U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:20-cv-01161-MO

Rosenblum v. John Does 1-10 et al Assigned to: Judge Michael W. Mosman Cause: 28:2201 Declaratory Judgment

Date Filed: 07/17/2020 Date Terminated: 09/18/2020 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Plaintiff Ellen Rosenblum

represented by Steven M. Lippold Oregon Department of Justice CLS 1162 Court St NE Salem, OR 97301-4096 503-947-4700 Fax: 503-947-4791 Email: Steve.Lippold@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheila H. Potter Oregon Department of Justice Trial Division 100 SW Market Street Portland, OR 97201 971-673-1880 Fax: 971-673-5000 Email: sheila.potter@doj.state.or.us ATTORNEY TO BE NOTICED

V. Defendant John Does 1-10

represented by Andrew Warden DOJ-Civ 1100 L St., N.W. Ste 7301 Washington, DC 20005 202-616-5084 Email: andrew.warden@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
United States Department of Homeland Security

represented by Andrew Warden (See above for address) ATTORNEY TO BE NOTICED

Defendant
United States Customs and Border Protection Service

David M Morrell DOJ-Civ 337 Maryland Ave. NE Unit 3 Washington, DC 20002 909-938-6498 Email: david.m.morrell@usdoj.gov TERMINATED: 09/11/2020
represented by Andrew Warden (See above for address) ATTORNEY TO BE NOTICED

David M Morrell (See above for address) TERMINATED: 09/11/2020
Defendant
United States Marshals Service represented by Andrew Warden (See above for address) ATTORNEY TO BE NOTICED

Defendant Federal Protective Service

David M Morrell (See above for address) TERMINATED: 09/11/2020
represented by Andrew Warden (See above for address) ATTORNEY TO BE NOTICED

Amicus City of Portland, Oregon

David M Morrell (See above for address) TERMINATED: 09/11/2020
represented by Robert L. Taylor Office of City Attorney 1221 SW Fourth Ave. Room 430

Portland, OR 97204 503-823-4047 Fax: (503) 823-3089 Email: robert.taylor@portlandoregon.gov (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tracy Pool Reeve City of Portland City Attorney's Office 1221 SW 4th Avenue Suite 430 Portland, OR 97204 503-823-4055 Fax: 503-823-3089 Email: Tracy.Reeve@portlandoregon.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denis M. Vannier City Attorney's Office 1221 SW Fourth Avenue Room 430 Portland, OR 97204 503-823-4047 Fax: 503-823-3089 Email: denis.vannier@portlandoregon.gov ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

07/17/2020 1

Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: AORDC-7002755 Jury Trial Requested: No. Filed by Ellen F Rosenblum against FEDERAL PROTECTIVE SERVICE, John Does 1-10, THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, United States Customs and Border Protection Service, United States Marshals Service (Attachments: # 1

Attachment Declaration or Mark Pettibone, # 2 Proposed Summons United States Department of Homeland Security, # 3 Proposed Summons United States Customs and Border Protection, # 4 Proposed Summons United States Marshals Service, # 5 Proposed Summons Federal Protective Service, # 6 Civil Cover Sheet Civil Cover Sheet). (Potter, Sheila) (Entered: 07/17/2020)

07/20/2020
07/20/2020
07/20/2020 07/20/2020 07/20/2020
07/20/2020 07/20/2020

Notice of Case Assignment to Judge Marco A. Hernandez and

2

Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall

print and serve the summonses and all documents issued by the

Clerk at the time of filing upon all named parties in accordance

with Local Rule 3-5. Discovery is to be completed by 11/17/2020.

Joint Alternate Dispute Resolution Report is due by 12/17/2020.

Pretrial Order is due by 12/17/2020. Ordered by Judge Marco A.

Hernandez. (ecp) (Entered: 07/20/2020)

3 Summons Issued Electronically as to Federal Protective Service, United States Customs and Border Protection Service, United States Department of Homeland Security, United States Marshals Service. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 35. (Attachments: # 1 issued summons, # 2 issued summons, # 3 issued summons) (ecp) (Entered: 07/20/2020)

Notice of Case Reassignment: This case has been reassigned from

4

Judge Marco A. Hernandez to Judge Michael W. Mosman. (eo)

(Entered: 07/20/2020)

Motion for Temporary Restraining Order . Oral Argument

5

requested.Expedited Hearing requested. Filed by Ellen Rosenblum.

(Potter, Sheila) (Entered: 07/20/2020)

Declaration of Sheila Potter . Filed by Ellen Rosenblum. (Related 6
document(s): Motion for Temporary Restraining Order 5 .)

(Attachments: # 1 Exhibit 1 of 7, # 2 Exhibit 2 of 7, # 3

Exhibit 3 of 7, # 4 Exhibit 4 of 7, # 5 Exhibit 5 of 7,

# 6 Exhibit 6 of 7, # 7 (Entered: 07/20/2020)

Exhibit 7 of 7) (Potter, Sheila)

Declaration of Mark Pettibone in Support of Rosenblum's Motion for

7

a Temporary Restraining Order and Preliminary Injunction. Filed by

Ellen Rosenblum. (Related document(s): Motion for Temporary

Restraining Order 5 .) (Potter, Sheila) (Entered: 07/20/2020)
Declaration of Jennifer Arnold . Filed by Ellen Rosenblum. (Related 8
document(s): Motion for Temporary Restraining Order 5 .) (Potter, Sheila) (Entered: 07/20/2020)

07/20/2020 9

Declaration of Terri Preeg Riggsby . Filed by Ellen Rosenblum. (Related document(s): Motion for Temporary Restraining Order 5

07/20/2020 10

.) (Potter, Sheila) (Entered: 07/20/2020)
Declaration of Tiffany L. Chapman . Filed by Ellen Rosenblum. (Related document(s): Motion for Temporary Restraining Order 5

07/21/2020 11

.) (Potter, Sheila) (Entered: 07/20/2020)
Declaration of Stephanie Debner . Filed by Ellen Rosenblum. (Related document(s): Motion for Temporary Restraining Order 5

07/21/2020 12

.) (Lippold, Steven) (Entered: 07/21/2020) Notice re Motion for Temporary Restraining Order 5
Withdrawing Evidence in Support of Motion for Temporary Restraining Order Filed by Ellen Rosenblum. (Related document(s):

07/21/2020

Motion for Temporary Restraining Order 5 (Entered: 07/21/2020)

.) (Lippold, Steven)

13 Scheduling Order by Judge Michael W. Mosman regarding Motion

07/22/2020 07/22/2020

for Temporary Restraining Order 5 . Oral Argument is set for 7/22/2020 at 09:00AM-11:00AM in Portland by videoconference before Judge Michael W. Mosman. Ordered by Judge Michael W. Mosman. (kms) (Entered: 07/21/2020)
14 Notice of Appearance of Andrew Warden appearing on behalf of Federal Protective Service, John Does 1-10, United States Customs and Border Protection Service, United States Department of Homeland Security, United States Marshals Service Filed by on behalf of Federal Protective Service, John Does 1-10, United States Customs and Border Protection Service, United States Department of Homeland Security, United States Marshals Service. (Warden, Andrew) (Entered: 07/22/2020)
Memorandum in Opposition to Motion for Temporary Restraining 15
Order 5 . Filed by Federal Protective Service, John Does 1-10, United States Customs and Border Protection Service, United States Department of Homeland Security, United States Marshals Service.

(Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4

Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 (Warden, Andrew) (Entered: 07/22/2020)

Exhibit)

07/22/2020 07/22/2020

Notice of Appearance of David M Morrell appearing on behalf of

16

Federal Protective Service, United States Customs and Border

Protection Service, United States Department of Homeland Security,

United States Marshals Service. Filed by on behalf of Federal

Protective Service, United States Customs and Border Protection

Service, United States Department of Homeland Security, United

States Marshals Service. (eo) (Entered: 07/22/2020)

17 MINUTES of Proceedings: Temporary Restraining Order Hearing

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

held, regarding Motion for Temporary Restraining Order 5 . Formal Order to follow. Steven M. Lippold and Sheila H. Potter present as counsel for plaintiff(s). David Morrell and Andrew Warden present as counsel for defendant(s).(Court Reporter Bonita Shumway.)Judge Michael W. Mosman presiding. (dls) (Entered: 07/22/2020)

Proof of Service Return of Service Executed as to Federal Protective

18

Service served on 7/20/2020, answer due on 9/18/2020. Service

specifically made upon Local U.S. Attorney. (Potter, Sheila)

(Entered: 07/22/2020)

Proof of Service Return of Service Executed as to United States

19

Marshals Service served on 7/20/2020, answer due on 9/18/2020.

Service specifically made upon Local U.S. Attorney. (Potter, Sheila)

(Entered: 07/22/2020)

Proof of Service Return of Service Executed as to United States

20

Customs and Border Protection Service served on 7/20/2020, answer

due on 9/18/2020. Service specifically made upon Local U.S.

Attorney. (Potter, Sheila) (Entered: 07/22/2020)

Proof of Service Return of Service Executed as to United States

21

Department of Homeland Security served on 7/20/2020, answer due

on 9/18/2020. Service specifically made upon Local U.S. Attorney.

(Potter, Sheila) (Entered: 07/22/2020)

22 Proof of Certified Mailing Return of Service Unexecuted as to Federal Protective Service, United States Customs and Border Protection Service, United States Department of Homeland Security, United States Marshals Service. (Potter, Sheila) (Entered: 07/22/2020)

OPINION & ORDER: Plaintiffs Motion for a Temporary 23
Restraining Order(# 5 ) is DENIED. (See attached Opinion & Order.) Signed on July 24, 2020 by Judge Michael W. Mosman. (eo) PDF replaced on 7/24/2020 (eo). (Entered: 07/24/2020)

07/24/2020 07/24/2020

Unopposed Motion to Appear as Amicus Curiae and Memorandum in

24

Support Thereof. Filed by City of Portland, Oregon. (Vannier, Denis)

(Entered: 07/24/2020)

25 Order for Administrative Correction of the Record pursuant to Fed.

07/27/2020

R. Civ. P. 60(a) regarding # 23 Opinion & Order. A Clerical error has been discovered in the case record: The attached PDF contained minor typographical errors. The following corrections were made to the record: A PDF that corrects these minor typographical errors has been uploaded and has replaced the incorrect attachment.The Notice of Electronic Filing will be regenerated to all parties. (eo) (Entered: 07/24/2020)
26 ORDER: : The City of Portland's Unopposed Motion to Appear as

09/11/2020 27
09/16/2020 28

Amicus Curiae 24 is GRANTED. Ordered by Judge Michael W. Mosman. (dls) (Entered: 07/27/2020)
Notice of Attorney Withdrawal: David Morrell Filed by Federal Protective Service, John Does 1-10, United States Customs and Border Protection Service, United States Department of Homeland Security, United States Marshals Service. (Warden, Andrew) (Entered: 09/11/2020)
Notice of Voluntary Dismissal Filed by Ellen Rosenblum. (Potter, Sheila) (Entered: 09/16/2020)

 
 Case 3:20-cv-01161-HZ Document 1 Filed 07/17/20 Page 1 of 9

ELLEN F. ROSENBLUM Attorney General SHEILA H. POTTER #993485 Deputy Chief Trial Counsel STEVEN M. LIPPOLD, OSB #903239 Chief Trial Counsel Department of Justice 100 SW Market Street Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 Email: Sheila.Potter@doj.state.or.us
Steven.Lippold@doj.state.or.us
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

ELLEN ROSENBLUM, Oregon Attorney General,
Plaintiff,

Case No. COMPLAINT

v.
JOHN DOES 1-10; the UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; the UNITED STATES MARSHALS SERVICE and the FEDERAL PROTECTIVE SERVICE,
Defendants.

Plaintiff Ellen Rosenblum, Oregon Attorney General, alleges the following facts and claim for relief:

Page 1 - COMPLAINT
SP3/db5/#10342008-v1

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-HZ Document 1 Filed 07/17/20 Page 2 of 9

PARTIES, JURISDICTION, AND VENUE 1.
Ellen Rosenblum is the Attorney General for the State of Oregon and has the power to appear for the State of Oregon and its agencies, pursuant to ORS 180.060 and common law, and for its citizens under the doctrine of parens patriae.
2. On information and belief, John Does 1-10 are employed by the United States government in a law enforcement capacity. They have made it impossible for them to be individually identified by carrying out law enforcement actions without wearing any identifying information, even so much as the agency that employs them.
3. The United States Department of Homeland Security is a Cabinet-level department of the U.S. government. Its stated missions involve anti-terrorism, border security, immigration and customs. It was created in 2002, combining 22 different federal departments and agencies into a single Cabinet agency.
4. United States Customs and Border Protection is an agency within the Department of Homeland Security. Its stated mission statement is “To safeguard America's borders thereby protecting the public from dangerous people and materials while enhancing the Nation's global economic competitiveness by enabling legitimate trade and travel.”
5. The United States Marshals Service is an agency within and under the control of the United States Department of Justice. According to a Fact Sheet on its website, “it is the enforcement arm of the federal courts, involved in virtually every federal law enforcement initiative.”

Page 2 - COMPLAINT
SP3/db5/#10342008-v1

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-HZ Document 1 Filed 07/17/20 Page 3 of 9

6. The Federal Protective Service is another agency within and under the control of the

Department of Homeland Security. Its stated mission on its website is “To prevent, protect,

respond to and recover from terrorism, criminal acts, and other hazards threatening the U.S. Government’s critical infrastructure, services, and the people who provide or receive them.”
7. This Court has subject matter jurisdiction over this case under 28 U.S.C. §§ 1331 and

1367, and the U.S. Constitution, First, Fourth, and Fifth Amendments, and under 28 U.S.C. § 2201.
8. Declaratory and injunctive relief is sought as authorized in 28 U.S.C. §§ 2201 and 2202.

9.

Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)(2) and (e)(1). Defendants are United States agencies or officers sued in their official capacities. Plaintiff Ellen Rosenblum is a resident of the State of Oregon, and the events giving rise to this complaint occurred and are likely to continue occurring in the State of Oregon, within the City of Portland.

ALLEGATIONS 10.
On information and belief, federal law enforcement officers including John Does 1-10 have been using unmarked vehicles to drive around downtown Portland, detain protesters, and

place them into the officers’ unmarked vehicles, removing them from public without either

arresting them or stating the basis for an arrest, since at least Tuesday, July 14. 11.
The identity of the officers is not known, nor is their agency affiliation, according to videos and reports that the officers in question wear military fatigues with patches simply

reading “POLICE,” with no other identifying information.

Page 3 - COMPLAINT
SP3/db5/#10342008-v1

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-HZ Document 1 Filed 07/17/20 Page 4 of 9
12. In one widely reported incident, in the early hours of Wednesday, July 15, Mark Pettibone alleges that he was confronted by armed men dressed in camouflage who took him off the street, pushed him into a van, and drove him through downtown until unloading him into a building, which is believed to have been the Mark O. Hatfield United States Courthouse.
13. Pettibone alleges that he was put into a cell and read his Miranda rights, but was not told why he was arrested, nor was he provided with a lawyer. He alleges that he was released without any paperwork, citation, or record of his arrest.
14. U.S. Customs and Border Protection has been reported by the Washington Post to have taken responsibility for pulling Mr. Pettibone off the streets of Portland and detaining him.
15. On information and belief, unidentified federal officers including John Does 1-10 have likewise detained other citizens off the Portland streets, without warning or explanation, without a warrant, and without providing any way to determine who is directing this action. There is no way of knowing, in the absence of those officers identifying themselves, whether only U.S. Customs and Border Protection is engaging in these actions. The Marshals Service and other Homeland Security agencies reportedly have been sent to Portland to respond to the protests against racial inequality.
16. Oregonians have the right to walk through downtown Portland at night, and in the early hours of the morning.

Page 4 - COMPLAINT
SP3/db5/#10342008-v1

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-HZ Document 1 Filed 07/17/20 Page 5 of 9

17. Ordinarily, a person exercising his right to walk through the streets of Portland who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped and is the victim of a crime.
18. Defendants are injuring the occupants of Portland by taking away citizens’ ability to determine whether they are being kidnapped by militia or other malfeasants dressed in paramilitary gear (such that they may engage in self-defense to the fullest extent permitted by law) or are being arrested (such that resisting might amount to a crime).
19. State law enforcement officers are not being consulted or coordinated with on these federal detentions, and could expend unnecessary resources responding to reports of an abduction, when federal agents snatch people walking through downtown Portland without explanation or identification.
20. Defendants’ tactics violate the rights of all people detained without a warrant or a basis for arrest, and violate the state’s sovereign interests in enforcing its laws and in protecting people within its borders from kidnap and false arrest, without serving any legitimate federal law enforcement purpose.
FIRST CLAIM FOR RELIEF (Violation of First Amendment rights, against all defendants)
21. The Attorney General restates and reincorporates all previous paragraphs of the complaint.

Page 5 - COMPLAINT
SP3/db5/#10342008-v1

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-HZ Document 1 Filed 07/17/20 Page 6 of 9

22. Citizens peacefully gathering on the streets of Portland to protest racial inequality have

the right to gather and express themselves under the First Amendment to the United States

Constitution. 23.
Defendants’ actions are undertaken with the intent of discouraging lawful protest and therefore constitute an illegal prior restraint on the First Amendment right of Oregonians to

peacefully protest racial inequality. Citizens who are reasonably afraid of being picked up and shoved into unmarked vans—possibly by federal officers, possibly by individuals opposed to the protests—will feel compelled to stay away, for their own personal safety, and will therefore be unable to express themselves in the way that they have the right to do.

SECOND CLAIM FOR RELIEF

(Violation of citizens’ Fourth and Fifth Amendment rights, against all defendants) 24.
The Attorney General restates and reincorporates all previous paragraphs of the complaint.

25. The Fourth Amendment prohibits unreasonable seizures, and in particular prohibits federal officials from seizing a person without a warrant or an exception to the warrant requirement. And the State of Oregon has enacted laws that make it a crime to detain a person

without authority.

26. On information and belief, defendants did not have a warrant to seize Pettibone or the other citizens who have been detained, and will continue to seize individuals off the street without a warrant, in the absence of an injunction, and no exception to the warrant requirement

justified or will justify those seizures.

Page 6 - COMPLAINT
SP3/db5/#10342008-v1

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-HZ Document 1 Filed 07/17/20 Page 7 of 9

27. Defendants’ conduct described above constitutes an unreasonable seizure of Pettibone

and the other citizens who were or will be detained.

28. The Fifth Amendment prohibits federal officers from depriving a person of life, liberty, or property without due process of law.
29.

On information and belief, defendants did not afford and will not afford Pettibone and the other citizens who were or will be detained due process of law.
THIRD CLAIM FOR RELIEF (Declaration of rights pursuant to 28 U.S.C. § 2201, against all defendants)

30.

