U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:20-cv-07184-EMC

City Of Portland et al v. Barr et al Assigned to: Judge Edward M. Chen Cause: 05:551 Administrative Procedure Act

Date Filed: 10/14/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff City Of Oakland

represented by Barbara Parker One Frank H. Ogawa Plaza, 6th Floor Oakland, CA 94612 (510) 238-3601 Fax: (510) 238-6500 Email: bparker@oaklandcityattorney.org ATTORNEY TO BE NOTICED

Jill Ellen Habig Public Rights Project 4096 Piedmont Avenue Number 149 OAKLAND, CA 94618 United Sta 510-289-7824 Email: jill@publicrightsproject.org ATTORNEY TO BE NOTICED

Jonathan B Miller Public Rights Project 4096 Piedmont Avenue, No. 149 Oakland, CA 94612 United Sta 646-831-6113 Email: jon@publicrightsproject.org PRO HAC VICE ATTORNEY TO BE NOTICED

LiJia Gong Public Rights Project

4096 Piedmont Avenue #149 Oakland, CA 94611 301-335-3828 Email: lijia@publicrightsproject.org ATTORNEY TO BE NOTICED
Maria Bee Oakland City Attorney's Office One Frank H. Ogawa Plaza, 6th Fl. Oakland, CA 94612-1999 (510) 238-3814 Email: mbee@oaklandcityattorney.org ATTORNEY TO BE NOTICED
Victoria Stilwell 1312 Riviera Ave Apt 1 Venice, CA 90291 United Sta 828-413-0077 Email: tori@publicrightsproject.org TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
Zoe Meryl Savitsky Oakland City Attorney's Office 1 Frank H. Ogawa Plaza 6th Floor Oakland, CA 94612 (510) 238-6623 Fax: (510) 238-6500 Email: zsavitsky@oaklandcityattorney.org ATTORNEY TO BE NOTICED
Malia McPherson City Attorney's Office for the City of Oakland 1 Frank Ogawa Plaza, 6th Floor Oakland, CA 94612 (510) 238-4493 Fax: (510) 238-6500 Email: mmcpherson@oaklandcityattorney.org ATTORNEY TO BE NOTICED

Plaintiff City of Portland

represented by Denis M Vannier Portland Office of the City Attorney 1221 SW 4th Ave. Ste 430 Portland, OR 97204 503-823-4047 Email: denis.vannier@portlandoregon.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Jill Ellen Habig (See above for address) ATTORNEY TO BE NOTICED
Jonathan B Miller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
LiJia Gong (See above for address) ATTORNEY TO BE NOTICED
Naomi Sheffield Portland Office of the City Attorney 1221 SW 4th Ave. Ste. 430 Portland, OR 97204 503-823-4047 Email: naomi.sheffield@portlandoregon.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Robert L Taylor Portland Office of the City Attorney 1221 SW 4th Ave. Ste. 430 Portland, OR 97204 503-823-4047 Email: robert.taylor@portlandoregon.gov PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Robert M Wilkinson In his official capacity as Acting United States Attorney General
Defendant

Tracy Pool Reeve Portland Office of the City Attorney 1221 SW Fourth Ave Ste 430 Portland, OR 97204 503-823-4047 Email: tracy.reeve@portlandoregon.gov TERMINATED: 12/23/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Victoria Stilwell (See above for address) TERMINATED: 12/23/2020 ATTORNEY TO BE NOTICED
represented by Jason Lynch U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street NW Rm 11214 Washington, DC 20005 202-514-1359 Email: Jason.Lynch@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Patrick Clendenen U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street NW Room 12028 Washington, DC 20005 202-305-0693 Email: michael.p.clendenen@usdoj.gov ATTORNEY TO BE NOTICED

David P. Pekoske In his official capacity as Acting Secretary of Homeland Security
Defendant United States Department of Justice
Defendant United States Department of Homeland Security

represented by Jason Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Patrick Clendenen (See above for address) ATTORNEY TO BE NOTICED
represented by Jason Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Patrick Clendenen (See above for address) ATTORNEY TO BE NOTICED
represented by Jason Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Patrick Clendenen (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/14/2020
10/14/2020

# Docket Text

COMPLAINT for Declaratory and Injunctive Relief against All

1

Defendants ( Filing fee $ 400, receipt number 0971-15065507.). Filed

byCity Of Oakland. (Attachments: # 1 Civil Cover

Sheet)(McPherson, Malia) (Filed on 10/14/2020) (Entered:

10/14/2020)

2 Case assigned to Magistrate Judge Sallie Kim.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

10/15/2020 10/15/2020
10/15/2020 10/16/2020 10/20/2020 10/20/2020 10/20/2020 10/20/2020 10/21/2020

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 51(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 10/28/2020. (bwS, COURT STAFF) (Filed on 10/14/2020) (Entered: 10/15/2020)
3 Proposed Summons. (Gong, LiJia) (Filed on 10/15/2020) (Entered: 10/15/2020)
4 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 1/18/2021. Initial Case Management Conference set for 1/25/2021 01:30 PM in San Francisco, Courtroom C, 15th Floor. (elyS, COURT STAFF) (Filed on 10/15/2020) (Entered: 10/15/2020)
5 Summons Issued as to William P. Barr, United States Department of Homeland Security, United States Department of Justice, Chad F. Wolf, U.S. Attorney, and U.S. Attorney General (elyS, COURT STAFF) (Filed on 10/15/2020) (Entered: 10/15/2020)
6 NOTICE of Appearance by Victoria Stilwell (Stilwell, Victoria) (Filed on 10/16/2020) (Entered: 10/16/2020)
7 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15090208.) filed by City of Portland. (Attachments: # 1 Certificate/Proof of Service)(Taylor, Robert) (Filed on 10/20/2020) (Entered: 10/20/2020)
8 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15090259.) filed by City of Portland. (Attachments: # 1 Certificate/Proof of Service)(Reeve, Tracy) (Filed on 10/20/2020) (Entered: 10/20/2020)
9 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15090302.) filed by City of Portland. (Attachments: # 1 Certificate/Proof of Service)(Vannier, Denis) (Filed on 10/20/2020) (Entered: 10/20/2020)
10 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15090320.) filed by City of Portland. (Attachments: # 1 Certificate/Proof of Service)(Sheffield, Naomi) (Filed on 10/20/2020) (Entered: 10/20/2020)
11 ORDER by Magistrate Judge Sallie Kim granting 7 Motion for Pro Hac Vice. (sklc2S, COURT STAFF) (Filed on 10/21/2020) (Entered: 10/21/2020)

10/21/2020 10/21/2020 10/21/2020 10/22/2020 10/28/2020 10/28/2020 10/29/2020
10/30/2020

12 ORDER by Magistrate Judge Sallie Kim granting 9 Motion for Pro Hac Vice. (sklc2S, COURT STAFF) (Filed on 10/21/2020) (Entered: 10/21/2020)
13 ORDER by Magistrate Judge Sallie Kim granting 10 Motion for Pro Hac Vice. (sklc2S, COURT STAFF) (Filed on 10/21/2020) (Entered: 10/21/2020)
14 Amended MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15090259.) Filing fee previously paid on 10/20/20 filed by City of Portland. (Attachments: # 1 Certificate/Proof of Service)(Reeve, Tracy) (Filed on 10/21/2020) (Entered: 10/21/2020)
15 ORDER Granting Application for Admission Pro Hac Vice signed by Magistrate Judge Sallie Kim: granting 14 Application. (shyS, COURT STAFF) (Filed on 10/22/2020) (Entered: 10/22/2020)
16 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by City Of Oakland, City of Portland.. (Stilwell, Victoria) (Filed on 10/28/2020) (Entered: 10/28/2020)
17 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15126821.) filed by City Of Oakland, City of Portland. (Attachments: # 1 Certificate of Good Standing)(Miller, Jonathan) (Filed on 10/28/2020) (Entered: 10/28/2020)
18 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now reassign this case to a District Judge because a party has not consented to the jurisdiction of a Magistrate Judge. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (shyS, COURT STAFF) (Filed on 10/29/2020) (Entered: 10/29/2020)
19 ORDER, Case Reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Edward M. Chen for all further proceedings. Magistrate Judge Sallie Kim no longer assigned to the case. Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See

11/06/2020 11/09/2020

General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by The Clerk on 10/30/20. (Attachments: # 1 Notice of Eligibility for Video Recording)(haS, COURT STAFF) (Filed on 10/30/2020) (Entered: 10/30/2020)
20 Order by Judge Edward M. Chen granting 17 Motion for Pro Hac Vice.(afmS, COURT STAFF) (Filed on 11/6/2020) (Entered: 11/08/2020)
21 CERTIFICATE OF SERVICE by City Of Oakland, City of Portland

11/12/2020 11/16/2020
12/04/2020
12/09/2020 12/11/2020 12/16/2020 12/16/2020

re 1 Complaint (Miller, Jonathan) (Filed on 11/9/2020) (Entered: 11/09/2020)

22 NOTICE of Appearance by Jill Ellen Habig (Habig, Jill) (Filed on 11/12/2020) (Entered: 11/12/2020)

23 CASE MANAGEMENT CONFERENCE ORDER IN REASSIGNED CASE: Initial Case Management Conference set for 2/11/2021 09:30 AM in San Francisco, Courtroom 05, 17th Floor. Joint Case Management Statement due by 2/4/2021. Signed by Judge Edward M. Chen on 11/16/2020. (afmS, COURT STAFF) (Filed on 11/16/2020) (Entered: 11/16/2020)

24 CERTIFICATE OF SERVICE by City Of Oakland, City of Portland re 20 Order on Motion for Pro Hac Vice, 12 Order on Motion for Pro Hac Vice, 16 Consent/Declination to Proceed Before a US Magistrate Judge, 19 Order,,, Case Assigned/Reassigned,, 18 Clerk's Notice of Impending Reassignment - Text Only,, 13 Order on Motion for Pro Hac Vice, 15 Order on Motion for Pro Hac Vice, 11 Order on Motion for Pro Hac Vice, 21 Certificate of Service (Miller, Jonathan) (Filed on 12/4/2020) (Entered: 12/04/2020)

25 NOTICE of Appearance by Jason Lynch on Behalf of All Defendants (Lynch, Jason) (Filed on 12/9/2020) (Entered: 12/09/2020)

26 NOTICE of Appearance by Michael Patrick Clendenen (Clendenen, Michael) (Filed on 12/11/2020) (Entered: 12/11/2020)

STIPULATION WITH PROPOSED ORDER to Extend Page

27

Limitations on Defendants' Motion to Dismiss filed by William P.

Barr, United States Department of Homeland Security, United States

Department of Justice, Chad F. Wolf. (Lynch, Jason) (Filed on

12/16/2020) (Entered: 12/16/2020)

28 MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss filed by City Of Oakland, City of Portland. (Attachments: # 1 Proposed Order)(Miller, Jonathan) (Filed on 12/16/2020) (Entered: 12/16/2020)

12/17/2020 12/21/2020
12/23/2020 12/23/2020 12/23/2020

29 Order by Judge Edward M. Chen granting 27 Stipulation to Extend Page Limitations on Defendants' Motion to Dismiss. Defendants may file a motion to dismiss of up to 40 pages and a reply of up to 25 pages. (afmS, COURT STAFF) (Filed on 12/17/2020) (Entered: 12/17/2020)
30 MOTION to Dismiss for Lack of Jurisdiction or in the Alternative to Transfer Venue filed by William P. Barr, United States Department of Homeland Security, United States Department of Justice, Chad F. Wolf. Motion Hearing set for 1/28/2021 01:30 PM in San Francisco, Videoconference Only before Judge Edward M. Chen. Responses due by 1/4/2021. Replies due by 1/11/2021. (Attachments: # 1
Declaration of Juliana Blackwell, # 2 Declaration of Neal J. Swartz)(Clendenen, Michael) (Filed on 12/21/2020) (Entered: 12/21/2020)
31 NOTICE of Change In Counsel by Victoria Stilwell (Stilwell, Victoria) (Filed on 12/23/2020) (Entered: 12/23/2020)
32 (DISREGARD. SEE [34) Order by Judge Edward M. Chen granting 28 Motion for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss. Due 1/25/2021.(afmS, COURT STAFF) (Filed on 12/23/2020) Modified on 12/23/2020 (afmS, COURT STAFF). (Entered: 12/23/2020)
33 CLERK'S NOTICE CONTINUING MOTION HEARING RE: 30 MOTION TO DISMISS FROM 1/28/2021 TO 2/11/2021: 30 MOTION to Dismiss for Lack of Jurisdiction or in the Alternative to Transfer Venue. Motion Hearing set for 1/28/2021 is vacated and rescheduled for 2/11/2021 01:30 PM in San Francisco, - Videoconference Only before Judge Edward M. Chen. This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/emc
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

12/23/2020
12/23/2020
12/23/2020 01/05/2021 01/11/2021 01/12/2021
01/15/2021 01/18/2021

Motion Hearing set for 2/11/2021 01:30 PM in San Francisco, Videoconference Only before Judge Edward M. Chen. (This is a text-only entry generated by the court. There is no document associated with this entry.)(afmS, COURT STAFF) (Filed on 12/23/2020) (Entered: 12/23/2020)
34 AMENDED ORDER granting 28 MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss filed by City Of Oakland, City of Portland. Opposition due 12/21/2020. Signed by Judge Edward M. Chen on 12/23/2020. (afmS, COURT STAFF) (Filed on 12/23/2020) (Entered: 12/23/2020)
35 CLERK'S NOTICE SETTING BRIEFING DEADLINES RE: 30 MOTION TO DISMISS: Briefing deadlines are as follows: Responses due by 1/21/2021. Replies due by 1/28/2021. Hearing set 2/11/2021 at 1:30PM. (This is a text-only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Filed on 12/23/2020) (Entered: 12/23/2020)
36 NOTICE of Change In Counsel by Tracy Pool Reeve (Reeve, Tracy) (Filed on 12/23/2020) (Entered: 12/23/2020)
37 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Miller, Jonathan) (Filed on 1/5/2021) (Entered: 01/05/2021)
38 ADMINISTRATIVE MOTION for Extension of Time to Amend Under FRCP 15(a) filed by City Of Oakland, City of Portland. (Attachments: # 1 Declaration, # 2 Proposed Order)(Gong, LiJia) (Filed on 1/11/2021) Modified on 1/12/2021 (afmS, COURT STAFF). (Entered: 01/11/2021)
39 CLERK'S NOTICE: The Government has until Friday, 1/15/2021, 5PM (PST) to respond to 38 ADMINISTRATIVE MOTION for Extension of Time to Amend Under FRCP 15(a). (This is a text-only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Filed on 1/12/2021) (Entered: 01/12/2021)
40 OPPOSITION/RESPONSE (re 38 ADMINISTRATIVE MOTION ) filed byWilliam P. Barr, United States Department of Homeland Security, United States Department of Justice, Chad F. Wolf. (Lynch, Jason) (Filed on 1/15/2021) (Entered: 01/15/2021)
41 ORDER GRANTING 38 Administrative Motion for Extension of Time to Amend Under FRCP 15(a). Plaintiffs may file an amended complaint on or before 1/21/2021. Defendants motion to dismiss, Docket No. 30, is dismissed as moot in light of the

01/21/2021 01/27/2021 01/28/2021
02/22/2021 02/23/2021

forthcoming amended complaint. Signed by Judge Edward M. Chen on 1/18/2021. (afmS, COURT STAFF) (Filed on 1/18/2021) (Entered: 01/18/2021)

AMENDED COMPLAINT against All Defendants. Filed byCity of

42

Portland, City Of Oakland. (Miller, Jonathan) (Filed on 1/21/2021)

(Entered: 01/21/2021)

43 STIPULATION WITH PROPOSED ORDER to Extend Deadlines and Page Limits filed by David P. Pekoske, United States Department of Homeland Security, United States Department of Justice, Robert M Wilkinson. (Lynch, Jason) (Filed on 1/27/2021) (Entered: 01/27/2021)

Order as Modified by Judge Edward M. Chen

44

granting 43 Stipulation to Extend Deadlines and Page Limits.

Response and/or Motion due 3/5/2021. Page limits: 35 pages for

the motion and opposition and 20 pages for the reply. Initial Case

Management Conference reset for 4/1/2021 09:30 AM in San

Francisco, - Videoconference Only. Joint Case Management

Statement due by 3/25/2021.(afmS, COURT STAFF) (Filed on

1/28/2021) (Entered: 01/28/2021)

STIPULATION WITH PROPOSED ORDER filed by City Of

45

Oakland, City of Portland. (Attachments: # 1 Declaration)(Miller,

Jonathan) (Filed on 2/22/2021) (Entered: 02/22/2021)

46 Order by Judge Edward M. Chen granting 45 Stipulation. Parties to file with the Court a joint status report every 60 days. The joint status reports shall be filed on or before: 4/15/2021; 6/15/2021; 8/16/2021. Joint Case Management Statement due by 9/30/2021. Initial Case Management Conference set for 4/1/2021 is vacated and rescheduled for 10/7/2021 09:30 AM in San Francisco, Courtroom 05, 17th Floor.(afmS, COURT STAFF) (Filed on 2/23/2021) (Entered: 02/23/2021)

PACER Service Center Transaction Receipt

03/02/2021 09:10:53

PACER Login:

CRClearinghouse:2563377:0

Client Code:

Description: Docket Report

Search Criteria:

Harrington
3:20-cv07184-EMC

Billable Pages:

8

Cost:

0.80

 
 Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 1 of 48

1 OFFICE OF THE CITY ATTORNEY

CITY OF PORTLAND 2 TRACY REEVE, OR SBN 891123

3

City Attorney
Pro Hac Vice Application Forthcoming

4 ROBERT TAYLOR, OR SBN 044287 Chief Deputy City Attorney

5

Pro Hac Vice Application Forthcoming

DENIS VANNIER, OR SBN 044406

6 Senior Deputy City Attorney
Pro Hac Vice Application Forthcoming

7 NAOMI SHEFFIELD, OR SBN 170601

Deputy City Attorney

8

Pro Hac Vice Application Forthcoming

1221 SW 4th Avenue, Suite 430 9 Portland, Oregon 97204

10

T: (503) 823-4047; F: (503) 823-3089 Email: robert.taylor@portlandoregon.gov

11 Attorneys for Plaintiff City of Portland

OFFICE OF THE CITY ATTORNEY CITY OF OAKLAND BARBARA J. PARKER, CA SBN 069722 City Attorney MARIA BEE, CA SBN 167716 Chief Assistant City Attorney ZOE M. SAVITSKY, CA SBN 281616 Supervising Deputy City Attorney MALIA MCPHERSON, CA SBN 313918 Deputy City Attorney One Frank H. Ogawa Plaza, 6th Floor Oakland, California 94612 T: (510) 238-3601; F: (510) 238-6500 Email: zsavitsky@oaklandcityattorney.org Attorneys for Plaintiff City of Oakland

12 JILL HABIG, President, CA SBN 268770 (Admission Pending)

JONATHAN B. MILLER, Legal Director, MA SBN 663012

13

Pro Hac Vice Application Forthcoming

LIJIA GONG, Counsel, CA SBN 294268

14

VICTORIA STILWELL, Staff Attorney, CA SBN 330397 (Admission Pending)

15 4096 Piedmont Avenue #149 Oakland, California 94611

16 T: (301) 335-3828

Email: lijia@publicrightsproject.org

17 Attorneys for Plaintiffs

18

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA 19

THE CITY OF PORTLAND AND THE CITY Civil Action No. 20-cv-7184 20 OF OAKLAND,

21 Plaintiffs,
22 v.
23
WILLIAM BARR, in his official capacity as 24 United States Attorney General; UNITED 25 STATES DEPARTMENT OF JUSTICE;
CHAD F. WOLF, in his official capacity as 26 Acting Secretary of Homeland Security; and
UNITED STATES DEPARTMENT OF 27 HOMELAND SECURITY,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
[Administrative Procedure Act Case]

28

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 2 of 48

1

INTRODUCTION

2

1. This lawsuit challenges the unlawful and unconstitutional overreach of federal law

3 enforcement in response to and in anticipation of civil protests in progressive United States cities.

4 In particular, the lawsuit challenges the federal government’s new policy authorizing the expanded

5 and unbounded jurisdiction of federal law enforcement under the guise of protecting federal

6 property, and the federal government’s related and unconstitutional practice of commandeering

7 local law enforcement officers for similar ends.

8

2. Plaintiffs are the cities of Portland, Oregon, and Oakland, California—cities that,

9 like others across the United States, have primary responsibility for the health, safety, and welfare

10 of their residents, including the protection and oversight of general public safety during protests.

11 Plaintiffs have police departments, fire departments, and other local governmental departments

12 whose purposes and responsibilities are to reduce and address violence and/or support public safety

13 in their communities. In conducting these important functions, Plaintiffs aim to respect, honor, and

14 protect the First Amendment rights, among other rights, of their residents and visitors, so that those

15 residents and visitors can demonstrate, march, and protest. Plaintiffs also have obligations under

16 local and state law to respond, as necessary, to threats of violence and community harm. Outside

17 of the exceptional actions taken by Defendants as described in this Complaint, Plaintiffs have long

18 operated with this understanding of their duties and authority.

19

3. Defendants are the Department of Justice (“DOJ”) and the United States

20 Department of Homeland Security (“DHS”), and the leaders of both departments. In response to

21 directives from President Donald J. Trump beginning in or around June 2020, Defendants

22 unilaterally, unlawfully, and unconstitutionally began instituting a policy that authorized the

23 deployment and operation of federal agents in United States cities, allegedly for the purpose of

24 assuring domestic “law and order” and “tak[ing] over cities.”

25

4. The full scope and parameters of the policy authorizing these actions are currently

26 unknown, as no ordinary public process was followed in its creation. However, for the first known

27 time, Defendants are using 40 U.S.C. § 1315—a statute which authorizes federal agents to protect

28 federal property and personnel—as the basis for, at a minimum: (a) deploying federal law

- 2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 3 of 48

1 enforcement to quash civil protests in United States cities; (b) authorizing the engagement,

2 surveillance, and operations of these deployments to include non-federal property and virtually

3 limitless jurisdiction; and (c) erecting a fence around the Hatfield Federal Courthouse in Portland,

4 without a permit or City consent, that encroaches on the City’s right-of-way (the “Policy”).

5

5. Using that authority or other, unknown authorities, Defendants have also instituted

6 an unlawful practice in Portland of commandeering control of local law enforcement officers in

7 direct contravention of the City’s express revocation of consent, and for unknown or pretextual

8 ends (the “Practice”).

9

6. Based on information and belief, the Policy is a response to, incorporates, and/or is

10 guided by, the June 26, 2020 Executive Order 13933, Protecting American Monuments,

11 Memorials, and Statues and Combating Recent Criminal Violence (the “Executive Order”), signed

12 by President Trump following nationwide protests—quite possibly the largest social justice

13 protests in our nation’s history—over police brutality and systemic racism. The Executive Order

14 prescribes a set of directives aimed at punishing and responding to “State and local governments”

15 that had allegedly “lost the ability to distinguish between the lawful exercise of rights to free speech

16 and assembly and unvarnished vandalism,” or otherwise “failed to protect public monuments,

17 memorials, and statues.”

18

7. Based on information and belief, the Practice is similarly in response to,

19 incorporates, and/or is guided by, the Executive Order.

20

8. Armed with this Executive Order, Defendants instituted and/or continued refining

21 and executing the Policy, which concerns the broad deployment and operation of federal law

22 enforcement in United States cities without the consent, request, or authorization from the states

23 or local leaders; without using any known and non-pretextual legal authority to do so; and with the

24 purpose and/or effect of taking on quintessential general policing powers granted to other

25 governments.

26

9. Federal law enforcement agents have, under the Policy, been deployed to United

27 States cities, either secretly or with little warning, under at least three separate operations or

28

- 3 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 4 of 48

1 programs: Operation Legend; Operation Diligent Valor, which includes the recent deployment of

2 agents in Portland, Oregon; and the Protecting American Communities Task Force (“PACT”).

3

10. Although Defendants and/or their agents or employees have publicly claimed that

4 certain operations are for the purpose of protecting federal property under 40 U.S.C. § 1315,

5 internal memoranda, continuing public statements, and activities in cities such as Portland instead

6 reveal a distinct and meaningful policy shift to use federal law enforcement to unilaterally step in

7 or replace local law enforcement departments that do not subscribe to the President’s view of

8 domestic “law and order.”

9

11. Among other things, reported non-public memos from DHS reveal that, under the

10 Policy and in response to the Executive Order, federal law enforcement agents are now authorized

11 to engage in surveillance activities for threats to any public monument, memorial, or statue—

12 which in major cities like Plaintiff jurisdictions, could constitute surveillance within the entire

13 jurisdiction regardless of federal interests or harms at stake.

