PPB as punishment for perceived crimes or
potential, but unrealized, risk. Each round fired from impact weapons like FN303s is potentially
lethal. See attached Reports regarding use of Kinetic Impact Projectiles.1 Projectiles fired from
FN303s have killed and seriously injured people.2 Boston Police killed a person with a FN303.3
Following this, the City of Boston banned the weapon.4 Plaintiff Alexandra Johnson’s hand was
broken by what was likely a FN303. The City of Seattle has also banned kinetic impact
projectiles, as well as tear gas, blast balls, and some uses of pepper spray.5
While other impact weapons are also quite dangerous, plaintiffs believe it is not a
coincidence that each of the violations found by the Court was the result of an FN303. Officer
Taylor testified he fired his weapon over 40 times on the evening of June 30, 2020. He was only
one of several officers using a rapid fire impact weapon that evening, and every evening during
the 100+ deployments of the RRT squads over the summer. That is thousands of rounds fired
into crowds of people, each one capable of causing death or serious physical injury. Officer
1 Haar RJ, Iacopino V, Ranadive N, et al., Death, injury and disability from kinetic impact projectiles in crowd-control settings: a systematic review, BMJ Open (2017) (summary of studies regarding deaths and injuries from kinetic impact projectiles); Physicians for Human Rights, Shot in the Head, PHR (September 2020) (summary of 2020 protest events in the United States, including Portland, OR, where individuals were injured by kinetic impact projectiles fired at human heads); Physicians for Human Rights, Kinetic Impact Weapons, PHR (summary of policy recommendations for the banning of kinetic impact weapons in the crowd control context). 2 Haar, et. al., supra, at p. 4. 3 Ally Jarmanning, Cops Across U.S. Are Using 'Less-Lethal' Weapons. In Boston In 2004, A Woman Was Killed With One, WBUR (June 10, 2020), available at https://www.wbur.org/news/2020/06/10/rubber-bullets-protesters-victoria-snelgrove-boston . 4 Id. 5 Gene Johnson, Seattle council bans police use of crowd control weapons, AP News (June 15, 2020), available at https://apnews.com/article/37bdfaa2871617205e2f739e168ca70e; City of Seattle, Ordinance 126102, June 26, 2020, available at http://seattle.legistar.com/View.ashx?M=F&ID=8656981&GUID=8C1C2C66-AB23-4984A059-CF0E6D1D9DCB; Codified as Seattle Municipal Code 3.28.146 available at https://library.municode.com/wa/seattle/codes/municipal_code?nodeId=TIT3AD_SUBTITLE_II DEOF_CH3.28PODE_SUBCHAPTER_IPODERE_3.28.146PRUSCRCOWE Page 5 – JOINT PROPOSAL OF REMEDIES IN RESPONSE TO CONTEMPT ORDER
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Taylor testified to his capacity to properly assess the constitutional validity before each use of his rapid-fire weapon. Judge Hernandez found this incredulous. (Dkt. 204, p. 17-18). Any thinking person would. It is simply not possible to reassess the threat posed by a subject when there is no time in between the pulls of the trigger. The simplest way to solve this problem is to remove the ability to fire impact munitions at that rapid rate. In the context of an impact weapon, there is simply no constitutionally sound justification for hitting a person 3-5 times within a couple seconds instead of once.
City’s Response: This request is based on Plaintiffs’ conclusions, not the conclusions of this Court. This Court’s contempt order was based on its conclusion that on three occasions on June 30, 2020, impact munitions were used against individuals who were not engaged in active aggression, inconsistent with Directive 1010. (Dkt. 16-18). This Court did not find that any use of the FN303 is inconsistent with Graham. In fact, the Court specifically found that the use of the FN303 against Mr. Greatwood was consistent with Directive 1010. Similarly, the Court did not conclude that PPB primarily used the FN303 to punish protestors for perceived crimes or unrealized risks, nor did the Court engage in any analysis regarding the use of the FN303 on other nights or by officers other than Officer Taylor. Likewise, Plaintiffs’ citation to policy decisions by other cities and allegations from Plaintiff Johnson are not relevant to the steps necessary to remedy the contempt that this Court found by PPB on June 30. Additionally, this proposed remedy “operates whether or not a party remains in violation of the court order,” which “does not coerce compliance,” as required for civil contempt remedies. Whittaker Corp., 953 F.2d at 517. / / /