The Attorney General restates and reincorporates all previous paragraphs of the complaint.
31. In a case of actual controversy within its jurisdiction, any court of the United States may

declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought, under 28 U.S.C. § 2201.
32. There is an actual controversy within the jurisdiction of this Court, inasmuch as one or

more federal defendants have engaged in actions endangering Oregon’s citizens and the people

walking Portland’s streets. They have prevented the Attorney General from knowing which agencies and which officers are acting. No federal authority has agreed to stop this practice.
33. Oregon’s citizens are at risk of kidnapping by militias and other civilian “volunteers”

taking it onto themselves to pull peaceful protesters into their cars, in a manner that resembles

Page 7 - COMPLAINT
SP3/db5/#10342008-v1

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-HZ Document 1 Filed 07/17/20 Page 8 of 9

the federal actions described above. And Oregon’s own police agencies are therefore injured, by roving federal officers confusing citizens about whether they are obligated to comply with armed men ordering them into unmarked vans.
34. The Attorney General is entitled to a declaration that the acts at issue are unlawful, and an injunction precluding defendants from continuing in them.
FOURTH CLAIM FOR RELIEF (Public nuisance, against all defendants)
35. The Attorney General restates and reincorporates all previous paragraphs of the complaint.
36. The Attorney General has authority under Oregon law to sue to abate a public nuisance.
37. Defendants’ actions described above constitute a public nuisance because they unreasonably interfere with the general public’s right to public safety, public peace, public comfort, and public convenience.
PRAYER FOR RELIEF WHEREFORE, Attorney General prays for a judgment and the following relief:
1. A declaration, pursuant to 28 U.S.C. § 2201, that the tactics described in this complaint violate the First Amendment rights of the State’s citizens by restraining their ability to gather in peaceful protest, for fear of being thrown into a van by anonymous agents;
2. A declaration, pursuant to 28 U.S.C. § 2201, that the tactics described in this complaint violate the Fourth and Fifth Amendment rights of the State’s citizens –

Page 8 - COMPLAINT
SP3/db5/#10342008-v1

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-HZ Document 1 Filed 07/17/20 Page 9 of 9

that it is unlawful for federal law enforcement to pull people off of the streets without probable cause, using unmarked cars and unidentified officers; 3. An injunction permanently restraining defendants from engaging in tactics described above, and specifically requiring that defendants and their officers and agents: a) Identify themselves and their agency before detaining or arresting any person
off the streets in Oregon; b) Explain to any person detained or arrested that the person is being detained or
arrested and explain the basis for that action; c) Not arrest individuals without probable cause or a warrant. 4. Such other relief as this Court may deem proper.

DATED July 17 , 2020.

Respectfully submitted,
ELLEN F. ROSENBLUM Attorney General

s/ Sheila H. Potter SHEILA H. POTTER #993485 Deputy Chief Trial Counsel STEVEN M. LIPPOLD #903239 Chief Trial Counsel Trial Attorneys Tel (971) 673-1880 Fax (971) 673-5000 Sheila.Potter@doj.state.or.us Steven.Lippold@doj.state.or.us Of Attorneys for Plaintiff

Page 9 - COMPLAINT
SP3/db5/#10342008-v1

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

 
 Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 1 of 22

ELLEN F. ROSENBLUM 1 Attorney General
SHEILA H. POTTER #993485 2 Deputy Chief Trial Counsel
STEVEN M. LIPPOLD, OSB #903239 3 Chief Trial Counsel
Department of Justice 4 100 SW Market Street
Portland, OR 97201 5 Telephone: (971) 673-1880
Fax: (971) 673-5000 6 Email: Sheila.Potter@doj.state.or.us
Steve.Lippold@doj.state.or.us 7
Attorneys for Plaintiff 8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE DISTRICT OF OREGON

11 ELLEN F. ROSENBLUM, Oregon Attorney General,
12
Plaintiff, 13

Case No. 3:20-cv-01161-MO
MOTION FOR TEMPORARY RESTRAINING ORDER

14

v.

15 JOHN DOES 1-10; the UNITED STATES DEPARTMENT OF HOMELAND

ORAL ARGUMENT REQUESTED

16 SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; the UNITED

17 STATES MARSHALS SERVICE and the FEDERAL PROTECTIVE SERVICE,

18 Defendants.

19

20

21

22

23

24

25

26

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 2 of 22

1 2 I. 3 II. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 III. 20 21 22 23 24 25 26

TABLE OF CONTENTS
MOTION............................................................................................................................. 1
MEMORANDUM OF POINTS AND AUTHORITIES .................................................... 1 A. FACTUAL BACKGROUND................................................................................. 2
1. Federal troops were detailed to Portland to respond to the city’s protests ........................................................................................................ 3
2. Federal troops begin pulling protesters off the street and putting them in unmarked vehicles ......................................................................... 3
3. Defendants’ statements indicate intention to continue detentions unabated ...................................................................................................... 5
B. LEGAL STANDARD............................................................................................. 7 C. ARGUMENT.......................................................................................................... 8
1. Attorney General’s authority to act here..................................................... 8 2. Likelihood of success on the merits.......................................................... 11
a. Defendants’ conduct interferes with First Amendment rights ............................................................................................. 11
b. Defendants’ actions violate the Fourth Amendment ............................ 14 3. Irreparable harm........................................................................................ 18 4. The balance of equities supports issuing an injunction ............................ 18 5. The public interest supports restraining Defendants’ conduct.................. 19 CONCLUSION................................................................................................................. 20

Page i

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 3 of 22

L.R. 7-1 Certification Plaintiff conferred on this Motion with counsel for the Defendant agencies by telephone on July 20, 2020, and the parties could not reach an agreement requiring the court to resolve the matter.
I. MOTION Pursuant to Fed. R. Civ. Pro. 65, Plaintiff Ellen Rosenblum, Attorney General of the State of Oregon, moves this court for a temporary restraining order prohibiting Defendants from taking actions that exceed their authority, misrepresent their authority, and present a clear and present danger to the health and welfare of Oregon citizens and the peace and order of the State, specifically an order requiring that Defendants: a) Immediately cease detaining, arresting, or holding individuals without probable
cause or a warrant; and b) Identify themselves and their agency before detaining or arresting any person; and c) Explain to any person detained or arrested that the person is being detained or
arrested and explain the basis for that action. The Attorney General also asks the Court to immediately order Defendants to show cause why a preliminary injunction should not issue to continue each of the above restraints during the pendency of this action.
The Court has jurisdiction to grant a temporary restraining order because the State of Oregon and its inhabitants will suffer irreparable harm if Defendants continue the course of conduct alleged in the Complaint. In support of this motion, the Attorney General relies upon the Complaint, the Declarations of Sheila Potter, Mark Pettibone, Tiffany Chapman, Stephanie Debner, Jennifer Arnold, Terri Preeg-Riggsby, and the following points and authorities.
II. MEMORANDUM OF POINTS AND AUTHORITIES The Attorney General seeks extraordinary relief from the Court under extraordinary circumstances. In the small hours of the morning last Thursday, an armed group of

Page 1 -

MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 4 of 22

unidentifiable men in an unmarked vehicle snatched Mark Pettibone, a Portland resident, off the Portland streets, without explanation. This did not happen by accident, but pursuant to a federal strategy to terrorize Portland protestors, presumably in an effort to quell ongoing protests. Videos online reflect that Mr. Pettibone is not the only protester forcibly removed from the Portland streets and shoved into an unmarked car, without explanation. The Attorney General of Oregon now asks the federal courts to answer whether the United States Constitution permits federal law enforcement to snatch people in the middle of the night without identifying themselves or explaining the legal basis for their actions. She submits that the answer is no, and asks that this Court immediately enjoin federal officers from assuming the aspect of a disappearance squad.
Federal officers have occupied portions of Portland, Oregon, ostensibly to protect federal property. There is no question that they have the right to protect federal buildings. But these officers have also pursued peaceful, unarmed citizens through city streets and used unlawful intimidation tactics to instill fear of violence and chill the exercise of rights protected by both the Oregon Constitution and the United States Constitution.
These actions, if not restrained, will further escalate and incite violent confrontations with Oregon citizens attempting to exercise their First Amendment rights to assemble and peacefully protest. And these actions open the door to the risk of outright kidnapping of protesters by private citizens, as word spreads that genuine law enforcement agents are engaged in such tactics. The evidence shows that the actions of these federal officers are inconsistent with Constitutional standards and the public statements of federal officials establish that these actions are undertaken for improper political purposes. A. FACTUAL BACKGROUND
Americans across the country have demonstrated daily for racial justice and in protest against racism and acts of police violence since the death of George Floyd in Minneapolis.

Page 2 -

MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 5 of 22

Protests in Portland have occurred both during daylight hours and at night, many of the protests
occurring near and centered around the Justice Center and Mark O. Hatfield Federal Courthouse.
1. Federal troops were detailed to Portland to respond to the city’s protests. Various news sources have reported that federal law enforcement was sent to Portland in
or around late June or early July. On June 26, President Donald Trump signed an Executive
Order on Protecting American Monuments, Memorials, and Statues and Combating Recent
Criminal Violence, fulminating against the protests in American cities, and giving federal law
enforcement and military leave to “assist” in protecting federal property for the next six months:
Upon the request of the Secretary of the Interior, the Secretary of Homeland Security, or the Administrator of General Services, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security shall provide, as appropriate and consistent with applicable law, personnel to assist with the protection of Federal monuments, memorials, statues, or property. This section shall terminate 6 months from the date of this order unless extended by the President. Acting Secretary of the Department of Homeland Security Chad Wolf announced on July
3 that DHS was “following [President Trump’s] lead in deploying special units to defend our
national treasures from rioters.” Oregon Public Broadcasting has reported that, beginning July 1,
“Federal officers started playing a more obvious and active role during nightly protests in
Portland, pulling protesters’ attention away from the Multnomah County Justice Center and
refocusing it across the street on the Mark O. Hatfield Federal Courthouse. That night, federal
officers emerged from the boarded-up courthouse to fire pepper balls at demonstrators who came
too close to the building. Their appearance changed the protests.” The Willamette Week has
reported the presence of federal officers at the protests “since at least July 2.”
2. Federal troops begin pulling protesters off the street and putting them in unmarked vehicles.
Beginning last week—the week of July 13, 2020—federal officers appear to have moved
beyond merely firing projectiles at demonstrators and begun grabbing protesters, pulling them
off the sidewalks of downtown, and shoving them into unmarked vehicles. Mark Pettibone has

Page 3 -

MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 6 of 22

prepared a sworn Declaration detailing his experience with anonymous men who turned out to be federal officers of some kind. (See Decl. of Mark Pettibone.)
In his Declaration, Mr. Pettibone explains that he took part in a peaceful Black Lives Matter demonstration the night of July 14 and, while walking home around 2:00 a.m. on the morning of July 15, “[w]ithout warning, men in green military fatigues and adorned with generic ‘police’ patches, jumped out of an unmarked minivan and approached me. I did not know whether the men were police or far-right extremists, who, in my experience, frequently don military-like outfits and harass left-leaning protesters in Portland. My first thought was to run. I made it about a half-block before I realized there would be no escape from them. I sank to my knees and put my hands in the air.” (See id. at ¶¶ 2-5.)
The unidentified men forcibly transported Mr. Pettibone to what turned out to be the federal courthouse. He was read his Miranda rights and declined to waive them, after which he was eventually released. No one ever told Mr. Pettibone why he had been detained. To his knowledge no charges were made and no physical record of his arrest or detainment exists. He does not know whether he has been charged with a crime. (See id. at ¶¶ 6-7.)
Two other, similar incidents have been captured on videos available online. In one widely circulated video, two men in camouflage military-style uniforms and “POLICE” patches stride across a street and up to a man wearing black standing on a sidewalk, with his hands up. The uniformed men—who do not identify themselves, but are presumed to have been federal officers, due to the resemblance of their uniforms to that of other federal officers out that night— immediately bind the man’s hands and without a word lead him to an unmarked minivan, put him in the van, and drive away, as onlookers plead for them to identify themselves or say where they are taking the man.
Defendant U.S. Customs and Border Protection issued a statement on July 17, 2020 that appears to respond to that video and reads in relevant part:

Page 4 -

CBP agents had information indicating the person in the video was suspected of assaults against federal agents or destruction of federal property. Once CBP MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 7 of 22

agents approached the suspect, a large and violent mob moved towards their location. For everyone’s safety, CBP agents quickly moved the suspect to a safer location for further questioning. The CBP agents identified themselves and were wearing CBP insignia during the encounter. The names of the agents were not displayed due to recent doxing incidents against law enforcement personnel who serve and protect our country. The video of that unknown person’s detention shows no evidence of a “mob” at all, let alone the agents appearing to note or react to a “large and violent mob” approaching them. Rather, the agents walk up, put the man’s hands together over his head, and immediately turn and walk him back to their vehicle. The video has sound and does not reflect the agents identifying themselves or saying anything at all. No insignia are visible on the video. In yet another video, men in street clothes wearing black vests with the word “POLICE,” and no visible identifying information haul a woman into the back of their van and drive away, over the screams of onlookers. The video begins with the woman already on her stomach in the street with men kneeling around her. As the video progresses the unidentified armed men yank her onto her feet and force her into a vehicle. Onlookers scream questions at the men, asking who they are, where they are taking the woman, and why they’re taking her away. One of the men, pointing what appears to be a gun at the onlookers, shouts “You follow us, you will get shot, you understand me?” The identity of the woman is not known to the Attorney General. The Attorney General must assume the Defendants were responsible, based on the similarity of the tactics in that second video to those in the first, as well as to Mr. Pettibone’s report of his seizure and detention. Without the “POLICE” marking on the assailants’ vests, the video would appear to be of an armed kidnapping.
3. Defendants’ statements indicate intention to continue detentions unabated. Statements by federal officials, including the Acting U.S. Customs and Border Protection Commissioner, the Acting Secretary of the Department of Homeland Security, the Acting Deputy Secretary of the Department of Homeland Security, and the President indicate Defendants are unlikely to stop these tactics in the absence of a court compelling them to do so.

Page 5 -

MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 8 of 22

The Executive Order issued June 26 directs federal law enforcement and troops to “protect” federal property for a period of six months. That Executive Order reads, in part:

In the midst of these attacks, many State and local governments appear to have lost the ability to distinguish between the lawful exercise of rights to free speech and assembly and unvarnished vandalism. They have surrendered to mob rule, imperiling community safety, allowing for the wholesale violation of our laws, and privileging the violent impulses of the mob over the rights of law-abiding citizens. Worse, they apparently have lost the will or the desire to stand up to the radical fringe and defend the fundamental truth that America is good, her people are virtuous, and that justice prevails in this country to a far greater extent than anywhere else in the world. Some particularly misguided public officials even appear to have accepted the idea that violence can be virtuous and have prevented their police from enforcing the law and protecting public monuments, memorials, and statues from the mob’s ropes and graffiti.
My Administration will not allow violent mobs incited by a radical fringe to become the arbiters of the aspects of our history that can be celebrated in public spaces. State and local public officials’ abdication of their law enforcement responsibilities in deference to this violent assault must end.
At a press conference last week, the President is reported to have said, “We’ve done a
great job in Portland… Portland was totally out of control, and they went in, and I guess we have
many people right now in jail. We very much quelled it, and if it starts again, we’ll quell it again
very easily. It’s not hard to do, if you know what you’re doing.”
Willamette Week also reported that, during the same speech, “Trump condemned rising
gun violence in liberal cities, which he said was a result of defunding police departments. He
vowed to ‘take over’ if such violence continues to rise…. ‘Things are happening that nobody’s
ever seen happen in cities that are liberally run. I call them radical-lib. And yet they'll go and
march on areas and rip everything down in front of them.’”
Likewise, Defendant U.S. Customs and Border Protection issued a statement on Friday
July 17, reading:

While the U.S. Customs and Border Protection (CBP) respects every American’s right to protest peacefully, violence and civil unrest will not be tolerated. Violent anarchists have organized events in Portland over the last several weeks with willful intent to damage and destroy federal property, as well as injure federal officers and agents. These criminal actions will not be tolerated.
***

Page 6 -

MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 9 of 22

The Department of Homeland Security (DHS) and its components will continue to work tirelessly to reestablish law and order. The Federal Protective Service (FPS) is the lead government agency that CBP personnel are supporting. CBP personnel have been deployed to Portland in direct support of the Presidential Executive Order and the newly established DHS Protecting American Communities Task Force (PACT). CBP law enforcement personnel have been trained and cross designated under FPS legal authority 40 U.S.C. § 1315."
OPB has reported that Acting U.S. Customs and Border Protection Commissioner Mark
Morgan called the protesters criminals on Fox News, and said:

“I don’t want to get ahead of the president and his announcement, but the Department of Justice is going to be involved in this, DHS is going to be involved in this; and we’re really going to take a stand across the board. And we’re going to do what needs to be done to protect the men and women of this country.”
Kenneth Cuccinelli, Acting Deputy Secretary of the Department of Homeland Security, is
reported to have told the Washington Post on Sunday, June 19, that “the agency had deployed
tactical units from U.S. Immigration and Customs Enforcement and U.S. Customs and Border
Protection” to Portland and other cities. He told the Post that he and his agency “don’t have any
plans” to remove officers from Portland:

“When the violence recedes, then that is when we would look at that,” he said. “This isn’t intended to be a permanent arrangement, but it will last as long as the violence demands additional support to contend with.”
B. LEGAL STANDARD In a June 9, 2020, Order granting a motion restraining Portland police from using tear gas
inconsistently with the Police Bureau’s own rules, United States District Judge Marco A.
Hernandez set forth the applicable legal rules governing issuance of a temporary restraining
Order.

The standard for a temporary restraining order (TRO) is “essentially identical” to the standard for a preliminary injunction.…
“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’n Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural 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

Page 7 -

MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 10 of 22

showing of likelihood of success on the merits.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Order at 4, Don’t Shoot Portland v. City of Portland, No. 20-cv-00917-HZ (D. Or. June 6, 2020), ECF No. 29 (some internal citations omitted for space). The moving party must show a likelihood of success on the merits, the likelihood of irreparable harm without an order of restraint, the balance of equities favors the restraint, and that the relief requested is in the public interest. Winter, 555 U.S. at 20.

C. ARGUMENT Federal officers have demonstrated willingness to circumvent constitutional standards
and public statements by federal law enforcement officials have condoned excessive and intimidating tactics widely reported over the past week. The harm to Oregonians lies in both the impact on individuals’ free exercise of their constitutional rights, including First Amendment rights of free expression and assembly, Fourth Amendment rights to be free of unreasonable search and seizure, Fifth Amendment due process rights, and in the harm to the State in its sovereign interests in maintaining public safety and order. This Court should grant the restraining order sought here. The Attorney General is likely to succeed on the merits of this case, and the people of Oregon will be irreparably harmed without the restraint sought. The balance of equities and the public interest clearly favor the issuance of an order.