14

12. In addition, DOJ and/or DHS have engaged in a variety of unauthorized activities

15 under the Policy. Such activities in Portland have included surveilling the text messages of

16 protesters and building a fence that blocks the right-of-way on City property and refusing to

17 remove it upon request of City officials.

18

13. Defendants, as well as President Trump, have expressed an intent to expand or at

19 least continue the Policy. President Trump has stated: “We’re going to have more federal law

20 enforcement. That I can tell you.”—while threatening to send federal agents into major cities “run

21 by liberal Democrats.” For instance, he said: “We’re not going to let New York and Chicago, and

22 Philadelphia and Detroit and Baltimore and all of these—Oakland is a mess. We’re not going to

23 let this happen in our country.”

24

14. These threats are not new. President Trump has long threatened American cities led

25 by Democrats. But as recently as April 2020, Defendants did not purport to have, or act in

26 accordance with, the authority they now assert under the Policy. In April, numerous public

27 monuments, memorials, and statues were equally or more under threat from armed and uncivil

28 protesters who opposed public health measures to control COVID-19. But those protesters

- 4 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 5 of 48

1 expressed a different set of political views than the majority of those protesting after May 25, 2020,

2 and no policy was then in effect to allow or require the type of federal operations now occurring

3 or allowed to occur under the Policy.

4

15. The Policy threatens to upend the current federalism structure and working

5 relationships between local and federal law enforcement agencies. Section 1315 has never before

6 been interpreted to permit the actions taken by Defendants under its auspices.

7

16. Defendants have not and did not publicly rely on any of the limited authorities, as

8 described below, that would lawfully allow deployments of federal agents within the parameters

9 defined in such laws.

10

17. The Policy is not merely a change in Defendants’ interpretation of their own

11 enforcement authority. The Policy is based on a misunderstanding, misinterpretation, error, and/or

12 disregard for the scope of Defendants’ legal authority.

13

18. In addition, no constitutional authority has been offered for the related Practice of

14 commandeering Portland’s law enforcement by refusing to release Portland law enforcement

15 officers from their temporary deputation as federal agents, conscripting them without consent and

16 against Portland’s express wishes into ongoing deputation.

17

19. This monumental policy change and new commandeering practice harms Plaintiffs’

18 and other cities’ abilities to safely govern and police in ways aligned with and responsive to

19 community goals and racial equity reforms. As local governments, Plaintiffs have independent

20 police forces; community relationships; and locally-determined policing policies, practices, and

21 procedures. Plaintiffs’ police forces have always been able to expect when and how federal law

22 enforcement agents could assert federal powers within their jurisdictions. The use of deployments

23 and operations violating established constitutional parameters, politically motivated interventions,

24 and lawless commandeering of local law enforcement are unconstitutional and unauthorized in

25 part because of the havoc such actions impose on local jurisdictions and the innumerable ways in

26 which these deployments run roughshod over the longstanding federalist balance of the general

27 policing power.

28

- 5 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 6 of 48

1

20. Plaintiffs are further harmed by the Policy and Practice because they threaten,

2 intimidate, chill and/or discourage the exercise of constitutional or civil rights of their residents,

3 leaders, and/or the jurisdictions themselves.

4

21. The Policy and Practice also harm Plaintiffs to the extent they have and will

5 continue to incite violence and make it more difficult for Plaintiffs to fulfill their core public safety

6 missions.

7

22. Plaintiffs are additionally harmed by their increased costs, expenditures, and

8 resources devoted to responding to actions taken by Defendants under the Policy and Practice.

9

23. Plaintiffs therefore bring this action to enjoin Defendants’ new Policy and new

10 Practice, which are unconstitutional, arbitrary and capricious, in excess of Defendants’ legal

11 authority, and/or wholly pretextual.

12

JURISDICTION AND VENUE

13

24. This Court has jurisdiction under 28 U.S.C. § 1331 because this is a civil action

14 arising under the United States Constitution; the Administrative Procedure Act (“APA”), 5 U.S.C.

15 §§ 701-706; and other federal statutes.

16

25. This Court has the authority to issue declaratory and injunctive relief under the

17 Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and the APA, 5 U.S.C. § 706.

18

26. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2) and (e)(1).

19 Defendants are United States officers or agencies sued in their official capacities, a substantial part

20 of the events or omissions giving rise to this action have occurred or will occur in this district, and

21 one Plaintiff resides in this district.

22

INTRADISTRICT ASSIGNMENT

23

27. Pursuant to the Northern District Civil Local Rule 3-2(c)-(d), the intradistrict

24 assignment should be to the Oakland or San Francisco Division because a substantial part of the

25 acts or omissions that give rise to this action are occurring in the County of Alameda.

26

PARTIES

27

28. The CITY OF PORTLAND is a municipal corporation governed by charter, located

28 in the District of Oregon, and existing under the laws and constitution of the State of Oregon.

- 6 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 7 of 48

1 Portland is home to more than 650,000 residents, and the City’s leadership has committed to

2 significant reforms to local policing and other policies, with an aim toward promoting racial

3 justice.

4

29. The CITY of OAKLAND is a municipal corporation and charter city located in the

5 Northern District of California, organized and existing under and by virtue of the laws of the State

6 of California. The City of Oakland is home to over 420,000 people and consistently ranks as one

7 of the most ethnically and racially diverse major cities in the United States. Approximately 23%

8 of Oakland’s residents identify as Black or African American, 26% as Hispanic or Latinx, 15% as

9 Asian or Asian-American, and 5.5% as multi-racial. The City’s leadership is engaged in significant

10 reforms to local policing and other policies, with an aim toward promoting racial justice.

11

30. Plaintiffs are aggrieved by Defendants’ actions and have standing to bring this

12 action because the Policy and its implementation and the Practice harm Plaintiffs’ independent and

13 constitutionally recognized economic, dignitary, and proprietary interests and will continue to

14 cause injury unless and until the Policy is vacated and Defendants’ practices are permanently

15 enjoined.

16

31. WILLIAM BARR is the United States Attorney General. He is sued in his official

17 capacity.

18

32. The UNITED STATES DEPARTMENT OF JUSTICE is a cabinet agency within

19 the executive branch of the United States government and is an agency within the meaning of 5

20 U.S.C. § 552(f).

21

33. CHAD F. WOLF is the purported Acting Secretary of Homeland Security. He is

22 sued in his official capacity.

23

34. The UNITED STATES DEPARTMENT OF HOMELAND SECURITY is a

24 cabinet agency within the executive branch of the United States government and is an agency

25 within the meaning of 5 U.S.C. § 552(f). Its stated missions involve anti-terrorism, border security,

26 immigration and customs. It was created in 2002 by combining 22 different federal departments

27 and agencies into a single Cabinet agency.

28

- 7 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 8 of 48

1

FACTUAL ALLEGATIONS

2 Background

3

35. Adherence to the Constitution is the bedrock of American democracy. Regardless

4 of any changes to the interpretation of the Constitution over time, certain structures endure.

5

36. One such foundational structure is the separation of federal powers: the division of

6 authority and responsibility that guides all legal action taken in the United States. Under the

7 separation of powers, the Congress makes law, the Executive Branch implements that law, and the

8 Judiciary assesses the legality of those laws and actions.

9

37. Another foundational structure is federalism: the division or sharing of legal power

10 between the national government and other government units, including states, counties, cities,

11 parishes, commonwealths, territories, and tribal governments (hereafter “other governments”).

12 Other governments, including cities, “ensure[] that powers which ‘in the ordinary course of affairs,

13 concern the lives, liberties, and properties of the people’ [are] held by governments more local and

14 more accountable than a distant federal bureaucracy.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567

15 U.S. 519, 536 (2012) (quoting The Federalist No. 45 at 293 (J. Madison)).

16

38. A federalist system’s division of power evolves, but in expected ways, such as

17 through Congress passing new laws to further regulate other governments, or other governments

18 using the courts to push back on laws or rules made by the Congress or the Executive Branch.

19

39. Within this federalism framework and under the Tenth Amendment to the United

20 States Constitution, the general police powers are left to the states, who in turn often delegate such

21 plenary authority to cities like Plaintiffs. See, e.g., Cal. Const., art. 11, § 7; Or. Const., art XI, § 2.

22 As the Supreme Court has long held, “the facets of governing that touch on citizens’ daily lives

23 are normally administered by smaller governments closer to the governed.” Nat’l Fed’n of Indep.

24 Bus., 567 U.S. at 536.

25

40. Accordingly, the federal government has never created a federal domestic police

26 force with broad powers. The general policing power, including over most violent crime, is left to

27 other governments. As courts have repeatedly held, “We can think of no better example of the

28 police power, which the Founders denied the National Government and reposed in the States, than

- 8 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 9 of 48

1 the suppression of violent crime and vindication of its victims.” United States v. Morrison, 529

2 U.S. 598, 618 (2000).

3

41. Instead, where Congress has authorized, the Executive Branch has executed, and

4 the Judiciary approved, the federal government has created a constellation of different law

5 enforcement agencies, each of which has a specific domain of authority as defined by federal

6 statutes. For the most part, those domains of authority are not coextensive with other governments’

7 general policing power.

8

42. Within the scope of those federal statutes, such federal law enforcement activities

9 have been limited to: (a) the enforcement of a direct federal interest (e.g., enforcement of a federal

10 law); or (b) assisting other governments, which constitutes the enforcement of an indirect federal

11 interest.

12

43. Whether enforcing a direct federal interest or assisting other governments, federal

13 law enforcement acts within prescribed legal bounds. Either federal law enforcement is invited by

14 other governments to participate in any number of lawful collaborative activities or federal law

15 enforcement may intervene without invitation in the circumstances where federal law permits.

16

44. In the former category of invited collaboration, Plaintiffs have, like many other

17 cities, frequently engaged in lawful partnerships with federal law enforcement. From subject-

18 specific task forces to investigating borderless crimes, other governments often depend on and

19 engage with federal law enforcement to help protect residents and visitors. Plaintiffs have, for

20 example, partnered with the Federal Bureau of Investigation on child exploitation task forces; with

21 the Drug Enforcement Administration to combat illegal drug trafficking; with the Bureau of

22 Alcohol, Tobacco, Firearms and Explosives to proactively identify the source of guns used for

23 crimes; with the United States Marshals Service (“USMS”) to apprehend those fleeing the justice

24 system; and with the United States Secret Service to tackle identity theft.

25

45. These past and present local-federal relationships are voluntary and consensual.

26 Federal law enforcement and local law enforcement agencies generally work together in Plaintiffs’

27 communities with a mutual understanding of the mission, clear directives regarding jurisdictional

28 functions, and specific agreements (e.g., via Memoranda of Understanding or Agreement) that

- 9 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 10 of 48

1 inform both sides of their respective obligations. Such partnerships were and are authorized by

2 law, typically memorialized by mutual agreement, and not the subject of this lawsuit.

3

46. In the latter category of uninvited intervention, the federal government has certain

4 powers that are superior to those of other governments, made so by the Supremacy Clause.

5

47. Such powers include federal enforcement of crucial fundamental federal rights,

6 including civil rights. Throughout the nation’s history, federal enforcement authorities have at

7 times overridden other governments’ ignorant or bigoted refusals to grant or defend

8 constitutionally protected rights. Whether desegregating schools or extending the voting franchise

9 to Black people, federal enforcement—without invitation or local approval—has been at times

10 both lawful and vital.

11

48. Such intervention powers may also, in extraordinary circumstances, permit the

12 deployment of federal forces domestically, in which federal law enforcement temporarily takes

13 over the general police powers otherwise reserved to other governments. Such circumstances are

14 constitutionally delineated by Article I, Section 8, one of the Militia Clauses (allowing Congress

15 to “call[] forth the Militia to execute the Laws of the Union”) and by Article IV, Section 4 (the

16 obligation to protect the states against invasion and against “domestic violence”).

17

49. The Constitution reserves both of those described powers for the Legislative

18 Branch, either exclusively or principally. The cited Militia Clause only gives power to Congress.

19 The Article IV Republican Form of Government Clause gives power first to the Legislature, and

20 then only to the Executive “when the Legislature cannot be convened.”

21

50. Under these authorities, Congress has, among other things, passed the Insurrection

22 Act of 1807, now codified as amended at 10 U.S.C. §§ 251-255, which allows domestic military

23 intervention when circumstances make it impracticable to enforce the law by any other means, and

24 the complementary Posse Comitatus Act of 1876, now codified at 18 U.S.C. § 1385, eliminating

25 virtually any use of the military to regulate American civilians.

26

51. These laws represent some key legal guardrails constitutionally implemented by

27 the Legislative Branch to limit and define where the Executive Branch may, without permission

28 and while overriding other governments’ prerogatives, nonetheless enforce federal law.

- 10 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 11 of 48

1

52. Specifically, the Insurrection Act empowers the President to call into service the

2 United States Armed Forces and the National Guard: (a) when formally requested by a state; (b)

3 to address an insurrection in any state, when that insurrection makes it impracticable to otherwise

4 enforce the law; or (c) to address an insurrection, domestic violence, unlawful combination or

5 conspiracy, in any state, which results in the deprivation of constitutionally secured rights, and

6 where the state is unable, fails, or refuses to protect those rights. 10 U.S.C. §§ 251-253.

7

53. There is a set legal process for invoking the Insurrection Act that is neither

8 clandestine nor equivocal. To invoke the Act, a president must issue a “proclamation to disperse”:

9 that is, “by proclamation, immediately order the insurgents to disperse and retire peaceably to their

10 abodes within a limited time.” 10 U.S.C. § 254. Such proclamations have been issued as Executive

11 Orders and/or as Proclamations published in the Federal Register.

12

54. The Insurrection Act has never been invoked in the 21st century. In its limited usage

13 in the 20th century, the federal government often invoked the Act to protect civil rights,

14 particularly the rights of Black children to attend desegregated schools.

15

55. When the Act was most recently invoked, in 1992, then-President George H.W.

16 Bush issued a general Proclamation and an operationalizing Executive Order. See Proclamation

17 No. 6427, 57 Fed. Reg. 19,359 (May 1, 1992); Exec. Order No. 12804, 57 Fed. Reg. 19,361 (May

18 1, 1992). Executive Order 12804 provided detailed instructions for Cabinet officials to respond to

19 the alleged insurrection in California. Among other things, it directed the Attorney General: “(1)

20 to coordinate the activities of all Federal agencies assisting in the suppression of violence and in

21 the administration of justice in and about the City and County of Los Angeles, and other districts

22 of California, and (2) to coordinate the activities of all such agencies with those of State and local

23 agencies similarly engaged.”

24

56. DOJ and Defendant Barr are aware of the legal process for invoking the

25 Insurrection Act. As an agency, DOJ has typically been involved when the Insurrection Act is

26 invoked. As an individual, Defendant Barr was serving in an official capacity as Attorney General

27 in 1992.

28

- 11 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 12 of 48

1

57. The Executive Branch’s authority under the Act, or under other such extraordinary

2 emergency powers, does not undergird the Policy.

3

58. Any invocations of emergency powers or interventions under those powers are rare,

4 reserved for extraordinary circumstances, and are not the subject of this lawsuit.

5

59. Finally, Executive Branch agencies, endowed by Congress or the Constitution with

6 particular powers, must, per Article II, Section 3, “take care” to execute their duties under those

7 authorities. Sometimes, those authorities are clearly defined by statute or a provision of the

8 Constitution. At other times, those authorities are further crystalized and concretized by Executive

9 Branch interpretations of the authority so granted. Those interpretations come in forms such as

10 regulations, rules, and myriad types of sub-regulatory guidance.

11

60. The legality of such Executive Branch interpretations of its authority is easily

12 tested, commonly through the APA, which governs how the Executive Branch creates and acts on

13 those interpretations, and what those interpretations are. Stated simply, the APA is a key method

14 by which the Judiciary may assess the legality of the Executive Branch’s interpretation of its

15 powers, including whether such interpretations are “arbitrary and capricious,” “contrary to

16 constitutional right[s],” or “in excess of statutory authority.” 5 U.S.C. § 706.

17

61. Such Executive Branch interpretations of its authority may also be tested through

18 other legal means, such as by questioning their constitutionality directly in federal court.

19

62. Such Executive Branch interpretations are or may be the subject of this lawsuit.

20

63. As these recitations reflect, the federal government has lawful tools to intervene—

21 voluntarily or involuntarily—in other governments’ exercise of their police powers. These

22 recitations also reflect that those tools are either used with mutual agreement, or without agreement

23 in circumstances, such as those enumerated, rooted in the Constitution. Finally, these recitations

24 reflect that the federal government follows lawful and expected paths to exercise authority over

25 other governments.

26 //

27 //

28 //

- 12 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 13 of 48

1 Policy Change Regarding Deployment and Operation of Federal Forces

2

64. Consistent with the above framework, until recently, Plaintiffs believed that they

3 understood the structure, procedures, and basis for both the invited and the uninvited deployment

4 and operations of federal law enforcement agents into their communities.

5

65. However, in recent months, following the direction of President Trump, Defendants

6 have instituted this new Policy, whose full parameters are unknown, but that, at minimum,

7 unlawfully expands the unilateral deployment and operations of federal law enforcement to quell

8 protests and broadly assert general police powers.

9

66. The Policy and each and every instance where Defendants, through their officers,

10 employees, and/or agents, unlawfully deployed or commanded federal law enforcement to act in

11 excess of or contrary to 40 U.S.C. § 1315 or the Constitution constitutes “final agency action”

12 under the APA.

13 Prior Status Quo

14

67. President Trump has long issued threats against cities he views as progressive or

15 racially diverse, including Plaintiffs. In 2017, he threatened to “send in the feds” to Chicago if

16 their mayor did not fix the “carnage,” and compared the city unfavorably to Afghanistan. In 2019,

17 in describing Los Angeles, New York, and San Francisco, he referred to these “sanctuary cities

18 run by liberal people” as places where “people living there are living in hell,” and threatened that

19 he might “intercede” or “may do something to get that whole thing cleaned up.” In 2020, he

20 repeatedly threatened Plaintiffs Portland and Oakland.

21

68. Separately, since President Trump took office, Americans have engaged in some of

22 the largest protests in our nation’s history. The day after his inauguration, between 3.2 million and

23 5.2 million people marched in the streets to protest for women’s rights and against the President.

24 Hundreds of thousands protested again for the same reason on the same day in the following years.

25 Since January 2017, millions of people have participated in protests across the country, including

26 protests at federal property, monuments, memorials, and statues, as well as at state and local

27 property, monuments, memorials, and statues.

28

- 13 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 14 of 48

1

69. Despite President Trump’s repeated threats, and despite thousands of protests by

2 millions of Americans, Defendants never previously asserted or exercised the authority they are

3 now asserting and exercising under the Policy, nor, on information and belief, engaged in the

4 related Practice.

5

70. An alleged source of the authority for the Policy is 40 U.S.C. § 1315. Under

6 subsection (a) of that statute, the Secretary of Homeland Security protects the buildings, grounds,

7 and property that are owned, occupied, or secured by the federal government.

8

71. Although the Federal Protective Service (“FPS”), a division of DHS, is typically

9 the main provider of security and law enforcement services at federal government facilities, the

10 Secretary of Homeland Security may transfer DHS officers or agents specifically “for duty in

11 connection with the protection of” that federal property. 40 U.S.C. § 1315(b)(1).

12

72. The scope of 40 U.S.C. § 1315 is clear. The statute states that the Secretary of

13 Homeland Security: “shall protect the buildings, grounds, and property that are owned, occupied,

14 or secured by the Federal Government (including any agency, instrumentality, or wholly owned

15 or mixed-ownership corporation thereof) and the persons on the property.” Id. § 1315(a).

16

73. The authority granted off federal property is limited—section 1315 only allows

17 designated employees to perform authorized duties outside of federal property “to the extent

18 necessary to protect the property and persons on the property.” Id. § 1315(b)(1). Further, in the

19 statute’s six specifically enumerated powers, only one power, § 1315(b)(2)(E), allows for activity

20 “on and off the property in question.” Per the canon of expressio unius est exclusio alterius,

21 including that these powers extend “on and off” federal property in one subsection implies that the

22 five other enumerated powers do not likewise extend “on and off” the property, unless they are to

23 advance the specific goal articulated in subsection (b)(1).

24

74. Outside of federal property, the Secretary of Homeland Security may enter into

25 agreements with federal agencies and with state and local governments for officers and agents

26 designated under section 1315 “to enforce Federal laws and State and local laws concurrently with

27 other Federal law enforcement officers and with State and local law enforcement officers.” Id.

28 § 1315(e). Similarly, the Secretary “may utilize the facilities and services of Federal, State, and

- 14 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 15 of 48

1 local law enforcement agencies, with the consent of the agencies.” Id. § 1315(d)(3)(emphasis

2 added).

3

75. Based on information and belief and on publicly available facts such as those

4 recited here, until as recently as May 2020, there had been no policy or practice through which

5 Defendants unilaterally deployed or commanded federal law enforcement under 40 U.S.C. § 1315

6 for general police purposes; to respond to or quash civil protests; to protect and surveil non-federal

7 property, monuments, memorials, or statues; or to unilaterally take over non-federal property.

8

76. For example, as recently as April 2020, hundreds of protestors gathered at the

9 Michigan State Capitol in Lansing to protest executive orders and shelter-in-place orders in light

10 of the COVID-19 pandemic.

11

77. The Michigan State Capitol was completed in 1878, has been listed on the National

12 Register of Historic Places since 1971, and was designated as a National Historic Landmark in

13 1992. The Capitol and its grounds contain at least one monument, three memorials, and several

14 statues. The Capitol is 0.1 miles from the Charles E. Chamberlain Federal Building and Post

15 Office.

16

78. During these so-called “lockdown protests,” many protestors openly carried

17 firearms in or around the Capitol, forcibly entered the Michigan State Capitol, issued threats

18 against Michigan Governor Gretchen Whitmer, and verbally assaulted Michigan state police.

19

79. As another example, as recently as May 2020, hundreds of protesters gathered at

20 the California State Capitol in Sacramento to protest executive orders and shelter-in-place orders

21 in light of the COVID-19 pandemic.

22

80. The California State Capitol was completed in 1874, has been listed on the National

23 Register of Historic Places since 1973, and was designated as a California Historical Landmark in

24 1974. The Capitol and its park are home to numerous monuments, memorials, and statues,

25 including the World Peace Rose Garden, the California Peace Officers’ Memorial, the Vietnam

26 Veterans Memorial, and the Thomas Starr King Memorial. The Capitol is one mile from the local

27 federal courthouse and under one mile from the local DHS office.

28

- 15 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 16 of 48

1

81. During these so-called “lockdown protests,” protesters gathered at the Capitol in

2 violation of stay-at-home orders, confronted California Highway Patrol officers, and displayed

3 depictions of California Governor Gavin Newsom as a Nazi in front of a Swastika banner.

4

82. In April and May, protestors also gathered outside the State Capitol in Salem,

5 Oregon. At least one protestor appears to be open carrying a rifle in news footage. Members of the

6 far-right militia groups the “Three Percenters” and “Proud Boys” also attended the protests.

7 Several of the protests were allegedly organized by militia groups in violation of Oregon Governor

8 Kate Brown’s stay-at-home orders.

9

83. Based on information and belief, federal law enforcement officers were not

10 deployed in response to any of these so-called “lockdown protests”; not to surveil the protestors

11 or public officials; not to assess threats to public buildings, monuments, memorials, or statues; not

12 to protect against civil unrest; and not to otherwise engage in general policing.

13 Existing Framework for Local Law Enforcement Mutual Aid or Cross Designation with Other Government Agencies
14

15

84. As described above, there are numerous examples of how local law enforcement,

16 including Plaintiffs’ police departments, collaborate with or receive assistance from other law

17 enforcement agencies, including federal law enforcement agencies such as Defendants and their

18 subcomponents.

19

85. Coordinating with local law enforcement has, outside of the Policy and Practice,

20 been fundamental to how federal law enforcement agencies interact with their local counterparts.

21

86. Even in circumstances where the local jurisdiction has policies that are directly in

22 opposition to the federal law enforcement agency’s activities, the federal agencies, including

23 Defendants, have nonetheless coordinated with local agencies in some fashion, given the

24 longstanding recognition of the importance of such coordination.

25

87. For example, 28 C.F.R. § 0.112 governs special deputation powers of the USMS,

26 which is a bureau within DOJ. Pursuant to this section, the USMS Director is authorized to

27 deputize, in relevant part, “[s]elected federal, state, or local law enforcement officers whenever the

28 law enforcement needs of the U.S. Marshals Service so require.” 28 C.F.R. § 0.112(b).

- 16 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 17 of 48

1

88. The duties of the USMS include protecting the federal judiciary, apprehending

2 federal fugitives, managing and selling seized assets illegally acquired by criminals, housing and

3 transporting federal prisoners, and operating the Witness Security Program.