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B. Prohibit any individual PPB member who violates the Court’s order from participating in any future crowd control operations.
Each of the violations found by the Court was committed by Officer Taylor. Ordering that he be removed from future crowd control operations is a reasonable, interim step. The Court should make clear that any future violators will also be removed from crowd control operations.
City’s Response: This request appears to be prospective rather than remedial, as it relates to “any individual PPB member who violates the Court’s order,” even though Plaintiffs have stated that the only officer that this Court found violated the order was Officer Taylor. Even as limited to Officer Taylor, this request is not remedial, as it provides no opportunity for him to purge the alleged contempt or to come into compliance in the future. Whittaker Corp., 953 F.2d at 517 (“Unlike the punitive nature of criminal sanctions, civil sanctions are wholly remedial.”). This is inconsistent with the requirements of civil contempt, and it is particularly troubling because Officer Taylor was not a party to the contempt motion, and he therefore did not have personal representation in the proceeding. This remedy could similarly implicate the collective bargaining agreement and interfere with the City’s procedures for investigating misconduct and administering discipline and corrective action when appropriate.
C. Establish an expedited review process for reviewing any future violations. As part of the Court’s ongoing authority to enforce its own orders, it should establish an expedited process for reviewing any future allegations of violations. In the event the Court finds any violation, it should impose a pre-determined, escalating coercive fine upon the City. It should also order the removal of the offending officer(s) from crowd control operations. The expedited system should include the following features:
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• The ability of plaintiffs to raise a claimed violation with defendants which would require efendants to respond within 48 hours by providing all documentation, photographs, and video within defendants’ possession relative to the claimed violation. This must include any evidence the defendants want the court to consider.
• If Plaintiffs believe after reviewing all materials that a violation has occurred, they may forward all evidence to the Court for an expedited and summary review of the evidence to determine whether a violation has occurred. Along with the evidence, Plaintiffs may provide a short (no more than 2 pages for each claimed violation) explanation regarding the specific way in which the order was violated. Defendants may provide a response of similar limitation within 48 hours of plaintiffs’ filing.
• If the Court determines that a violation has occurred, it shall impose a coercive, escalating fine based on a schedule determined by the Court, and order that the involved officer be removed from all protest related policing assignments immediately.
Effective monitoring of misconduct requires that, when noncompliance occurs, the response needs to be swift, certain, and proportional. It is only in systems where these principles are honored that deterrence can be achieved. This proposal conforms to these principles moving forward to deter future violations.
City’s Response: This request similarly attempts to address possible future violations by modifying the injunction, rather than addressing the issue that gave rise to the Court’s contempt
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order. See Ayres, 166 F.3d at 997 (“contempt sanctions . . . are only appropriate where the contemnor is able to purge the contempt by his own affirmative act” and it “cannot be contingent upon the acquiescence of an opposing party because such an arrangement effectively renders the contempt punitive, rather than civil”) At no time during the contempt proceeding did Plaintiffs indicate that documents or videos requested from the City were not timely provided. Plaintiffs did not request expedited briefing of their show cause motion. In fact, Plaintiffs did not file their amended motion until August 12, 2020—over a month after the alleged violations on June 30, 2020. Nonetheless Plaintiffs propose an expedited schedule that gives them unlimited time to evaluate and file motions related to alleged violations of this Court’s restraining orders but requires the City to respond in only 48-hours. This remedy is both unreasonable and unrelated to the Court’s finding of contempt.