1. Attorney General’s authority to act here. The Oregon Attorney General is compelled to bring this case because the Defendant agencies have made it clear that they intend to continue their conduct in the absence of a court order. It should not be necessary to petition this Court for an order preventing federal officers from grabbing pedestrians off the street, shoving them into cars, and driving away with them, without the officers identifying themselves and their agency, or otherwise taking the steps necessary for a lawful detainment. But Defendants have made it necessary. The safety and well-being of Oregonians is plainly at risk under the circumstances created by Defendants. There is no way for an individual Oregonian to determine whether she is

Page 8 -

MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 11 of 22

being arrested or kidnapped, when she is seized using the tactics adopted by these Defendants. When federal officers simply walk up, grab someone, and push that person into a car—failing to identify themselves, failing to tell the person why the officers are placing her under arrest, failing to create a paper record to allow her to ever to know what happened to her and who did it—they are duplicating the circumstances of a kidnapping. As a result, not only are the officers violating the law, but they are damaging the State of Oregon in two distinct ways as a result: first, people are at greater risk now of being victimized by genuine kidnappers. And, second, Oregonians are now at greater risk of state violence if they reasonably resist what they believe is a kidnapping.
The State itself is damaged by the Defendants’ violence on its streets, and this Court’s intervention is urgently needed to redress that damage. Whether federal agencies are acting in a manner permitted by federal law or lawlessly—and thus potentially subject to state regulation— is a federal question that must be answered by this Court. The State is also damaged by the ease with which the tactics now being deployed by federal law enforcement can be mimicked creates an increased risk of horrific crimes being committed by private citizens who oppose the protests. In addition, there is a significant risk that individuals will be shot or beaten on the street by federal agents, for fighting off people they reasonably believed to be criminals.
The federal government has made it clear that it has no intention of withdrawing the officers or changing its tactics. The President has crowed about his perception of his officers’ success in Portland. The only way this will end is if this Court orders the officers to obey the law, identifying themselves appropriately and carrying out arrests in a manner consistent with their obligations under the Constitution. The Attorney General asks the Court to do just that.
Beyond the Attorney General’s role as the chief legal officer for the State of Oregon, she also has the right to speak for the people of her state. American courts have recognized that states as “parens patriae”—the parent of the citizens—have particular interests in the well-being of their populace. Aziz v. Trump, 231 F. Supp. 3d 23, 30 (E.D. Va. 2017) (quoting Alfred L.

Page 9 -

MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 12 of 22
Snapp & Son., Inc. v. Puerto Rico, 458 U.S. 592, 600 (1982)). The Aziz court found that a state
could bring a parens patriae action against the federal government “when the state has grounds
to argue that [an] executive action is contrary to federal statutory or constitutional law.” Id.
“A state has a quasi-sovereign interest in the health and well-being—both physical and
economic—of its residents in general.” Snapp & Son., 458 U.S. at 600 (1982) These interests can
include protecting its citizens from public nuisances. See Dep’t of Fair Emp’t & Hous. v. Lucent
Techs., Inc., 642 F.3d 728 (9th Cir. 2011). Protection of a state’s residents from unconstitutional
acts by federal law enforcement also falls within a state’s interest in the well-being of its
citizenry; the state has more than a nominal interest in bringing an end to such conduct.
The Southern District of Texas noted a line of cases demonstrating that states may sue the
federal government in parens patriae where the state brought the action to enforce the rights
guaranteed by a federal statute, rather than to protect its citizens against a federal statute:
Defendants’ succinct argument, however, ignores an established line of cases that have held that states may rely on the doctrine of parens patriae to maintain suits against the federal government. See, e.g., Wash. Utilities and Transp. Comm'n v. F.C.C., 513 F.2d 1142 (9th Cir. 1975) (state regulatory agency relied on parens patriae to bring suit against F.C.C. and U.S.); Kansas ex rel. Hayden v. United States, 748 F. Supp. 797 (D. Kan. 1990) (state brought suit against U.S. under parens patriae theory); Abrams v. Heckler, 582 F. Supp. 1155 (S.D.N.Y. 1984) (state used parens patriae to maintain suit against the Secretary of Health and Human Services). These cases rely on an important distinction. The plaintiff states in these cases are not bringing suit to protect their citizens from the operation of a federal statute—actions that are barred by the holding of Massachusetts v. Mellon. Rather, these states are bringing suit to enforce the rights guaranteed by a federal statute. Id. Texas v. U.S., 86 F. Supp. 3d 591, 626 (S.D. Tex. 2015) (emphasis in original).
In the present case, Oregon has an interest in the civic and physical wellbeing of its
people whose liberty interests are will be restrained by unconstitutional stops and detentions by
federal officers roaming its streets. In addition, these stops threaten to create a significant
chilling effect upon its citizens’ First Amendment rights of free speech, as citizens choose to stay
home in fear of being snatched up without warning by federal authorities, rather than exercise
their freedoms of speech and assembly by participating in peaceful protests.
Page 10 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 13 of 22
Should the practice of the Defendants continue in Oregon, such that arrests resemble kidnappings, public confidence in constitutional exercise of law enforcement will be diminished. If not restrained, further such actions could also impose post-event investigation and prosecution costs upon the State, which will divert its resources of staff and money from other tasks.
2. Likelihood of success on the merits. The Attorney General is likely to succeed on the merits of her lawsuit against the federal agencies and John Does. Defendants’ conduct runs afoul of First Amendment protections (discussed in section a., below) as well as Fourth Amendment (due process) protections.
a. Defendants’ conduct interferes with First Amendment rights. Oregonians have the right to move about in public places, including but not limited to engaging in activities protected by the First Amendment, without fear of unlawful detention by federal officers concealing their identity, silently grabbing them and shoving them into cars without explanation, seemingly without probable cause for arrests. Defendants have created legitimate reasons for people in Portland to fear for their personal safety and the integrity of their constitutional rights by the conduct of federal agents. Creating a climate of fear and intimidation associated with exercising First Amendment rights affects vulnerable citizens in particular. Individuals with disabilities, sole earners, single parents, and others may be particularly unwilling to risk the trauma and disruption to their families of being snatched off the streets. People wishing to come to downtown Portland to bear witness and uplift the voices of Black Lives Matter activists would have every reason to be fearful of doing so. (See Declarations of Tiffany Chapman, Stephanie Debner, and Terri PreegRiggsby.) The right to assemble and speak out in protest against the actions of governmental actors is one of the foremost rights of American citizens. This Court recently held, in the Don’t Shoot Portland case, that demonstrations and protests are protected speech:
Organized political protest is a form of “classically political speech.” Boos v. Barry, 485 U.S. 312, 318 (1988). “Activities such Page 11 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 14 of 22
as demonstrations, protest marches, and picketing are clearly protected by the First Amendment.” Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996). Order at 6, Don’t Shoot Portland, supra. An illustrative case is Johnson et al. v City of Berkeley et al., 2016 WL 928723 (2016). In that case, local law enforcement monitored a protest march. Plaintiffs alleged that they had peacefully participated in the demonstration either as protesters or journalists documenting the march. Law enforcement officers allegedly struck them with batons repeatedly, and in some instances, deployed tear gas. Two plaintiffs were arrested and spent the night in jail although they had done nothing wrong. In a civil case against the officers, the District Court denied the defense motion to dismiss the First Amendment claims because the allegations sufficiently stated a First Amendment violation. The court found that plaintiffs’ alleged actions of protesting constituted clear First Amendment activity and that law enforcement’s alleged response was clearly intended to have a chilling effect on plaintiffs’ freedom of expression. See also Rodriguez v. Winski, 973 F. Supp. 2d 411 (S.D.N.Y. 2013) (“[Defendant] arrested [plaintiff] during his participation in a protest. Hence, [plaintiff’s] expressive activity was not merely chilled, but was rather completely frustrated for the period of his arrest.” Id. at 427). Americans are entitled to express frustration, disapproval, profound disagreement, and even contempt for their government. Defendants may disagree with these sentiments, but they are not entitled to use the power of their office to discourage, intimidate, or retaliate against people expressing them. “[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987). “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. Damage to buildings, of course, may result in criminal charges—the right of expression does not extend to vandalism of county or federal property. But vandalism of federal buildings does not allow Defendants to operate outside their constitutional limitations. Page 12 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 15 of 22
City of Houston makes clear the notion that conduct can be offensive to and critical of law enforcement and still be constitutionally protected. Moreover “a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to “fighting words.’” Id. (quoting Lewis v. City of New Orleans, 415 U. S. 130, 135 (1974)) (Powell, J., concurring) (citation omitted).
To be sure, a showing of a First Amendment violation requires not only a deterrence but also that 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). The Defendants’ response to the Black Lives Matter movement in Portland is not just belligerent but repressive. Oregon residents downtown at night, away from any federal property, now have reason to fear that they may find themselves in an unmarked car, in an unknown location, surrounded by heavily armed individuals. “As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (brackets and quotation marks omitted). The statements of federal officials, quoted above, mischaracterizing protests and other constitutionally protected assembly in Portland strongly suggest that the Defendants’ objective is in fact to disrupt the protests themselves, and to deliver a message to the people of this country that dissent will be met with force.
Officers may be found to have engaged in retaliation for protected speech when arresting people, even if the officer had probable cause for the arrest (and here, nothing indicates that Defendants are in fact establishing probable cause before grabbing pedestrians off the street). Although a plaintiff ordinarily cannot bring a retaliatory-arrest claim if the officer had probable cause, “the no-probable-cause requirement [does] not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id. at 1727. “For example, at many intersections,
Page 13 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 16 of 22
jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection,” it is “insufficiently protective of First Amendment rights to dismiss the individual's retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest.” Id.
The no-probable-cause requirement also does not apply when the retaliatory arrest is part of an “official policy” of governmental intimidation. Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954 (2018). As the Supreme Court explained in Lozman:
An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-thespot decision by an individual officer. An official policy also can be difficult to dislodge. A citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation. For these reasons, when retaliation against protected speech is elevated to the level of official policy, there is a compelling need for adequate avenues of redress. Id. at 1948. Here, governmental intimidation appears to be the entire basis for the Defendants’ actions, and their conduct is unlawful and in violation of the First Amendment limitations on them.
b. Defendants’ actions violate the Fourth Amendment. In addition to violating First Amendment protections of free speech and assembly, Defendants’ conduct appears to violate of the Fourth Amendment protection against unlawful seizure, through unreasonable concealment of the arresting officers’ identity and the agency or authority they serve. For purposes of the Fourth Amendment, a person is seized when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n 16 (1968). See also Michigan v. Chesternut, 486 U.S. 567, 573 (1988). The Declaration of Page 14 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 17 of 22
Pettibone describes being detained by armed men using physical force —a situation where a reasonable person would believe they were “not free to leave.” In other words, there can be little doubt it was a seizure pursuant to the Fourth Amendment.
To be Constitutional, an arrest must be supported by probable cause. Probable cause under the Fourth Amendment is an objective standard. As explained in Ornelas v. United States, 517 U.S. 690, 696 (1996), probable cause exists “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found[.]” See also Devenpeck v. Alford, 543 U.S. 146 (2004). It is a “practical, common sense” determination based upon the “totality of the circumstances.” Illinois v. Gates, 462 US 213, 238 (1983). Probable cause for an arrest requires a fair probability that an offense has been committed or is being committed by the person who is to be arrested. See Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160 (1949). There is no known, credible explanation for the Federal officers’ arrest of Mr. Pettibone in this instance. The fact that he was later released without any additional exchange of information, without any paper trail of what had happened to him, and without any understanding of who exactly had grabbed him off the street or what agency they worked for strongly suggests that probable cause never existed.
A person who is likely to be subject to unconstitutional search and seizure, including specifically being stopped by law enforcement without probable cause, has grounds to enjoin such conduct by law enforcement. See Melendres v. Arpaio, 695 F.3d 990, 999 (9th Cir. 2012) (“the threatened constitutional injury was likely to occur again, and thus, there was no error in the determination that the Plaintiffs had standing to pursue equitable relief as to their Fourth Amendment claims”). Of course, individuals cannot seek redress against an abuse of law enforcement authority, if the law enforcement officers never tell the individual who they are or who they work for, or why they picked that person up.
Mr. Pettibone’s treatment does not stand alone, given the video evidence of other detentions. When there is a persistent pattern of police misconduct, injunctive relief is
Page 15 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 18 of 22
appropriate. In Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939), the Supreme Court affirmed such relief when law enforcement officials restricted labor union activities, interfering with the distribution of pamphlets, preventing public meetings, and running some labor organizers out of town. The Court upheld an injunction that prohibited the police from “exercising personal restraint over (the plaintiffs) without warrant or confining them without lawful arrest and production of them for prompt judicial hearing . . . or interfering with their free access to the streets, parks, or public places of the city.” Id. at 517.
The reasonableness—and constitutionality—of a seizure may also turn on whether the officer properly identified himself or herself as an officer to the arrestee during the encounter. The heavily armed men detaining Mr. Pettibone never advised under what authority he was being arrested, or by whom. The Seventh Circuit recently stated that “[i]n all but the most unusual circumstances, where identification would itself make the situation more dangerous, plainclothes officers must identify themselves when they initiate a stop.” Doornbos v. City of Chicago, 868 F.3d 572, 575 (7th Cir. 2017). As the court explained:
The tactic provokes panic and hostility from confused civilians who have no way of knowing that the stranger who seeks to detain them is an officer. This creates needless risks. Suppose you are walking along a street and are grabbed by a stranger (or three strangers). A fight-or-flight reaction is both understandable and foreseeable. Self-defense is a basic right, and many civilians who would peaceably comply with a police officer’s order will understandably be ready to resist or flee when accosted—let alone grabbed—by an unidentified person who is not in a police officer’s uniform. Absent unusual and dangerous circumstances, this tactic is unlikely to be reasonable when conducting a stop or a frisk. Id. at 584-85 (quotation marks and citations omitted). See also, e.g., Johnson v. Grob, 928 F. Supp. 889, 905 (W.D. Mo. 1996) (“a seizure outside the home may be unreasonable because the officers involved were not identified or identifiable as such, and the seized person suffers injuries because of the officers' lack of identification.”); Newell v. City of Salina, 276 F. Supp. 2d 1148, 1155 (D. Kan. 2003) (holding that a seizure, “without having identified themselves as law enforcement officers, may not be objectively reasonable.”).
Page 16 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 19 of 22
The Ninth Circuit has reached a similar conclusion in evaluating a use of force situation.
In S.R. Nehad v. Browder, 929 F.3d 1125, 1138 (9th Cir. 2019), the Ninth Circuit stated “we
have also considered as relevant a police officer's failure to identify himself or herself as such . . .
. Browder never verbally identified himself as a police officer or activated his police lights or
siren. A jury could consider those failures in assessing Nehad’s response to Browder and in
determining whether Browder’s use of force was reasonable.”
Finally, this District has also concluded that a failure of police officers to identify
themselves can amount to unlawful seizure. In Child v. City of Portland, 547 F. Supp. 2d 1161,
1165 (D. Or. 2008), the court considered a case in which Portland police failed to identify
themselves before detaining a plaintiff, and concluded that that conduct amounted to a viable
claim for illegal seizure that withstood summary judgment:
The facts in this case, taken together, do not justify the intrusive nature of Defendant Officers' actions at the time of the seizure of Plaintiff. When the Defendant Officers initially saw Plaintiff riding her bicycle without a light, as required by law, they reasonably approached her for purposes of investigation. At this point, however, the officers departed from a course of behavior that permitted them to reasonably detain Plaintiff. First, they pulled up to Plaintiff in an unmarked car, failed to identify themselves as police officers, ignored Plaintiff's requests that they identify themselves, did not use the car lights in a manner that would suggest they were police officers, or otherwise attempt to communicate their purpose in approaching Plaintiff. Under these facts, Plaintiff was reasonably unsure and fearful of their intentions. Defendant Officers did not act reasonably when they chased a frightened woman into her yard and pulled her out of her house by her arm and her hair. Therefore, a reasonable jury could find for Plaintiff and Defendants' motion for summary judgment on the claim of illegal seizure should be denied. As in the Child case, Defendants here are using unmarked vehicles, are not wearing a
recognizable police uniform, are not identifying themselves or their agency, and are dragging
frightened people into their cars. When these federal officers operate incognito, they cannot be
distinguished from lawless militia opposed to the protests, or simply kidnappers out to exploit
victims who may believe that they have an obligation to obey their captors. For the safety of
everyone, the federal agents on the scene must identify themselves before making an arrest.
Page 17 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 20 of 22
The actions of Defendants in Oregon constitute a direct threat to the individual rights of all Oregonians. Allowing federal agents to roam the streets of an Oregon city detaining individuals in violation of their federal and State constitutional rights harms not just the individuals, but the interests of the State in protecting the constitutional rights of Oregonians. The Attorney General is likely to prevail on her claim for a declaration and injunction that seeks to hold federal officers to basic jurisdictional and constitutional standards.
3. Irreparable harm. Deprivation of a constitutional right is a harm in and of itself. See, e.g., Padilla v. U.S. Immig. And Customs Enforcement, 387 F. Supp. 3d 1219, 1231 (2019) citing Hernandez v. Sessions, 872 F. 3d 976, 995 (9th Cir. 2017). The conduct of federal agents chills the exercise of protected First Amendment rights and violates the law governing officers’ conduct in light of Fourth Amendment rights. The law strongly favors the Attorney General’s goal of preserving the peace of the State and protecting its people from arbitrary and unconstitutional detention. If the conduct of the past week continues, the people of Oregon and the peace of the State will be irreparably harmed because people walking downtown will fear arbitrary and violent confrontations with persons who may—or may not—be federal officers. And state and local law enforcement officers will be irreparably harmed because the Defendants’ unconstitutional tactics will escalate confrontations with law enforcement, and undermine faith in law enforcement.
4. The balance of equities supports issuing an injunction. Balancing the equities requires the court to identify and consider “competing claims of injury” and how granting or denying the requested restraint will affect the parties. Winter, supra, 555 U.S. at 24. Because the Attorney General’s request seeks maintenance of the lawful bounds of conduct applicable to the federal officers, no injury to defendants’ interest is readily apparent. The balance of equities tips in favor of the Attorney General’s commitment to protecting the people of the State and the public order. See W. Watersheds Project v. Bernhardt, 391 F. Supp. 3d 1002, 1026 (D. Or. 2019) (“Courts also have repeatedly held that when the government does
Page 18 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 21 of 22
not properly follow the law or regulations, balancing the equities favors the plaintiff. See, e.g., Valle del Sol, Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (“[i]t is clear that it would not be equitable or in the public's interest to allow the state ... to violate the requirements of federal law, especially when there are no adequate remedies available”) (quoting United States v. Arizona, 641 F.3d 339, 366 (9th Cir. 2011), aff’d in part, rev’d in part, and remanded by Arizona v. United States, 567 U.S. 387 (2012) ); J.L. v. Cissna, 341 F. Supp. 3d 1048, 1070 (N.D. Cal. 2018) (noting that the balance of equities factor weighs in favor of the plaintiffs ‘when plaintiffs have also established that the government’s policy violates federal law’).”).
Defendants have no legitimate claim to continue the conduct sought to be restrained. No public benefit accrues to permitting federal officers to circumvent the Constitution and cause fear and confusion among the people of Oregon.
5. The public interest supports restraining Defendants’ conduct. The public interest inquiry focuses primarily on the impact a restraint will have on nonparties. See League of Wilderness Def./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014); Western Watersheds, supra. As Judge Simon recently noted, “[w]hen the alleged action by the government violates federal law, the public interest factor weighs in favor of the plaintiff.” Western Watersheds, supra (citing to Valle del Sol, 732 F.3d at 1029. The Don’t Shoot Portland decision recognized the complementary principle that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Order at 9, Don’t Shoot Portland, June 6, 2020, supra. This Court went on to explain, in the context of the same public protests in Portland: “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.” Id. Additionally, as this Court concluded, the public interest is also served by “allowing the police to do their jobs and to protect lives as well as property.” Id. Here, the requested restraint serves the public interest in both ways. Prohibiting federal
Page 19 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 5 Filed 07/20/20 Page 22 of 22
officers from engaging in the conduct at issue advances the public interest in allowing local authorities to pursue public peace without the incitements engendered by these unlawful acts.
There is no public interest in prior restraints of First Amendment rights, unconstitutional detentions, or arrests without probable cause. There will be a direct impact on people who may be subjected to the same conduct not knowing whether they are being abducted (and may resist with all their might, engaging in self-defense to the fullest extent permitted by law) or are being arrested (such that resisting may be charged as a crime).
III. CONCLUSION Until the Court can convene a hearing on the Attorney General’s request for a preliminary injunction, Defendants should be restrained from engaging in conduct that threatens to irreparably harm the public peace and security of Oregon. DATED July 20 , 2020.
Respectfully submitted, ELLEN F. ROSENBLUM Attorney General
s/ Sheila H. Potter SHEILA H. POTTER #993485 Deputy Chief Trial Counsel STEVEN M. LIPPOLD, OSB #903239 Chief Trial Counsel Trial Attorneys Sheila.Potter@doj.state.or.us Steve.Lippold@doj.state.or.us Of Attorneys for Plaintiff
Page 20 - MOTION FOR TEMPORARY RESTRAINING ORDER
SP3/db5/#10342023-v1 Department of Justice 100 SW Market Street Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000