4

89. Separately, Plaintiffs have also long entered into and relied on “mutual aid”

5 agreements with fellow local governments, such as other city and county governments. These

6 mutual aid agreements set forth the circumstances under which mutual aid partners will come to

7 the assistance of a member of the agreement. For example, Oakland has requested assistance from

8 its mutual aid partners, such as Alameda County and surrounding cities, in responding to natural

9 disasters or to certain violent “Occupy” protests a decade ago. It is not uncommon for mutual aid

10 partners to request dozens or even hundreds of officers to assist with significant needs. Indeed, in

11 response to the recent demonstrations, Portland has sought and received mutual aid from numerous

12 other local law enforcement agencies.

13

90. No matter the originating source of the mutual aid, Plaintiffs’ police departments

14 follow specific procedures when any outside law enforcement participate in their operations, or

15 when outside law enforcement perform operations in their cities.

16

91. Those procedures typically include that, when any outside law enforcement agency

17 comes to assist Plaintiffs’ police departments, those outside agents or officers first check in at the

18 local staging center or emergency operations center, learn of the operation plan, and are connected

19 in some manner to the department’s communications systems. These universal steps are designed

20 to protect all law enforcement officers and ensure they are operating with similar information and

21 shared means of communication.

22 Nationwide Protests for Racial Justice and Police Reform

23

92. On May 25, 2020, George Floyd was tragically killed by Minneapolis police and a

24 video of his death was widely circulated in the media. On May 26, 2020, people gathered in

25 Minneapolis in protest. Shortly thereafter, people gathered throughout the nation, including in

26 Plaintiffs’ jurisdictions, to advocate for police reform and racial justice.

27

28

- 17 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 18 of 48

1

93. Polls have suggested that between 15 million and 26 million people participated in

2 these protests, making them the largest demonstrations in American history. Between May 22 and

3 August 22, approximately 93% of protests were peaceful.

4

94. Incidents of property damage and violence, however, were reported in many

5 jurisdictions in the country. Incidents of property damage occurred in suburban California, and

6 armed civilians and other non-state actors committed acts of violence in states including Florida,

7 Indiana, and Tennessee.

8

95. People began to gather in Downtown Portland on or around May 29, 2020,

9 including at an event titled “A Eulogy for Black America” organized by the Portland chapter of

10 the NAACP.

11

96. On May 29, 2020, Portland Mayor Ted Wheeler issued a statement that he stood

12 “in solidarity with those who grieve for the senseless death of George Floyd” and committed to

13 standing alongside “our black community and not just call out racism when we see it, but

14 meaningfully take a stand against it.”

15

97. In Portland, protests continued in June. The first few days of June were identified

16 as having the largest crowds of the Portland George Floyd protests, with numbers exceeding

17 10,000 people each day. During this time, a much smaller group of people engaged in significant

18 property damage and violence directed at police. Notwithstanding some criminal activity, the

19 majority of the protests remained peaceful, and toward the end of June, the scale of protests began

20 to decrease. The focal points of protests during June were the Justice Center (which houses the

21 Portland Police Bureau’s (“PPB’s”) Central Precinct and primary offices, as well as the

22 Multnomah County Detention Center) and other PPB and Multnomah County buildings.

23

98. At this time, President Trump continued his past practice of frequent and repeated

24 threats to deploy uninvited federal law enforcement and/or military power to progressive cities.

25

99. Protests continued nationally throughout June 2020, along with the President’s

26 threatening rhetoric.

27 //

28 //

- 18 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 19 of 48

1 President Trump Issues the Executive Order; Defendants Institute the Policy

2

100. On June 26, 2020, President Trump signed Executive Order 13933, entitled

3 Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal

4 Violence.

5

101. The Executive Order announced that the federal government would: (a) prosecute

6 anyone vandalizing or desecrating public monuments, memorials, and statues; government

7 property; or religious property; (b) prosecute anyone inciting related violence; and (c) withhold

8 federal support from local and state governments that failed to protect such structures from

9 vandalism.

10

102. The Executive Order further stated that if the Secretary of the Interior, the Secretary

11 of Homeland Security, or the Administrator of General Services requested federal personnel “to

12 assist with the protection of Federal monuments, memorials, statues, or property,” they shall be

13 provided by the Department of Defense, DOJ, and/or DHS.

14

103. Defendants rapidly began to implement this Executive Order, in light of the

15 President’s perceived motivation of quelling protests, targeting Democratic cities, and establishing

16 broad federal police presence in certain cities.

17

104. Based on information and belief, such implementation constitutes all of or is a

18 substantial part of the Policy.

19

105. First, on July 1, 2020, Defendant Wolf announced—pursuant to the Executive

20 Order—the formation of PACT within DHS. PACT was charged with “conduct[ing] ongoing

21 assessments of potential civil unrest or destruction and allocat[ing] resources to protect people and

22 property,” including “potential surge activity to ensure the continuing protection of critical

23 locations.”

24

106. Second, Defendants began changing or continuing to change guidance regarding

25 the lawful scope of federal activity under 40 U.S.C. § 1315. Rather than limiting federal

26 involvement under that statute to federal laws or property, Defendants expanded the ability of

27 federal agents to address threats to any public monument, memorial, or statue, regardless of its

28 federal nature.

- 19 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 20 of 48

1

107. For example, a July 2020 leaked, unclassified document entitled “Job Aid: DHS

2 Office of Intelligence & Analysis (I&A) Activities in Furtherance of Protecting American

3 Monuments, Memorials, Statues, and Combatting Recent Criminal Violence” (“Job Aid”) shows

4 that parts of the Defendants’ intelligence community were now authorized to monitor and collect

5 information regarding protest activities beyond suspected or planned attacks on federal facilities,

6 including threats to damage or destroy any public monument, memorial, or statue.

7

108. The “Job Aid” was intended to “expand[] intelligence activities necessary to

8 mitigate the significant threat to homeland security articulated in the President’s executive order

9 of June 26, 2020.”

10

109. Finally, Defendants began deploying, cross-designating, and/or commanding

11 federal law enforcement agents pursuant to the Executive Order and the Policy.

12

110. Specifically, Defendant Wolf announced the deployment and pre-position of Rapid

13 Deployment Teams across the country ahead of the July 4th holiday. Defendant Wolf stated that

14 the task force would not “stand idly by while violent anarchists and rioters seek not only to

15 vandalize and destroy the symbols of our nation, but to disrupt law and order and sow chaos in our

16 communities.”

17

111. Taken together, the Executive Order, the creation or amendment of internal

18 guidance documents, the creation of the PACT, the creation of other cross-designated federal law

19 enforcement teams, and the deployment and operations of such teams, are, form part of, or are

20 results of, the Policy.

21

112. The Policy constitutes “final agency action.”

22 Deployment and Other Activities in Portland

23

113. The following recitations are merely limited examples of why the Policy and/or

24 specific acts in furtherance of the Policy constitute final agency action under which rights and

25 obligations have been determined and from which legal consequences have flowed.

26

114. It is unclear how many deployments of federal agents were made in July pursuant

27 to the Policy.

28

- 20 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 21 of 48

1

115. In the days before Defendants deployed federal personnel to Portland, the crowds

2 attending demonstrations had shrunk. By early July 2020, only about 150 people could be seen

3 gathering in downtown Portland on any given night.

4

116. On or about July 2, 2020, Defendant Wolf ordered the deployment of DHS, USMS,

5 U.S. Customs and Border Protection (“CBP”), and the FPS to Portland in response to civil protests

6 as part of Operation Diligent Valor.

7

117. Defendants did not seek Portland’s consent. Defendants did not act at the direction

8 of PPB incident command that had been policing nightly protests for over a month.

9

118. The federal forces deployed to Portland from CBP included members of BORTAC,

10 a paramilitary unit of the United States Border Patrol. BORTAC troops wear military-type

11 uniforms and armament, are trained for tactical raids on organized gangs smuggling persons or

12 drugs into the United States, and have in the past been deployed to such places as Afghanistan and

13 Iraq.

14

119. On information and belief, BORTAC troops have no training in civilian crowd

15 control.

16

120. Through Operation Diligent Valor, Defendants sent teams of agents—untrained in

17 crowd control and wearing military fatigues—onto Portland’s streets. Their uniforms bore no

18 governmental, administrative or personal names, just the word “police” in tape. Federal agents

19 used tactics and munitions that escalated violence in Portland.

20

121. On or about July 11, 2020, federal agents allegedly fired impact munitions into an

21 unarmed crowd. One of the bullets struck a protestor and fractured his skull.

22

122. Starting on or about July 14, 2020, federal agents drove around Portland in

23 unmarked vans and detained individuals associated with the protests. Federal agents were

24 patrolling and detaining individuals far beyond the immediate vicinity of the federal courthouse.

25 Agents allegedly seized at least one individual who was more than two blocks from the courthouse

26 and not engaged in any activity related to federal property.

27

123. Upon information and belief, federal agents seized multiple protestors and held

28 them for hours before releasing them for lack of probable cause. The federal agents gave no

- 21 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 22 of 48

1 justification for why they detained particular residents, searched their belongings, and placed

2 residents in cells for hours before reading them their Miranda rights.

3

124. Far from imposing peace in the City’s streets, the tactics and munitions used by

4 federal agents antagonized demonstrators, escalated the protests, and caused further unrest.

5

125. On July 22, 2020, federal agents fired tear gas into a crowd that included Portland

6 Mayor Wheeler.

7

126. Later reports of internal DHS documents showed that the Office of Intelligence

8 Analysis also collected and analyzed messages between protesters in Portland, specifically

9 surveilling protesters’ communications via the Telegram messaging app, discussing where to take

10 the protests and how to avoid officers. The purpose of this monitoring is still unknown. It is also

11 unknown whether the surveillance was limited to the protection of federal property or gathered on

12 federal property.

13

127. On July 29, 2020, the Governor Brown reached a negotiated agreement with the

14 federal government. Defendants agreed to withdraw federal agents from Portland with assurance

15 that Oregon State Police would take on additional duties guarding the safety of the federal

16 courthouse in Portland.

17 Justifications for the Policy Are Pretextual

18

128. Although the purported purpose of the deployment was to protect federal property

19 that had been vandalized or threatened during protests, anonymous statements from White House

20 Officials indicate such purpose was mere pretext. The sources alleged that President Trump

21 became interested in federal operations against protestors in Portland as a way to convey a “law-

22 and-order message” and to “amplify strife in cities.”

23

129. As stated above, DHS has cited 40 U.S.C. § 1315 as the legal basis for Operation

24 Diligent Valor and the general practice of deploying federal troops to Portland, despite the

25 observed scope and operations of agents being well beyond the purpose or function of protecting

26 federal persons or property.

27

130. The U.S. Crisis Monitor found that prior to that deployment, “over 83% of

28 demonstrations in Oregon were non-violent. Post-deployment, the percentage of violent

- 22 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 23 of 48

1 demonstrations [rose] from under 17% to over 42% [in Oregon], suggesting that the

2 federal response has only aggravated unrest.”

3

131. Despite statements justifying deployments as responses to crime or “anarchy,”

4 crime rates in Plaintiffs’ communities have been decreasing overall; neither city is in the list of top

5 10 United States cities with the largest number of violent crimes per 100,000 residents. Moreover,

6 Plaintiffs’ crime rates do not differ dramatically from those in other, Republican-run cities. For

7 example, violent crime rates in Fresno, Jacksonville, Oklahoma City, and Tulsa—cities with

8 Republican mayors—far exceed the violent crime rates in Portland. These cities also have murder

9 rates at twice that of Portland.

10

132. A comprehensive review by the Armed Conflict Location and Event Data

11 (“ACLED”) Project and the Princeton University Bridging Divides Initiative underscores the

12 overall peaceful nature of the social justice-related protests in summer 2020. Between May 25,

13 2020, and August 22, 2020, there were 7,750 Black Lives Matter-related demonstrations in 2,440

14 locations in all 50 states and Washington, D.C. Overall, in summer 2020, there were at least 10,600

15 demonstrations across the United States. Of those, more than 93% involved only peaceful protests.

16 And according to ACLED, violence occurred at around 220 locations.

17

133. President Trump and Defendants have repeatedly made public comments revealing

18 that the officially stated goal of operations such as those in Portland is not protecting federal

19 property. Instead, their statements suggest that the animating and invidious purpose for these

20 actions—that is, for the Policy—is to punish progressive cities and leaders and violently quell the

21 exercise of constitutionally protected activity. Specifically, the President’s, Defendants’, and

22 Policy’s purpose is to further the view that diverse and/or progressive cities and their leaders, and

23 movements for racial justice and police reform, are dangerous and extreme circumstances that

24 should be suppressed.

25

134. President Trump has also repeatedly commented that the purpose of deployment

26 under the Policy of federal agents to Portland was to “quell” the protests, and that the goal was to

27 “clean out this beehive of terrorists.” He has stated that protesters are “anarchists” who “hate our

28 country.” And in describing the deployment to Portland under the Policy, President Trump stated:

- 23 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 24 of 48

1 “We’ve done a great job in Portland . . . . Portland was totally out of control, and they went in, and

2 I guess we have many people right now in jail. We very much quelled it, and if it starts again, we’ll

3 quell it again very easily. It’s not hard to do, if you know what you’re doing.”

4

135. In addition, Defendant Wolf affirmed that actions taken under the Policy were

5 without other governments’ consent, asserting: “The city of Portland has been under siege for 47

6 straight days by a violent mob while local political leaders refuse to restore order to protect their

7 city . . . . I reiterate the Department’s offer to assist local and state leaders to bring an end to the

8 violence perpetuated by anarchists.”

9

136. Local and state leaders have not accepted that offer.

10

137. Local and state officials have repeatedly and vehemently stated their opposition to

11 the federal deployment in Portland. Oregon Attorney General Ellen Rosenblum filed a lawsuit

12 against the federal government to stop its deployment and tactics. Oregon Governor Brown stated:

13 “This political theater from President Trump has nothing to do with public safety. The President

14 is failing to lead this nation. Now he is deploying federal officers to patrol the streets of Portland

15 in a blatant abuse of power by the federal government.”

16

138. From the outset, the City of Portland has expressed its opposition to the deployment

17 of federal agents under Operation Diligent Valor without its consent.

18

139. Only a few days after the federal agents were deployed, on July 8, 2020, Portland’s

19 Deputy Police Chief Chris Davis made a public statement that the presence of federal agents, who

20 are “governed by their own policies and procedures,” only “complicates things” for PPB.

21

140. On July 19, 2020, Mayor Wheeler stated the following:

22

What’s happening here is, we have dozens, if not hundreds of federal troops

descending upon our city. And what they’re doing is, they are sharply escalating the

23

situation . . . our local and state law enforcement officials had contained the situation

24

. . . The tactics that the Trump administration are using on the streets of Portland are abhorrent . . . this is completely unconstitutional.

25

26

141. In response to the tactics and munitions used by federal agents, and consequent

27 public outcry, on July 22, 2020, Portland’s City Council adopted Resolution 37496, which

28 prohibits PPB cooperation with any federal agents deployed to Portland under an executive order.

- 24 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 25 of 48

1 In response to Defendants’ actions under the Policy, on July 28, 2020, Oakland’s City Council

2 adopted Resolution No. 88276 (“Directing And Authorizing The City Attorney And The City

3 Administrator To Take Any And All Lawful Necessary Steps To Protect The Rights Of The People

4 And The City Of Oakland Against President Trump’s Threats To Take Actions That Result In

5 Harm To The People Of Oakland Or The City Of Oakland, And Against Any Related Actions

6 Federal Officers Take That Result In Harm To The People Of Oakland Or The City Of Oakland”).

7

142. The actions taken by Defendants in Portland under the Policy were and are not

8 taken pursuant to any known lawful federal authority.

9 Plaintiffs Remain at Risk Under the Policy

10

143. Rather than retreat from the activities in Portland, Defendants have expressed an

11 intent to expand the presence of federal law enforcement throughout the United States.

12

144. President Trump has indicated that, under the Policy, Defendants will continue to

13 target cities he views as progressive, stating in early September: “They’ll make every city look

14 like frankly, a Portland, or you look at other Democrat-run cities. Look at what’s happened in New

15 York, as high as 300% increase in crime. Chicago, Baltimore, take a look at Oakland. All

16 Democrat-run top 10 cities in the country and long beyond that, all Democrat-run.”

17

145. As recently as September 21, 2020, President Trump continued to propagate

18 disinformation about Plaintiffs. He stated: “What they’re talking about, you look at Portland, you

19 look at Chicago, you look at New York, you look at Baltimore and Oakland and all—these are

20 Democrat-run cities that are horrible on crime, there’s no law and order, no cash bail, no anything.”

21

146. Though most federal agents were temporarily pulled out of Portland, President

22 Trump has threatened that they can return at any time. The President also has stated the federal

23 government will further escalate any conflict if local law enforcement does not rein in “anarchists

24 and agitators.” He has consistently stated that he will not hesitate to send in federal authorities if

25 the local government could not stop “crime and violence” from breaking out.

26

147. The President’s threats and warnings are not limited to federal property. He recently

27 announced a plan to send law enforcement to polling places on election day, stating: “We’re going

28

- 25 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 26 of 48

1 to have sheriffs, and we’re going to have law enforcement. And we’re going to have hopefully

2 U.S. attorneys, and we’re going to have everybody and attorney generals.”

3

148. The President’s provocations continue. He recently issued a memorandum

4 purporting to direct Defendants to review federal funding provided to “anarchist” cities, including

5 Portland, and to withdraw such funding to punish these cities.

6

149. Defendants continue to take new or continuing unlawful actions under the Policy.

7 For instance, DHS has erected and refused to remove a fence and barriers around the Hatfield

8 Federal Courthouse in Portland, which are in the City-controlled public right-of-way. The fence

9 and barriers, which extend into adjacent Main Street, effectively block an entire bike lane without

10 Portland’s permission. The fence and barriers also extend onto Third Avenue and effectively block

11 vehicular travel in one lane.

12

150. The only statutory authority DHS has offered to Portland to justify the fence is 40

13 U.S.C. § 1315.

14

151. The fence was first erected by FPS on July 18, 2020. According to a statement

15 from U.S. Attorney Billy J. Williams, the federal government’s stated purpose of the fence was

16 “to de-escalate tensions between protesters and federal law enforcement officers, and to allow

17 much-needed building repairs to begin.”

18

152. The fence is not on federal property, and FPS did not seek permission before

19 erecting the fence. In order to lawfully erect the fence, Portland City Code Chapter 17.24 requires

20 a permit to be obtained from the Portland Bureau of Transportation (“PBOT”). FPS obtained no

21 such permit.

22

153. Portland has asked FPS multiple times to move its fence out of the right-of-way

23 and onto the sidewalk adjacent to the Courthouse. FPS has not yet done so and has taken the

24 position that they are permitted to install the fence and associated barriers pursuant to 40 U.S.C.

25 § 1315.

26

154. In an October 7, 2020, email to Portland officials, FPS indicated its contractor had

27 moved the fence to allow access to the storm drain and expected to move the fence back from the

28

- 26 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 27 of 48

1 bike lane “in the next few weeks.” This is merely the latest assurance by FPS that it will move its

2 fence.

3

155. A July 14, 2020, document obtained by Oregon Public Broadcasting indicated that

4 the federal government intended to rent the fence from its contractor for three to six months.

5

156. Defendants continue to have a presence and activities in Portland, and there is a

6 continued dispute regarding the scope of their authority under 40 U.S.C. § 1315, including the

7 ability to unilaterally take over City-controlled or -owned property under a pretext of securing

8 federal property.

9 Defendant Wolf Was and Is Unlawfully Acting as Secretary of Homeland Security, and Any Aspects of the Policy Promulgated or Implemented Under His Purported Authority Must Be Set
10 Aside

11

157. Federal service in Senate-confirmed positions is governed by, among other statutes,

12 the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345 et seq. If a person is acting

13 unlawfully under the FVRA, their actions and their policies are “without force and effect.” 5 U.S.C.

14 § 3348(d)(1). An action promulgated “without force and effect” “may not be ratified.” Id.

15 § 3348(d)(2).

16

158. Congress has delegated the U.S. Government Accountability Office (“GAO”) to

17 play a core role in FVRA compliance: namely, per the FVRA, the GAO must collect information

18 about vacancies, and if the GAO “makes a determination that an officer is serving longer than the

19 210-day period including the applicable exceptions to such period under section 3346 or section

20 3349a, the Comptroller General shall report such determination immediately” to various

21 authorities, including Congress. 5 U.S.C. § 3349.

22

159. On August 14, 2020, the GAO issued a report under its FVRA duties and authority,

23 entitled “Department of Homeland Security—Legality of Service of Acting Secretary of

24 Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of

25 Homeland Security.” In sum, the report finds that Acting Secretaries “Wolf and [Ken] Cuccinelli

26 were named to their respective positions of Acting Secretary and Senior Official Performing the

27 Duties of Deputy Secretary by reference to an invalid order of succession” and that “[b]ecause Mr.

28

- 27 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 28 of 48

1 Wolf draws his authority to serve as Acting Secretary from [an invalid] Delegation, Mr. Wolf

2 cannot, therefore, rely upon it to serve as the Acting Secretary.”

3

160. The GAO report also analyzed whether Defendant Wolf could be lawfully serving

4 under the succession provisions of the Homeland Security Act (“HSA”), 6 U.S.C. § 113(g)(2), and

5 found that he could not.

6

161. In addition to these findings from the GAO, numerous lawsuits have raised the

7 same or similar questions about Defendant Wolf’s authority, and have asked courts—under the

8 FVRA, the HSA, or other laws regarding agency authority—to set aside various policies

9 promulgated under that purported authority. See, e.g., Immigrant Legal Resource Ctr. v. Wolf,

10 2020 WL 5798269, at *9 (N.D. Cal. 2020) (holding that “[p]laintiffs have shown that they are

11 likely to succeed on the merits of their claim that Mr. Wolf was not validly serving in office” and

12 enjoining enforcement of the challenged rule); Casa de Maryland, Inc. v. Wolf, 2020 WL 5500165,

13 at *23 (D. Md. 2020) (holding that “because Wolf filled the role of Acting Secretary without

14 authority, he promulgated the challenged rules also ‘in excess of . . . authority’” and enjoining the

15 rules’ enforcement); see also Bullock v. U.S. Bureau of Land Mgmt., 2020 WL 5746836 (D. Mont.

16 2020) (holding that William Perry Pendley, the person exercising authority of the Director of the

17 Bureau of Land Management, served unlawfully for 424 days and enjoining him from exercising

18 that authority); L.M.-M., v. Cuccinelli, 442 F.Supp.3d 1, 29, 34 (D.D.C. 2020) (holding that Acting

19 U.S. Citizenship and Immigration Services (“USCIS”) Director Cuccinelli “was designated to

20 serve as the acting Director of USCIS in violation of the FVRA” and “because Cuccinelli was

21 exercising the authority of the USCIS Director in violation of the FVRA, the directives were not

22 issued ‘in accordance with law,’ and must, accordingly, be set aside under the APA”).

23

162. The lawsuits, like the GAO report, generally explain that because the FVRA

24 generally bars acting officials from serving for more than 210 days in a position that requires

25 Presidential appointment and Senate confirmation, 5 U.S.C. § 3346, and because the last Senate-

26 confirmed DHS Secretary resigned on April 10, 2019, no one could have lawfully acted in that

27 role under the FVRA, without appointment and confirmation, after November 6, 2019. Defendant

28 Wolf assumed his office on November 13, 2019.

- 28 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 29 of 48

1

163. The lawsuits, also like the GAO report, generally further explain that the HSA sets

2 an order of succession in the event of a vacancy, 6 U.S.C. §§ 113(a)(1)(A), (a)(1)(F) and (g)(1),

3 and if certain enumerated positions are vacant, the Secretary may designate a “further order of

4 succession,” id. § 113(g)(2), but that because the Acting DHS Secretary prior to Defendant Wolf

5 unlawfully changed the order of DHS succession, Defendant Wolf cannot lawfully serve in his

6 role.

7

164. Finally, the lawsuits generally ask courts to set aside and/or enjoin actions by

8 officials acting unlawfully in federal agency roles, because those actions are “without force and

9 effect,” 5 U.S.C. § 3348(d)(1), “may not be ratified,” id. § 3348(d)(2), and were therefore

10 promulgated “in excess of statutory authority” and not “in accordance with law,” id. §§ 706(2)(C),

11 (2)(A).

12

165. These lawsuits have been largely successful.

13

166. On information and belief, Defendant Wolf promulgated and/or implemented all,

14 some, or part of the Policy challenged in this lawsuit, and any aspects of the Policy promulgated

15 and/or implemented under his authority must be set aside and/or enjoined.

16 Related Practice of Unlawfully Commandeering Portland’s Law Enforcement Officers

17

167. In addition and related to the Policy, Defendants continue to engage in a related

18 Practice that also asserts authority not delegated to them under the Constitution or under other

19 legal authority.

20

168. On or about September 21, 2020, the City of Portland, Oregon State Police, and

21 several federal law enforcement agencies, including the USMS, began logistics planning for an

22 anticipated rally of the Proud Boys in Portland on Saturday, September 26, 2020.