DATED this 18th day of December, 2020

s/Jesse Merrithew

s/Naomi Sheffield ____________

Jesse Merrithew, OSB No. 074564 Viktoria Safarian, OSB No. 175487 Levi Merrithew Horst PC

J. Scott Moede, OSB No. 934816 Naomi Sheffield, OSB No. 170601 Robert Yamachika, OSB No. 065560

J. Ashlee Albies, OSB No. 051846 Whitney B. Stark, OSB No. 090350 Maya Rinta, OSB No. 195058 Albies & Stark LLC

Attorneys for the City of Portland

Juan C. Chavez, OSB No. 36428 Brittney Plesser, OSB No. 154030 Alex Meggitt, OSB No. 174131 Franz H. Bruggemeier, OSB No. 163533 Oregon Justice Resource Center

Attorneys for Plaintiffs Page 9 – JOINT PROPOSAL OF REMEDIES IN RESPONSE TO CONTEMPT ORDER

PORTLAND CITY ATTORNEY’S OFFICE 1221 SW 4TH AVENUE, RM 430 PORTLAND, OREGON 97204 (503) 823-4047

 
 Case 3:20-cv-00917-HZ Document 220 Filed 03/16/21 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DON’T SHOOT PORTLAND, a nonprofit corporation, in its individual capacity; NICHOLAS J. ROBERTS, in an individual capacity and on behalf of themselves and all others similarly situated; MICHELLE “MISHA” BELDEN, in an individual capacity and on behalf of themselves and all others similarly situated; and ALEXANDRA JOHNSON, in an individual capacity and on behalf of themselves and all others similarly situated,
Plaintiffs, v.
CITY OF PORTLAND and MULTNOMAH COUNTY,
Defendants.
Jesse Merrithew Viktoria Safarian LEVI MERRITHEW HORST PC 610 SW Alder Street, Suite 415 Portland, OR 97205

No. 3:20-cv-00917-HZ OPINION & ORDER

Case 3:20-cv-00917-HZ Document 220 Filed 03/16/21 Page 2 of 7
Juan Chavez Brittney Plesser Alexander Meggitt Franz H. Bruggemeier OREGON JUSTICE RESOURCE CENTER PO Box 5248 Portland, OR 97208
Jessica Ashlee Albies Whitney B. Stark Maya Rinta ALBIES & STARK LLC 1 SW Columbia Street, Suite 1850 Portland, OR 97204
Attorneys for Plaintiffs
J. Scott Moede Naomi Sheffield Robert T. Yamachika PORTLAND CITY ATTORNEY’S OFFICE 1221 SW Fourth Avenue, Room 430 Portland, OR 97204
Attorneys for Defendant City of Portland
HERNÁNDEZ, District Judge:
On November 27, 2020, this Court granted Plaintiffs’ Amended Motion for Contempt
and found Defendant City of Portland (“Defendant”) in violation of this Court’s June 26, 2020
Stipulated Additional Temporary Restraining Order (the “Order”). Opinion & Order, ECF 204.
Presently before the Court is the question of the appropriate sanctions for the contempt. The
parties have provided briefing on this issue, and the Court held hearings on January 13 and
February 9, 2021. Joint Resp., ECF 208; Hr’g Mins, ECF 211, 219; Pls. Resp., ECF 217; Def.
Resp., ECF 216. The Court finds that coercive sanctions are appropriate in this case.
///
///
2 – OPINION & ORDER