 
 Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 1 of 34

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

ELLEN ROSENBLUM, Oregon Attorney General,
Plaintiff.
v. JOHN DOES 1-10, et al.,
Defendants.

Case No. 3:20-cv-01161-MO
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRATINING ORDER AND PRELIMINARY INJUNCTION

FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 2 of 34
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2
I. Recent Destruction of Federal Property and Assaults on Federal Officers in Portland .............................................................................................................................2
II. Legal Authority to Protect Federal Property ....................................................................5 STANDARD FOR EMERGENCY RELIEF.................................................................................. 8 ARGUMENT .................................................................................................................................. 9
I. Plaintiffs is Unlikely to Succeed on the Merits .....................................................................9 A. Plaintiff Lacks Standing as Parens Patriae.............................................................. 9 B. Plaintiff Plaintiff Fails to Demonstrate that Oregonians Have Suffered Even Past Harm..................................................................................................... 14 1. The Conclusory Allegations Fail to Establish that Any Seizures Have Been Unreasonable Under the Fourth Amendment. ..................................14 2. Plaintiff Fails to Establish that Defendants Have Interfered with Oregonians First Amendment Rights.........................................................16 C. Plaintiff Has Not Demonstrated Standing for Equitable Relief Based on Future Harm Harm ................................................................................ 19 D. The Injunction Plaintiff Seeks is Overbroad and Unworkable ..............................22
II. Plaintiff Cannot Demonstrate Irreparable Harm .................................................................24 IV. Both the Balance of the Equities and Public Interst Weigh Against Granting an
Injunction .............................................................................................................................25
CONCLUSION............................................................................................................................. 27
FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – i

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 3 of 34
TABLE OF AUTHORITIES
Cases
Alaska v. United States, No. 91-36297, 1992 U.S. App. LEXIS 33377 (9th Cir. Dec. 7, 1992) .......................................................... 10
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .................................................................................................. 8
Aziz v. Trump, 231 F. Supp. 3d 23 (E.D. Va. 2017) ....................................................................................... 10
Bell v. Keating, 697 F.3d 445 (7th Cir. 2012) .................................................................................................. 26
Blum v. Yaretsky, 457 U.S. 991 (1982) ............................................................................................................... 19
Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999) .............................................................................................. 22
Califano v. Yamasaki, 442 U.S. 682 (1979) ............................................................................................................... 22
California v. Azar, 911 F.3d 558 (9th Cir. 2018) .................................................................................................... 9
Center for Biological Diversity v. U.S. Dep’t of the Interior, 563 F.3d 466 (D.C. Cir. 2009) ................................................................................................ 10
Child v. City of Portland, 547 F. Supp. 2d 1161 (D. Or. 2008) ....................................................................................... 15
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............................................................................................. 1, 2, 12, 19, 20
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ............................................................................................................... 21
Curtis v. City of New Haven, 726 F.2d 65 (2d Cir. 1984) ..................................................................................................... 20
Cuviello v. City of Oakland, 2009 WL 734676 (N.D. Cal. Mar. 19, 2009) ......................................................................... 22
Doornbos v. City of Chicago, 868 F.3d 572 (7th Cir. 2017) ............................................................................................ 15, 23
E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026 (9th Cir. 2019) ................................................................................................ 22
FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – iii

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 4 of 34
Eggar v. City of Livingston, 40 F.3d 312 (9th Cir. 1994) .................................................................................................... 20
Feiner v. New York, 340 U.S. 315 (1951) ............................................................................................................... 25
Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) .................................................................................................... 9
Gill v. Whitford, 138 S. Ct. 1916 (2018) ............................................................................................................ 22
Graham v. Connor, 490 U.S. 386 (1989) ....................................................................................................... 6, 7, 21
Grayned v. City of Rockford, 408 U.S. 104 (1972) ................................................................................................... 17, 25-26
Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939) ............................................................................................................... 23
Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cty., 542 U.S. 177 (2004) ............................................................................................................... 23
Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) ............................................................................................................... 25
Johnson v. Grob, 928 F. Supp. 889 (W.D. Mo. 1996) ........................................................................................ 15
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970 (9th Cir.1991) ................................................................................................... 22
Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012) .................................................................................................. 8
Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018) ............................................................................................................ 18
Lujan v. Defenders of Wildlife, 504 U.S. 562 (1992) ................................................................................................... 11, 12, 19
Massachusetts v. EPA, 549 U.S. 497 (2007) ............................................................................................................... 10
McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870 (9th Cir. 2011) ............................................................................................ 11, 12
FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – iv

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 5 of 34
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283 (9th Cir. 1999) .......................................................................................... 17, 18
Missouri ex rel. Koster v. Harris, 847 F.3d 646 (9th Cir. 2017) ...................................................................................... 11, 13, 14
Munns v. Kerry, 782 F.3d 402 (9th Cir. 2015) .................................................................................................. 21
Murphy v. Kenops, 99 F. Supp. 2d 1255–60 (D. Or. 1999) ................................................................................... 20
Nelsen v. King County, 895 F.2d 1248 (9th Cir. 1990) ................................................................................................. 19
Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990) .................................................................................................. 10
Newell v. City of Salina, 276 F. Supp. 2d 1148 (D. Kan. 2003) ..................................................................................... 15
Nieves v. Bartlett, 139 S. Ct. 1715 (2019) ............................................................................................................ 18
Nken v. Holder, 556 U.S. 418 (2009) ............................................................................................................... 24
NLRB v. USPS, 486 F.3d 683 (10th Cir. 2007) ................................................................................................ 22
Alfred L. Snapp & Son v. P.R. 458 U.S. 592 (1982) ......................................................................................................... 10, 13
Washington Utils. and Transp. Comm’n v. FCC, 513 F.2d 1142 (9th Cir. 1975) ................................................................................................ 10
Oregon v. Legal Servs. Corp., 552 F.3d 965 (9th Cir. 2009) .................................................................................................. 13
O’Shea v. Littleton, 414 U.S. 488 (1974) ............................................................................................................... 20
Pac. Kidney & Hypertension, LLC v. Kassakian, 156 F. Supp. 3d 1219 (D. Or. 2016) ......................................................................................... 8
Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir. 1997) ................................................................................................ 24
Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057 (9th Cir. 2014) ................................................................................................ 25
FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – v

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 6 of 34
Rizzo v. Goode, 423 U.S. 362 (1976) ............................................................................................................... 20
S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232 (2d Cir. 2001) ................................................................................................... 22
S.R. Nehad v. Browder, 929 F.3d 1125 (9th Cir. 2019) ................................................................................................ 15
Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011) ................................................................................................ 10
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) ................................................................................................................. 9
Texas v. U.S., 86 F. Supp. 3d 591 (S.D. Tex. 2015) ...................................................................................... 10
United States v. 100.00 in U.S. Currency, 354 F.3d 1110 (9th Cir. 2004) .......................................................................................... 12-13
United States v. Christopher, 700 F.2d 1253 (9th Cir. 1983) .................................................................................................. 6
United States v. Griefen, 200 F.3d 1256 (9th Cir. 2000) .................................................................................... 17, 25, 26
United States v. Hensley, 469 U.S. 221 (1985) ............................................................................................................... 26
United States v. Patane, 542 U.S. 630 (2004) ............................................................................................................... 21
United States v. Sharpe, 470 U.S. 675 (1985) ............................................................................................................... 24
Voigt v. Savell, 70 F.3d 1552 (9th Cir. 1995) .................................................................................................. 11
Williams v. Birmingham Bd. of Educ., 904 F.3d 1248 (11th Cir. 2018) ........................................................................................ 20-21
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ..................................................................................................................... 8
Constitution U.S. Const., amend. I ............................................................................................................ passim U.S. Const., amend. IV ............................................................................................................. 1, 14
FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – vi

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 7 of 34 Statutes 18 U.S.C § 111 ......................................................................................................................... 5, 25 18 U.S.C. § 1361 .......................................................................................................................... 25 28 U.S.C. § 566 .......................................................................................................................... 7, 8 40 U.S.C. § 1315 ........................................................................................................................ 5, 6 Regulations 41 C.F.R. § 102-74.390 .................................................................................................................. 6 28 C.F.R. § 0.111 ........................................................................................................................... 7 Rules Fed. R. Civ. P. 65 ......................................................................................................................... 22
FEDERAL DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – vii

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 8 of 34
INTRODUCTION Plaintiffs seek the extraordinary remedy of a temporary restraining order and preliminary injunction that would hinder the ability of federal law enforcement officers to protect federal property that has been repeatedly damaged after weeks of violent protests in Portland. Plaintiff, the Oregon Attorney General, bases this request for emergency injunctive relief on alleged violations of the First and Fourth Amendment rights of Oregon residents. The Court should deny this request for several reasons. First, Plaintiff lacks standing to seek emergency relief. Although Plaintiff intends to act as parens patriae on behalf of Oregon residents, Oregon has no quasi-sovereign interests justifying Plaintiff acting in such a capacity. Even if Plaintiff could assert third-party standing for such claims generally, there is no constitutional standing here, because it is well-established that a plaintiff lacks standing to obtain prospective injunctive relief for alleged future injuries based on allegations of prior harm. See City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). Yet that is Plaintiff’s gambit here—seeking to have the Court enter a temporary restraining order based on at most two alleged past encounters involving federal law enforcement officers, when Plaintiff has not demonstrated that similar incidents will take place in the future. But Plaintiff has also failed to demonstrate that even those past encounters violated Oregonians’ rights. Plaintiff cannot therefore demonstrate a certainly impending injury, so there is no standing to seek injunctive relief. For many of these same reasons, Plaintiff also cannot show a likelihood of irreparable harm, a prerequisite for granting emergency injunctive relief. Second, the relief that Plaintiff seeks is entirely improper. Plaintiff seeks a sweeping injunction that would be unworkable in light of the split-second judgments that federal law enforcement officers have to make while protecting federal property and themselves during dynamic, chaotic situations. By eliminating lawful investigatory stops and requiring federal DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 1

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 9 of 34

officers to go far beyond the requirements of law in identifying themselves and explaining the rationale for each of their actions, all under the threat of contempt, the proposed injunction would improperly bind the hands of law enforcement. It would prevent them from taking appropriate action when individuals are engaging in criminal conduct and be unworkable from a practical standpoint as law enforcement officers respond to violent situations.
Third, and finally, the balance of the equities and the public interest counsel against granting Plaintiff’s request. The public has a strong interest in the maintenance of public safety, including protecting federal property and protecting law enforcement officers and the general public against imminent threats of serious bodily injury. Simply put, the federal government has the legal obligation and right to protect federal property and federal officers, and the public has a compelling interest in the protection of that property and personnel. Federal officers must be free to investigate violations of the federal law and arrest those engaging in violent crimes in a manner consistent with the Constitution.

BACKGROUND

I.

Recent Destruction of Federal Property and Assaults on Federal Officers in

Portland

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

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

as Exhibit 1). These daily protests have regularly been followed by nightly criminal activity in

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

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

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

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

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

DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 2

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 10 of 34
May 28, 2020, the ICE Portland Field Office was targeted by a Molotov Cocktail. See Affidavit of Special Agent David Miller ¶ 5 (July 4, 2020), United States v. Olsen, 20-mj-00147 (D. Or) (Exhibit 2). The Mark O. Hatfield Courthouse has experienced significant damage to its façade and building fixtures, including the vandalism and theft of building security cameras and access control devices. Id. The most recent repair estimate for the damage at the Hatfield Courthouse is in excess of $50,000. Id.
Officers protecting these properties have also been subject to threats, rocks and ball bearings fired with wrist rockets, improvised explosives, aerial fireworks, commercial grade mortars, high intensity lasers targeting officers’ eyes, full and empty glass bottles, and balloons filled with paint and other substances such as feces. Russell Decl. ¶ 4. The most serious injury to an officer to date occurred when a protester wielding a two-pound sledgehammer struck an officer in the head and shoulder when the officer tried to prevent the protester from breaking down a door to the Hatfield Courthouse. Id. To date, 28 federal law enforcement officers have experienced injuries during the rioting. Injuries include broken bones, hearing damage, eye damage, a dislocated shoulder, sprains, strains, and contusions. Id.; see Acting Secretary Wolf Condemns The Rampant Long-Lasting Violence in Portland (July 16, 2020) (Exhibit 3) (listing over 75 separate incidents of property destruction and assaults against federal officers between May 29, 2020 and July 15, 2020); see also DHS, FPS, and CBP Press Conference July 21, 2020, available at https://www.youtube.com/watch?v=2XTYITCtFlc (last visited July 22, 2020).
In response to the damage to federal property and assaults on federal law enforcement officers, DHS deployed federal officers to Portland for the purposes of protecting federal buildings and property. Russell Decl. ¶ 5. There are currently 114 federal law enforcement officers from the FPS, ICE, U.S. Customs and Border Protection (CBP), and the US Marshals
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 3

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 11 of 34
Service (USMS) protecting federal facilities in downtown Portland. Id. From May 27 until July 3, officers were stationed in a defensive posture intended to de-escalate tensions by remaining inside federal buildings and only responding to breach attempts or other serious crimes. Id. This attempt to de-escalate was unsuccessful and an increasingly violent series of attacks culminated in a brazen effort to break into and set fire to the Hatfield Courthouse in the early morning hours of July 3, 2020. Id. A group of individuals used teamwork and rehearsed tactics to breach the front entry of the Courthouse by smashing the glass entryway doors. Id. The individuals threw balloons containing an accelerant liquid into the lobby and fired powerful commercial fireworks towards the accelerant in an apparent attempt to start a fire. Id.
The violence against federal officers and federal property over the Fourth of July holiday weekend resulted in the arrests of multiple individuals:
• On July 2-3, 2020, Rowan Olsen used his body to push on and hold a glass door at the Hatfield Courthouse closed, preventing officers from exiting the building and causing the door to shatter. With the door broken, a mortar firework entered the courthouse, detonating near the officers. The officers used shields and their bodies to block the open doorway for approximately six hours until demonstrators dispersed.
• On July 4, 2020, Shat Singh Ahuja willfully destroyed a closed-circuit video camera mounted on the exterior of the Hatfield Courthouse.
• On July 5, 2020, Gretchen Blank assaulted a federal officer with a shield while the officer was attempting to arrest another protester.
• On July 5-6, 2020, four men assaulted federal officers with high intensity lasers. At the time of his arrest, one of the men also possessed a sheathed machete.
See Seven Arrested, Facing Federal Charges After Weekend Riots at Hatfield Federal Courthouse (July 7, 2020) (Exhibit 4). In response to the increasingly violent attacks, DHS implemented tactics intended to positively identify and arrest serious offenders for crimes such as assault, while protecting the rights of individuals engaged in protected free speech activity. Russell Decl. ¶ 5.
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 4

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 12 of 34
II. Legal Authority to Protect Federal Property FPS, a component of the Department of Homeland Security, is the federal agency charged with protecting federal facilities across the country. See Federal Protective Service Operation, at https://www.dhs.gov/fps-operations. Congress authorized DHS to “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government.” 40 U.S.C. § 1315(a). While engaged in their duties, FPS officers are authorized to conduct a wide range of law enforcement functions:
(A) enforce Federal laws and regulations for the protection of persons and property; (B) carry firearms; (C) make arrests without a warrant for any offense against the United States committed in
the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony;1 (D) serve warrants and subpoenas issued under the authority of the United States; (E) conduct investigations, on and off the property in question, of offenses that may have been committed against property owned or occupied by the Federal Government or persons on the property; and (F) carry out such other activities for the promotion of homeland security as the Secretary may prescribe. 40 U.S.C. § 1315(b)(2). Additionally, the Secretary of Homeland Security may designate DHS employees “as officers and agents for duty in connection with the protection of property owned or occupied by the Federal Government and persons on the property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property.” 40 U.S.C. § 1315(b)(1).
1 See, e.g., 18 U.S.C § 111 (assaulting a federal officer). DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 5