23

169. The Proud Boys are an extremist pro-White hate group. Members of the Proud

24 Boys, which appeared at the 2017 “Unite the Right” rally in Charlottesville, Virginia, “regularly

25 spout white nationalist memes and maintain affiliations with known extremists” and “are known

26 for anti-Muslim and misogynistic rhetoric.”

27

170. In anticipation of the Proud Boys rally, on September 25, 2020, Governor Brown

28 declared a state of emergency and issued an executive order for the purpose of implementing a

- 29 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 30 of 48

1 coordinated law enforcement response. As part of the order, Governor Brown temporarily assumed

2 control of local law enforcement, including PPB, the Multnomah County Sheriff’s Office, the

3 Gresham Police Department, and the Port of Portland Police.

4

171. Governor Brown appointed Multnomah County Sheriff Michael Reese and Oregon

5 State Police Superintendent Travis Hampton to serve as incident commanders in the law

6 enforcement coordination area, and they therefore assumed control of PPB, Multnomah County

7 Sheriff’s Office, Gresham Police Department, and Port of Portland Police.

8

172. The Governor’s executive order, by its own terms, became effective at 12:01 A.M.

9 Pacific Time on Saturday, September 26, 2020, and expired at 12:01 AM Pacific Time on Monday,

10 September 28, 2020. Governor Brown’s executive order and state of emergency were then

11 terminated at 6:00 AM on September 27, 2020.

12

173. Pursuant to a direction given by Superintendent Hampton, on September 25, 2020,

13 PPB Chief Charles Lovell authorized fifty-six officers, sergeants, and lieutenants from PPB’s

14 Rapid Response Team, which typically handles protests, to be deputized as federal agents for the

15 purposes of tactical response to the anticipated rally and disturbance of the peace caused by the

16 Proud Boys.

17

174. Because of the Governor’s executive order and over the course of dealing with

18 Oregon State Police, PPB anticipated that the deputation would be limited to the weekend

19 surrounding the Proud Boys hate-related event or so long as the state of emergency remained in

20 effect.

21

175. After the expiration of the state executive order, the federal deputation was in fact

22 no longer needed.

23

176. On September 29, 2020, Portland City Attorney Tracy Reeve wrote to the U.S.

24 Attorney’s Office in Portland to clearly and expressly communicate the City’s withdrawal of

25 consent to the federal deputation of the fifty-six PPB officers.

26

177. City Attorney Reeve explained that the Governor’s executive order had terminated,

27 and PPB “was back under the control and direction of the City of Portland, and specifically Police

28 Commissioner and Mayor Ted Wheeler and the Portland City Council.” Because the executive

- 30 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 31 of 48

1 order terminated, “[t]he City of Portland [did] not consent to the continuing federal deputization

2 of PPB officers and hereby formally withdr[e]w[] its consent to this deputization effective

3 immediately.”

4

178. Neither the U.S. Attorney’s Office nor any other federal agency, including the

5 USMS, responded to City Attorney Reeve’s communication.

6

179. Instead, on September 30, 2020, U.S. Attorney Williams and United States Marshal

7 for the District of Oregon Russ Burger issued a press release regarding the deputation of the PPB

8 officers.

9

180. The release stated that the “U.S. Marshal will not cancel the cross-deputation of

10 local and state law enforcement officers.” In defense of their decision to commandeer Portland’s

11 police force, U.S. Attorney Williams and United States Marshal for the District of Oregon Burger

12 stated that continued deputation would provide “accountability and deterrence” for “criminal acts”

13 and would support “front line law enforcement officers and their families in a way that they have

14 not seen from City Hall.”

15

181. Despite Defendant agencies’ purported desire to hold individuals accountable for

16 and deter criminal acts, it is the responsibility of PPB and other local law enforcement to generally

17 address criminal activity in Portland. It is the responsibility of the State of Oregon and City of

18 Portland to enact laws and enforce laws that strike the proper balance between deterring criminal

19 activity and supporting First Amendment expression. And it is the responsibility of Portland, as

20 the employer of PPB officers, to support and protect local law enforcement.

21

182. On October 2, 2020, Mayor Wheeler, as Police Commissioner, directed PPB

22 officers to take no further action of any kind pursuant to the federal deputation, including the

23 enforcement of any federal law.

24

183. Nonetheless, because the federal government has refused to recognize Portland’s

25 withdrawal of consent to deputation, Portland remains concerned about public confusion over the

26 chain of command for the deputized PPB officers and the appearance that the officers could be

27 ordered to respond to a federal chain of command, including by being ordered to enforce federal

28 law.

- 31 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 32 of 48

1

184. The practice of continued deputation of Portland’s officers limits the City’s law

2 enforcement discretion, creates potential conflict between Defendants and Portland over the use

3 and tactics of Portland’s own officers and other law enforcement personnel, and unlawfully usurps

4 the legislative and governance prerogative of local officials.

5

185. The Practice of continued, non-consensual deputation of Portland’s law

6 enforcement officers unconstitutionally infringes on Portland’s authority to end the deputation and

7 unconstitutionally compels local officers to continue to serve as federal law enforcement officials,

8 whether in name or in scope of authority.

9 Harm to Plaintiffs

10

Economic Injury

11

186. Plaintiffs have already suffered economic harms and will continue to suffer such

12 harms under the Policy and Practice.

13

Portland’s Economic Harms

14

187. At the time of the federal government’s deployment into Portland, protests in the

15 City were growing more peaceful and were more easily managed on a day-to-day basis by PPB.

16

188. As a direct result of the unlawful intervention by Defendants, Portland experienced

17 a significant increase in violent protests and civil disturbance. Dr. Robert Pape and his team of

18 researchers at the University of Chicago examined 122 protest events in Portland between May

19 28, 2020, and August 6, 2020, and found that violence behavior increased and peaceful protests

20 decreased during the 25 days when federal agents were present.

21

189. Following the removal of federal agents from the streets of Portland, PPB was

22 required to expend additional resources on crowd management and maintaining peace.

23

190. As a direct result of the unlawful intervention of Defendants, PPB was required to

24 spend additional money on overtime for patrol officers and other resources in response to the

25 heightened tensions within Portland.

26

191. Since July 2020 and continuing to the present, Portland’s elected leadership and

27 other city officials have spent hundreds of hours in meetings, discussions, and other planning

28

- 32 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 33 of 48

1 efforts to respond to the presence of federal agents and to plan for possible additional federal

2 intervention under the Policy.

3

Oakland’s Economic Harms

4

192. Although Plaintiff City of Oakland has not yet been subject to direct federal

5 intervention under the Policy, it has nonetheless already suffered and will continue to suffer

6 economic harms.

7

193. In response to the Policy, Oakland has also engaged in new outreach through the

8 departments that are members of its Emergency Operations Center, activities that would not have

9 been necessary and resources that would not have been required but for the Policy.

10

194. Oakland’s elected leadership has devoted time since July 2020 preparing for

11 possible federal intervention under the Policy.

12

195. Oakland’s economic harms will significantly increase if the City becomes a target

13 of deployment under the Policy, for many reasons. One such reason is the City’s “mutual aid”

14 agreements, as described above. The City’s mutual aid agreements with other governments have

15 never contemplated coming to the assistance of a sister government in the event of unprecedented

16 federal intervention, such as the interventions that have occurred and may occur under the Policy.

17

196. Oakland has had mutual aid requests rejected when the aid sought does not comport

18 with the agreements or conflicts with their partners’ policies.

19

197. Oakland will suffer significant economic harm if it cannot rely on mutual aid. In

20 the limited instances in which mutual aid has been unavailable, for instance, the Oakland Police

21 Department has been forced to cancel days off, pay substantial additional overtime, and divert

22 officers from their assigned duties.

23

198. Defendants did not take either Portland or Oakland’s economic harms into account

24 in enacting the Policy.

25 //

26 //

27 //

28 //

- 33 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 34 of 48

1

Budgetary and Other Uncertainty; Impairment of Ability to Provide Services

2

199. Plaintiffs depend on the clear delineation of and communication about federal,

3 state, and local police authority to safely govern and police their communities.

4

200. Plaintiffs must know or reasonably expect when federal law enforcement agents

5 will be or could be deployed in their cities, both as a constitutional and safety matter.

6

201. Plaintiffs have historically worked closely with Defendants’ local representatives

7 to ensure the safety of the federal property Defendants have authority to protect.

8

202. Even when the federal government has, in the past, intervened involuntarily in

9 cities, counties, or states, it has done so using lawful processes, such as by filing enforcement

10 actions in court or, in extreme and rare circumstances, formally invoking powers such as the

11 Insurrection Act and following such statutes’ requirements for a declaration. The Act is not

12 invoked secretly or ambiguously. 10 U.S.C. § 254.

13

203. The current Policy represents an entirely new process by which cities may find

14 federal law enforcement in the midst of civil protests, throughout their jurisdictions, and surveilling

15 their residents well beyond federal crimes or properties.

16

204. Plaintiffs’ uncertainty about whether, when, and with what parameters federal

17 agents may be deployed to their cities under the Policy prevents them from appropriately advising

18 their police departments and fire departments, among others, and from fully planning their budgets.

19

205. Further, Plaintiffs’ police departments, among other departments, have a strong and

20 abiding interest in the community relationships they have formed, often over many years, with

21 advocates, faith leaders, youth groups, and others in their jurisdictions. These relationships are

22 crucial to addressing racial justice issues, de-escalating and interrupting violence, and engaging in

23 successful long-term reform efforts. These relationships are also premised on Plaintiffs’ police

24 departments being able to fulfill the terms of their agreements, both formal and informal, with their

25 community partners. Uncertainty regarding whether, when, and why federal law enforcement

26 authorities, who lack any knowledge of these crucial agreements and understandings, may

27 intervene in Plaintiffs’ streets, harms Plaintiffs’ capacity to honor their commitments to their

28 residents and reduce violence in their communities.

- 34 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 35 of 48

1

206. Finally, because the full scope of the Policy is vague and unknown, Plaintiffs’ city

2 officials have no certainty about whether any particular decision they might make will lead to

3 federal intervention under the Policy.

4

207. Together, these injuries perceptibly impair Plaintiffs’ ability to provide the services

5 they were formed to provide, and frustrate Plaintiffs’ goals and values.

6

208. Under the Policy, federal enforcement actions are likely to violate or contravene

7 Plaintiffs’ otherwise lawful policies and values.

8

Activity Considered Impermissible by Local Policy Permitted Under the Policy

9

209. Plaintiffs have specific policies, practices, and procedures for activities such as the

10 use of force or use of surveillance by law enforcement authorities.

11

210. The City of Portland has a use of force policy, Directive 1010.00, and a crowd

12 control policy, Directive 0635.10. These policies govern a number of PPB policies, practices, and

13 procedures in responding to demonstrations, including PPB’s use of impact munitions and

14 chemical agents. The use of chemical agents has been further restricted by order of Portland’s

15 Police Commissioner, consistent with the City’s values on policing.

16

211. The City of Oakland has a use of force policy, DGO K-3, and a crowd control

17 policy, Training Bulletin III-G. Those documents govern a number of Oakland Police Department

18 policies, practices, and procedures, including its use of nonlethal impact weapons and chemical

19 agents, as well as video and photographic recording of protesters engaged in protected First

20 Amendment activity.

21

212. These policies and trainings are intended to govern Plaintiffs’ police departments’

22 interactions with their communities. Based on those policies and trainings, in Plaintiffs’

23 communities, residents have expectations for their interactions with local law enforcement.

24 Federal law enforcement officers have not been trained in municipal community policing, critical

25 civilian crowd management, and/or de-escalation techniques. The unconstrained actions of federal

26 forces undermine the work of local law enforcement, including ongoing violence prevention

27 programs and community engagement.

28

- 35 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 36 of 48

1

213. Under the Policy, Plaintiff City of Portland has been unable to adhere to its local

2 policies favoring de-escalation of potentially volatile situations because Defendants’ actions under

3 the Policy have inflamed local passions, encouraged violence, and generated the need for PPB

4 response where it otherwise would not have been needed.

5

214. Under the Practice, PPB officers have a reasonable likelihood of being

6 commandeered into engaging in activity that violates their local policies via their unconsented-to

7 deputation by Defendants. Defendants’ unlawful deputation of PPB officers also presently harms

8 the City’s public-accountability and community-engagement policies by propagating the false

9 narrative that City police are operating under Defendants’ authority and not under the direction

10 and control of the City of Portland’s elected officials.

11

Frustration of Federal Court Orders; Separation of Powers

12

215. Plaintiffs are each, separately, under federal court orders that govern the activities

13 of their police departments in various ways.

14

216. Plaintiff City of Portland’s police department operates in part under a Negotiated

15 Settlement Agreement in United States v. City of Portland, Case No. 3:12-cv-02265-SI (D. Or.

16 2012), as well as recent injunctions in Don’t Shoot Portland v. City of Portland, Case No. 3:20-

17 cv-00917-HZ (D. Or. 2020) and Index Newspapers LLC v. City of Portland, Case No. 3:20-cv-

18 01035-SI (D. Or. 2020).

19

217. Plaintiff City of Oakland’s police department operates under a longstanding

20 Negotiated Settlement Agreement in Delphine Allen. v. City of Oakland, Master Case File No.

21 C00-4599-TEH (N.D. Cal. 2012), as well as under a recent injunction in Anti Police-Terror Project

22 v. City of Oakland, Case No. 20-cv-03866-JCS (N.D. Cal. 2020).

23

218. Collectively, these various court orders bind Plaintiffs’ police departments’

24 activities, including governing many of their policies, practices, and procedures, and limiting their

25 use of various forms of force.

26

219. Under the Policy, as carried out in, at a minimum, Portland, Defendants used arrest

27 techniques, force, and surveillance that would facially violate Plaintiffs’ federal court orders.

28

- 36 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 37 of 48

1

220. Plaintiff City of Oakland would face the same bind if any deployments are sent to

2 Oakland under the Policy.

3

221. There is a reasonable likelihood that Defendants will, under the Policy, deploy

4 federal agents to Plaintiff Cities, either for the first known time or again to Plaintiffs already having

5 experienced or experiencing such deployments, as Defendants and President Trump continue and

6 are increasing such threats.

7

Loss of Use and Enjoyment of Public Facilities

8

222. Portland has provided bike and vehicle lanes in its right-of-way on Main Street.

9

223. FPS’s fence and barriers, erected without permission, prevent the use of enjoyment

10 of this public land by Portland and its residents. See Gingery v. City of Glendale, 831 F.3d 1222,

11 1227 (9th Cir. 2016).

12

Loss of Legislative Prerogative

13

224. Plaintiff City of Portland shares in Oregon’s sovereign general police power to

14 provide for the health and safety of its residents.

15

225. The federal government’s commandeering of Portland law enforcement, complete

16 once Defendants DOJ and Barr refused to cancel the deputation of the PPB officers, presses these

17 officers into service in disregard of the City’s own legislative and enforcement priorities.

18

CLAIMS FOR RELIEF

19

FIRST CLAIM FOR RELIEF

20

(Administrative Procedure Act—Action Not in Accordance with the Law)

21

(Against All Defendants)

22

(5 U.S.C. § 706)

23

226. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

24 paragraphs of this Complaint.

25

227. Under the APA, courts must “hold unlawful and set aside agency action” that is not

26 in accordance with law, in excess of statutory authority, contrary to constitutional right, or without

27 observance of procedure required by law. 5 U.S.C. § 706(2).

28

- 37 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 38 of 48

1

228. Defendants may only exercise authority conferred by statute. City of Arlington v.

2 FCC, 569 U.S. 290, 297-98 (2013).

3

229. Defendants’ Policy is “final agency action” under the APA because it is fairly

4 characterized as Defendants’ final word on the matter and has legal consequences for Plaintiffs’

5 resident protestors during civil protests, as well as, independently, for Plaintiffs facing economic

6 harms and federal encroachment on police powers and the “take over” of their jurisdictions. See

7 U.S. Army Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807, 1813 (2016) (quoting Bennett

8 v. Spear, 520 U.S. 154, 177-78 (1997)); see also New York v. U.S. Immigration & Customs

9 Enforcement, 431 F. Supp. 3d 377, 386-88 (S.D.N.Y. 2019).

10

230. Agency action need not be in writing, or ever known to the public, to be judicially

11 reviewable as “final” action. See Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 138-39 (D.D.C.

12 2018); Wagafe v. Trump, 2017 WL 2671254, at *1, *10 (W.D. Wash. 2017); Venetian Casino

13 Resort, LLC v. EEOC, 530 F.3d 925, 931 (D.C. Cir. 2008) (concluding that “the record” as a whole

14 “leaves no doubt” that a policy exists, even though “the details ... are still unclear”).

15

231. Furthermore, each instance where Defendants, through their officers, employees,

16 and agents, directly or constructively, unlawfully deployed or commanded federal law

17 enforcement to act in excess of or contrary to law constitutes “final agency action” under the APA.

18

232. 40 U.S.C. § 1315(b)(1) allows the Secretary of DHS to designate certain federal

19 employees “as officers and agents for duty in connection with the protection of property owned or

20 occupied by the Federal Government and persons on the property, including duty in areas outside

21 the property to the extent necessary to protect the property and persons on the property.” These

22 authorized duties include enforcing federal laws, making arrests if federal crimes are committed

23 in the presence of an officer, and conducting investigations on and off the property for crimes

24 against the property or persons on the property.

25

233. 40 U.S.C. § 1315(d)(3) further allows the Secretary to “utilize the facilities and

26 services of Federal, State, and local law enforcement agencies, with the consent of the agencies.”

27

234. 40 U.S.C. § 1315(e) also allows the Secretary to “enter into agreements with

28 Federal agencies and with State and local governments to obtain authority for officers and agents

- 38 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 39 of 48

1 designated under this section to enforce Federal laws and State and local laws concurrently with

2 other Federal law enforcement officers and with State and local law enforcement officers” “[]for

3 the protection of property owned or occupied by the Federal Government and persons on the

4 property.”

5

235. These statutory provisions do not authorize the designation of employees for

6 general law enforcement purposes in domestic United States cities where the intent, mission, and

7 purpose of the designation is not reasonably connected to such federally stated interests.

8 Significantly, 40 U.S.C. § 1315 does not represent Congressional authorization to suppress

9 insurrections under the Militia Clause. See U.S. Const. art. I, § 8, cl. 15.

10

236. Further, these statutory provisions do not authorize the expansion of federal

11 property into City- or State-owned rights-of-way, or the takeover of City property for federal

12 purposes, without the consent of the non-federal agencies, as Defendants assert.

13

237. The Policy therefore oversteps the constitutional limitations on the federal police

14 powers, including as enumerated in the Militia Clause, the Republican Form of Government

15 Clause, and the Tenth Amendment, and is not in accordance with and exceeds Defendants’

16 authority under 40 U.S.C. § 1315 because it (a) authorizes the designation of such agents to quell

17 civil protests and surveil and engage with threats to damage or destroy any public monument,

18 memorial, or statue, and (b) authorizes the expansion of federal physical boundaries and the take-

19 over of City rights-of-way for the purposes of securing federal property, without the express

20 consent of the City.

21

238. Defendants’ unlawful actions have caused, are causing, and will continue to cause

22 harm to Plaintiffs as alleged above, and there is a substantial likelihood that the requested relief

23 will redress this harm.

24 //

25 //

26 //

27 //

28 //

- 39 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 40 of 48

1

SECOND CLAIM FOR RELIEF

2

(Administrative Procedure Act—Arbitrary and Capricious)

3

(Against All Defendants)

4

(5 U.S.C. § 706(2)(A))

5

239. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

6 paragraphs of this Complaint.

7

240. 5 U.S.C. § 706(2)(A) provides that a court shall hold unlawful and set aside agency

8 action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

9 law.

10

241. Long-established principles of federalism, paired with congressional limitations,

11 restrict the ability of the federal government to unilaterally deploy domestic military or police

12 interventions.

13

242. Defendants have adopted a Policy to circumvent these limitations and deploy

14 federal agents to quash civil protests, while publicly justifying the actions in the name of federal

15 property protection. The motivation animating Defendants’ Policy is the “takeover” of City police

16 forces and powers, and is untethered to strictly federal interests or activities.

17

243. Defendants’ purported justification for the Policy is wholly pretextual and, thus,

18 arbitrary and capricious under the Administrative Procedure Act.

19

244. In enacting the Policy, Defendants have also acted arbitrarily and capriciously

20 because Defendants did not fully consider the foreseeable harms of their policy and did not

21 adequately explain the decision-making rationale behind the policy change, beyond a pretextual

22 rationale.

23

245. In implementing the Policy, Defendants failed to consider, among many things,

24 the direct and destructive impacts on local governments in their administration of general public

25 safety, and the aforementioned harms that have and will flow to Plaintiffs.

26

246. Defendants’ unlawful action has caused, is causing, and will continue to cause

27 harm to Plaintiffs as alleged above, and there is a substantial likelihood that the requested relief

28 will redress this harm.

- 40 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 41 of 48

1

THIRD CLAIM FOR RELIEF

2

(Federal Vacancies Reform Act; Homeland Security Act)

3

(Against Defendant Wolf)

4

(5 U.S.C. § 3345 et seq.; 6 U.S.C. § 113)

5

247. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

6 paragraphs of this Complaint.

7

248. The Secretary of Homeland Security may be appointed by the President only with

8 the advice and consent of the Senate, 6 U.S.C. § 112(a)(1), and when the Office of the Secretary

9 is vacant, the order of succession is governed by the FVRA and/or the HSA.

10

249. Under those authorities, Defendant Wolf is not legally authorized to hold the

11 position of Acting Secretary.

12

250. Under those authorities, Defendant Wolf is not legally authorized to perform the

13 duties and functions of the Secretary of Homeland Security.

14

251. Because Defendant Wolf is without legal authority to hold his position or to

15 perform its duties or functions, any contributions he made to the Policy or steps he took or is taking

16 to enact or enforce the Policy “shall have no force or effect,” 5 U.S.C. § 3348(d)(1), “may not be

17 ratified,” id. § 3348(d)(2), and must be set aside.

18

FOURTH CLAIM FOR RELIEF

19

(Administrative Procedure Act—In Excess of Authority)

20

(Against Defendant Wolf)

21

(5 U.S.C. § 706(2)(C))

22

252. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

23 paragraphs of this Complaint.

24

253. Because Defendant Wolf is not legally authorized to hold the position of Acting

25 Secretary, any action he took to contribute to, direct, revise, promulgate, enact, or enforce the

26 Policy is “in excess of authority” under the APA and therefore must be held to be unlawful and set

27 aside.

28 //

- 41 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 42 of 48

1

FIFTH CLAIM FOR RELIEF

2

(Administrative Procedure Act—Not in Accordance with Law)

3

(Against Defendant Wolf)

4

(5 U.S.C. § 706(2)(C))

5

254. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

6 paragraphs of this Complaint.

7

255. Because Defendant Wolf is not legally authorized to hold the position of Acting

8 Secretary, any action he took to contribute to, direct, revise, promulgate, enact, or enforce the

9 Policy is “not in accordance with law” under the APA and therefore must be held to be unlawful

10 and set aside.

11

SIXTH CLAIM FOR RELIEF

12

(Anti-Commandeering)

13

(Plaintiff City of Portland Against Defendants Barr and DOJ)

14

(U.S. Const., amend. X)

15

256. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

16 paragraphs of this Complaint.

17

257. The Tenth Amendment to the United States Constitution preserves the states’

18 historic, sovereign, and fundamental autonomy to regulate their own affairs, including and

19 especially the operations of their state and local governments.

20

258. General police powers are among those reserved to the States. “A state’s ability to

21 regulate its internal law enforcement activities is a quintessential police power.” United States v.

22 California, 921 F.3d 865, 887 n.11 (9th Cir. 2019), cert. denied, 2020 WL 3146844 (June 15,

23 2020).

24

259. States are permitted to delegate their police powers to their municipalities. “[T]he

25 delegated power of municipalities is as broad as the police power of the state, except as that power

26 may be restricted by terms of the grant or by the state constitution.” D.C. v. John R. Thompson

27 Co., 346 U.S. 100, 109 (1953).

28

- 42 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 43 of 48

1

260. Oregon has so delegated its police power to its municipalities, which include the

2 City of Portland. Article XI, section 2 of the Oregon Constitution grants the “legal voters of every

3 city and town . . . power to enact and amend their municipal charter, subject to the Constitution

4 and criminal laws of the State of Oregon.” Portland’s charter identifies its power and authority to

5 exercise within the City and City-owned property “all the powers commonly known as the police

6 power to the same extent as the State of Oregon has or could exercise said power within said areas,

7 and to make and enforce within said areas all necessary or appropriate . . . police . . . and safety

8 laws and regulations.” Portland City Charter § 2-105.