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STANDARDS The court has the inherent power to enforce compliance with its orders, but its authority to punish contempt is defined by federal statute: A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions; (3) Disobedience or resistance to its lawful writ, process, order, rule,
decree, or command. 18 U.S.C. § 401. Section 401 applies to both civil and criminal contempt. United States v. Powers, 629 F.2d 619, 624 (9th Cir. 1980). Section 401 “contains no limitation on the power of the district court to impose fine or imprisonment for a violation.” Id. The trial court’s decision is “reviewed for an abuse of discretion in setting punishment.” Id.
Whether a contempt is civil or criminal depends on the “character and purpose” of the sanction. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983). The question is: “what does the court primarily seek to accomplish by imposing [the sanction]?” Id. (alteration in original) (quoting Shillitani v. United States, 384 U.S. 364, 369 (1966)). Criminal contempt is intended to punish past defiance of the court’s authority and vindicate the court. Id. Civil contempt is designed to compel obedience or compensate the contemnor’s adversary for their injuries. Id. Contempt is “plainly civil in nature when the sanction imposed is wholly remedial, serves only the purpose of the complainant, and is not intended as a deterrent to offenses against the public.” Id. /// ///
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DISCUSSION The parties have agreed to Defendant’s proposed sanctions, which include a training for Portland Police Bureau (“PPB”) Rapid Response Team (“RRT”) grenadiers and supervisors, removal of Officer Brent Taylor from crowd control events pending an internal investigation, circulation of the Court’s orders to all PPB officers, and a training for all PPB officers by the end of this year. Joint Resp. 3. The parties disagree, however, as to the additional sanctions proposed by Plaintiffs and this Court. Defendant objects to the proposed sanctions, primarily arguing that they are punitive—and not coercive—because they do not provide Defendant with an opportunity to purge itself of the contempt and avoid the sanction. Def. Resp. 2–3. The “character and purpose” of a sanction determines whether it is criminal or civil. Int’l Union, UMWA v. Bagwell, 512 U.S. 821, 827 (1994). “The purpose of civil contempt is coercive or compensatory[.]” Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 539 F.3d 1039, 1042 (9th Cir. 2008). The Ninth Circuit has held that “[t]he ability to purge is perhaps the most definitive characteristic of coercive civil contempt.” Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623, 629 (9th Cir. 2016); see also Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 518 (9th Cir. 1992) (modifying the district court’s order so that the sanction was in effect only “until [the contemnor] . . . demonstrate[d] to the satisfaction of the court that they are able to and will comply with the provisions of the June 1987 Order.”); Lance v. Plummer, 353 F.2d 585, 591–92 (5th Cir. 1965) (noting “civil contempt proceedings must always give the alleged contemnor the opportunity to bring himself into compliance” and modifying the district court’s order to provide that the sanction would last only until the contemnor “satisfi[ed] the trial court that he was no longer in violation of the injunctive order and that he would in good faith thereafter comply with the terms of the order”).
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After reviewing the briefing from the parties, the Court declines to order the additional
sanctions proposed by Plaintiffs and discussed with the parties at the hearings. Because the
proposed sanctions do not provide Defendant with an opportunity to purge the contempt, the
proposed sanctions are not appropriate civil contempt sanctions. See Black Lives Matter Seattle-
King County v. City of Seattle, 2:20-cv-00887-RAJ, 2021 WL 289334, at *6 (W.D. Wash. Jan.
28, 2021) (denying the plaintiff’s proposed sanctions “because they lack a purge condition, the
most definitive characteristic of coercive sanctions”). Absent such a condition, these sanctions
are not coercive under the law of this circuit. See U.S. v. Ayers, 166 F.3d 991, 997 (9th Cir.
1999) (“Civil contempt sanctions . . . are only appropriate where the contemnor is able to purge
the contempt by his own affirmative act and ‘carries the keys of his prison in his own pocket.’”).
The Court finds, however, that the following coercive sanctions are necessary to obtain
compliance with the Court’s Order:
1. All RRT grenadiers and supervisors will receive nine hours of training. At the training, representatives of the City Attorney’s Office will review with the RRT grenadiers and supervisors the limitations on their use of force at protests. This review will include a review of the Court’s finding of civil contempt and video evidence of the incidents discussed therein, and a review of the requirements of the Court’s Order and PPB Directive 1010.1 All RRT grenadiers will receive training every six months.
2. The Internal Affairs Division of PPB or Internal Police Review in the Office of the Auditor shall investigate the allegations of misconduct by Officer Brent Taylor from June 30, 2020. Pending the resolution of the investigation, PPB will remove Officer Taylor from policing crowd management/crowd control events.
3. PPB shall recirculate, through the learning management system, copies of the Court’s Order and require that all PPB members certify that they have read and understand each. Members will be invited to ask the City Attorney’s Office any questions regarding these documents.
4. The City will ensure that all sworn PPB members complete a three-hour training regarding the use of force at protests by December 31, 2021. The training will include
1 This training was completed on December 4, 2020. Joint Resp. 3.
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video, examples, and scenarios from protests this summer in Portland and around the country to assist officers in understanding how to apply Directive 1010, including consideration of the terms passive resistance, physical resistance, and active aggression. 5. No RRT grenadier shall use an FN303 or 40MM less-lethal launcher in connection with crowd control unless and until Defendant certifies to the Court the following:2 A. They have demonstrated an understanding of the Court’s Temporary Restraining
Orders and findings of contempt in this case, including the ability to recognize and articulate a threat without speculating and before utilizing less-lethal force. B. They have knowledge about how many consecutive days a grenadier should be engaged in civil unrest as a grenadier before needing a break and can articulate such based on best evidence. C. They are aware of their responsibility under the City of Portland’s rules to promptly prepare a report when they have discharged their weapon. The provisions of this Order applicable to RRT grenadiers will not take effect until ten days after entry of this Order. These sanctions shall remain in effect until Defendant demonstrates to the satisfaction of the Court that it will comply with the Court’s Order. See Whittaker, 953 F.2d at 518. /// /// /// /// /// /// /// ///
2 Certification can be accomplished by way of declaration or affidavit from the City Attorney’s Office.
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Case 3:20-cv-00917-HZ Document 220 Filed 03/16/21 Page 7 of 7 CONCLUSION
Having previously found Defendant City of Portland in contempt, see Opinion & Order [204], the Court orders the above-described sanctions to obtain compliance with the Court’s June 26, 2020 Stipulated Temporary Restraining Order [43]. The provisions of the Order applicable to RRT grenadiers will not take effect until ten days after entry of this Order. These sanctions shall remain in effect until Defendant City of Portland demonstrates to the Court that it will comply with the Court’s Order.
IT IS SO ORDERED. DATED:___M__a_rc_h__1_6_,_2_0__2_1_______.
______________________________ MARCO A. HERNÁNDEZ United States District Judge
7 – OPINION & ORDER