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 13 of 34
Congress also delegated authority to DHS to issue regulations “necessary for the protection and administration of property owned or occupied by the Federal Government and persons on the property.” 40 U.S.C. § 1315(c). Current regulations may include “reasonable penalties,” including fines and imprisonment for not more than 30 days. 40 U.S.C. § 1315(c)(2). The regulations cover many activities, including prohibiting disorderly conduct on federal property (41 C.F.R. § 102-74.390); failing to obey a lawful order (41 C.F.R. § 102-74.385); and creating a hazard on federal property (41 C.F.R. § 102-74.380(d)). See United States v. Christopher, 700 F.2d 1253 (9th Cir. 1983) (affirming convictions on charges of being present on federal property after normal work hours in violation of 41 C.F.R. §§ 101–20.302 and 101– 20.315).
In exercising its authority to protect federal property, FPS follows DHS policy on the use of force. See DHS Policy on the Use of Force (Sept. 7, 2018) (Exhibit 5). Consistent with guidance from the Supreme Court, see Graham v. Connor, 490 U.S. 386 (1989), DHS policy authorizes officers to “use only the force that is objectively reasonable in light of the facts and circumstances confronting him or her at the time force is applied,” recognizing that officers are “often forced to make split-second judgments, in circumstances that are tense, uncertain, and rapidly evolving.” DHS Policy at 1–2. The policy states that officers “should seek to employ tactics and techniques that effectively bring an incident under control while promoting the safety of [the officer] and the public, and that minimize the risk of unintended injury or serious property damage.” Id. at 3. DHS components must conduct training on “less-lethal use of force” at least every two years and incorporate decision-making and scenario-based situations. Id. at 5. Further, officers must demonstrate proficiency with less-lethal force devices, such as impact
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 6

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 14 of 34
weapons or chemical agents, before using such devices. Id. DHS policy emphasizes “respect for human life,” “de-escalation,” and “use of safe tactics.” Id. at. 3.
DHS has also emphasized to its employees the importance of respecting activities protected by the First Amendment. See DHS Memo re: Information Regarding First Amendment Protected Activities (May 17, 2029) (Exhibit 6). “DHS does not profile, target, or discriminate against any individual for exercising his or her First Amendment rights.” Id. at 1.
In addition to DHS’s authority to protect federal property, the United States Marshals Service, a component of the Department of Justice, provides security inside federal courthouses in each of the 94 federal judicial districts and in the District of Columbia Superior Court. See U.S. Marshals Service, Court Security, at www.usmarshals.gov/duties/courts.htm/. The Marshals Service protects judges and other court officials at over 400 locations where courtrelated activities are conducted. Id. As set forth in 28 U.S.C. § 566(a), “[i]t is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals, the Court of International Trade, and the United States Tax Court, as provided by law.” The regulations governing the duties of the Marshals Service further authorize it to provide “assistance in the protection of Federal property and buildings.” 28 C.F.R. § 0.111(f); see also 28 U.S.C. § 566(i) (requiring the Director of the United States Marshals Service to consult with the Judicial Conference of the United States concerning, inter alia, “the security of buildings housing the judiciary” and stating that the “United States Marshals Service retains final authority regarding security requirements for the judicial branch of the Federal Government.”).
The Marshals Service’s actions to protect the federal judiciary are guided by an agencywide use of force policy. See United States Marshals Service, Policy Directive 14.15, Use of
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 7

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 15 of 34
Force (Sept. 24, 2018) (Exhibit 7). Pursuant to that policy, the use of force must be objectively reasonable and Deputy Marshals may use less-than-lethal force only in situations where reasonable force, based upon the totality of the circumstances at the time of the incident, is necessary to, among other things, protect themselves or others from physical harm or make an arrest. See id. Deputy Marshals are not authorized to use less-than-lethal devices if voice commands or physical control achieve the law enforcement objective. See id. Further, they must stop using less-than-lethal devices once they are no longer needed to achieve its law enforcement purpose. See id. And in all events, less-than-lethal weapons may not be used to punish, harass, taunt, or abuse a subject. See id.
STANDARD FOR EMERGENCY RELIEF The standard for a temporary restraining order is generally the same as for a preliminary injunction. Pac. Kidney & Hypertension, LLC v. Kassakian, 156 F. Supp. 3d 1219, 1222 (D. Or. 2016). A preliminary injunction is “an extraordinary and drastic remedy” that should not be granted “unless the movant, by a clear showing, carries the burden of persuasion.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012). A plaintiff must show that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).2 “Likelihood of success on the merits is the most important factor” and if a plaintiff fails to meet this “threshold inquiry,” the
2 Alternatively, “serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (citation omitted).
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 8

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 16 of 34
court “need not consider the other factors.” California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018). Because standing is a prerequisite to the Court’s exercise of jurisdiction, see Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014), the plaintiff’s claims on the merits have no likelihood of success if the plaintiffs cannot establish standing. Id. at 158 (“The party invoking federal jurisdiction bears the burden of establishing’ standing and must do so “the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”) (internal quotations and citations omitted).
Plaintiff must meet an even higher standard in this case because they seek a mandatory injunction that would alter the status quo and impose affirmative requirements on law enforcement officers as they carry out their duties. See Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (mandatory injunctions are “particularly disfavored” and the “district court should deny such relief unless the facts and law clearly favor the moving party.”) (internal quotations omitted). As explained below, Plaintiff cannot meet this demanding standard.
ARGUMENT I. PLAINTIFF IS UNLIKELY TO SUCCEED ON THE MERITS
A. Plaintiff Lacks Standing as Parens Patriae The sole Plaintiff in this matter is the State of Oregon through the Attorney General in her official capacity. Plaintiff alleges standing on a parens patriae theory, Pl. Mot. at 9-10, which is not supported by the allegations of the complaint or the arguments of Plaintiffs’ motion for a temporary restraining order. Because standing is a prerequisite to the Court’s exercise of jurisdiction, see Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014), Plaintiff’s claims have no likelihood of success on the merits. Id. at 159.
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 9

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 17 of 34
Plaintiff relies on Alfred L. Snapp & Son v. P.R., 458 U.S. 592 (1982) (“Snapp”), and two
out-of-Circuit district court cases, Aziz v. Trump, 231 F. Supp. 3d 23, 30 (E.D. Va. 2017), and
Texas v. U.S., 86 F. Supp. 3d 591, 626 (S.D. Tex. 2015), for the proposition that a state may
bring suit parens patriae against the federal government. However, Snapp, and the controlling
law of this Circuit, hold exactly the opposite: “[A] State does not have standing as parens patriae to bring an action against the Federal Government.” 3 Nevada v. Burford, 918 F.2d 854, 858 (9th
Cir. 1990) (quoting Snapp, 458 U.S. 592, 610 n.10); Sierra Forest Legacy v. Sherman, 646 F.3d
1161, 1178 (9th Cir. 2011) (“California, like all states, does not have standing as parens patriae
to bring an action against the Federal Government.” (citation omitted)). This alone dooms
Plaintiff’s assertion of parens patriae standing here.
But even if Nevada were not fatal to Plaintiff’s parens patriae standing, Plaintiff would
still be unable to establish standing under that theory or even under a more general theory of
third-party standing. “States asserting parens patriae standing must meet both the basic
requirements of Article III standing and the unique requirements of that doctrine,” namely that
3 Moreover, both the Aziz and Texas cases rely in part on Washington Utils. and Transp. Comm’n v. FCC, 513 F.2d 1142 (9th Cir. 1975), a Ninth Circuit decision which predates Snapp and which the Circuit has recognized is no longer good law on this question. See Alaska v. United States, No. 91-36297, 1992 U.S. App. LEXIS 33377, at *3 (9th Cir. Dec. 7, 1992) (“Though at one time we recognized parens patriae standing [in suits against federal agencies], see Washington Utils. & Transp. Comm'n v. FCC, 513 F.2d 1142, 1153 (9th Cir. 1975) . . . we have since acknowledged that the view expressed by the Supreme Court in Snapp is controlling.”) (citing Nevada, 918 F.2d at 858.) Plaintiff does not invoke Massachusetts v. EPA, 549 U.S. 497 (2007), but that case also does not undermine Nevada. The Supreme Court did not invoke Massachusetts’s parens patriae interests—i.e., its interests in protecting its citizens’ well-being. Rather, the Court relied on Massachusetts’s own interests in protecting its sovereign territory. 549 U.S. at 522 (“rising seas ha[d] already begun to swallow Massachusetts’ coastal land”); see also Center for Biological Diversity v. U.S. Dep’t of the Interior, 563 F.3d 466, 476 (D.C. Cir. 2009) (observing that in Massachusetts v. EPA, Massachusetts was suing in its own interest as a sovereign).
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 10

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 18 of 34
the State articulates an interest apart from the interests of particular private parties and that the State “express[es] a quasi-sovereign interest.” Missouri ex rel. Koster v. Harris, 847 F.3d 646, 651 (9th Cir. 2017) (internal citations omitted).4 Plaintiff can meet neither the general requirements of constitutional standing nor the additional requirements of a parens patriae theory.
On constitutional standing, Plaintiff has not and could not allege that Oregon is itself subject to any unlawful detentions or any deprivation of constitutional rights. See Compl. 5-7. As a result, Plaintiff could only hope to establish Article III standing under the third-party standing doctrine. But because “plaintiff is not the object of the government action…challenge[d], standing…[is] substantially more difficult’ to establish.” Lujan v. Defenders of Wildlife, 504 U.S. 562 (1992). “To demonstrate third party standing, a plaintiff must show his own injury, a close relationship between himself and the parties whose rights he asserts, and the inability of the parties to assert their own rights.” McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870, 879 (9th Cir. 2011) (citing Powers v. Ohio, 499 U.S. 400, 410-11 (1991)). Assuming for purposes of this motion only that an individual’s presence within a state constitutes such a “close relationship,”5 Plaintiff still fails to satisfy the third-party standing requirements.
Plaintiff claims that Defendants’ alleged conduct “violate[s] the state’s sovereign interests in enforcing its laws and in protecting people within its borders from kidnap and false arrest.” Compl. ¶ 20; Pl. Mot. at 8 (“harm to the State in its sovereign interests in maintaining public safety and order”). Plaintiff also argues that “[t]he State itself is damaged by the
4 Unlike this case, Harris was a suit by states against another state and private parties. 5 What constitutes a sufficiently close relationship is not clearly defined and does not track well with the situation presented in this case. See Voigt v. Savell, 70 F.3d 1552, 1564-65 (9th Cir. 1995) (collecting cases). DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 11

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 19 of 34
Defendants’ violence on its streets,” and “damaged by the ease with which the tactics now being deployed by federal law enforcement can be mimicked creates an increased risk of horrific crimes being committed by private citizens who oppose the protests.” Pl. Mot. at 9. No mention is given to the role the state should generally play in preventing the widespread violence, and the violence specifically targeting federal property in Portland, that has necessitated a federal response. Regardless, all of these allegations are purely speculative and cannot support the finding of injury-in-fact necessary to establish standing and obtain preliminary relief. For a plaintiff to have standing, an alleged injury must be “concrete” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lyons, 461 U.S. at 101–02. This “imminence requirement ensures that courts do not entertain suits based on speculative or hypothetical harms.” Lujan, 504 U.S. at 564. Plaintiff has made no allegations, much less submitted any evidence, to support a finding of actual and imminent risks related to its baseless and imaginative claims about kidnapping.6
Second, even if Plaintiff could sufficiently allege an injury to the state itself, Plaintiff would still fail to establish Article III standing because she has neither alleged, nor is there any reason to believe, that individuals potentially subject to Defendants’ alleged conduct are unable to assert their own rights. See McCollum, 647 F.3d at 879. Individuals who may allegedly be detained are the natural challengers of such detention and the parties that would be expected to assert any individual constitutional rights. Plaintiff has not alleged that any such individuals are under any disability preventing them from asserting their own rights. See, e.g., United States v.
6 Plaintiff also makes a passing claim that Defendants’ alleged actions “could also impose postevent investigation and prosecution costs upon the State, which will divert its resources of staff and money from other tasks.” Pl. Mot. at 11. However, this claim was neither alleged in Plaintiff’s complaint nor is it consistent with Plaintiff’s theory of parens patriae standing.
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 12

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 20 of 34
100,348.00 in U.S. Currency, 354 F.3d 1110, 1129 (9th Cir. 2004).7 Thus, even if parens patriae were an otherwise viable theory, Plaintiff could not invoke it, since Plaintiff cannot establish the basic requirements of third-party standing.
In reality though, Plaintiff cannot satisfy any element of a parens patriae suit. First, Plaintiff cannot articulate an interest independent of the interests of individual private parties and is therefore no more than a nominal party. As explained supra, Plaintiff has not sufficiently alleged any harms to the state itself resulting from Defendants’ alleged actions. Moreover, as the complaint makes clear, all of the causes of action, and in particular the relief requested, are directed at the interests of individual citizens and not at any independent interest of the state of Oregon. See Compl. at 6-9; see also Snapp, 458 U.S. at 602 (“Interests of private parties are obviously not in themselves sovereign interests, and they do not become such simply by virtue of the State’s aiding in their achievement. In such situations, the State is no more than a nominal party.”). “Courts have recognized that parents patriae standing is inappropriate where an aggrieved party could seek private relief…. Here, complete relief would be available to the [protestors] themselves, were they to file a complaint on their own behalf.” Harris, 847 F.3d at 652.
Second, Plaintiff has not identified a sufficient quasi-sovereign interest. “Generally, a state has been granted standing under the parens patriae doctrine in situations involving the abatement of public nuisances, such as global warming, flooding, or noxious gases.” Oregon v. Legal Servs. Corp., 552 F.3d 965, 970 (9th Cir. 2009) (collecting cases). While “[t]here are no
7 Indeed, three other lawsuits by interested non-governmental plaintiffs, Index Newspapers, LLC v. City of Portland, No. 3:20-cv-1035-SI (D. Or.); Western States Center, Inc. v. U.S. Dep’t of Homeland Security, No. 3:20-cv-01175 (D. Or.); and Paul v. Trump, No. 3:20-cv-1188 (D. Or.), have been filed, and Defendants understand additional lawsuits may be filed raising similar claims. DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 13

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 21 of 34
definitive limits on the proportion of the population of the State that must be adversely affected,” “more must be alleged than injury to an identifiable group of individual residents.” Harris, 847 F.3d at 651 (citation omitted). A state must “allege[] injury to a sufficiently substantial segment of its population.” Id. No such large-scale problem requiring collective or government action is alleged in this case, nor are there any allegations of actual or imminent physical harm to anything approximating a “substantial segment of its population.” Id. Although Plaintiff speaks in broad, unqualified language about the people of the entire state of Oregon, the facts alleged make clear that the Defendants are only undertaking their alleged activities in the immediate vicinity of the Portland Federal buildings. Pl. Mot. at 2-4. Moreover, the law enforcement actions of which Plaintiff complains have been employed typically only in early morning hours after the protests have turned violent and in some cases after individuals have refused to comply with legally valid orders to disperse and cease trespassing on federal property. See Russell Decl. ¶¶ 5-7. Indeed, there are no allegations that the Defendants have interacted with any residents of Portland who were not engaged in protests near the Federal buildings. Thus, Plaintiff’s supposed quasisovereign interest is in reality just the personal interest of an identifiable group of individual residents. See supra fn. 7.
Plaintiffs have failed to establish standing under any of the theories potentially implicated by their complaint and TRO and therefore their requested relief must be denied.
B. Plaintiff Fails to Demonstrate that Oregonians Have Suffered Even Past Harm 1. The Conclusory Allegations Fail to Establish that Any Seizures Have Been Unreasonable Under the Fourth Amendment
Plaintiff argues that arrests may have violated the Fourth Amendment by citing an alleged instance where an arresting federal officer did not “properly identif[y] himself or herself as an officer to the arrestee during the encounter.” Pl. Mot. at 16. The cases on which Plaintiff DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 14

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 22 of 34
relies, however, are inapposite because they concerned “plainclothes officers” and officers who were neither “identified or identifiable” as law enforcement officers. Doornbos v. City of Chicago, 868 F.3d 572, 584-85 (7th Cir. 2017); Johnson v. Grob, 928 F. Supp. 889, 894, 904-05 (W.D. Mo. 1996); Newell v. City of Salina, 276 F. Supp. 2d 1148, 1154-55 (D. Kan. 2003); Child v. City of Portland, 547 F. Supp. 2d 1161, 1165 (D. Or. 2008).8 None of these cases concerned the kind of facts alleged here, where “Police” was written in bold letters on a uniform and was clearly seen by the individual. Compare Pl. Mot. at 16-17 with First Declaration of Mark Pettibone ¶ 3. The cases Plaintiff relies on also only assert that an officer should verbally identify himself as a police officer when, unlike here, the officers wore plainclothes or otherwise provided no notice of their identity as law enforcement. See Doornbos, 868 F.3d at 584-85 (plainclothes officers); Newell, 276 F. Supp. 2d at 1153 (officer approached from behind); Child, 547 F. Supp. 2d at 1165 (officers approached in an unmarked car in the dark).
Plaintiff asserts in conclusory terms that federal officers “are not wearing a recognizable police uniform.” Pl. Mot. at 17. But that cannot be based on Mr. Pettibone’s experience. As noted in his declaration, the federal officers arresting him wore “green military fatigues and adorned with generic ‘police’ patches.” First Decl. of Mark Pettibone ¶ 6. Nor does the video on which Plaintiff relies support the allegation, since she states it shows “two men in camouflage military-style uniforms and ‘POLICE’ patches.” Pl. Mot. at 4. As Plaintiff notes, CBP issued a statement indicating that those CBP officers also wore “CBP insignia,” id. at 5; although she
8 In an excessive force (police shooting) case Plaintiff cited, it was unclear whether the police officer was plainly apparent as police, and the parties did not raise the issue, but the court indicated that the lack of verbal identification or use of a police siren could be considered as a factor; the decedent was walking toward the police car while its high beam headlights were on, so it is not clear that he could see anything. See S.R. Nehad v. Browder, 929 F.3d 1125, 1130, 1138 (9th Cir. 2019). DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 15