9

261. The USMS’s refusal to honor the cancellation of the deputation of PPB’s officers,

10 by and through Defendants Barr and DOJ, commandeers a key Portland law enforcement agency

11 and unduly interferes with Portland’s police functions as delegated to it by the State of Oregon, in

12 violation of the Tenth Amendment. This Practice unconstitutionally infringes on Portland’s

13 authority to determine the status and deputation of PPB’s officers, and unconstitutionally compels

14 PPB’s officers to continue to serve under the force and guise of federal law.

15

262. Defendants DOJ and Barr have violated the authority of Portland to control and

16 direct its own police officers and, in doing so, have caused confusion regarding the role and

17 authority of deputized PPB officers and any legal obligations of these officers to execute orders

18 issued under the authority of the United States.

19

263. The violation caused by Defendants DOJ and Barr causes ongoing harm to Portland

20 and its residents.

21

SEVENTH CLAIM FOR RELIEF

22

(Declaratory Judgment Act)

23

(Against All Defendants)

24

(28 U.S.C. §§ 2201-2202)

25

264. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

26 paragraphs of this Complaint.

27

265. The Policy oversteps the constitutional limitations on the federal police powers,

28 including as enumerated in the Militia Clause, the Republican Form of Government Clause, and

- 43 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 44 of 48

1 the Tenth Amendment, and is not in accordance with and exceeds Defendants’ authority under 40

2 U.S.C. § 1315 because it: (a) authorizes the designation of such agents to quell civil protests and

3 surveil and engage with threats to damage or destroy any public monument, memorial, or statue;

4 and (b) authorizes the expansion of federal physical boundaries and the take-over of City rights-

5 of-way for the purposes of securing federal property, without the express consent of the City.

6

266. Defendants’ purported justification for the Policy is wholly pretextual and, thus,

7 arbitrary and capricious under the Administrative Procedure Act.

8

267. In enacting the Policy, Defendants have also acted arbitrarily and capriciously

9 because Defendants did not fully consider the foreseeable harms of their policy and did not

10 adequately explain the decision-making rationale behind the policy change, beyond a pretextual

11 rationale.

12

268. Because Defendant Wolf is without legal authority to hold his position or to

13 perform its duties or functions, any contributions he made to the Policy or steps he took or is taking

14 to enact or enforce the Policy “shall have no force or effect,” 5 U.S.C. § 3348(d)(1), “may not be

15 ratified,” id. § 3348(d)(2), and must be set aside.

16

269. Because Defendant Wolf is not legally authorized to hold the position of Acting

17 Secretary, any action he took to contribute to, direct, revise, promulgate, enact, or enforce the

18 Policy is “in excess of authority” under the APA and therefore must be held to be unlawful and set

19 aside.

20

270. Because Defendant Wolf is not legally authorized to hold the position of Acting

21 Secretary, any action he took to contribute to, direct, revise, promulgate, enact, or enforce the

22 Policy is “not in accordance with law” under the APA and therefore must be held to be unlawful

23 and set aside.

24

271. An actual, present, and justiciable controversy exists between Plaintiffs and

25 Defendants concerning the legality of the Policy and regarding whether Defendant Wolf has legal

26 authority to hold his position or perform its duties or functions.

27

272. Plaintiffs seeks a declaratory judgment from this Court that the Policy is not in

28 accordance with law, in excess of statutory authority, contrary to constitutional right, or without

- 44 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 45 of 48

1 observance of procedure required by law pursuant to 5 U.S.C. § 706(2); that the Policy is arbitrary,

2 capricious, an abuse of discretion, or otherwise not in accordance with law within the meaning of

3 5 U.S.C. § 706(2)(A); that Defendant Wolf is without legal authority to hold his position or to

4 perform its duties or functions; and that aspects of the Policy promulgated under the purported

5 authority of Defendant Wolf must be set aside and/or enjoined.

6

273. Defendants DOJ and Barr have unduly interfered with Portland’s police functions

7 as delegated to it by the State of Oregon, in violation of the Tenth Amendment, by refusing to

8 cancel the deputation of the PPB officers at Portland’s request.

9

274. An actual, present, and justiciable controversy exists between Portland and

10 Defendants DOJ and Barr concerning the constitutionality of Defendants’ refusal to cancel the

11 deputation.

12

275. Portland seeks a declaratory judgment from this Court that Defendant DOJ’s and

13 Defendant Barr’s refusal to cancel the deputation of PPB officers is violative of the Tenth

14 Amendment and the anti-commandeering doctrine.

15

16

PRAYER FOR RELIEF

17

Wherefore, Plaintiffs respectfully request that this Court:

18

1. Issue an order holding unlawful, vacating, and setting aside Defendants’ Policy;

19

2. Declare that the Policy is not in accordance with law, in excess of statutory

20

authority, contrary to constitutional right, or without observance of procedure required by law

21

pursuant to 5 U.S.C. § 706(2);

22

3. Declare that the Policy is arbitrary, capricious, an abuse of discretion, or

23

otherwise not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A);

24

4. Declare that aspects of the Policy promulgated under the purported authority of

25

Defendant Wolf must be set aside and/or enjoined;

26

5. Declare that Defendant DOJ’s and Defendant Barr’s commandeering of local law

27

enforcement is unlawful under the Tenth Amendment and order them to immediately

28

cancel the at-issue deputation of PPB officers;

- 45 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 46 of 48

1

6. Award Plaintiffs costs, expenses, and reasonable attorneys’ fees; and

2

7. Award any other relief the Court deems just and proper.

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 46 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 47 of 48

1 DATED: October 14, 2020

Respectfully submitted,

2

OFFICE OF THE CITY ATTORNEY

3

CITY OF OAKLAND

4

By: /s/ Barbara J. Parker

Barbara J. Parker, City Attorney

5

Maria Bee, Chief Assistant City Attorney

Zoe Savitsky, Supervising Deputy City Attorney

6

Malia McPherson, Deputy City Attorney

7

One Frank H. Ogawa Plaza, 6th Floor Oakland, California 94612

8

Telephone: (510) 238-3601; Fax: (510) 238-6500

bparker@oaklandcityattorney.org

9

mbee@oaklandcityattorney.org

zsavitsky@oaklandcityattorney.org

10

mmcpherson@oaklandcityattorney.org

11

Counsel for the City of Oakland

12

OFFICE OF THE CITY ATTORNEY

CITY OF PORTLAND

13

By: /s/ Tracy Reeve

14

Tracy Reeve, City Attorney

15

Robert Taylor, Chief Deputy City Attorney Denis Vannier, Senior Deputy City Attorney

16

Naomi Sheffield, Deputy City Attorney

1221 SW 4th Avenue, Suite 430

17

Portland, Oregon 97204

Telephone: (503) 823-4047; Fax: (503) 823-3089

18

robert.taylor@portlandoregon.gov

19

Counsel for the City of Portland

20

By: /s/ LiJia Gong

Jill Habig, President

21

Jonathan B. Miller, Legal Director

LiJia Gong, Counsel

22

Victoria Stilwell, Staff Attorney

23

4096 Piedmont Avenue #149

Oakland, California 94611

24

Telephone: (301) 335-3828

jill@publicrightsproject.org

25

jon@publicrightsproject.org

lijia@publicrightsproject.org

26

tori@publicrightsproject.org

27 Counsel for the Cities of Oakland and Portland
28

- 47 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-SK Document 1 Filed 10/14/20 Page 48 of 48

1

FILER’S ATTESTATION

2

3 Pursuant to Civil Local Rule 5-1(i)(3), regarding signatures, Malia McPherson, hereby attests that

4 concurrence in the filing of this document has been obtained from all the signatories above.

5

6 DATED: October 14, 2020 7

/s/ Malia McPherson Malia McPherson

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 48 -

 
 Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 1 of 66

1 OFFICE OF THE CITY ATTORNEY

CITY OF PORTLAND 2 ROBERT TAYLOR, OR SBN 044287

3

Interim City Attorney
Admitted Pro Hac Vice

4 DENIS VANNIER, OR SBN 044406 Senior Deputy City Attorney

5

Admitted Pro Hac Vice

NAOMI SHEFFIELD, OR SBN 170601

6 Deputy City Attorney
Admitted Pro Hac Vice

7 1221 SW 4th Avenue, Suite 430

Portland, Oregon 97204 8 T: (503) 823-4047; F: (503) 823-3089

9

Email: robert.taylor@portlandoregon.gov Attorneys for Plaintiff City of Portland

OFFICE OF THE CITY ATTORNEY CITY OF OAKLAND BARBARA J. PARKER, CA SBN 069722 City Attorney MARIA BEE, CA SBN 167716 Chief Assistant City Attorney ZOE M. SAVITSKY, CA SBN 281616 Supervising Deputy City Attorney MALIA MCPHERSON, CA SBN 313918 Deputy City Attorney One Frank H. Ogawa Plaza, 6th Floor Oakland, California 94612 T: (510) 238-3601; F: (510) 238-6500 Email: zsavitsky@oaklandcityattorney.org Attorneys for Plaintiff City of Oakland

10

11 JILL HABIG, President, CA SBN 268770 JONATHAN B. MILLER, Legal Director, MA SBN 663012

12

Admitted Pro Hac Vice

LIJIA GONG, Counsel, CA SBN 294268

13 4096 Piedmont Avenue #149

Oakland, California 94611 14 T: (301) 335-3828

15

Email: lijia@publicrightsproject.org Attorneys for Plaintiffs

16

UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

18 THE CITY OF PORTLAND AND THE CITY Civil Action No. 3:20-cv-7184
19 OF OAKLAND,

20

Plaintiffs,

21

v.

22 ROBERT M. WILKINSON, in his official
23 capacity as Acting United States Attorney General; UNITED STATES DEPARTMENT
24 OF JUSTICE; DAVID P. PEKOSKE, in his
official capacity as Acting Secretary of 25 Homeland Security; and UNITED STATES
26 DEPARTMENT OF HOMELAND SECURITY,
27 Defendants.
28

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
[Administrative Procedure Act Case]
Action filed: October 14, 2020
Assigned to the Honorable Edward M. Chen

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 2 of 66

1

INTRODUCTION

2

1. This lawsuit challenges the unlawful and unconstitutional overreach of federal law

3 enforcement in response to and in anticipation of protests for racial justice in progressive United

4 States cities. In particular, the lawsuit challenges the federal government’s new policy authorizing

5 the expanded and unbounded jurisdiction of federal law enforcement under the guise of protecting

6 federal property, and the federal government’s related and unconstitutional practice of

7 commandeering local law enforcement officers for similar ends.

8

2. Plaintiffs are the cities of Portland, Oregon, and Oakland, California—cities that,

9 like others across the United States, have primary responsibility for the health, safety, and welfare

10 of their residents, including the protection and oversight of general public safety during protests.

11 Plaintiffs have police departments, fire departments, and other local governmental departments

12 whose purposes and responsibilities are to reduce and address violence and/or support public safety

13 in their communities. In conducting these important functions, Plaintiffs aim to respect, honor, and

14 protect the First Amendment rights, among other rights, of their residents and visitors, so that those

15 residents and visitors can demonstrate, march, and protest. Plaintiffs also have obligations under

16 local and state law to respond, as necessary, to threats of violence and community harm. Outside

17 of the exceptional actions taken by Defendants as described in this First Amended Complaint,

18 Plaintiffs have long operated with this understanding of their duties and authority.

19

3. Defendants are the United States Department of Justice (“DOJ”), the United States

20 Department of Homeland Security (“DHS”), and the new acting leaders of both departments. In

21 response to directives from President Donald J. Trump beginning in or around June 2020,

22 Defendants unilaterally, unlawfully, and unconstitutionally began developing a policy that

23 authorized the deployment and operation of federal agents in U.S. cities under the pretext of

24 protecting federal property but for the actual purpose of quelling protests with which President

25 Trump disagreed (the “Policy”).

26

4. The full scope and parameters of the Policy authorizing these actions are currently

27 unknown, as no ordinary public process was followed in its creation.

28

- 2 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 3 of 66

1

5. Upon information and belief, the Policy is a response to, incorporates, and/or is

2 guided by, the June 26, 2020 Executive Order 13,933, Protecting American Monuments,

3 Memorials, and Statues and Combating Recent Criminal Violence (the “Executive Order”), signed

4 by President Trump following nationwide protests—quite possibly the largest social justice

5 protests in our nation’s history—against police brutality and systemic racism. The Executive Order

6 prescribes a set of directives aimed at punishing and responding to “State and local governments”

7 that had allegedly “lost the ability to distinguish between the lawful exercise of rights to free speech

8 and assembly and unvarnished vandalism,” or otherwise “failed to protect public monuments,

9 memorials, and statues.”

10

6. Upon information and belief, following the issuance of the Executive Order,

11 Defendants implemented the new Policy which authorizes the cross-designation of federal agents

12 purportedly under 40 U.S.C. § 1315 to protect and defend all monuments, memorials, and statues,

13 irrespective of their connection or proximity to federal property. Given the widespread existence

14 of such objects in public places throughout U.S. cities, the Policy effectively creates blanket

15 authorization for the deployment of a federal police presence in almost every corner of urban

16 America.

17

7. The Policy meaningfully and illegally expands the jurisdiction granted by statute.

18 40 U.S.C. § 1315 solely permits designation of DHS employees to protect federal property owned

19 or leased by the General Services Administration (“GSA”), or to engage in activity off such GSA-

20 owned or -leased property specifically in furtherance of their duty to protect that property.

21

8. Upon information and belief, Defendants are now permitted to protect any

22 monument, memorial, or statue, irrespective of whether they are owned or leased by the GSA or

23 on land owned or leased by the GSA, and to engage in activity under the pretext of protecting such

24 objects under the Policy.

25

9. Federal law enforcement agents have, under the Policy, been deployed to U.S.

26 cities, either secretly or with little warning, under at least three separate operations or programs:

27 Operation Legend; Operation Diligent Valor, which includes the deployment of agents in Portland,

28

- 3 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 4 of 66

1 Oregon during the summer of 2020; and the Protecting American Communities Task Force

2 (“PACT”).

3

10. Although Defendants and/or their agents or employees have publicly claimed that

4 certain operations are for the purpose of protecting federal property under 40 U.S.C. § 1315,

5 internal memoranda, internal email communications, internal policies, various public statements,

6 and activities or failures to act in cities such as Portland and Washington, D.C. instead reveal a

7 distinct and meaningful policy shift to use federal law enforcement to unilaterally step in or replace

8 local law enforcement departments that do not subscribe to President Trump’s view of domestic

9 “law and order” and to quell viewpoints, speech, or protests with which President Trump disagrees.

10 These interventions also are intended to pressure local officials and police departments to react

11 more aggressively to stop or thwart racial justice protests.

12

11. The animating intent of the Policy was to use property protection as the pretextual

13 justification for viewpoint discrimination. Although Defendants have broad discretion about how

14 they direct resources to protect approximately 9,000 GSA-owned or -leased properties, that

15 discretion does not include general enforcement activity on state and local land or making

16 enforcement decisions based on viewpoint. Yet that undergirds the Policy: animus toward certain

17 political views, whether those views are expressed by protesters, municipal leaders, or

18 municipalities themselves.

19

12. In 2020, the Policy was implemented to suppress protests or other activities in

20 progressive, Democratic-controlled cities where protestors expressed support for Black Lives

21 Matter or other racial justice actions, causes that President Trump and his administration did not

22 support, under the pretext of protecting federal property. The Policy was implemented either

23 through direct intervention in, and deployment of federal law enforcement to, cities, such as

24 Defendants did in Portland in July 2020, or via threats to do so in order to pressure state and local

25 law enforcement to shut down or severely limit the extent of such protests as quickly as possible,

26 including through the use of racially discriminatory tactics and excessive use of force. In this

27 manner, the Policy has been the source of over-policing progressive cities and progressive

28 viewpoints.

- 4 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 5 of 66

1

13. Although the Policy is not public, there is considerable evidence of its existence.

2 Among other things, reported non-public memos from DHS reveal that, under the Policy and in

3 response to the Executive Order, federal law enforcement agents are authorized to engage in

4 surveillance activities for threats to any public monument, memorial, or statue (whether under

5 federal, state, or local control)—which in major cities like Plaintiff jurisdictions, could constitute

6 surveillance within the entire jurisdiction regardless of federal interests or harms at stake.

7

14. As detailed further below, in developing and implementing the Policy, DHS

8 officials engaged in extensive communication regarding the Executive Order. Defendants also

9 issued several new documents that incorporated or responded to the Executive Order and prepared

10 to explain to members of Congress why they were now invoking 40 U.S.C. § 1315 to perform the

11 activities under the Policy.

12

15. In addition, DOJ and/or DHS have engaged in a variety of unauthorized activities

13 under the Policy. Such activities in Portland have included surveilling the text messages of

14 protesters and building a fence that blocks the right-of-way on City property and refusing to

15 remove it upon request of City officials. DHS’s inspector general also concluded recently that

16 memoranda issued in June and July 2020 by the Director of the Federal Protective Services

17 (“FPS”), a component of DHS, acted unlawfully by failing to identify specific officers and agents

18 from other components of DHS as well as the U.S. Secret Service that were cross designated under

19 40 U.S.C. § 1315 to deploy under the Policy.

20

16. Even after the significant deployment of federal agents into Portland as well as

21 smaller operations in other U.S. cities, President Trump expressed an intent to expand or at least

22 continue the Policy. President Trump stated: “We’re going to have more federal law enforcement.

23 That I can tell you.”—while threatening to send federal agents into major cities “run by liberal

24 Democrats.” For instance, he said: “We’re not going to let New York and Chicago, and

25 Philadelphia and Detroit and Baltimore and all of these—Oakland is a mess. We’re not going to

26 let this happen in our country.”

27

17. These threats were not new. President Trump has long threatened American cities

28 led by Democrats. But as recently as April 2020, Defendants did not purport to have, or act in

- 5 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 6 of 66

1 accordance with, the authority they now assert under the Policy. In April, numerous public

2 monuments, memorials, and statues were under equal or greater threat from armed and uncivil

3 protesters who opposed public health measures to control COVID-19. But those protesters

4 expressed a different set of political views than the majority of those protesting after May 25, 2020

5 and before the events of January 6, 2021, and no policy was then in effect to allow or require the

6 type of federal decisions and operations now occurring or allowed to occur under the Policy.

7

18. Importantly, events in Washington, D.C., both in Lafayette Square Park on June 1,

8 2020 and around the U.S. Capitol on and around January 6, 2021, shed further light on the

9 pretextual nature of the Policy’s purported “federal property preservation” rationale.

10

19. In June 2020, federal agents, including Defendants, used overwhelming force

11 (including tear gas, batons, chemical irritants, projectiles, and flash grenades) to quell a largely

12 peaceful protest supporting Black Lives Matter on or near federal property in Lafayette Square

13 Park. On information and belief, those federal agents, including Defendants, did not have

14 information or intelligence suggesting that there were significant, credible threats to federal

15 property prior to these protests.

16

20. In January 2021, federal agents, including Defendants, did not similarly respond to

17 significant information (including internal intelligence assessments, reports, and official warnings)

18 that extremists were traveling to Washington, D.C., the site of numerous federal properties under

19 Defendants’ protection per 40 U.S.C. § 1315 and home to innumerable federal monuments,

20 memorials, and statues, to commit violence, attack federal properties and people within them, and

21 engage in “war.” Through their non-response, a riotous and insurrectionist mob comprised mostly

22 of White people and supporting President Trump’s dangerous election conspiracy theories was

23 able to gather on and travel across federal properties and by many monuments, memorials, and

24 statues unmolested; breach the Capitol; and pose a direct threat to a joint session of Congress.

25

21. When these two situations are compared, it is clear that Defendants and other

26 federal agencies and components did not respond based the level of threat to federal property or

27 personnel, or the violence that occurred.

28

- 6 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 7 of 66

1

22. It is also clear that Defendants’ Policy for responding to threats to and violence on

2 or around federal property cannot merely be the facially neutral standards of 40 U.S.C. § 1315.

3 Nor can Defendants’ Policy be attributed merely to law enforcement discretion, as any ordinary

4 and constitutional exercise of such discretion would lead to a reasonably proportionate response

5 based on the level of threat to federal property. As this First Amended Complaint details here and

6 below, there is no consistently and reasonably discernable connection between threats to federal

7 property and Defendants’ responses to those threats.

8

23. Due to both its overreach and pretextual nature, the Policy threatens to upend the

9 current federalism structure and working relationships between local and federal law enforcement

10 agencies. Section 1315 has never before been interpreted to permit the actions taken by Defendants

11 under its auspices. Since June 2020, Plaintiffs have had and continue to have ongoing and

12 significant uncertainty about how and whether Defendants will respond to certain types of threats,

13 violence, or protests, depending on the viewpoint expressed by those issuing threats, committing

14 violence, or engaging in protest.

15

24. Defendants have not and did not publicly rely on any of the limited authorities, as

16 described below, that would lawfully allow deployments of federal agents within the parameters

17 defined in such laws.

18

25. The Policy is not merely a change in Defendants’ interpretation of their own

19 enforcement authority. The Policy is based on a misunderstanding, misinterpretation, error, and/or

20 disregard for the scope of Defendants’ legal authority.

21

26. Defendants have sought to cloak this final agency action as being merely a series

22 of enforcement decisions. While the Policy relates to and influences enforcement choices, it is

23 nevertheless a Policy. It is a Policy that lacks transparent or non-invidious guidelines on the

24 deployment of federal personnel. It is a Policy that is in excess of the authority provided in the

25 statute used to justify federal deployments. And it does not establish a viewpoint-neutral standard

26 for when intervention by federal agents is appropriate. Instead, the Policy allows cross-designation

27 and deployment irrespective of the actual or understood threat posed to federal property and based

28 instead on impermissible viewpoint discrimination.

- 7 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 8 of 66

1

27. Using the purported authority under the Policy or other, unknown authorities,

2 Defendants have also instituted an unlawful practice in Portland of commandeering control of local

3 law enforcement officers in direct contravention of the City’s express revocation of consent, and

4 for unknown or pretextual ends (the “Practice”).

5

28. Based on information and belief, the Practice is similarly in response to,

6 incorporates, and/or is guided by, the Executive Order.

7

29. In addition, no constitutional authority has been offered for the related Practice of

8 commandeering Portland’s law enforcement by refusing to release Portland law enforcement

9 officers from their temporary deputation as federal agents, conscripting them without consent and

10 against Portland’s express wishes.

11

30. This monumental policy change and new commandeering practice harms Plaintiffs’

12 and other cities’ abilities to safely govern and police in ways aligned with and responsive to

13 community goals and racial equity reforms. As local governments, Plaintiffs have independent

14 police forces; community relationships; and locally determined policing policies, practices, and

15 procedures. Plaintiffs’ police forces have always been able to expect when and how federal law

16 enforcement agents could assert federal powers within their jurisdictions. The use of deployments

17 and operations violating established constitutional parameters, politically motivated interventions,

18 and lawless commandeering of local law enforcement are unconstitutional and unauthorized in

19 part because of the havoc such actions impose on local jurisdictions and the innumerable ways in

20 which these deployments run roughshod over the longstanding federalist balance of the general

21 policing power.

22

31. Plaintiffs are further harmed by the Policy and Practice because they threaten,

23 intimidate, chill and/or discourage the exercise of constitutional or civil rights of their residents,

24 leaders, and/or the jurisdictions themselves.

25

32. The Policy and Practice also harm Plaintiffs to the extent they have and will

26 continue to incite violence and make it more difficult for Plaintiffs to fulfill their core public safety

27 missions.

28

- 8 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 9 of 66

1

33. Plaintiffs are additionally harmed by their increased costs, expenditures, and

2 resources devoted to responding to actions taken by Defendants under the Policy and Practice.

3

34. Harm to the Plaintiffs remains ongoing, because the Policy remains in place and

4 leaves significant questions around and uncertainty about Defendants’ response to protests, civil

5 unrest, and potential violence depending on the viewpoint of the individuals and governments

6 involved. As of January 20, 2021, one day before the filing of this Amended Complaint, Plaintiffs

7 were actively monitoring, among other things, potential threats of violence by a variety of groups

8 in and around the inauguration of President Joseph R. Biden and related threats across the nation.

9

35. In fact, on January 20, 2021, ostensibly to protect the federally owned U.S.

10 Immigration and Customs Enforcement (“ICE”) facility in Portland, federal law enforcement

11 officers declared an unlawful assembly with respect to hundreds of individuals gathered near, but

12 largely not on, the federal property. Federal law enforcement used tear gas and other munitions to

13 disperse the crowd for two blocks beyond the federal building.

14

36. Plaintiffs therefore bring this action to enjoin Defendants’ new Policy and new

15 Practice, which are unconstitutional, arbitrary and capricious, in excess of Defendants’ legal

16 authority, and/or wholly pretextual.

17

JURISDICTION AND VENUE

18

37. This Court has jurisdiction under 28 U.S.C. § 1331 because this is a civil action

19 arising under the United States Constitution; the Administrative Procedure Act (“APA”), 5 U.S.C.