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 23 of 34
says those are not visible in the video, it is clear that the agents do have insignia, even if not visible due to the low resolution of the video. Pl. Mot. at 5. While Plaintiff may prefer more identification, she has not established that the identification federal officers unquestionably have been using was constitutionally deficient.
Plaintiff also asserts that there was no clear probable cause for two arrests. The limited video clip that Plaintiff continues to rely on,9 Pl. Mot. at 4, begins just as federal officers approach the individual, so it provides no context of what was occurring even immediately before federal officers approached the individual. And, as Plaintiff notes, CBP issued a statement in connection with that video that “CBP agents had information indicating the person in the video was suspected of assaults against federal agents or destruction of federal property.” Pl. Mot. at 4. Plaintiff offers nothing to contradict that. With regard to Mr. Pettibone’s arrest, Plaintiff argues that there “is no known, credible explanation for the Federal officers’ arrest of Mr. Pettibone.” While his first declaration notes that he had been “peacefully taking part in a demonstration,” Declaration of Mark Pettibone ¶ 2, neither of his declarations specifically disclaim that there would have been reasonable suspicion or probable cause, or state that he had not otherwise engaged in unlawful activity.
2. Plaintiff Fails to Establish that Defendants Have Interfered with Oregonians First Amendment Rights
Plaintiff alleges that Defendants’ general conduct has interfered with Oregonians exercise of their First Amendment rights by creating a general “climate of fear and intimidation.” Pl. Mot. at 11. Again, Plaintiff relies on broad statements of law from cases that have no application to the facts alleged. Most notably, Plaintiff does not appear to allege that federal officers
9 Although Plaintiff noted a second video, Pl. Mot. at 5, in a letter to the Court, Dkt. No. 12, Plaintiff withdrew reliance on that because it did not concern activities in Portland. DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 16

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 24 of 34
disrupted any in-progress protests. And even if that were the allegation, the violence directed at federal officers and federal property warranted appropriate measures to restore order. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (“[W]here demonstrations turn violent, they lose their protected quality as expression under the First Amendment”); United States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000) (upholding the relocation of protestors who “had already shown by their destructive conduct that they presented a clear and present danger to the safe completion of the construction project, both to other persons as well as to themselves”). Instead, Plaintiff focuses on alleged arrests made by federal officers and the manner in which they allegedly occurred as creating a chilling effect. Pl. Mot. at 11 (asserting the right to exercise First Amendment rights “without fear of unlawful detention by federal officers concealing their identity, silently grabbing them and shoving them into cars without explanation, seemingly without probable cause for arrests”).
As Plaintiff’s own cases suggest, however, there are several impediments to her theory that the manner of these alleged arrests violated First Amendment rights. First, a First Amendment retaliation claim requires a showing that 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). In other words, intent to inhibit speech is an element of the claim. To meet this burden, Plaintiff points to various “statements of federal officials,” which she claims “mischaracteriz[ed] protests and other constitutionally protected assembly in Portland.” Pl. Mot. at 13. Given the weeks of violent protests and damage directed against federal property and injuries sustained by federal officers, it unclear how exactly federal officials have mischaracterized the protests. But even if one credited her characterization of such statements, they hardly establish any improper motive behind the surge of federal law-enforcement in
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 17

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 25 of 34
Portland, much less an improper motive behind the cited encounters with law enforcement officers.
Second, a plaintiff may generally not base any retaliation claim on an arrest for which there was probable cause. See Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019). But, as discussed above, Plaintiff has not demonstrated a lack of probable cause associated with the arrests alleged in the motion. And while there is an exception to the general rule “when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been,” id., she cites no such evidence here. Nor has she identified an “official retaliatory policy.” Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954 (2018). To identify such a policy, Plaintiff would have to “prove the existence and enforcement of an official policy motivated by retaliation” designed to retaliate for “prior, protected speech bearing little relation to the criminal offense for which the arrest is made” by “objective evidence.” Id. Plaintiff fails to make such allegations and simply argues that “governmental intimidation appears to be the entire basis for the Defendants’ actions.” Pl. Mot. at 14. These unsupported assertions, which ignore the sustained violence directed at federal property and officers, are insufficient to show a likelihood of success on the merits.
Finally, even if Plaintiff could show that federal actions had the specific intent of deterring speech—and she has not—a plaintiff must show then show, even for past violations, that it would “chill or silence a person of ordinary firmness from future First Amendment activities.” Mendocino, 192 F.3d at 1300. Plaintiff has made no such showing here.
C. Plaintiff Has Not Demonstrated Standing for Equitable Relief Based on Future Harm
In addition to failing to demonstrate a past injury, Plaintiff has not alleged a sufficient injury under any theory to justify prospective equitable relief. Even where a plaintiff establishes
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 18

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 26 of 34
that his rights were violated in past incidents, he nonetheless lacks standing to obtain prospective injunctive relief absent a “real and immediate threat” that he will suffer the same injury in the future. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). “[P]ast wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.” Id. at 103 (citing O’Shea v. Littleton, 414 U.S. 488, 494 (1974) and Rizzo v. Goode, 423 U.S. 362, 372 (1976)). See also Nelsen v. King County, 895 F.2d 1248, 1251 (9th Cir 1990). This “imminence requirement ensures that courts do not entertain suits based on speculative or hypothetical harms.” Lujan, 504 U.S. at 564. Thus, a plaintiff “who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.” Blum v. Yaretsky, 457 U.S. 991, 999 (1982). And this aspect of standing cannot be presumed or deferred just because this case is currently being considered on a TRO posture; standing is “an indispensable part of the plaintiff’s case” that must be “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561.
The facts and reasoning of Lyons are instructive. At issue in Lyons was a civil rights action against the City of Los Angeles and several police officers who allegedly stopped the plaintiff for a routine traffic violation and applied a chokehold without provocation. In addition to seeking damages, the plaintiff sought an injunction against future use of the chokehold unless deadly force was threatened. The Supreme Court held that plaintiff lacked standing to seek prospective relief because he could not show a real or immediate threat of future harm.
That Lyons may have been illegally choked by the police ..., while presumably affording Lyons standing to claim damages ... does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 19

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 27 of 34
would illegally choke him into unconsciousness without any provocation or resistance on his part. Lyons, 461 U.S. at 104; see also O’Shea, 414 U.S. at 495-96 (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.”); Rizzo, 423 U.S. at 372 (holding that plaintiffs’ allegations that police had engaged in widespread unconstitutional conduct aimed at minority citizens was based on speculative fears as to what an unknown minority of individual police officers might do in the future). Courts in this Circuit have applied Lyons and O’Shea in similar contexts to hold that plaintiffs lack standing to pursue prospective injunctive relief where they were subject to past law enforcement practices but could only speculate as to whether those practices would recur. See, e.g., Eggar v. City of Livingston, 40 F.3d 312, 317 (9th Cir. 1994) (plaintiff who had previously been repeatedly detained, charged, and convicted of offenses without court-appointed counsel despite her indigence lacked injunctive standing because whether she “will commit future crimes in the City, be indigent, plead guilty, and be sentenced to jail is speculative”); Murphy v. Kenops, 99 F. Supp. 2d 1255, 1259–60 (D. Or. 1999) (plaintiffs lacked standing because it was highly speculative “that the Forest Service will exercise its discretion to issue future closure orders, that the closure orders will violate the First Amendment, that plaintiffs will violate those closure orders, and that plaintiffs will be arrested because of those closure orders”). See also Curtis v. City of New Haven, 726 F.2d 65, 68 (2d Cir. 1984) (vacating an injunction that had been entered against police use of mace, because the plaintiffs had not shown a “likelihood that these plaintiffs will again be illegally assaulted with mace”); Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1267 (11th Cir. 2018) (plaintiff alleging that a school resource officer employed by the police unconstitutionally used an incapacitating chemical spray on her lacked DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 20

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 28 of 34
standing to pursue injunctive relief, because she did not show that a likelihood that the resource officer would again unconstitutionally spray her).
Plaintiff’s requested relief fails under these principles. For starters, Plaintiff has failed to establish that even the handful of prior interactions between law enforcement officers and protesters were unconstitutional. Supra Part I.B. Moreover, even setting that aside, Plaintiff offers no evidence that such encounters will recur, much less in a manner that would be unconstitutional. Mere speculation is inadequate, as are allegations of subjective “chill,” when “based on a plaintiff’s fear of future injury that itself was too speculative to confer standing.” Munns v. Kerry, 782 F.3d 402, 410 (9th Cir. 2015); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending”). Plaintiff’s requested relief thus fails for lack of standing.
D. The Injunction Plaintiff Seeks is Overbroad and Unworkable There is no basis for the Court to grant Plaintiff’s request for an overbroad and unworkable injunction that would micromanage the manner in which federal law enforcement officers respond to dynamic and chaotic situations involving violent protesters seeking to damage federal property and harm federal officers. “It is not for this Court to impose its preferred police practices on either federal law enforcement officials or their state counterparts.” United States v. Patane, 542 U.S. 630, 642 (2004). Yet that is precisely what Plaintiff’s requested injunction would do here. The federal officers protecting federal property in Portland are doing so under difficult circumstances and must make “split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 397 (1989). Those judgments should not be encumbered by the potential threat of contempt of court from a vague, overbroad, and—at bottom—legally improper injunction. Indeed, Plaintiff DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 21

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 29 of 34
identifies no other case in which federal or state officers responding to large-scale, ongoing incidents by violent actors have been enjoined in the manner Plaintiff proposes here.
It is a basic principle of Article III that “a plaintiff’s remedy must be limited to the inadequacy that produced his injury in fact.” Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018) (quotation omitted). “An injunction must be narrowly tailored to remedy the specific harm shown.” E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029 (9th Cir. 2019) (internal quotations omitted); see Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir.1991). It “should be no more burdensome to the defendant than necessary to provide complete relief.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
Plaintiff’s proposed injunction is legally improper in several respects. First, the requirement that Defendants “immediately cease detaining, arresting, or holding individuals without probable cause or a warrant” is unjustified. To the extent it requires probable cause or warrants where they are legally required, it is the type of vague, “follow the law” injunction that is disfavored because it does not comply with Rule 65(d)’s specificity requirement. See Cuviello v. City of Oakland, 2009 WL 734676, at *3 (N.D. Cal. Mar. 19, 2009) (holding unenforceable an injunction that “basically states that Defendants are permitted to make only lawful arrests of Plaintiffs” and are “barred from interfering with Plaintiffs’ free speech rights”). As numerous courts have recognized, “[i]njunctions that broadly order the enjoined party simply to obey the law . . . are generally impermissible.” NLRB v. USPS, 486 F.3d 683, 691 (10th Cir. 2007); see Burton v. City of Belle Glade, 178 F.3d 1175, 1200-01 (11th Cir. 1999); S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240-41 (2d Cir. 2001). Even worse, the proposed injunction would also seem to call into question Terry stops, investigatory stops which may be based on “reasonable suspicion” rather than probable cause and which are a standard and important tool of
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 22

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 30 of 34
modern law enforcement. See Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cty., 542 U.S. 177, 185-86 (2004). Plaintiff’s proposed injunction would seem to disable this lawful investigatory tool. Yet even in the case Plaintiff cites in support of allowing an injunction (based on a pervasive policy of rights violations) to prevent “restraining” the plaintiffs without warrant or lawful arrest, the injunction still allowed for “lawful search and seizure.” Hague v. Comm. for Indus. Org., 307 U.S. 496, 504-05, 517 (1939).
Second, the injunction would require Defendants to “[i]dentify themselves and their agency before detaining or arresting any person.” But Plaintiff herself notes that the federal law enforcement entities involved have publicly identified themselves and, in any event, Plaintiff provides no legal basis concluding that law enforcement officers must identify their “agency.” Cf. Doornbos, 868 F.3d at 584 (suggesting that some circumstances may warrant no identification at all).
Third, the requirement that Defendants “[e]xplain to any person detained or arrested that the person is being detained or arrested and explain the basis for that action” is without any explanation whatsoever. Plaintiff devotes no argument to why this is necessary or appropriate. There is accordingly no basis for entertaining this request.
Finally, the requested injunction is particularly inappropriate and unmanageable in this case where law enforcement officers are responding to a dynamic situation involving a consistent barrage of violent activity targeted against federal property. DHS, the Marshals Service, and their officers should not potentially be subject to charges of contempt for violating a vague injunction in these circumstances. As the Supreme Court has emphasized, courts must “take care to consider whether the police are acting in a swiftly developing situation, and in such cases the
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 23

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 31 of 34
court should not indulge in unrealistic second-guessing.” United States v. Sharpe, 470 U.S. 675, 686 (1985).
II. PLAINTIFF CANNOT DEMONSTRATE IRREPARABLE HARM Plaintiff’s allegations on irreparable harm are alone sufficient to deny the request for a temporary restraining order. Plaintiff relies entirely on speculative assertions of claimed harm, including, for example, that people will allegedly walk downtown in “fear,” or lose “faith in law enforcement.” Pl. Mot. at 18. Conclusory assertions like these are insufficient to meet Plaintiff’s burden to establish concrete irreparable harm. Nor is Plaintiff’s speculation that federal law enforcement will “escalate confrontations” with protesters. Id. Indeed, for the same reasons that Plaintiff lacks standing to seek an injunction in the first instance, Plaintiff’s future injuries are speculative and, therefore, also insufficient to demonstrate a likelihood of irreparable injury. As for Plaintiff’s claim of “chill[]” of First Amendment rights, that too is inadequate to carry her burden. See Rendish v. City of Tacoma, 123 F.3d 1216, 1226 (9th Cir. 1997) (“no presumption of irreparable harm arises in a First Amendment retaliation claim”). III. BOTH THE BALANCE OF THE EQUITIES AND THE PUBLIC
INTEREST WEIGH AGAINST GRANTING AN INJUNCTION Plaintiff acknowledges that there is a public interest in “allowing the police to do their jobs and to protect lives as well as property.” Pl. Mot. at 19. But while Plaintiff has not established any violation of Oregonians constitutional rights, the proposed injunction would heavily disturb those important public interests here.10
10 The balance of the equities and the public interest are analyzed together here because, when the government is a party, these last two factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009). DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 24

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 32 of 34
Federal agents have deployed to protect various federal properties, including the Hatfield Federal Courthouse and the Edith Green Federal Building, in response to violent rioting. Rioters have vandalized and threatened to severely damage those buildings, and they have assaulted the responding federal officers. The government has a comprehensive interest in maintaining public order on public property. Feiner v. New York, 340 U.S. 315, 320 (1951) (“This Court respects, as it must, the interest of the community in maintaining peace and order on its streets.”). There is an even more pointed public interest when disorder threatens the integrity of that public property. See United States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000) (“The clear purpose of the order . . . was for reasons of health and safety, and for the protection of property . . . . These are compelling reasons . . . and certainly represent significant government interests.”). Congress has recognized such interests, including by making the destruction of federal property and the assault of federal officers felonies punishable by up to ten and twenty years of imprisonment respectively. 18 U.S.C. §§ 111, 1361. Additionally, there is a fundamental First Amendment right of access to the courts, see, e.g., Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014), which is jeopardized by the breach and destruction of a federal court building; it is in the public interest to prevent the violation of these rights, too. Moreover, the federal government, just as any other property owner, has an interest in “preserv[ing] the property under its control for the use to which it is lawfully dedicated”; for government buildings, those uses are of course public uses that are in the public interest. Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679-680 (1992).
On balance, the equities clearly weigh in favor of allowing federal officers to operate free of unnecessary, vague, and burdensome injunctions in the face of events that have turned (and may continue to turn) violent. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 116 (1972)
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 25

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 33 of 34

(“[W]here demonstrations turn violent, they lose their protected quality as expression under the First Amendment”); Griefen, 200 F.3d at 1260 (upholding the relocation of protesters who “had already shown by their destructive conduct that they presented a clear and present danger to the safe completion of the construction project, both to other persons as well as to themselves”); Bell v. Keating, 697 F.3d 445, 457-58 (7th Cir. 2012) (“[O]therwise protected speech may be curtailed when an assembly stokes—or is threatened by—imminent physical or property damage.”). The equities also clearly weigh in favor of allowing them to perform their investigatory functions. See United States v. Hensley, 469 U.S. 221, 229 (1985) (“[T]he ability to briefly stop [a suspect], ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice”). By contrast, requiring federal officers, finding themselves in the midst of violence aimed specifically at them and attempting to detain or arrest violent actors, to recite some specific information and legal conclusions on pain of contempt does not appropriately balance the hardships.
Accordingly, both the public interest and the balance of the equities weigh in favor of denying the injunction.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for a Temporary Restraining Order and

Preliminary Injunction should be denied.

Dated: July 22, 2020

ETHAN P. DAVIS Acting Assistant Attorney General

BILLY J. WILLIAMS United States Attorney

DAVID M. MORRELL Deputy Assistant Attorney General

DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 26

Case 3:20-cv-01161-MO Document 15 Filed 07/22/20 Page 34 of 34
ALEXANDER K. HAAS Director, Federal Programs Branch BRAD P. ROSENBERG Assistant Director, Federal Programs Branch /S/ Andrew I. Warden ANDREW I. WARDEN (IN #23840-49) Senior Trial Counsel JEFFREY A. HALL JORDAN L. VON BOKERN KERI BERMAN Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington, D.C. 20530 Tel.: (202) 616-5084 Fax: (202) 616-8470 Attorneys for Defendants
DEFENDANTS’ OPPOSITION TO TRO & PRELIMINARY INJUNCTION – 27

 
 Case 3:20-cv-01161-MO Document 7 Filed 07/20/20 Page 1 of 2

ELLEN F. ROSENBLUM Attorney General SHEILA H. POTTER #993485 Deputy Chief Trial Counsel STEVEN M. LIPPOLD, OSB #903239 Chief Trial Counsel Department of Justice 100 SW Market Street Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 Email: Sheila.Potter@doj.state.or.us
Steve.Lippold@doj.state.or.us
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

ELLEN ROSENBLUM, Oregon Attorney General,
Plaintiff,
v.
JOHN DOES 1-10; the UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNlTED STATES CUSTOMS AND BORDER PROTECTION; the UNITED STATES MARSHALS SERVICE and the FEDERAL PROTECTIVE SERVICE,
Defendants.

Case No. 3:20-cv-01161-MO
SECOND DECLARATION OF MARK PETTIBONE IN SUPPORT OF ROSENBLUM'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

I, Mark Pettibone, declare:

Page 1 -

SECOND DECLARATION OF MARK PETTIBONE IN SUPPORT OF ROSENBLUM'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
SP3/db5/# 10342025-vlA
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 /Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 7 Filed 07/20/20 Page 2 of 2

1. I am a resident of Portland, Oregon and a citizen of the United States of America.

I make this affidavit based on my own personal knowledge and I am competent to testify about

the matters contained in this declaration.

2. I was terrified when an unmarked van stopped near me and men in military

fatigues jumped out and approached me without identifying themselves.

3. At the time I was abducted by these individuals, I was not wearing a helmet. I

was wearing eyeglasses.

4. As far as I am aware, there is no video of my abduction. ,.

5. I have seen a widely circulated video of a person wh~, like me, was detained and

placed into an unmarked minivan by two individuals wearing military-like fatigues. That person

was wearing a black helmet and was not wearing eyeglasses. That person is not me.

~{\'\f

6. I was detained for two hours.

7.

m~Js No one informed

to which agency had abducted, detained or questioned

me. I am still unaware as to which agency or agencies were involved in my abduction, detention

and questioning.

I declare under penalty of perjury that the foregoing is true and correct.

EXECUTED on July Z/2, 2020.

~~
MARK PETTIBONE

Page 2 -

SECOND DECLARATION OF MARK PETTIBONE IN SUPPORT OF ROSENBLUM'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
SP3/db5/# 10342025-v IA
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 I Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 8 Filed 07/20/20 Page 1 of 3

ELLEN F. ROSENBLUM Attorney General SHEILA H. POTTER #993485 Deputy Chief Trial Counsel STEVEN M. LIPPOLD, OSB #903239 Chief Trial Counsel Department of Justice 100 SW Market Street Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 Email: Sheila.Potter@doj.state.or.us
Steve.Lippold@doj.state.or.us
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

ELLEN F. ROSENBLUM, Oregon Attorney General,
Plaintiff,

Case No. 3:20-cv-01161-MO DECLARATION OF JENNIFER ARNOLD

v.
JOHN DOES 1-10; the UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; the UNITED STATES MARSHALS SERVICE and the FEDERAL PROTECTIVE SERVICE,
Defendants.

1. My name is Jennifer S. Arnold. I make this declaration in support of Oregon Attorney General Ellen Rosenblum’s Motion for Temporary Restraining Order in the above captioned action.

Page 1 -

DECLARATION OF JENNIFER ARNOLD
SP3/db5/#10342761
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 8 Filed 07/20/20 Page 2 of 3

2. I am a resident of the State of Oregon and have been since 1999. I currently reside in Multnomah County. I am a registered nurse employed by a major regional medical provider. My duties include providing support to patients being tested for and diagnosed with the novel coronavirus, COVID-19, and I am considered an “essential worker”.
3. I am currently the sole provider for my household as my spouse has become unemployed as a result of the COVID-19 pandemic.
4. I have participated in Women's Marches, Reproductive Health, and LBTQIA (Pride) Marches/Events in Portland, Oregon. During such events I have felt safe in the exercise of my rights to assemble and express my views on political, cultural, and social matters. A number of people of my acquaintance participated in protests in downtown Portland on July 19, 2020, including in the peaceful gathering known as the “Wall of Moms”. I wished to participate to support the Black Lives Matter activists in their efforts to end police brutality but chose not to participate due to fear of detention.
5. On or about July 17, 2020 I learned via social media and news reports that multiple armed, unidentified individuals with military or quasi-military equipment detained an unarmed, non-resisting pedestrian in downtown Portland, forced him into an unmarked vehicle, and departed without identifying themselves to the individual detained, or bystanders.
6. I have seen video of an individual being abruptly detained on the streets of Portland by unidentified armed men.
7. Since that time I have learned additional information indicating that the armed persons who detained the pedestrian were employed by one or more federal agencies.
8. I do not feel comfortable with the risk of being abruptly detained for an indefinite period because I am the sole provider financial provider for my spouse and children. Any disruption to my employment would be disastrous for my family. In addition, the nature of my work providing support to vulnerable Oregonians means the impact of my possible detention and

Page 2 -

DECLARATION OF JENNIFER ARNOLD
SP3/db5/#10342761
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 8 Filed 07/20/20 Page 3 of 3
unavailability to perform my job would affect people in particular need of medical services during the pandemic.
9. The lack of explanation given for detaining pedestrians, the unidentified armed individuals, and unmarked vehicle associated with the events above causes me to fear being in the vicinity of the federal courthouse during BLM and anti-police brutality events and assemblies.
I declare under penalty of perjury that the foregoing is true and correct. EXECUTED on July 20, 2020.
Jennifer S. Arnold

Page 3 -

DECLARATION OF JENNIFER ARNOLD
SP3/db5/#10342761
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 9 Filed 07/20/20 Page 1 of 3

ELLEN F. ROSENBLUM Attorney General SHEILA H. POTTER #993485 Deputy ChiefTrial Counsel STEVEN M. LIPPOLD, OSB #903239 Chief Trial Counsel Department of Justice 100 SW Market Street Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 Email: Sheila.Potter@doj.state.or.us
Steve.Lippold@doj.state.or.us
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

ELLEN F. ROSENBLUM, Oregon Attorney General,
Plaintiff,

CaseNo. 3:20-cv-01161-MO
DECLARATION OF TERRI PREEG RIGGSBY

v.
JOHN DOES 1-10; the UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; the UNITED STATES MARSHALS SERVICE and the FEDERAL PROTECTIVE SERVICE,
Defendants.

1. My name is Terri Preeg Riggsby. I make this declaration in support of Oregon Attorney General Ellen Rosenblum' s Motion for Temporary Restraining Order in the above captioned action.

Page 1 -

DECLARATION OF TERRI PREEG RIGGSBY
SP3/db5/# 10343707
Department of Justice l00 SW Market Street Portland, OR 97201 (97 l) 673-1 880 I Fax: (9 71 ) 673-5000

Case 3:20-cv-01161-MO Document 9 Filed 07/20/20 Page 2 of 3

2. I am a resident ofthe State of Oregon and have been since 1998. I currently reside in Multnomah County.

3. I have participated in marches, community events, including such activities in Portland, Oregon, such as the 2017 Women's March. During such events I have felt safe in the exercise of my rights to assemble and express my views on political, cultural, and social matters.
4. Tam a parent of 13 year old and believe working for social justice, including an end to police brutality and racial inequity, is important to create a better world for my child and part of my obligations as parent and as a citizen.
5. On or about July 17, 2020 I learned via social media and news reports that multiple armed, unidentified individuals with military or quasi-military equipment detained an unarmed, non-resisting pedestrian in downtown Portland, forced him into an unmarked vehicle, and departed without identifying themselves to the individual detained, or bystanders.
6. I have seen video footage ofthis abrupt and violent detention. 7. Since that time I have learned additional information indicating that the armed persons who detained the pedestrian were employed by one or more federal agencies. 8. I do not feel safe participating in Black Lives Matter ("BLM") or other community events in the vicinity ofthe Mark Hatfield Federal Courthouse in Portland due to the risk of being detained by unidentified paramilitary personnel.

9. I have recently recovered from back surgery and have permanent limited mobility. I would like to participate in public demonstrations supporting Black Lives Matter activists, and demanding an end to police brutality. Friends and acquaintances have invited me this week to participate in the unarmed, peaceful, assembly of protestors known as the "Wall ofMoms" in downtown Portland, but I declined because of my disability and high risk of injury.
10. As a child I resided with my family in Haiti, during the Duvalier regime. Militarized police presence, unchecked police violence, detention of dissidents, and paramilitary intimidation created a climate of fear and discouraged public criticism of the government. This

Page 2 -

DECLARATION OF TERRI PREEG RIGGSBY
SP3/db5/# I0343707
Depanment ofJustice 100 SW Market Street Ponland, OR 97201 (97 1) 673-1880 I Fax: (971) 673-5000

...
Case 3:20-cv-01161-MO Document 9 Filed 07/20/20 Page 3 of 3
early formative experience reinforced for me the importance of democratic, constitutional norms in policing.
11 . The lack of explanation given for detaining pedestrians, the unidentified armed indivjduaJs, and unmarked vehicle associated with the events above all cause me to fear being in the vicinity of the federal courthouse during BLM and anti-police brutality events and assemblies.
12. I do not feel comfortable with the risk of being abruptly detained for an indefinite period because the effect such a traumatic event could have on my child, my spouse, and my physical wellbeing.
I declare under penalty of perjury that the foregoing is true and correct.
EXECUTED on July Th 2020.

Page 3 -

DECLARATION OF TERRI PREEG RIGGSBY
SP3/db5/# I0343707
Department ofJustice I00 SW Market Street Portland, OR 9720 1 (97 1) 6 73-1880 I Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 10 Filed 07/20/20 Page 1 of 3

ELLEN F. ROSENBLUM Attorney General SHEILA H. POTTER #993485 Deputy Chief Trial Counsel STEVEN M. LIPPOLD, OSB #903239 Chief Trial Counsel Department of Justice 100 SW Market Street Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 Email: Sheila.Potter@doj.state.or.us
Steve.Lippold@doj.state.or.us
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

ELLEN F. ROSENBLUM, Oregon Attorney General,
Plaintiff,

Case No. 3:20-cv-01161-MO
DECLARATION OF TIFFANY L. CHAPMAN

v.
JOHN DOES 1-10; the UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; the UNITED STATES MARSHALS SERVICE and the FEDERAL PROTECTIVE SERVICE,
Defendants.

1. My name is Tiffany L. Chapman. I make this declaration in support of Oregon Attorney General Ellen Rosenblum’s Motion for Temporary Restraining Order in the above captioned action.

Page 1 -

DECLARATION OF TIFFANY L. CHAPMAN
SP3/db5/#10343522
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 10 Filed 07/20/20 Page 2 of 3

2. I am a resident of the State of Oregon and have been since 2012. I currently reside in Clackamas County. I am employed in Multnomah County in the field of human services and community organizing.
3. I have participated in public marches, community events, including such activities in Portland, Oregon as the 2017 & 2020 Womxn’s Marches, the 2019 Lights for Liberty Rally & March, and the 2019 PDX Climate Strike. During such events I have felt safe in the exercise of my rights to assemble and express my views on political, cultural, and social matters. I have never been arrested or detained by law enforcement as a result of participation in such an event.
4. On Tuesday June 9, 2020, I participated in a local BLM protest organized by black youth at the Milwaukie Riverfront Park. Several local elected officials saw me there. The City of Milwaukie worked with the organizers and there was very minimal police presence. The protest was entirely peaceful—I felt safe bringing my child.
5. On or about July 17, 2020 I learned via social media and news reports that multiple armed, unidentified individuals with military or quasi-military equipment detained an unarmed, non-resisting pedestrian in downtown Portland, forced him into an unmarked vehicle, and departed without identifying themselves to the individual detained, or bystanders.
6. I have seen video footage of what I understand to be the incident above. 7. Since that time I have learned additional information indicating that the armed persons who detained the pedestrian were employed by one or more federal agencies. 8. I do not feel safe participating in Black Lives Matter rallies or other community events in the vicinity of the Mark Hatfield Federal Courthouse in Portland due to the risk of being detained by unidentified paramilitary personnel. 9. I do not feel comfortable with the risk of being abruptly detained for an indefinite period because I am a single parent. I do not have a family support system in the area and I am the sole financial support and caregiver for a minor child. Disruption of our lives by loss of

Page 2 -

DECLARATION OF TIFFANY L. CHAPMAN
SP3/db5/#10343522
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 10 Filed 07/20/20 Page 3 of 3
income or isolating me from her would not only cause her trauma and immediate physical danger, but would risk the loss of our housing and financial stability.
10. The lack of explanation given for detaining pedestrians, the unidentified armed individuals, and unmarked vehicle associated with the events above causes me to fear being in the vicinity of the federal courthouse during BLM and anti-police brutality events and assemblies.
I declare under penalty of perjury that the foregoing is true and correct. EXECUTED on July 20, 2020.
Tiffany L. Chapman

Page 3 -

DECLARATION OF TIFFANY L. CHAPMAN
SP3/db5/#10343522
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 11 Filed 07/21/20 Page 1 of 3

ELLEN F. ROSENBLUM Attorney General SHEILA H. POTTER #993485 Deputy Chief Trial Counsel STEVEN M. LIPPOLD, OSB #903239 Chief Trial Counsel Department of Justice 100 SW Market Street Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 Email: Sheila.Potter@doj.state.or.us
Steve.Lippold@doj.state.or.us
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

ELLEN F. ROSENBLUM, Oregon Attorney General,
Plaintiff,

Case No. 3:20-cv-01161-MO DECLARATION OF STEPHANIE DEBNER

v.
JOHN DOES 1-10; the UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; the UNITED STATES MARSHALS SERVICE and the FEDERAL PROTECTIVE SERVICE,
Defendants.

1. My name is Stephanie Debner. I make this declaration in support of Oregon Attorney General Ellen Rosenblum’s Motion for Temporary Restraining Order in the above captioned action..

Page 1 -

DECLARATION OF STEPHANIE DEBNER
SP3/db5/#10343420
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 11 Filed 07/21/20 Page 2 of 3

2. I am a resident of the State of Oregon and have been since 2006. I currently reside in Multnomah County. I am employed in Multnomah County in the field of post-secondary education.
3. I have participated in public community events, including such activities in Portland, Oregon. During such events I have felt safe in the exercise of my rights to assemble and express my views on political, cultural, and social matters. I have never been arrested or detained by law enforcement as a result of participation in such an event.
4. On or about July 17, 2020 I learned via social media and news reports that multiple armed, unidentified individuals with military or quasi-military equipment detained an unarmed, non-resisting pedestrian in downtown Portland, forced him into an unmarked vehicle, and departed without identifying themselves to the individual detained, or bystanders.
5. I have seen the video of what I understand to be the incident described above. 6. Since that time I have learned additional information indicating that the armed persons who detained the pedestrian were employed by one or more federal agencies. 7. I was prepared to participate in the protest events in Portland on the evening of July 19, 2020; I was prepared for the discomfort of being in a large crowd and other ordinary risks of attending an event like this. However, I do not feel safe participating in Black Lives Matter rallies or other community events in the vicinity of the Mark Hatfield Federal Courthouse in Portland due to the risk of being detained by unidentified paramilitary personnel. 8. The lack of explanation given for detaining pedestrians, the unidentified armed individuals, and unmarked vehicle associated with the events above causes me to fear being in the vicinity of the federal courthouse during BLM and anti-police brutality events and assemblies. // //

Page 2 -

DECLARATION OF STEPHANIE DEBNER
SP3/db5/#10343420
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 11 Filed 07/21/20 Page 3 of 3
9. I do not feel comfortable with the risk of being abruptly detained for an indefinite period because I am the primary wage-earner in my household and have several health conditions that require regular and timely medication.
I declare under penalty of perjury that the foregoing is true and correct. EXECUTED on July _N, 2020.

Page 3 -

DECLARATION OF STEPHANIE DEBNER

SP3/db5/#l 0343420

Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880/ Fax: (971) 673-5000

 
 Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

ELLEN ROSENBLUM,
Plaintiff,
v.
JOHN DOES 1-10; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION SERVICE; UNITED STATES MARSHALS SERVICE; and FEDERAL PROTECTIVE SERVICE,
Defendants.

Case No. 3:20-cv-01161-MO OPINION AND ORDER

MOSMAN, J., In the wake of the tragic killing of George Floyd in Minneapolis, international protests
have demanded fundamental changes to our criminal justice system, particularly to police culture and tactics. These important protests have, in Portland, centered on a four-block area that includes the U.S. Courthouse, known as the Mark O. Hatfield Courthouse. By virtue of it being a federal building, the law enforcement personnel involved are federal agents.
One of the most difficult tasks for law enforcement in a free country like ours is to support robust protests while still maintaining order through lawful methods. This is even more challenging when the subject of the protests concerns police tactics. It is not unusual, following
1 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 2 of 14
major protests, for some of the people involved to allege that the police crossed a line—a constitutional line—in the course of their interactions. It is also common for these interactions to result in lawsuits, with protesters contending the police violated their First and Fourth Amendment rights and seeking redress by money damages and injunctive relief. There is a wellestablished body of law paving the way for such lawsuits to move forward in federal court.
This is not such a lawsuit. It is a very different case, a highly unusual one with a particular set of rules. In the first place, although it involves allegations of harm done to protesters by law enforcement, no protester is a plaintiff here. Instead, it is brought by the State of Oregon under a rarely used doctrine called parens patriae. In the second place, it is not seeking redress for any harm that has been done to protesters. Instead, it seeks an injunction against future conduct, which is also an extraordinary form of relief. Under the governing law for such cases, the State of Oregon must make a very particularized showing in order to have standing to bring a parens patriae lawsuit, a task made even more challenging by the nature of the remedy it seeks. Because it has failed to do so—most fundamentally, because it has not shown it is vindicating an interest that is specific to the state itself—I find the State of Oregon lacks standing here and therefore deny its request for a temporary restraining order. I do so without reaching the merits of the underlying claims.
BACKGROUND For about eight weeks, these protests against police brutality and systemic racism have been a nightly occurrence in the area of the Multnomah County Justice Center (which includes the local jail) and the Hatfield Courthouse. At the beginning of July, Acting Secretary of the Department of Homeland Security Chad Wolf announced that his agency would deploy special units of officers to protect federal property. Pl.’s Mot. [ECF 5] at 3. Reports from Portland media
2 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 3 of 14

documented federal officers engaging with protesters at the Hatfield Courthouse as early as July 1. Id. Within less than two weeks, reports surfaced that federal officers were “grabbing protesters, pulling them off the sidewalks of downtown, and shoving them into unmarked vehicles.” Id. The State filed this lawsuit on July 17, seeking to enjoin federal officers from continuing in that practice. Compl. [ECF 1]. The State filed this motion on July 20, with oral argument on July 22. Min. of Proceedings [ECF 17]. I will refer to the alleged interactions between police and protesters as “seizures” for purposes of this opinion because, while it is unclear whether they constitute arrests, detentions, or something else, they are seizures for purposes of the Fourth Amendment.
The State argues that the alleged seizures are unlawful for several reasons: (1) they violate the Fourth Amendment rights of the individuals being seized, (2) they violate those persons’ Fifth Amendment due process rights1, (3) they violate the First Amendment rights of individuals who wish to protest but are discouraged from doing so because they fear being seized, and (4) they constitute a public nuisance. Compl. [1] at 5-8. The State does not further its public nuisance argument in its motion for a restraining order, so I will not consider it in the analysis below.
In the motion before me, the State is seeking a temporary restraining order that would impose three remedies: (1) a requirement that officers identify themselves and their agency before arresting or detaining any person; (2) a requirement that officers explain to any person being seized that he or she is being arrested or detained; and (3) an enjoinder against arrests that lack probable cause. Compl. [1] at 9. The state lists other remedies in its complaint, but as

1

While the State alleges Fourth and Fifth Amendment violations separately, it

acknowledged that these two claims play out identically for purposes of this motion. I therefore

address the Fifth Amendment claims congruently with the Fourth Amendment.