20 §§ 701-706; and other federal statutes.

21

38. This Court has the authority to issue declaratory and injunctive relief under the

22 Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and the APA, 5 U.S.C. § 706.

23

39. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2) and (e)(1).

24 Defendants are United States officers or agencies sued in their official capacities, a substantial part

25 of the events or omissions giving rise to this action have occurred or will occur in this district, and

26 one Plaintiff resides in this district.

27 //

28 //

- 9 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 10 of 66

1

INTRADISTRICT ASSIGNMENT

2

40. Pursuant to the Northern District Civil Local Rule 3-2(c)-(d), the intradistrict

3 assignment should be to the Oakland or San Francisco Division because a substantial part of the

4 acts or omissions that give rise to this action are occurring in the County of Alameda.

5

PARTIES

6

41. The CITY OF PORTLAND is a municipal corporation governed by charter, located

7 in the District of Oregon, and existing under the laws and constitution of the State of Oregon.

8 Portland is home to more than 650,000 residents, and the City’s leadership has committed to

9 significant reforms to local policing and other policies, with an aim toward promoting racial

10 justice.

11

42. The CITY of OAKLAND is a municipal corporation and charter city located in the

12 Northern District of California, organized and existing under and by virtue of the laws of the State

13 of California. The City of Oakland is home to over 420,000 people and consistently ranks as one

14 of the most ethnically and racially diverse major cities in the United States. Approximately 23%

15 of Oakland’s residents identify as Black or African American, 26% as Hispanic or Latinx, 15% as

16 Asian or Asian-American, and 5.5% as multi-racial. The City’s leadership is engaged in significant

17 reforms to local policing and other policies, with an aim toward promoting racial justice.

18

43. Plaintiffs are aggrieved by Defendants’ actions and have standing to bring this

19 action because the Policy and its implementation and the Practice harm Plaintiffs’ independent and

20 constitutionally recognized economic, dignitary, and proprietary interests and will continue to

21 cause injury unless and until the Policy is vacated and Defendants’ practices are permanently

22 enjoined.

23

44. ROBERT M. WILKINSON is the Acting United States Attorney General. He is

24 sued in his official capacity.1

25

1 Per Federal Rule of Civil Procedure 25(d): “An action does not abate when a public officer who 26 is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is

27

pending. The officer’s successor is automatically substituted as a party. Later proceedings should be in the substituted party’s name.” As such, Acting United States Attorney General Robert M.

28 Wilkinson is automatically substituted for William Barr, and Acting Secretary of Homeland Security David P. Pekoske is automatically substituted for Chad Wolf.

- 10 -

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 11 of 66

1

45. The UNITED STATES DEPARTMENT OF JUSTICE is a cabinet agency within

2 the executive branch of the United States government and is an agency within the meaning of 5

3 U.S.C. § 552(f).

4

46. DAVID P. PEKOSKE is the Acting Secretary of Homeland Security. He is sued in

5 his official capacity.

6

47. The UNITED STATES DEPARTMENT OF HOMELAND SECURITY is a

7 cabinet agency within the executive branch of the United States government and is an agency

8 within the meaning of 5 U.S.C. § 552(f). Its stated missions involve anti-terrorism, border security,

9 immigration and customs. It was created in 2002 by combining 22 different federal departments

10 and agencies into a single Cabinet agency.

11

FACTUAL ALLEGATIONS

12 Background

13

48. Adherence to the Constitution is the bedrock of American democracy. Regardless

14 of any changes to the interpretation of the Constitution over time, certain structures endure.

15

49. One such foundational structure is the separation of federal powers: the division of

16 authority and responsibility that guides all legal action taken in the United States. Under the

17 separation of powers, the Congress makes law, the Executive Branch implements that law, and the

18 Judiciary assesses the legality of those laws and actions.

19

50. Another foundational structure is federalism: the division or sharing of legal power

20 between the national government and other government units, including states, counties, cities,

21 parishes, commonwealths, territories, and tribal governments (hereafter “other governments”).

22 Other governments, including cities, “ensure[] that powers which ‘in the ordinary course of affairs,

23 concern the lives, liberties, and properties of the people’ [are] held by governments more local and

24 more accountable than a distant federal bureaucracy.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567

25 U.S. 519, 536 (2012) (quoting The Federalist No. 45 at 293 (J. Madison)).

26

51. A federalist system’s division of power evolves, but in expected ways, such as

27 through Congress passing new laws to further regulate other governments, or other governments

28 using the courts to push back on laws or rules made by the Congress or the Executive Branch.

- 11 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 12 of 66

1

52. Within this federalism framework and under the Tenth Amendment to the United

2 States Constitution, the general police powers are left to the states, who in turn often delegate such

3 plenary authority to cities like Plaintiffs. See, e.g., Cal. Const., art. 11, § 7; Or. Const., art XI, § 2.

4 As the Supreme Court has long held, “the facets of governing that touch on citizens’ daily lives

5 are normally administered by smaller governments closer to the governed.” Nat’l Fed’n of Indep.

6 Bus., 567 U.S. at 536.

7

53. Accordingly, the federal government has never created a federal domestic police

8 force with broad powers. The general policing power, including over most violent crime, is left to

9 other governments. As courts have repeatedly held, “We can think of no better example of the

10 police power, which the Founders denied the National Government and reposed in the States, than

11 the suppression of violent crime and vindication of its victims.” United States v. Morrison, 529

12 U.S. 598, 618 (2000).

13

54. Instead, where Congress has authorized, the Executive Branch has executed, and

14 the Judiciary approved, the federal government has created a constellation of different law

15 enforcement agencies, each of which has a specific domain of authority as defined by federal

16 statutes. For the most part, those domains of authority are not coextensive with other governments’

17 general policing power.

18

55. Within the scope of those federal statutes, such federal law enforcement activities

19 have been limited to: (a) the enforcement of a direct federal interest (e.g., enforcement of a federal

20 law); or (b) assisting other governments, which constitutes the enforcement of an indirect federal

21 interest.

22

56. Whether enforcing a direct federal interest or assisting other governments, federal

23 law enforcement acts within prescribed legal bounds. Either federal law enforcement is invited by

24 other governments to participate in any number of lawful collaborative activities or federal law

25 enforcement may intervene without invitation in the circumstances where federal law permits.

26

57. In the former category of invited collaboration, Plaintiffs have, like many other

27 cities, frequently engaged in lawful partnerships with federal law enforcement. From subject-

28 specific task forces to investigating borderless crimes, other governments often depend on and

- 12 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 13 of 66

1 engage with federal law enforcement to help protect residents and visitors. Plaintiffs have, for

2 example, partnered with the Federal Bureau of Investigation on child exploitation task forces; with

3 the Drug Enforcement Administration to combat illegal drug trafficking; with the Bureau of

4 Alcohol, Tobacco, Firearms and Explosives to proactively identify the source of guns used for

5 crimes; with the United States Marshals Service (“USMS”) to apprehend those fleeing the justice

6 system; and with the Secret Service to tackle identity theft.

7

58. These past and present local-federal relationships are voluntary and consensual.

8 Federal law enforcement and local law enforcement agencies generally work together in Plaintiffs’

9 communities with a mutual understanding of the mission, clear directives regarding jurisdictional

10 functions, and specific agreements (e.g., via Memoranda of Understanding or Agreement) that

11 inform both sides of their respective obligations. Such partnerships were and are authorized by

12 law, typically memorialized by mutual agreement, and not the subject of this lawsuit.

13

59. In the latter category of uninvited intervention, the federal government has certain

14 powers that are superior to those of other governments, made so by the Supremacy Clause.

15

60. Such powers include federal enforcement of crucial fundamental federal rights,

16 including civil rights. Throughout the nation’s history, federal enforcement authorities have at

17 times overridden other governments’ ignorant or bigoted refusals to grant or defend

18 constitutionally protected rights. Whether desegregating schools or extending the voting franchise

19 to Black people, federal enforcement—without invitation or local approval—has been at times

20 both lawful and vital.

21

61. Such intervention powers may also, in extraordinary circumstances, permit the

22 deployment of federal forces domestically, in which federal law enforcement temporarily takes

23 over the general police powers otherwise reserved to other governments. Such circumstances are

24 constitutionally delineated by Article I, Section 8, one of the Militia Clauses (allowing Congress

25 to “call[] forth the Militia to execute the Laws of the Union”) and by Article IV, Section 4 (the

26 obligation to protect the states against invasion and against “domestic violence”).

27

62. The Constitution reserves both of those described powers for the Legislative

28 Branch, either exclusively or principally. The cited Militia Clause only gives power to Congress.

- 13 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 14 of 66

1 The Article IV Republican Form of Government Clause gives power first to the Legislature, and

2 then only to the Executive “when the Legislature cannot be convened.”

3

63. Under these authorities, Congress has, among other things, passed the Insurrection

4 Act of 1807, now codified as amended at 10 U.S.C. §§ 251-255, which allows domestic military

5 intervention when circumstances make it impracticable to enforce the law by any other means, and

6 the complementary Posse Comitatus Act of 1876, now codified at 18 U.S.C. § 1385, eliminating

7 virtually any use of the military to regulate American civilians.

8

64. These laws represent some key legal guardrails constitutionally implemented by

9 the Legislative Branch to limit and define where the Executive Branch may, without permission

10 and while overriding other governments’ prerogatives, nonetheless enforce federal law.

11

65. Specifically, the Insurrection Act empowers the President to call into service the

12 United States Armed Forces and the National Guard: (a) when formally requested by a state; (b)

13 to address an insurrection in any state, when that insurrection makes it impracticable to otherwise

14 enforce the law; or (c) to address an insurrection, domestic violence, unlawful combination or

15 conspiracy, in any state, which results in the deprivation of constitutionally secured rights, and

16 where the state is unable, fails, or refuses to protect those rights. 10 U.S.C. §§ 251-253.

17

66. There is a set legal process for invoking the Insurrection Act that is neither

18 clandestine nor equivocal. To invoke the Act, a president must issue a “proclamation to disperse”:

19 that is, “by proclamation, immediately order the insurgents to disperse and retire peaceably to their

20 abodes within a limited time.” 10 U.S.C. § 254. Such proclamations have been issued as Executive

21 Orders and/or as Proclamations published in the Federal Register.

22

67. The Insurrection Act has never been invoked in the 21st century. In its limited usage

23 in the 20th century, the federal government often invoked the Act to protect civil rights,

24 particularly the rights of Black children to attend desegregated schools.

25

68. When the Act was most recently invoked, in 1992, then-President George H.W.

26 Bush issued a general Proclamation and an operationalizing Executive Order. See Proclamation

27 No. 6427, 57 Fed. Reg. 19,359 (May 1, 1992); Exec. Order No. 12804, 57 Fed. Reg. 19,361 (May

28 1, 1992). Executive Order 12804 provided detailed instructions for Cabinet officials to respond to

- 14 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 15 of 66

1 the alleged insurrection in California. Among other things, it directed the Attorney General: “(1)

2 to coordinate the activities of all Federal agencies assisting in the suppression of violence and in

3 the administration of justice in and about the City and County of Los Angeles, and other districts

4 of California, and (2) to coordinate the activities of all such agencies with those of State and local

5 agencies similarly engaged.”

6

69. DOJ is aware of the legal process for invoking the Insurrection Act. As an agency,

7 DOJ has typically been involved when the Insurrection Act is invoked.

8

70. The Executive Branch’s authority under the Act, or under other such extraordinary

9 emergency powers, does not undergird the Policy.

10

71. Any invocations of emergency powers or interventions under those powers are rare,

11 reserved for extraordinary circumstances, and are not the subject of this lawsuit.

12

72. Finally, Executive Branch agencies, endowed by Congress or the Constitution with

13 particular powers, must, per Article II, Section 3, “take care” to execute their duties under those

14 authorities. Sometimes, those authorities are clearly defined by statute or a provision of the

15 Constitution. At other times, those authorities are further crystalized and concretized by Executive

16 Branch interpretations of the authority so granted. Those interpretations come in forms such as

17 regulations, rules, and myriad types of sub-regulatory guidance.

18

73. The legality of such Executive Branch interpretations of its authority is easily

19 tested, commonly through the APA, which governs how the Executive Branch creates and acts on

20 those interpretations, and what those interpretations are. Stated simply, the APA is a key method

21 by which the Judiciary may assess the legality of the Executive Branch’s interpretation of its

22 powers, including whether such interpretations are “arbitrary and capricious,” “contrary to

23 constitutional right[s],” or “in excess of statutory authority.” 5 U.S.C. § 706.

24

74. Such Executive Branch interpretations of its authority may also be tested through

25 other legal means, such as by questioning their constitutionality directly in federal court.

26

75. Such Executive Branch interpretations are the subject of this lawsuit.

27

76. As these recitations reflect, the federal government has lawful tools to intervene—

28

- 15 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 16 of 66

1 voluntarily or involuntarily—in other governments’ exercise of their police powers. These

2 recitations also reflect that those tools are either used with mutual agreement, or without agreement

3 in circumstances, such as those enumerated, rooted in the Constitution. Finally, these recitations

4 reflect that the federal government follows lawful and expected paths to exercise authority over

5 other governments.

6 Policy Change Regarding Deployment and Operation of Federal Forces

7

77. Consistent with the above framework, until recently, Plaintiffs believed that they

8 understood the structure, procedures, and basis for both the invited and the uninvited deployment

9 and operations of federal law enforcement agents into their communities.

10

78. However, in 2020, following the direction of President Trump, Defendants

11 instituted this new Policy, the full parameters of which are unknown, but that, at minimum,

12 unlawfully expands the unilateral deployment, cross-designation, and operations of federal law

13 enforcement to broadly assert general police powers in U.S. cities based on the viewpoints of the

14 protesters, municipal leaders, or municipalities themselves.

15

79. The Policy and each and every instance where Defendants, through their officers,

16 employees, and/or agents, unlawfully deployed, cross-designated, or commanded federal law

17 enforcement to act in excess of or contrary to 40 U.S.C. § 1315 or the Constitution constitute “final

18 agency action” under the APA.

19 Prior Status Quo

20

80. President Trump long issued threats against cities he views as progressive or

21 racially diverse, including Plaintiffs. In 2017, he threatened to “send in the feds” to Chicago if

22 their mayor did not fix the “carnage,” and compared the city unfavorably to Afghanistan. In 2019,

23 in describing Los Angeles, New York, and San Francisco, he referred to these “sanctuary cities

24 run by liberal people” as places where “people living there are living in hell,” and threatened that

25 he might “intercede” or “may do something to get that whole thing cleaned up.” In 2020, he

26 repeatedly threatened Plaintiffs Portland and Oakland.

27

81. Separately, after President Trump took office, Americans engaged in some of the

28 largest peaceful protests in our nation’s history. The day after his inauguration, between 3.2 million

- 16 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 17 of 66

1 and 5.2 million people marched in the streets to protest for women’s rights and against the

2 President. Hundreds of thousands protested again for the same reason on the same day in the

3 following years. Since January 2017, millions of people have participated in protests across the

4 country, including protests at federal property, monuments, memorials, and statues, as well as at

5 state and local property, monuments, memorials, and statues.

6

82. Despite President Trump’s repeated threats, and despite thousands of protests by

7 millions of Americans, Defendants never previously asserted or exercised the authority they are

8 now asserting and exercising under the Policy, nor, on information and belief, engaged in the

9 related Practice.

10

83. An alleged source of the authority for the Policy is 40 U.S.C. § 1315. Under

11 subsection (a) of that statute, the Secretary of Homeland Security protects the buildings, grounds,

12 and property that are owned, occupied, or secured by the federal government.

13

84. Although FPS, a division of DHS, is typically the main provider of security and

14 law enforcement services at federal government facilities, the Secretary of Homeland Security may

15 transfer DHS officers or agents specifically “for duty in connection with the protection of” that

16 federal property. 40 U.S.C. § 1315(b)(1).

17

85. The scope of 40 U.S.C. § 1315 is clear. The statute states that the Secretary of

18 Homeland Security: “shall protect the buildings, grounds, and property that are owned, occupied,

19 or secured by the Federal Government (including any agency, instrumentality, or wholly owned

20 or mixed-ownership corporation thereof) and the persons on the property.” Id. § 1315(a).

21

86. Based on information and belief and on publicly available facts such as those

22 recited here, until as recently as May 2020, there had been no policy or practice through which

23 Defendants unilaterally deployed or commanded federal law enforcement under 40 U.S.C. § 1315

24 for general police purposes; to respond to or quash civil protests; to protect and surveil non-federal

25 property, monuments, memorials, or statues; or to unilaterally take over non-federal property.

26

87. Based on information and belief and on publicly available facts such as those

27 recited here, until as recently as May 2020, there had been no policy or practice through which

28 Defendants unilaterally deployed or commanded federal law enforcement to quell civil protests

- 17 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 18 of 66

1 expressing a viewpoint with which the President disagreed based on the pretext of protecting

2 federal property.

3

88. For example, as recently as April 2020, hundreds of protesters gathered at the

4 Michigan State Capitol in Lansing to protest executive orders and shelter-in-place orders in light

5 of the COVID-19 pandemic.

6

89. The Michigan State Capitol was completed in 1878, has been listed on the National

7 Register of Historic Places since 1971, and was designated as a National Historic Landmark in

8 1992. The Capitol and its grounds contain at least one monument, three memorials, and several

9 statues. The Capitol is 0.1 miles from the Charles E. Chamberlain Federal Building and Post

10 Office.

11

90. During these so-called “lockdown protests,” many protesters openly carried

12 firearms in or around the Capitol, forcibly entered the Michigan State Capitol, issued threats

13 against Michigan Governor Gretchen Whitmer, and verbally assaulted Michigan state police.

14

91. When these armed protesters objecting to COVID-19 quarantine measures rallied

15 in the Michigan Capitol, President Trump called them “very good people” and urged Governor

16 Whitmer to “give a little” in response to the protesters’ objections.

17

92. Earlier, in the spring, President Trump had encouraged his supporter to “liberate”

18 Michigan as well as Minnesota in response to strict restrictions responding aimed to stop the spread

19 of COVID-19.

20

93. As another example, in both April and May 2020, hundreds of protesters gathering

21 at the Pennsylvania State Capitol in Harrisburg to protest executive orders and shelter-in-place

22 orders in light of the COVID-19 pandemic.

23

94. The Pennsylvania State Capitol was built in 1906, has been listed on the National

24 Register of Historic Places since 1977, and was designated a National Historic Landmark in 2006.

25 The Capitol and its grounds contain at least three monuments and several statues. The Capitol is

26 approximately 0.2 miles from the Ronald Reagan Federal Building and U.S. Courthouse.

27

95. During these so-called “lockdown protests,” some protesters openly carried

28 firearms in or around the Pennsylvania State Capitol.

- 18 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 19 of 66

1

96. As another example, in April 2020, hundreds of protesters gathered at the

2 Wisconsin State Capitol in Madison to protest executive orders and shelter-in-place orders in light

3 of the COVID-19 pandemic.

4

97. The Wisconsin State Capitol was completed in 1917 and was designated a National

5 Historic Landmark in 2001. The Capitol is approximately 0.4 miles from the U.S. Courthouse in

6 Madison.

7

98. During these so-called “lockdown protests,” some protesters openly carried

8 firearms, including long guns, in or around the Wisconsin State Capitol.

9

99. As another example, as recently as May 2020, hundreds of protesters gathered at

10 the California State Capitol in Sacramento to protest executive orders and shelter-in-place orders

11 in light of the COVID-19 pandemic.

12

100. The California State Capitol was completed in 1874, has been listed on the National

13 Register of Historic Places since 1973, and was designated as a California Historical Landmark in

14 1974. The Capitol and its park are home to numerous monuments, memorials, and statues,

15 including the World Peace Rose Garden, the California Peace Officers’ Memorial, the Vietnam

16 Veterans Memorial, and the Thomas Starr King Memorial. The Capitol is one mile from the local

17 federal courthouse and under one mile from the local DHS office.

18

101. During these so-called “lockdown protests,” protesters gathered at the Capitol in

19 violation of stay-at-home orders, confronted California Highway Patrol officers, and displayed

20 depictions of California Governor Gavin Newsom as a Nazi in front of a Swastika banner.

21

102. In April and May, protesters also gathered outside the State Capitol in Salem,

22 Oregon. At least one protester appears to be open carrying a rifle in news footage. Members of the

23 far-right militia groups the “Three Percenters” and “Proud Boys” also attended the protests.

24 Several of the protests were allegedly organized by militia groups in violation of Oregon Governor

25 Kate Brown’s stay-at-home orders.

26

103. In December, protesters carrying firearms and bear spray, including members of

27 the far-right group Patriot Prayer, gathered at the Oregon State Capitol in Salem to protest COVID-

28

- 19 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 20 of 66

1 19 restrictions. Members of this group stormed the Oregon statehouse, broke windows, and

2 attempted to gain access to the building.

3

104. Based on information and belief, federal law enforcement officers were not

4 deployed in response to any of these so-called “lockdown protests”; were not directed to surveil

5 the protesters or public officials; did not to assess threats to public buildings, monuments,

6 memorials, or statues; did not to protect against civil unrest; and were not to otherwise engaged in

7 general policing.

8

105. In fact, in many instances, President Trump and his administration encouraged and

9 emboldened supporters to protest against these COVID-19 restrictions, including through the

10 display of weapons and other threats of force and violence.

11 Existing Framework for Local Law Enforcement Mutual Aid or Cross Designation with Other Government Agencies
12

13

106. As described above, there are numerous examples of how local law enforcement,

14 including Plaintiffs’ police departments, collaborate with or receive assistance from other law 15 enforcement agencies, including federal law enforcement agencies such as Defendants and their

16 subcomponents.

17

107. Coordinating with local law enforcement has, outside of the Policy and Practice,

18 been fundamental to how federal law enforcement agencies interact with their local counterparts.

19

108. Even in circumstances where the local jurisdiction has policies that are directly in

20 opposition to the federal law enforcement agency’s activities, the federal agencies, including

21 Defendants, have nonetheless coordinated with local agencies in some fashion, given the 22 longstanding recognition of the importance of such coordination.

23

109. For example, 28 C.F.R. § 0.112 governs special deputation powers of the USMS,

24 which is a bureau within DOJ. Pursuant to this section, the USMS Director is authorized to

25 deputize, in relevant part, “[s]elected federal, state, or local law enforcement officers whenever the 26 law enforcement needs of the U.S. Marshals Service so require.” 28 C.F.R. § 0.112(b).

27

28

- 20 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 21 of 66

1

110. The duties of the USMS include protecting the federal judiciary, apprehending

2 federal fugitives, managing and selling seized assets illegally acquired by criminals, housing and

3 transporting federal prisoners, and operating the Witness Security Program.

4

111. Separately, Plaintiffs have also long entered into and relied on “mutual aid”

5 agreements with fellow local governments, such as other city and county governments. These

6 mutual aid agreements set forth the circumstances under which mutual aid partners will come to

7 the assistance of a member of the agreement. For example, Oakland has requested assistance from

8 its mutual aid partners, such as Alameda County and surrounding cities, in responding to natural

9 disasters or to certain violent “Occupy” protests a decade ago. It is not uncommon for mutual aid

10 partners to request dozens or even hundreds of officers to assist with significant needs. Indeed, in

11 response to the recent demonstrations, Portland has sought and received mutual aid from numerous

12 other local law enforcement agencies.

13

112. No matter the originating source of the mutual aid, Plaintiffs’ police departments

14 follow specific procedures when any outside law enforcement participate in their operations, or

15 when outside law enforcement perform operations in their cities.

16

113. Those procedures typically include that, when any outside law enforcement agency

17 comes to assist Plaintiffs’ police departments, those outside agents or officers first check in at the

18 local staging center or emergency operations center, learn of the operation plan, and are connected

19 in some manner to the department’s communications systems. These universal steps are designed

20 to protect all law enforcement officers and ensure they are operating with similar information and

21 shared means of communication.

22 Nationwide Protests for Racial Justice and Police Reform

23

114. On May 25, 2020, George Floyd was tragically killed by Minneapolis police and a

24 video of his death was widely circulated in the media. On May 26, 2020, people gathered in

25 Minneapolis in protest. Shortly thereafter, people gathered throughout the nation, including in

26 Plaintiffs’ jurisdictions, to advocate for police reform and racial justice.

27

28

- 21 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 22 of 66

1

115. Polls have suggested that between 15 million and 26 million people participated in

2 these protests, making them the largest demonstrations in American history. Between May 22 and

3 August 22, approximately 93% of protests were peaceful.

4

116. Incidents of property damage and violence, however, were reported in many

5 jurisdictions in the country. Incidents of property damage occurred in suburban California, and

6 armed civilians and other non-state actors committed acts of violence in states including Florida,

7 Indiana, and Tennessee.

8

117. People began to gather in Downtown Portland on or around May 29, 2020,

9 including at an event titled “A Eulogy for Black America” organized by the Portland chapter of

10 the NAACP.