3 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 4 of 14

established at oral argument, these are the only remedies at issue in this motion. Id.; Draft Tr. at 53-54.
Before I begin my analysis of whether the state should receive its requested restraining order, I will resolve preliminary legal questions that underpin the analysis below.
First, while the complaint paints a picture of numerous protesters being seized from the streets of Portland by unidentified agents, the State’s evidence in its brief and at the hearing consists of just two examples.2 First, it presents two declarations from an individual who claims he was detained by federal officers without probable cause. Pettibone Decl. [ECF 1-1]; Second Pettibone Decl. [ECF 7]. There is no video of this arrest and no evidence relating to its legality other than Mr. Pettibone’s sworn statements. Defendants have not refuted the State’s allegation that Mr. Pettibone’s seizure lacked probable cause. I therefore assume, only for purposes of this opinion, that this seizure was unlawful and constituted a violation of Mr. Pettibone’s rights under the Fourth and Fifth Amendments.
As its second example, the State has offered a video, which it states has been circulated heavily online, and which appears to show an individual being seized without any verbal explanation from officers. Potter Decl. [ECF 6] ¶ 6 (citing Senator Jeff Merkley (@SenJeffMerkley), Twitter (Jul. 16, 2020, 12:53 PM)3. The video shows the seizure but does not show any context for what preceded it. It therefore does not speak to probable cause one way or another because it is equally plausible that the individual was an innocent bystander or that he had committed some criminal act just before officers seized him. There is simply no way to

2

The State initially included a third example, but it withdrew that video because it

recorded events that occurred in San Diego. Not. of Withdrawal [ECF 12].

3

Senator Merkley’s tweet of the video can be located at:

https://twitter.com/SenJeffMerkley/status/1283852273089683464

4 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 5 of 14

know on the record before me, and I am not permitted to assume one way or the other. It is not, for purposes of this opinion, evidence of an arrest that lacked probable cause.
The State argues that, regardless of whether the officers had probable cause for the arrest, the lack of verbal identification from the federal officers renders the seizure unreasonable for purposes of the Fourth Amendment. Pl.’s Mot. [5] at 16-17.4 Defendants argue that the officers were otherwise identifiable, given their official uniforms and insignia, and that no verbal identification was required. Def.’s Resp. [ECF 15] at 15-16. Whether these seizures are reasonable or unreasonable is a close legal question that I will not answer here. What I will do is assume without deciding that this seizure was constitutionally unreasonable, while stressing that this is not a legal ruling for purposes of future litigation.
Taken together, for purposes of this opinion, the State has presented just one example of an arrest without probable cause and one example of an unreasonable seizure. That is the sum total of the evidence before me that underpins the legal injuries the State asserts in its brief and that I address below. Notably, the State does not request any relief with respect to Defendants’ use of unmarked vans, a fact that has been widely reported in both local and national media. See, e.g., Potter Decl. Ex. 6 [6-3] (“OPB Article”). The use of unmarked vehicles is therefore irrelevant to the legal analysis that follows, and I do not consider that practice at all. The relief sought here has only to do with verbal identification by officers and probable cause, and my analysis focuses on that relief alone. //

4

It appears that the State has largely backed away from any argument that the federal

agents were not at all identifiable as law enforcement. Mr. Pettibone acknowledges that their

uniforms said “Police,” Pettibone Decl. [1-1] ¶ 3, and the video shows agents wearing clothing

clearly marked as “Police.”

5 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 6 of 14
LEGAL STANDARD 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. v. John D. Brushy and Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)). “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (citation omitted). In order to meet that burden, “[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.” Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). In addition to meeting these requirements, as a threshold matter, a Plaintiff must have standing to sue. See Allen v. Wright, 468 U.S. 737, 750-51 (1984). As standing is the dispositive issue in this case, I take up that analysis first without reaching the question of whether the State has met its burden to prove the merits of its motion for a TRO.
DISCUSSION Two features of this case make the standing analysis unusual. First is the fact that, in a typical case alleging these types of constitutional harms, the aggrieved individual would sue on his own behalf. Here, however, the State of Oregon—by way of Attorney General Ellen Rosenblum—has brought a suit alleging these same kinds of constitutional claims on a theory that they harm the state’s citizenry writ large. Second, Oregon does not seek to redress past harms, as would be the norm in an individual claim of this type, but rather seeks to enjoin future
6 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 7 of 14

conduct. Both of these features—the identity of the plaintiff and the nature of the requested remedy—render the standing inquiry an unusually high bar to clear.
I. Parens Patriae Oregon asserts that it has standing to sue on behalf of its citizens under a doctrine known
as parens patriae. In order to assert parens standing, a state plaintiff must plead an injury to its citizenry that meets the usual Article III requirements—that it be “be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Missouri ex rel. Koster v. Harris, 847 F.3d 646, 651 (9th Cir. 2017) (citation omitted). It must also meet two special requirements. First, the State must articulate “an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party.” Id. (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez (“Snapp”), 458 U.S. 592, 607 (1982). Second, “[t]he State must express a quasi-sovereign interest” that has been violated. Snapp, 458 U.S. at 607.
The category of interests that qualify as “quasi-sovereign” is relatively broad. It includes, as the two primary categories, the health and well-being of a state’s citizens and the state’s right not to be discriminatorily denied its rightful status within the federal system. Snapp, 458 U.S. at 607. Here, the State has asserted a quasi-sovereign interest in the civic and physical well-being of its people to be free from violations of their constitutional rights, Pl.’s Mot. [5] at 10, and it alleges a series of injuries to its citizenry that implicate that interest.5

5

Defendants argue that a state may never sue the federal government via parens patriae.

Defs.’ Resp. [15] at 10 (citing Nevada v. Buford, 918 F.2d 854, 858 (9th Cir. 1990)). The State

relies on district court cases that claim that the Supreme Court’s decision in Massachusetts v.

EPA, 549 U.S. 497 (2007) removed any previous bar to a state suing the federal government via

parens patriae. See Mot. [5] at 9-10 (citing Aziz v. Trump, 231 F.Supp.3d 23, 30 (E.D. Va.

2017)). Neither party cites a Ninth Circuit decision that post-dates Massachusetts v. EPA which

squarely answers this question. However, at least the D.C. Circuit and the Seventh Circuit have

7 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 8 of 14
a. The Fourth Amendment At the highest level of abstraction, the State argues that it has a quasi-sovereign interest in protecting its citizens from unlawful seizures. See Pl.’s Mot. [5] at 10. This argument is not fleshed out in the briefing, nor did the state do so at oral argument. Presumably, the State’s theory is that the State of Oregon is harmed when its citizens are subjected to widespread unlawful seizures of their persons. While it is arguable that this could be a quasi-sovereign interest to support a parens theory of standing, it is highly unlikely that it would do so in a case with no more than two identifiable unlawful seizures. But in any event, this argument fails to confer standing for the State to seek an injunction, which I address in greater detail below. More specifically, the State asserts a two-part injury to its quasi-sovereign interest in protecting its citizens from unlawful seizures: (1) that Oregonians are at greater risk now of being victimized by genuine kidnappers, and (2) that Oregonians are at a greater risk of violence by the police if they reasonably resist what they believe to be a genuine kidnapping when they mistake federal agents for kidnappers. Pl.’s Mot. [5] at 9. The State’s theory is that individuals who oppose the protests could assume the attire of federal police and mimic these unlawful arrests in order to kidnap protesters, thus subjecting them to the risks discussed here. The State reasserted this theory at oral argument, insisting repeatedly that it had an interest in protecting its citizens against the potential for kidnappings, both real and mistaken. This bi-fold injury rests on a “public health and welfare” theory of parens patriae that seeks to vindicate the constitutional rights of Oregon’s citizens, and it meets the requirement that it be independent of the interest of
concluded that Massachusetts v. EPA did not remove the bar that prevents states from suing the federal government in parens patriae. Government of Manitoba v. Bernhardt, 923 F.3d 173, 18183 (D.C. Cir. 2019); Michigan v. EPA, 581 F.3d 524, 529 (7th Cir. 2009). For the purposes of this opinion, I assume without deciding that the State may sue the federal government in parens patriae. If it cannot, such a bar would obviously be fatal to this suit.
8 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 9 of 14
any one individual. It does not, however, satisfy the requirements of general Article III standing because it is purely hypothetical.
In order to sue in federal court, a “constitutional minimum” of standing must be met. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). That minimum requires three elements to be satisfied: (1) the plaintiff must have suffered an “injury in fact”—i.e., an invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent (as opposed to conjectural or hypothetical), (2) there must be a causal connection between the injury and the offending conduct, and (3) it must be “likely” that the injury will be redressed by a favorable decision from the court. Id. at 560-61 (citations omitted); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Plaintiffs bear the burden of proving all three elements. Lujan, 504 U.S. at 561.
Oregon’s asserted interest fails the first prong of Lujan because the injury the State asserts is entirely conjectural. First, the State candidly admits that it does not have a shred of evidence that counter-protesters have ever, anywhere, kidnapped a protester or anyone associated with protests. See Draft Tr. at 31. Second, the asserted interest rests on an utterly implausible inference. The State’s reasoning is that counter-protesters, once they learn of seizures of protesters by federal agents, will dress up like police and go out on private missions to kidnap protesters. This despite the fact that such kidnappings are Measure 11 felonies in Oregon, punishable by mandatory minimum sentences of up to 70-90 months in prison.6 I do not discount the animosity among these groups and had I been asked to assume that the ongoing conflict would result in fistfights, or theft, or destruction of signs, or damage to vehicles, that would have

6

ORS 137.700 (listing Measure 11 crimes and mandatory minimum sentences).

9 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 10 of 14
made sense. But the idea that seizures by law enforcement will lead to kidnappings by private parties is a bridge too far.
I put in a similar category the State’s asserted interest in preventing a spate of cases in which protesters mistakenly think the federal agents who are seizing them are actually counterprotest kidnappers. Again, there is no evidence to support such an assertion. The State has not pointed to any instance in which a protester was subjected to state violence because she believed she was resisting a kidnapping. In both instances of a federal seizure it is either admitted or clearly visible that the agents’ uniforms say “Police.” The State further admitted at oral argument that, to its knowledge, counter-protesters have never dressed up as police. Draft. Tr. at 31.
Finally, the State’s asserted interest here fails the third prong of Lujan: redressability. The State’s requested solution to the kidnapping problem is to require actual federal agents to verbally identify themselves as such, presumably guaranteeing that they are the real deal. But if one is willing to go along with the State’s concerns about copycat kidnappers, it requires me to assume that such nefarious characters are willing to dress up like federal agents and willing to commit the very serious crime of kidnapping, but that they would blanch at the thought of identifying themselves as police. The requested remedy here is a linguistic Maginot line, of no use in the real world.
b. The First Amendment Elsewhere in its briefing, the State also appears to assert three other harms to its citizens that violate its interest in their well-being: (1) a chilling effect upon its citizens’ First Amendment rights of free speech and assembly, (2) a diminishment in public confidence in law enforcement, and (3) a significant cost to the state in prosecuting kidnappings after the fact. Pl.’s Mot. [5] at 11. The second and third of these alleged harms must be dismissed for the same
10 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 11 of 14
reasons described above—they are both hypothetical, with no evidence in the record to support either of them. In fact, the State did not address its “confidence in law enforcement” theory at oral argument or anywhere in its briefing, other than the passing reference noted here.
The “chilling effect” injury comes closest to satisfying the Article III standing requirements described above. It is the only one of the alleged harms that has any evidentiary support in the record. See Pl.’s Decl.’s [ECF 8-11]. At argument, however, the State seemed to assert this interest on the theory that speech would be chilled by the fear of kidnappings. It relies on statements by declarants who claim their protest speech was chilled by this fear. See Pl.’s Decl.’s [ECF 8-11]. This theory creates a problem under the third prong of Lujan, similar to the problem with the State’s alleged interest in Fourth Amendment violations, which requires that the alleged harm be redressable by the remedy that a plaintiff seeks. The injury the State asserts—a chilling of its citizens’ speech—is not actually redressable by the requested remedy, given that citizens could still believe they might be kidnapped even if police are required to verbally identify themselves. Apparently, the word “police” and other official insignia on uniforms has not quelled this fear among the public, and it is highly questionable whether the requested relief would do so either.
More fundamentally, the “chilling effect” injury presents a problem for the State under the parens patriae doctrine. While the State has asserted a quasi-sovereign interest in the civic well-being of its citizens, and the “chilling effect” injury is a violation of that interest, parens patriae also requires that the state’s interest be more than a nominal interest in an individual dispute. See Snapp, 458 U.S. at 600-01. In other words, it must be a harm to the state and its citizens more broadly. Id. This is the problem with the “chilling effect” injury. Oregonians, like all Americans, have individual rights to freedom of speech and assembly, conferred by the First
11 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 12 of 14
Amendment. They can, and often do, bring individual lawsuits to vindicate those rights. And the State of Oregon has not explained why this case is different, why the chilled speech it alleges here injures the state in a way that is distinct from the individual harms that it also alleges. Perhaps there is an argument or a theory that could draw this distinction. The State did not manage to do so in its briefing or at oral argument, and I find that this interest, while it may or may not satisfy Article III, does not satisfy the requirements of parens standing.
II. Standing for Injunctive Relief Even assuming arguendo that the State has generally pleaded parens patriae standing, it does not have standing to seek the specific remedy it requests. Through its motion, Oregon seeks a temporary restraining order that would require Defendants to identify themselves and their agency before detaining or arresting any person off the streets in Oregon; explain to any person being arrested or detained that she is subject to arrest or detention and explain the basis for the seizure; and to refrain from arresting protesters without probable cause or a warrant. Pl.’s Mot. [5] at 20; Compl. [1] at 9. Even if the State had parens standing to vindicate broadly its citizens First and Fourth Amendment rights, or standing on a theory of one of the more specific injuries discussed above, any formulation of its quasi-sovereign interest would fail to confer standing to seek an injunction because every theory rests, fundamentally, on the idea that the unlawful seizures described above violate citizens rights. The State simply did not present enough evidence that those unlawful seizures are likely to continue. Standing is a remedy-specific inquiry. See Lyons v. City of Los Angeles, 461 U.S. 95, 105, 109 (1983) (holding that the plaintiff had standing to pursue damages for his past injury but lacked standing to pursue injunctive relief to prevent future harm). “Past exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does
12 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 13 of 14
not continue to suffer adverse effects.” Mayfield, 599 F.3d at 970 (citation omitted). In other words, injunctive relief requires more than a showing that a plaintiff has been harmed; it requires a showing that she will likely be harmed again. Lyons, 461 U.S. at 111 (“[An injunction] 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 will be wronged again in a similar way.”).
This case is nearly on all fours with Lyons. In that case, the plaintiff was subjected to an unconstitutional chokehold by City of Los Angeles police officers, and he sought injunctive relief to prevent them from using chokeholds in the future. Lyons, 461 U.S. at 97-98. The United States Supreme Court held that he could not seek injunctive relief because he had no evidence that he would be subject to an unconstitutional chokehold again. Id. at 105-6. The court provided two primary examples of how a plaintiff could show the required “real or immediate threat that [he] will be wronged again:” either, “(1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner.” Id. at 106.
The same is true here. The State has alleged that the purportedly illegal seizures by Defendants have caused an injury to its citizens’ rights to speech and assembly. In other words, the State must show that the illegal seizures—analogous to the chokeholds in Lyons—will occur again in the future. The State could try to show, for example, that all of Defendants’ seizures are illegal, or that they are under orders to fail to identify themselves or to make random arrests without probable cause. The state has shown none of this. It has presented no evidence of any official orders or policies and has presented no evidence that these allegedly illegal seizures are a
13 – OPINION AND ORDER

Case 3:20-cv-01161-MO Document 23 Filed 07/24/20 Page 14 of 14
widespread practice. Despite the broad language in the complaint, Oregon has shown—at most— that this type of seizure has happened twice.7 At oral argument, when asked what evidence it could present to show the likelihood of future harm, the State pointed to the fact that Defendants have defended against this lawsuit. Tr. at 39-40. Not only is defending a lawsuit not evidence of constitutionally unlawful behavior, it is not sufficient to support the showing the State is required to make under Lyons.
The State’s argument, regardless of how it is framed, rests on too little evidence to satisfy Lyons. The State has not met its burden to show that it has standing to seek injunctive relief, and I find that it does not have that standing. The State’s motion is therefore denied, as a temporary restraining order is unavailable on the record presented here.
CONCLUSION For the reasons described above, Plaintiff’s Motion for a Temporary Restraining Order [5] is DENIED. IT IS SO ORDERED. DATED this 24th day of July, 2020.
s/ Michael W. Mosman MICHAEL W. MOSMAN United States District Judge

7

In its briefing and at oral argument, the State described what has happened here in

Portland as “disappearance squad[s]” and “disappearing” people. Pl.’s Mot. [5] at 4; Draft Tr. at

24. This is apparently a reference to “the Disappeared,” i.e., the 30,000 people who were tortured

and murdered by the Argentine military junta 40 years ago. Even taking every word of the

State’s arguments and evidence at face value, this comparison seems out of proportion.

14 – OPINION AND ORDER

 
 Case 3:20-cv-01161-MO Document 28 Filed 09/16/20 Page 1 of 2

ELLEN F. ROSENBLUM Attorney General SHEILA H. POTTER #993485 Deputy Chief Trial Counsel STEVEN M. LIPPOLD, OSB #903239 Chief Trial Counsel Department of Justice 100 SW Market Street Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 Email: Sheila.Potter@doj.state.or.us
Steve.Lippold@doj.state.or.us
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

ELLEN F. ROSENBLUM, Oregon Attorney General,
Plaintiff,

Case No. 3:20-cv-01161-MO
PLAINTIFF'S NOTICE OF VOLUNTARY DISMISSAL

v.
JOHN DOES 1-10; the UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; the UNITED STATES MARSHALS SERVICE and the FEDERAL PROTECTIVE SERVICE,
Defendants.

In light of the defendant agencies having evidently ceased the conduct at issue in the Complaint, and pursuant to FRCP 41(a)(1)(A)(i), Plaintiff Ellen F. Rosenblum hereby dismisses this action without prejudice.

Page 1 -

PLAINTIFF'S NOTICE OF VOLUNTARY DISMISSAL
SP3/db5/#10438651-v1
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

Case 3:20-cv-01161-MO Document 28 Filed 09/16/20 Page 2 of 2

DATED September 16 , 2020.

Respectfully submitted,
ELLEN F. ROSENBLUM
s/ Sheila H Potter SHEILA H. POTTER #993485 Deputy Chief Trial Counsel STEVEN M. LIPPOLD, OSB #903239 Chief Trial Counsel Trial Attorneys Tel (971) 673-1880 Fax (971) 673-5000 Sheila.Potter@doj.state.or.us Steve.Lippold@doj.state.or.us Of Attorneys for Plaintiff

Page 2 -

PLAINTIFF'S NOTICE OF VOLUNTARY DISMISSAL
SP3/db5/#10438651-v1
Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000