11

118. On May 29, 2020, Portland Mayor Ted Wheeler issued a statement that he stood

12 “in solidarity with those who grieve for the senseless death of George Floyd” and committed to

13 standing alongside “our black community and not just call out racism when we see it, but

14 meaningfully take a stand against it.”

15

119. In Portland, protests continued in June. The first few days of June were identified

16 as having the largest crowds of the Portland George Floyd protests, with numbers exceeding

17 10,000 people each day. During this time, a much smaller group of people engaged in significant

18 property damage and violence directed at police. Notwithstanding some criminal activity, the

19 majority of the protests remained peaceful, and toward the end of June, the scale of protests began

20 to decrease. The focal points of protests during June were the Justice Center (which houses the

21 Portland Police Bureau’s (“PPB’s”) Central Precinct and primary offices, as well as the

22 Multnomah County Detention Center) and other PPB and Multnomah County buildings. At times

23 these protests occurred at or near the Hatfield Federal Courthouse, which is across the street from

24 Justice Center.

25

120. Portland was not alone in experiencing protests, nor alone in experiencing major or

26 minor threats to federal property. According to FPS officials, between May 28, 2020 and June 10,

27 2020, FPS responded to “168 protests and more than 168 attacks at federal facilities,” including in

28

- 22 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 23 of 66

1 places ranging from Concord, New Hampshire to Dallas, Texas to Fort Lauderdale, Florida to

2 Phoenix, Arizona.

3

121. Further, FPS officials reported that, in that timeframe, “133 Federal facilities . . .

4 sustained vandalism/damage,” including in Dallas, where “FPS Officers discovered what appears

5 to be bullet holes in windows on floors 9-13 at the Earl[e] Cabel[l] Federal Building and US

6 Courthouse.” In other communications, FPS officials reported vandalism, graffiti, damage, and

7 broken windows at the U.S. Courthouse in Las Vegas, as well as multiple threats to the Richmond

8 Federal Courthouse in Richmond, Virginia, including vandalism from spray paint and individuals

9 discussing “burning down” the courthouse.

10

122. Yet despite those significant threats and actual damage to federal property, most of

11 those cities were not subject to direct threats of intervention by President Trump, and only

12 progressive cities like Portland were subject to deployments under the Policy.

13

123. At this time, President Trump continued his past practice of frequent and repeated

14 threats to deploy uninvited federal law enforcement and/or military power to progressive cities.

15

124. Protests continued nationally throughout June 2020, along with the President’s

16 threatening rhetoric.

17 President Trump Responds to Protests and Issues the Executive Order; Defendants Institute the Policy
18

19

125. On May 29, 2020, three days after protests began in Minneapolis in response to the

20 killing of George Floyd, President Trump threatened unilateral intervention and stated: “Either the

21 very weak Radical Left Mayor, Jacob Frey, get his act together and bring the City under control,

22 or I will send in the National Guard & get the job done right.”

23

126. Three days later, during an address to the nation on June 1, 2020, President Trump

24 stated: “I am your President of law and order . . . . If a city or a state refuses to take the actions that

25 are necessary to defend the life and property of their residents, then I will deploy the United States

26 military and quickly solve the problem for them.”

27

127. After the speech, federal law enforcement and the D.C. National Guard forcibly

28 removed thousands of peaceful protesters from Lafayette Square Park with pepper-spray balls,
- 23 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 24 of 66

1 smoke canisters, flash-bang grenades, shields, and horses. After the protesters were cleared,

2 President Trump, then-Attorney General William Barr, then-Secretary of Defense Mark Esper, and

3 others walked from the White House through Lafayette Square for a photo opportunity at St. John’s

4 Episcopal Church.

5

128. On June 5, 2020, President Trump criticized Washington, D.C. Mayor Muriel

6 Bowser for her city’s treatment of protesters. President Trump called the mayor “grossly

7 incompetent, and in no way qualified to be running an important city like Washington, D.C. If the

8 great men and women of the National Guard didn’t step forward, she would have looked no better

9 than her counterpart Mayor in Minneapolis!”

10

129. On June 11, 2020, President Trump set his sights on Seattle, Washington where

11 protests were ongoing. President Trump criticized both Governor Jay Inslee as well as Mayor

12 Jenny Durkan: “[They] are being taunted and played at a level that our great Country has never

13 seen before. Take back your city NOW. If you don’t do it, I will. This is not a game. These ugly

14 Anarchists must be stopped IMMEDIATELY. MOVE FAST!”

15

130. One day later, President Trump attempted to increase the pressure by stating:

16 “These Liberal Dems don’t have a clue. The terrorists burn and pillage our cities, and they think it

17 is just wonderful, even the death. Must end this Seattle takeover now!”

18

131. Repeatedly and with great frequency during the month of June 2020, President

19 Trump expressed disapproval about the response of local officials in Democratic-run cities to

20 Black Lives Matter protests following the killing of George Floyd. President Trump sought to

21 portray the largely peaceful protests as violent and dangerous and to characterize the cities’

22 response as weak and inadequate.

23

132. On information and belief, despite President Trump’s rhetoric and the rhetoric of

24 others in his administration, at that time, there was no publicly available intelligence that there

25 were credible and uniquely serious threats to federal property in any of the jurisdictions named by

26 the President, nor were there any media or other reports of such intelligence or threats. Instead, as

27 detailed above, numerous federal facilities in other cities were threatened or damaged in May and

28 June 2020.

- 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 25 of 66

1

133. President Trump’s repeated public statements were part of the pretext for the

2 issuance of Executive Order 13,933 and Defendants’ actions that followed.

3

134. Also during the month of June, President Trump expressed significant concern

4 about progressive efforts to tear down and/or remove statutes and memorials dedicated to the racist

5 and violent legacy of the Confederacy.

6

135. On June 24, 2020, the White House issued an official statement that: “We must

7 build upon our heritage—not tear it down.” One day later, President Trump added: “Very sad to

8 see States allowing roving gangs of wise guys, anarchists & looters, many of them having no idea

9 what they are doing, indiscriminately ripping down our statues and monuments to the past. Some

10 are great works of art, but all represent our History & Heritage.”

11

136. None of the statues, memorials, or monuments referenced in these and other

12 statements by the President or the White House were on federal property as defined by 40 U.S.C.

13 § 1315.

14

137. On June 26, 2020, President Trump signed Executive Order 13,933, entitled

15 Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal

16 Violence.

17

138. The Executive Order announced that the federal government would: (a) prosecute

18 anyone vandalizing or desecrating public monuments, memorials, and statues; government

19 property; or religious property; (b) prosecute anyone inciting related violence; and (c) withhold

20 federal support from local and state governments that failed to protect such structures from

21 vandalism.

22

139. The Executive Order further stated that if the Secretary of the Interior, the Secretary

23 of Homeland Security, or the Administrator of General Services requested federal personnel “to

24 assist with the protection of Federal monuments, memorials, statues, or property,” they “shall” be

25 provided by the Department of Defense, DOJ, and/or DHS.

26

140. Defendants rapidly began to implement this Executive Order, consistent with

27 President Trump’s motivation of quelling Black Lives Matter protests, targeting Democratic cities,

28

- 25 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 26 of 66

1 and establishing broad federal police presence in certain cities. These actions were taken pursuant

2 to the Policy and are further evidence of the existence of the Policy.

3

141. First, on or around June 30, then-Acting Secretary of Homeland Security Chad

4 Wolf (acting without proper authority) issued a memorandum to CBP, ICE, the Transportation

5 Security Administration (“TSA”), Secret Service, FPS, I&A, and other subcomponents of DHS

6 entitled “DHS Support to Protect Federal Facilities and Property,” in which Mr. Wolf stated that

7 his memo and other actions were “in furtherance of” the Executive Order, and that DHS was

8 coordinating with Defendant DOJ as well as the Department of the Interior “to establish

9 information/intelligence sharing and resource coordination.”

10

142. In that memorandum, Mr. Wolf also announced the formal formation of PACT

11 within DHS. PACT was charged with “conduct[ing] ongoing assessments of potential civil unrest

12 or destruction and allocat[ing] resources to protect people and property,” including “potential surge

13 activity to ensure the continuing protection of critical locations.”

14

143. Second, on or around July 1, 2020, leadership (the Office of the Executive

15 Secretariat) of FPS, a subcomponent of DHS, circulated a draft Education and Training Bulletin,

16 ETB 20-0004, to the DHS Office of General Counsel (“OGC”) and the Office of Operations

17 Coordination, requesting comments and “clearance” (i.e., high-level government approval) of the

18 document. The contents of ETB 20-0004 are unknown, but its existence was revealed in response

19 to a Freedom of Information Act (“FOIA”) request for documents, including those created by

20 Defendant DHS in response to the Executive Order.

21

144. Third, and potentially as an element or component of ETB 20-0004, Defendants

22 began changing or continuing to change guidance regarding the lawful scope of federal activity

23 under 40 U.S.C. § 1315. Rather than limiting federal involvement under that statute to federal laws

24 or property, Defendants expanded the ability of federal agents to address threats to any public

25 monument, memorial, or statue, regardless of its federal nature.

26

145. As another example, a July 2020 leaked, unclassified document entitled “Job Aid:

27 DHS Office of Intelligence & Analysis (I&A) Activities in Furtherance of Protecting American

28 Monuments, Memorials, Statues, and Combatting Recent Criminal Violence” (“Job Aid”) shows

- 26 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 27 of 66

1 that parts of the Defendants’ intelligence community were now authorized to monitor and collect

2 information regarding protest activities beyond suspected or planned attacks on federal facilities,

3 including threats to damage or destroy any public monument, memorial, or statue.

4

146. The “Job Aid” was intended to “expand[] intelligence activities necessary to

5 mitigate the significant threat to homeland security articulated in the President’s executive order

6 of June 26, 2020.”

7

147. At this time, emails produced in response to FOIA requests to Defendants show

8 that FPS developed a “priority list of at-risk federal facilities, monuments and statues,” a list it

9 began or continued to refine under the Policy.

10

148. At this time, DHS also began to develop rationales and justifications for the Policy.

11 For instance, a Senior Legislative Affairs Advisor in Defendant DHS’ Office of Legislative Affairs

12 (“OLA”) communicated to their OGC that someone(s) “will have questions on authorities”

13 regarding FPS’ role in effectuating the Executive Order. Another member of the OLA team

14 requested that a DHS official responsible for coordinating with Congress “be alerted” “when 40

15 U.S.C. § 1315 is being used in the protection of monuments, statues, etc.,” a request framed as

16 necessary “given Members [of Congress] will likely have questions.” Such requests suggest that

17 invocation of 40 U.S.C. § 1315 for this purpose was atypical or new.

18

149. Finally, Defendants began deploying, cross-designating, and/or commanding

19 federal law enforcement agents pursuant to the Executive Order and the Policy.

20

150. Specifically, Mr. Wolf announced the deployment and pre-position of Rapid

21 Deployment Teams across the country ahead of the July 4th holiday. Mr. Wolf stated that PACT

22 would not “stand idly by while violent anarchists and rioters seek not only to vandalize and destroy

23 the symbols of our nation, but to disrupt law and order and sow chaos in our communities.”

24

151. Defendants DHS and DOJ engaged in extensive communication, planning, requests

25 for guidance, and other activity regarding deployments under the Policy, including possible

26 deployments to several cities, as well as discussion of protecting various monuments in those

27 locations.

28

- 27 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 28 of 66

1 Deployment and Other Activities in Portland

2

152. The following recitations are merely limited examples of why the Policy and/or

3 specific acts in furtherance of the Policy constitute final agency action under which rights and

4 obligations have been determined and from which legal consequences have flowed.

5

153. It is unclear how many deployments of federal agents were made pursuant to the

6 Policy. In addition to the deployment to Portland described below, Defendants sent personnel to

7 Seattle in advance of the July 4th holiday as well.

8

154. In the days before Defendants deployed federal personnel to Portland, the crowds

9 attending demonstrations had shrunk. By early July 2020, only about 150 people could be seen

10 gathering in downtown Portland on any given night.

11

155. On or about July 2, 2020, Mr. Wolf ordered the deployment of DHS, USMS, U.S.

12 Customs and Border Protection (“CBP”), and the FPS to Portland in response to civil protests as

13 part of Operation Diligent Valor.

14

156. Mr. Wolf purportedly designated approximately 114 ICE and CBP agents as FPS

15 agents for purposes of Operation Diligent Valor

16

157. Defendants did not seek Portland’s consent. Defendants did not act at the direction

17 of PPB incident command that had been policing nightly protests for over a month.

18

158. The federal forces deployed to Portland from CBP included members of BORTAC,

19 a paramilitary unit of the United States Border Patrol. BORTAC troops wear military-type

20 uniforms and armament, are trained for tactical raids on organized gangs smuggling persons or

21 drugs into the United States, and have in the past been deployed to such places as Afghanistan and

22 Iraq.

23

159. On information and belief, BORTAC troops have no training in civilian crowd

24 control or protection of First Amendment activities.

25

160. Through Operation Diligent Valor, Defendants sent teams of agents—untrained in

26 crowd control and wearing military fatigues—onto Portland’s streets. Their uniforms bore no

27 governmental, administrative or personal names, just the word “police” in tape. Federal agents

28 used tactics and munitions that escalated violence in Portland.

- 28 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 29 of 66

1

161. On or about July 11, 2020, federal agents allegedly fired impact munitions into an

2 unarmed crowd. One of the bullets struck a protester and fractured his skull.

3

162. Starting on or about July 14, 2020, federal agents drove around Portland in

4 unmarked vans and detained individuals associated with the protests. Federal agents were

5 patrolling and detaining individuals far beyond the immediate vicinity of the federal courthouse.

6 Agents allegedly seized at least one individual who was more than two blocks from the courthouse

7 and not engaged in any activity related to federal property.

8

163. Upon information and belief, federal agents seized multiple protesters and held

9 them for hours before releasing them for lack of probable cause. The federal agents gave no

10 justification for why they detained particular residents, searched their belongings, and placed

11 residents in cells for hours before reading them their Miranda rights.

12

164. Far from imposing peace in the City’s streets, the tactics and munitions used by

13 federal agents antagonized demonstrators, escalated the protests, and caused further unrest.

14

165. On July 22, 2020, federal agents fired tear gas into a crowd that included Portland

15 Mayor Wheeler.

16

166. Later reports of internal DHS documents showed that the DHS’ Office of

17 Intelligence Analysis also collected and analyzed messages between protesters in Portland,

18 specifically surveilling protesters’ communications via the Telegram messaging app, discussing

19 where to take the protests and how to avoid officers. The purpose of this monitoring is still

20 unknown. It is also unknown whether the surveillance was limited to the protection of federal

21 property or gathered on federal property.

22

167. On July 29, 2020, Governor Brown reached a negotiated agreement with the federal

23 government. Defendants agreed to withdraw federal agents from Portland with assurance that

24 Oregon State Police would take on additional duties guarding the safety of the federal courthouse

25 in Portland.

26

168. According to a November 2, 2020 report from the Office of the Inspector General

27 of DHS (“OIG”), the Director of FPS issued memoranda in June and July 2020 that sought to

28

- 29 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 30 of 66

1 designate personnel from CBP, ICE, TSA, and Secret Service, pursuant to 40 U.S.C. § 1315(b)(1),

2 including to Portland.

3

169. Those memoranda which sought to cross-designate federal agents to exercise

4 authority under 40 U.S.C. § 1315 failed to specifically name the agents being so designated and

5 failed to comply with the requirements of the statute. As a result of that shortcoming, the OIG

6 could not confirm that all federal agents deployed pursuant to 40 U.S.C. § 1315 had received

7 training about the scope of the statute.

8

170. Such training and instruction were necessary for many of these cross-designated

9 agents because “[l]aw enforcement officers from CBP, ICE, TSA, and Secret Service typically

10 lack this precise scope of authority.” Some of these agents, the OIG concluded, used force during

11 their deployment to Portland.

12

171. Such findings from the OIG contravene Defendants’ statements provided to

13 Congress in mid-2020 in a document entitled “Responses to the House Appropriations Committee

14 Staff Questions Regarding the DHS Protecting American Communities Task Force (PACT),”

15 which includes the statement that “[t]he [rapid deployment] teams consist of personnel who have

16 requisite training to support security operations and respond to civil disturbances.”

17

172. In sum, in furtherance of Executive Order 13,933 and at the direction of President

18 Trump, Defendants established the Policy to police and suppress certain viewpoints, including

19 support of the Black Lives Matter movement, through a number of means including those

20 described above, all under the guise of protecting federal property.

21

173. U.S. Marshals Service officers were also present in Portland, operating side-by-side

22 with DHS agents. Upon information and belief, then-Attorney General William Barr, acting in his

23 official capacity, directed USMS agents to follow the Policy.

24 Justifications for the Policy Are Pretextual

25

174. The purported purpose of the Portland deployment described above, an example of

26 an act taken in furtherance of the Policy, was to protect federal property that had been vandalized

27 or threatened during protests.

28

- 30 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 31 of 66

1

175. Anonymous statements from White House Officials, however, indicate such

2 purpose was mere pretext. The sources alleged that President Trump became interested in federal

3 operations against protesters in Portland as a way to convey a “law-and-order message” and to

4 “amplify strife in cities.”

5

176. As stated above, DHS has cited 40 U.S.C. § 1315 as the legal basis for Operation

6 Diligent Valor and the general practice of deploying federal agents to Portland and other locations,

7 despite the observed scope and operations of agents being well beyond the purpose or function of

8 protecting federal property or persons.

9

177. The U.S. Crisis Monitor found that prior to that deployment, “over 83% of

10 demonstrations in Oregon were non-violent. Post-deployment, the percentage of violent

11 demonstrations [rose] from under 17% to over 42% [in Oregon], suggesting that the

12 federal response has only aggravated unrest.”

13

178. Despite statements justifying deployments as responses to crime or “anarchy,”

14 crime rates in Plaintiffs’ communities have been decreasing overall; neither city is in the list of top

15 10 United States cities with the largest number of violent crimes per 100,000 residents. Moreover,

16 Plaintiffs’ crime rates do not differ dramatically from those in other, Republican-run cities. For

17 example, violent crime rates in Fresno, Jacksonville, Oklahoma City, and Tulsa—cities with

18 Republican mayors—far exceed the violent crime rates in Portland. These cities also have murder

19 rates at twice that of Portland.

20

179. As stated above, Portland was also not alone in experiencing threats or harm to

21 federal property. Instead, per FPS officials, at least 168 federal facilities contemporaneously

22 experienced threats or harm, including in places such as Dallas, Richmond, and Phoenix. Some of

23 those threats were serious, such as threats to burn down a federal courthouse. Yet Portland, not

24 Dallas, Phoenix, Richmond, or other such cities, was a key city targeted for deployments under

25 the Policy.

26

180. A comprehensive review by the Armed Conflict Location and Event Data

27 (“ACLED”) Project and the Princeton University Bridging Divides Initiative underscores the

28 overall peaceful nature of the social justice-related protests in summer 2020. Between May 25,

- 31 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 32 of 66

1 2020, and August 22, 2020, there were 7,750 Black Lives Matter-related demonstrations in 2,440

2 locations in all 50 states and Washington, D.C. Overall, in summer 2020, there were at least 10,600

3 demonstrations across the United States. Of those, more than 93% involved only peaceful protests.

4 And according to ACLED, violence occurred at around 220 locations.

5

181. President Trump and Defendants have repeatedly made public comments revealing

6 that the officially stated goal of operations such as those in Portland was not protecting federal

7 property. Instead, their statements suggest that the animating and invidious purpose for these

8 actions—that is, for the Policy—is to punish progressive cities and leaders and violently quell the

9 exercise of constitutionally protected activity. Specifically, the President’s, Defendants’, and

10 Policy’s purpose is to further the view that diverse and/or progressive cities and their leaders, as

11 well as movements for racial justice and police reform, are dangerous and should be suppressed.

12

182. At a White House event on July 13, 2020, President Trump claimed that “[f]ar-left

13 mayors are escalating the anti-cop crusade, and violent crime is spiraling in their cities.” He

14 pledged to be “very strong on law enforcement” by sending federal officers to “liberally run”

15 jurisdictions—“even if we have to go in and take over cities.”

16

183. President Trump admitted that federal agents were deployed to Portland

17 specifically to quell protests: “We’ve done a great job in Portland. Portland was totally out of

18 control, and they went in and, I guess, we have many people right now in jail. And we very much

19 quelled it. And if it starts again, we’ll quell it again very easily. It’s not hard to do, if you know

20 what you’re doing.”

21

184. President Trump has also repeatedly falsely characterized the protesters as violent

22 and dangerous. He stated that the goal was to “clean out this beehive of terrorists.” President Trump

23 also stated that protesters are “anarchists” who “hate our country.”

24

185. In addition, Mr. Wolf affirmed that actions taken under the Policy were without

25 other governments’ consent, asserting: “The city of Portland has been under siege for 47 straight

26 days by a violent mob while local political leaders refuse to restore order to protect their city . . . .

27 I reiterate the Department’s offer to assist local and state leaders to bring an end to the violence

28 perpetuated by anarchists.”

- 32 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 33 of 66

1

186. Local and state leaders did not accept that offer.

2

187. Local and state officials have repeatedly and vehemently stated their opposition to

3 the federal deployment in Portland. Oregon Attorney General Ellen Rosenblum filed a lawsuit

4 against the federal government to stop its deployment and tactics. Oregon Governor Brown stated:

5 “This political theater from President Trump has nothing to do with public safety. The President

6 is failing to lead this nation. Now he is deploying federal officers to patrol the streets of Portland

7 in a blatant abuse of power by the federal government.”

8

188. From the outset, the City of Portland expressed its opposition to the deployment of

9 federal agents under Operation Diligent Valor without its consent.

10

189. Only a few days after the federal agents were deployed, on July 8, 2020, Portland’s

11 Deputy Police Chief Chris Davis made a public statement that the presence of federal agents, who

12 are “governed by their own policies and procedures,” only “complicates things” for PPB.

13

190. On July 19, 2020, Mayor Wheeler stated the following:

14

What’s happening here is, we have dozens, if not hundreds of federal troops

descending upon our city. And what they’re doing is, they are sharply escalating the

15

situation . . . our local and state law enforcement officials had contained the situation

16

. . . The tactics that the Trump administration are using on the streets of Portland are abhorrent . . . this is completely unconstitutional.

17

18

191. In response to the tactics and munitions used by federal agents, and consequent

19 public outcry, on July 22, 2020, Portland’s City Council adopted Resolution 37496, which

20 prohibits PPB cooperation with any federal agents deployed to Portland under an executive order.

21 In response to Defendants’ actions under the Policy, on July 28, 2020, Oakland’s City Council

22 adopted Resolution No. 88276 (“Directing And Authorizing The City Attorney And The City

23 Administrator To Take Any And All Lawful Necessary Steps To Protect The Rights Of The People

24 And The City Of Oakland Against President Trump’s Threats To Take Actions That Result In

25 Harm To The People Of Oakland Or The City Of Oakland, And Against Any Related Actions

26 Federal Officers Take That Result In Harm To The People Of Oakland Or The City Of Oakland”).

27

192. The actions taken by Defendants in Portland under the Policy were not taken

28 pursuant to any known lawful federal authority.

- 33 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 34 of 66

1

193. Further, as described above, Defendants’ failure to respond to the clear, imminent,

2 extensive, and serious threats to Washington, D.C. on or around January 6, 2021, suggest that mere

3 protection of federal property cannot be the justification for the Policy: if it were, Defendants

4 would have responded in some significant fashion based on threats known beforehand by

5 Defendants and other federal agencies and reportedly described by the Federal Bureau of

6 Investigation (“FBI”), a subcomponent of Defendant DOJ, as individuals preparing for “war.”

7 These are threats that Defendants and other federal agencies were well aware of before the January

8 6 attack.

9

194. Upon information and belief, the administrative record will reveal that Defendants’

10 explanation of agency action is incongruent with Defendants’ nonpublic positions and

11 explanations.

12 Plaintiffs Remain at Risk Under the Policy

13

195. Rather than retreat from the activities in Portland, Defendants expressed an intent

14 to expand the presence of federal law enforcement throughout the United States.

15

196. President Trump indicated that, under the Policy, Defendants would continue to

16 target cities he views as progressive, stating in early September: “They’ll make every city look

17 like frankly, a Portland, or you look at other Democrat-run cities. Look at what’s happened in New

18 York, as high as 300% increase in crime. Chicago, Baltimore, take a look at Oakland. All

19 Democrat-run top 10 cities in the country and long beyond that, all Democrat-run.”

20

197. As recently as September 21, 2020, President Trump continued to propagate

21 disinformation about Plaintiffs. He stated: “What they’re talking about, you look at Portland, you

22 look at Chicago, you look at New York, you look at Baltimore and Oakland and all—these are

23 Democrat-run cities that are horrible on crime, there’s no law and order, no cash bail, no anything.”

24

198. Though most federal agents were temporarily pulled out of Portland, President

25 Trump threatened that they could return at any time. President Trump also has stated the federal

26 government would further escalate any conflict if local law enforcement does not rein in

27 “anarchists and agitators.” He has consistently stated that he will not hesitate to send in federal

28 authorities if the local government could not stop “crime and violence” from breaking out.

- 34 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 35 of 66

1

199. President Trump’s threats and warnings were not limited to federal property. He

2 announced a plan to send law enforcement to polling places on election day, stating: “We’re going

3 to have sheriffs, and we’re going to have law enforcement. And we’re going to have hopefully

4 U.S. attorneys, and we’re going to have everybody and attorney generals.”

5

200. President Trump’s provocations continued throughout the remainder of his

6 administration. He issued a memorandum purporting to direct Defendants to review federal

7 funding provided to “anarchist” cities, including Portland, and to withdraw such funding to punish

8 these cities.

9

201. Defendants continue to take unlawful actions under the Policy. For instance, FPS

10 erected and refused to remove a fence and barriers around the Hatfield Federal Courthouse in

11 Portland, which are in the City-controlled public right-of-way. The fence and barriers, which

12 extended into adjacent Main Street, effectively blocked an entire bike lane without Portland’s

13 permission. The fence and barriers also extended onto Third Avenue and effectively blocked

14 vehicular travel in one lane.

15

202. The only statutory authority FPS has offered to Portland to justify the fence is 40

16 U.S.C. § 1315.

17

203. The fence was first erected by FPS on July 18, 2020. According to a statement

18 from U.S. Attorney Billy J. Williams, the federal government’s stated purpose of the fence was

19 “to de-escalate tensions between protesters and federal law enforcement officers, and to allow

20 much-needed building repairs to begin.”

21

204. The fence is not on federal property, and FPS did not seek permission before

22 erecting the fence. In order to lawfully erect the fence, Portland City Code Chapter 17.24 requires

23 a permit to be obtained from the Portland Bureau of Transportation (“PBOT”). FPS obtained no

24 such permit.

25

205. Portland has asked FPS multiple times to move its fence out of the right-of-way

26 and onto the sidewalk adjacent to the Courthouse. FPS has not yet done so and has taken the

27 position that they are permitted to install the fence and associated barriers pursuant to 40 U.S.C.

28 § 1315.

- 35 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 36 of 66

1

206. In an October 7, 2020 email to Portland officials, FPS indicated its contractor had

2 moved the fence to allow access to the storm drain and expected to move the fence back from the

3 bike lane “in the next few weeks.” This is merely the latest assurance by FPS that it will move its

4 fence.

5

207. Portland has implored FPS to remove the fence from the City-controlled right-of-

6 way for six months. While FPS has removed the fence from the right-of-way on certain streets, as

7 of January 19, 2021, the fence continues to block the public right-of-way on SW 3rd Avenue.

8

208. Upon information and belief, Defendants either continue to have a presence in

9 Portland or could be deployed to Portland on short notice, and there is a continued dispute

10 regarding the scope of their authority under 40 U.S.C. § 1315, including the ability to unilaterally

11 take over City-controlled or -owned property under a pretext of securing federal property.

12 President Trump’s Incitement, Riot at U.S. Capitol, and Ongoing Threats to U.S. Cities

13

209. Following the Presidential election on November 3, 2020, President Trump began

14 an unprecedented and dangerous attempt to overturn the outcome of the election through a variety

15 of means, including the incitement of violence at the U.S. Capitol.

16

210. President Trump repeatedly stated that he had won in a landslide, that there was

17 massive voter fraud, and that the results could not be trusted. He directed the DOJ to investigate

18 allegations of voter fraud, even though there were no substantiated claims, and authorized his

19 private legal team to file dozens of frivolous lawsuits around the country, virtually all of which

20 were completely unsuccessful.

21

211. President Trump also explored other efforts to pressure election officials and others

22 to overturn the election results. Those attempts included a lengthy January 2, 2021 telephone call

23 to the Georgia Secretary of State, where President Trump asked the Secretary to “find” enough

24 votes to overturn the election results.

25

212. President Trump also focused his efforts on the certification of the Electoral

26 College vote during a joint session of Congress on January 6, 2021. In advance, President Trump

27 promoted a rally among his supporters: “Come to D.C. January 6th to ‘StopTheSteal.’”

28

- 36 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 37 of 66

1

213. On January 1, 2021, President Trump tweeted: “The BIG Protest Rally in

2 Washington, D.C. will take place at 11:00 A.M. on January 6th. Locational details to follow.

3 StopTheSteal!” He also confirmed that he would be in attendance.

4

214. Bolstered by President Trump’s invitation as well as continued allegations of

5 election fraud, thousands of supporters of President Trump traveled to and assembled in

6 Washington, D.C. on January 6. Many came with firearms, weapons, body armor, and/or other

7 devices with the intention to cause damage to property, overcome federal law enforcement, and

8 breach the U.S. Capitol. The FBI and other federal agencies issued nonpublic warnings prior to

9 January 6 that these activities posed significant and serious threats to Washington, D.C., which

10 contains large swathes of federal property under Defendants’ protection under the auspices of 40

11 U.S.C. § 1315.

12

215. During the January 6 rally, President Trump’s personal lawyer, Rudolph Giuliani

13 urged the crowd to engage in “trial by combat” while President Trump’s son Donald, Jr. warned

14 unsupportive members of Congress “we’re coming for you.”

15

216. While on stage at the rally, President Trump falsely insisted that Democrats had

16 “stolen” the election, and that his supporters instead should “fight much harder” to “stop the steal”

17 and “take back our country” at the Capitol. President Trump also falsely asserted that Vice

18 President Mike Pence had the authority to reject the results of the Electoral College.

19

217. At the conclusion of the rally at the Ellipse near the White House, and following

20 the direction of President Trump, the agitated crowd of violent supporters marched to the U.S.

21 Capitol and breached the security perimeter, gained entry to the building, and interrupted the joint

22 session for several hours.

23

218. In addition, extremists placed several improvised explosive devices in other

24 locations in Washington, D.C., including at the headquarters of both the Democratic National

25 Committee and Republican National Committee.

26

219. A massive law enforcement effort is underway to identify, locate, and charge

27 hundreds of individuals for the myriad crimes committed in connection with the threats to and

28 violence in Washington, D.C., including the breach of the U.S. Capitol.

- 37 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 38 of 66

1

220. Many components of law enforcement had intelligence that President Trump’s

2 supporters were planning to engage in violent acts in advance of January 6. For example, the New

3 York Police Department sent a packet of material to Capitol Police and the FBI including raw

4 intelligence data, which indicated that there would likely be violence at the Capitol. In addition,

5 the FBI’s Norfolk, Virginia Field Office found specific threats against members of Congress, an

6 exchange of maps of the tunnel system under the Capitol complex, and gathering places in

7 Kentucky, Pennsylvania, and South Carolina where extremists were meeting before convoying up

8 to Washington, D.C. Other federal law enforcement agencies reported on numerous plans to gather

9 and commit violent acts in various locations in Washington, D.C.

10

221. In addition, many of the most extreme and violent organizers discussed their plans

11 in the open through the use of social media and other online forums.

12

222. Despite all of the information gathered and all of the reasons to believe that events

13 at and around the U.S. Capitol on January 6 were likely to include violence, federal officials were

14 not sufficiently prepared for the violence of the pro-Trump mob.

15

223. In contrast to efforts in Washington, D.C. in June 2020 or in Portland in July 2020,

16 federal officials did not prepare for or arrive at the scene of potentially threatened federal property

17 equipped to deploy an aggressive display of force.

18

224. In contrast to its efforts in Portland during the summer of 2020, on information and

19 belief, DHS’s Office of Intelligence and Analysis did not produce any threat assessment about the

20 possibility of violence on January 6 at the U.S. Capitol, though some attackers used the same

21 messaging platform, Telegram, that was allegedly used by protesters in Portland and was allegedly

22 the subject of the surveillance described by I&A.

23

225. Some others in federal law enforcement have speculated that DHS did not produce

24 a bulletin out of concern that doing so might run afoul of First Amendment free speech protections

25 that allow people to protest and assemble peacefully. Such considerations were not similarly made

26 in 2020 for protesters expressing support for Black Lives Matter.

27

28

- 38 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 39 of 66

1

226. Upon information and belief, Defendants did not deploy or cross-designate agents

2 pursuant to the Policy for January 6. Washington, D.C. is home to extensive amounts of federal

3 property covered by 40 U.S.C. § 1315.

4

227. After the January 6 attack, in advance of Inauguration Day, federal agencies warned

5 cities across the country about the possibility of further violence. For example, the FBI stood up a

6 command post in Portland in anticipation of violent activities by right-wing groups and supporters

7 of President Trump.

8

228. Plaintiffs have expended considerable resources planning for potential unrest.

9

229. Because of Defendants inconsistent treatment of the mostly peaceful Black Lives

10 Matter protesters of the summer of 2020 as compared to the pro-Trump violent mob on January 6,

11 Plaintiffs have continued uncertainty about the degree to which they may expect future federal

12 intervention should unrest unfold in their cities, and the terms under which such intervention would

13 occur.

14 Mr. Wolf Was Unlawfully Acting as Secretary of Homeland Security, and Any Aspects of the Policy Promulgated or Implemented Under His Purported Authority Must Be Set Aside
15

16

230. Federal service for positions which require Presidential appointment and Senate

17 confirmation is governed by the Appointments Clause, U.S. Const. art. 2, § 2, cl. 2, and, among

18 other statutes, the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345 et seq. When such

19 a position becomes vacant, the FVRA sets default rules for who may serve as an acting official

20 until an appointed nominee can be confirmed. Id. § 3345.

21

231. However, these default rules do not apply if an agency-specific statute expressly

22 designates who can serve in an acting capacity to lead the agency. Id. § 3347(a)(1)(B); 6 U.S.C. §

23 113(a)(1)(A), (g).

24

232. The Homeland Security Act (“HSA”) is one such statute: in 6 U.S.C. § 113(g), the

25 statute sets forth the agency-specific rules for filling vacancies and for succession.

26

233. Subsection (g)(1) of that statute has limits: it only explicitly states the order of

27 succession through three roles (the Secretary, followed by the Deputy Secretary, followed by the

28 Under Secretary for Management). 6 U.S.C. § 113(g)(1).

- 39 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 40 of 66

1

234. To establish a further order of succession beyond those three roles, “the Secretary

2 may designate such other officers of the Department in further order of succession to serve as

3 Acting Secretary.” Id. at (g)(2). Such further designation is explicitly contemplated in the FVRA.

4 5 U.S.C. § 3347(a)(1)(A).

5

235. In the past, DHS Secretaries have exercised this authority to record orders of

6 succession. These lawful orders are broadly contained in DHS Orders of Succession and

7 Delegation of Authorities for Named Positions, Dep’t of Homeland Sec., Delegation No. 00106,

8 Revision No. 08.5 (Dec. 15, 2016) (“DHS Orders”).

9

236. From 2016 into 2019, the DHS Orders stated, “In case of the Secretary’s death,

10 resignation, or inability to perform the functions of the Office, the orderly succession of officials

11 is governed by Executive Order 13,753, amended on December 9, 2016.”

12

237. Executive Order 13,753 (“E.O. 13,753”) set the following order of succession: (1)

13 Deputy Secretary; (2) Under Secretary for Management; (3) Administrator of the Federal

14 Emergency Management Agency (“FEMA”); (4) Under Secretary for National Protection and

15 Programs (which was renamed the Director of the Cybersecurity and Infrastructure Security

16 Agency in 2018); (5) Under Secretary for Science and Technology; (6) Under Secretary for

17 Intelligence and Analysis; (6) Commissioner of the U.S. Customs and Border Protection; and so

18 on.

19

238. In the same timeframe, the DHS Orders also included an “Annex A,” an order of

20 temporary succession “in the event [the Secretary is] unavailable to act during a disaster or

21 catastrophic emergency. DHS Orders at § II.B. Annex A, by its own terms, solely applied

22 unavailability during disasters or emergencies.

23

239. As the last Senate-confirmed DHS Secretary, Kirstjen Nielsen, prepared to resign

24 on April 10, 2019, she issued a new version of Annex A, purporting to revise the order of

25 delegation of authority in that Annex.

26

240. Again, by its own terms, this version of Annex A applied only to temporary

27 unavailability during a disaster or emergency. It did not purport to apply to the order of succession

28 in the case of resignation: that order was still governed by E.O. 13,753.

- 40 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 41 of 66

1

241. Despite this, after Secretary Nielsen’s resignation, CBP Commissioner Kevin

2 McAleenan purported to serve as Acting Secretary, skipping two other Senate-confirmed

3 individuals in the lawful line of succession.

4

242. Mr. McAleenan’s purported succession was unlawful under the HSA and its related

5 orders.

6

243. Nevertheless, on November 8, 2019, Mr. McAleenan purported to revise the DHS

7 Orders, attempting to (a) wholly replace E.O. 13,753’s order of succession with Annex A and (b)

8 change the order of delegation of authority in Annex A.

9

244. Were Mr. McAleenan’s actions lawful, E.O. 13,753’s order of succession in the

10 event of resignation would be moot, and Annex A’s new order of delegation of authority would

11 govern both in the event of unavailability due to disaster or emergency and in the event of

12 resignation (or death or inability to perform the duties of the office).

13

245. Under the purported new DHS Orders incorporating the purported new Annex A,

14 Mr. McAleenan resigned, and Mr. Wolf, who was the Under Secretary for Strategy, Policy, and

15 Plans, assumed the position of Acting Secretary, his Under Secretary role having been purportedly

16 pushed up the line of delegation of authority by Mr. McAleenan’s November 8, 2019 action.

17

246. But Mr. Wolf was not lawfully serving in that role. Mr. McAleenan invalidly

18 amended the line of succession, as he was not serving lawfully in the first instance (having

19 unlawfully skipped two individuals in the line of lawfully promulgated succession under the

20 original DHS Orders and E.O. 13,753). Because Mr. McAleenan’s attempted amendments were

21 invalid, Mr. Wolf himself skipped an individual in the line of lawfully promulgated succession

22 under the original DHS Orders and E.O. 13,753.

23

247. As explained above, the HSA governs who may lawfully serve as acting secretary

24 of Homeland Security. However, the FVRA, not the HSA, defines when a “vacancy” occurs at

25 the principal officer level, and controls what happens during a vacancy. 5 U.S.C. §§ 3346, 3348.

26

248. Specifically, the FVRA states that acting officers may serve for no longer than

27 210 days starting the date the vacancy occurs or while the person’s nomination is pending in the

28

- 41 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 42 of 66

1 Senate, and that, after 210 days, unless there is someone lawfully in an acting role, the office

2 “shall remain vacant” until the president submits a nominee for that role. Id.

3

249. On or around April 10, 2019, Secretary Nielsen resigned. 210 days later, on

4 November 6, 2019, no one had been lawfully serving as acting secretary and the president had

5 not submitted a new nominee for the role. Nonetheless, Mr. Wolf took over that role.

6

250. Because he was not lawfully serving under either the FVRA or HSA, actions

7 taken by Mr. Wolf were “without force and effect.” 5 U.S.C. § 3348(d)(1). Actions promulgated

8 “without force and effect” “may not be ratified.” Id. § 3348(d)(2).

9

251. Mr. Wolf’s nomination to the role of DHS Secretary on September 10, 2020, did

10 not automatically cure or ratify his past actions.

11

252. At least six federal district courts agree, wholly or in part, and have set aside DHS

12 actions because Mr. McAleenan or Mr. Wolf (or both) unlawfully assumed the role of Acting DHS

13 Secretary. See, e.g., Pangea Legal Services v. U.S. Dept. of Homeland Security, et al., consolidated

14 with Immigration Equality v. U.S. Dept. of Homeland Security, et al., Nos. 20-CV-09253 and 20-

15 CV-09258 (N.D. Cal. Jan. 8, 2021); Batalla Vidal v. Wolf, No. 16CV4756NGGVMS, 2020 WL

16 6695076, at *9 (E.D.N.Y. Nov. 14, 2020); La Clinica de la Raza v. Trump, No. 19-CV-04980-

17 PJH, 2020 WL 6940934, at *14 (N.D. Cal. Nov. 25, 2020); Nw. Immigrant Rights Project v. United

18 States Citizenship & Immigration Servs., No. CV 19-3283, 2020 WL 5995206 at *17 (D.D.C. Oct.

19 8, 2020); Immigrant Legal Resource Ctr. v. Wolf, 2020 WL 5798269, at *9 (N.D. Cal. 2020); Casa

20 de Maryland, Inc. v. Wolf, 2020 WL 5500165, at *23 (D. Md. 2020). See also Bullock v. U.S.

21 Bureau of Land Mgmt., 2020 WL 5746836 (D. Mont. 2020) (holding that William Perry Pendley,

22 the person exercising authority of the Director of the Bureau of Land Management, served

23 unlawfully for 424 days and enjoining him from exercising that authority); L.M.-M., v. Cuccinelli,

24 442 F.Supp.3d 1, 29, 34 (D.D.C. 2020) (holding that Acting U.S. Citizenship and Immigration

25 Services (“USCIS”) Director Cuccinelli “was designated to serve as the acting Director of USCIS

26 in violation of the FVRA” and “because Cuccinelli was exercising the authority of the USCIS

27 Director in violation of the FVRA, the directives were not issued ‘in accordance with law,’ and

28 must, accordingly, be set aside under the APA”).

- 42 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 43 of 66

1

253. These FVRA and HSA lawsuits generally ask courts to set aside and/or enjoin

2 actions by officials acting unlawfully in federal agency roles, because those actions are “without

3 force and effect,” 5 U.S.C. § 3348(d)(1), “may not be ratified,” id. § 3348(d)(2), and were therefore

4 promulgated “in excess of statutory authority” and not “in accordance with law,” id. §§ 706(2)(C),

5 (2)(A).

6

254. In addition to court review of agency action, the U.S. Government Accountability

7 Office (“GAO”) likewise found Mr. Wolf to be acting ultra vires. Congress has delegated the GAO

8 to play a core role in FVRA compliance: namely, per the FVRA, the GAO must collect information

9 about vacancies, and if the GAO “makes a determination that an officer is serving longer than the

10 210-day period including the applicable exceptions to such period under section 3346 or section

11 3349a, the Comptroller General shall report such determination immediately” to various

12 authorities, including Congress. 5 U.S.C. § 3349.

13

255. On August 14, 2020, the GAO issued a report under its FVRA duties and authority,

14 entitled “Department of Homeland Security—Legality of Service of Acting Secretary of

15 Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of

16 Homeland Security.” In sum, the report finds that Acting Secretaries “Wolf and [Ken] Cuccinelli

17 were named to their respective positions of Acting Secretary and Senior Official Performing the

18 Duties of Deputy Secretary by reference to an invalid order of succession” and that “[b]ecause Mr.

19 Wolf draws his authority to serve as Acting Secretary from [an invalid] Delegation, Mr. Wolf

20 cannot, therefore, rely upon it to serve as the Acting Secretary.”

21

256. The GAO report also analyzed whether Mr. Wolf could be lawfully serving under

22 the succession provisions of the HSA and found that he could not.

23

257. Mr. Wolf has twice attempted to ratify his ultra vires actions as Acting DHS

24 Secretary. Neither attempt has cured his unlawful exercise of authority.

25

258. First, while Mr. Wolf was purportedly Acting DHS Secretary, then-FEMA

26 Administrator Peter Gaynor also used “any authority vested in [him] as Acting Secretary of

27 Homeland Security” to revise and/or ratify the actions by Mr. McAleenan to replace the original

28 DHS Orders with the new Orders overriding E.O. 13,753 with new Annex A (emphasis added).

- 43 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 44 of 66

1

259. One federal district court characterized the “two acting secretaries” maneuver as

2 the government’s attempt to “allow a government official to take administrative action in the

3 alternative,” further holding that “DHS cannot recognize [Mr. Gaynor’s] authority only for the

4 sham purpose of abdicating his authority to DHS’s preferred choice, and only in the alternative.”

5 Batalla, 2020 WL 6695076 at *9.

6

260. Later, Defendants abandoned the “two acting secretaries” theory and agreed that

7 FEMA Administrator Gaynor was “never” Acting DHS Secretary. Pangea Legal Services, 2021

8 WL 75756, at *5.

9

261. In addition to the “two acting secretaries” theory, DHS also attempted another form

10 of ratification that is of no legal consequence. In the past two weeks, Mr. Wolf has seen his

11 September 10, 2020 nomination for DHS Secretary withdrawn (January 7); resigned from the role

12 of Acting Secretary (January 11); returned to his prior position as Under Secretary for Strategy,

13 Policy, and Plans (January 11); allegedly been delegated the authority to ratify his own past actions

14 by the new Acting Secretary, FEMA Administrator Gaynor (January 12); and used this new

15 purported delegated authority to ratify “any and all prior regulatory actions involving delegable

16 duties that [he had] taken from November 13, 2019 through January 11, 2021” (Chad F. Wolf,

17 Signed Ratification of Delegable Prior Action as AS 01.13.21, U.S. Dept. of Homeland Security)

18 (January 14).

19

262. Courts do not have to accept at face value agencies’ blanket ratifications of past

20 actions. Instead, they examine whether “a properly appointed official has the power to conduct an

21 independent evaluation [of the past actions] of the merits and does so,” Wilkes-Barre Hospital

22 Company, LLC v. N.L.R.B., 857 F.3d 364, 371 (D.C. Cir. 2017) (citation omitted), and whether the

23 ratifier was exercising “independent judgment” in doing so, Jooce v. Food & Drug Admin., 2020

24 WL 680143, at *5 (D.D.C. Feb. 11, 2020), aff'd, 981 F.3d 26 (D.C. Cir. 2020).

25

263. It is unlikely, given the recitation of events above, that any properly appointed

26 official conducted an independent evaluation of past actions, or that any official who conducted

27 such an evaluation exercised independent judgment.

28

- 44 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 45 of 66

1

264. On information and belief, Mr. Wolf promulgated and/or implemented all, some,

2 or part of the Policy challenged in this lawsuit, and any aspects of the Policy promulgated and/or

3 implemented under his authority must be set aside and/or enjoined.

4

265. On information and belief, as of this filing, no lawfully acting Secretary of

5 Homeland Security has taken the necessary steps that could possibly serve to properly ratify the

6 Policy.

7 Related Practice of Unlawfully Commandeering Portland’s Law Enforcement Officers

8

266. In addition and related to the Policy, Defendants continue to engage in a related

9 Practice that also asserts authority not delegated to them under the Constitution or under other

10 legal authority.

11

267. On or about September 21, 2020, the City of Portland, Oregon State Police, and

12 several federal law enforcement agencies, including the USMS, began logistics planning for an

13 anticipated rally of the Proud Boys in Portland on Saturday, September 26, 2020.

14

268. The Proud Boys are an extremist pro-White hate group. Members of the Proud

15 Boys, which appeared at the 2017 “Unite the Right” rally in Charlottesville, Virginia, “regularly

16 spout white nationalist memes and maintain affiliations with known extremists” and “are known

17 for anti-Muslim and misogynistic rhetoric.”

18

269. In anticipation of the Proud Boys rally, on September 25, 2020, Governor Brown

19 declared a state of emergency and issued an executive order for the purpose of implementing a

20 coordinated law enforcement response. As part of the order, Governor Brown temporarily assumed

21 control of local law enforcement, including PPB, the Multnomah County Sheriff’s Office, the

22 Gresham Police Department, and the Port of Portland Police.

23

270. Governor Brown appointed Multnomah County Sheriff Michael Reese and Oregon

24 State Police Superintendent Travis Hampton to serve as incident commanders in the law

25 enforcement coordination area, and they therefore assumed control of PPB, Multnomah County

26 Sheriff’s Office, Gresham Police Department, and Port of Portland Police.

27

271. The Governor’s executive order, by its own terms, became effective at 12:01 A.M.

28 Pacific Time on Saturday, September 26, 2020, and expired at 12:01 AM Pacific Time on Monday,

- 45 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 46 of 66

1 September 28, 2020. Governor Brown’s executive order and state of emergency were then

2 terminated at 6:00 AM on September 27, 2020.

3

272. Pursuant to a direction given by Superintendent Hampton, on September 25, 2020,

4 PPB Chief Charles Lovell authorized fifty-six officers, sergeants, and lieutenants from PPB’s

5 Rapid Response Team, which typically handles protests, to be deputized as federal agents for the

6 purposes of tactical response to the anticipated rally and disturbance of the peace caused by the

7 Proud Boys.

8

273. Because of the Governor’s executive order and over the course of dealing with

9 Oregon State Police, PPB anticipated that the deputation would be limited to the weekend

10 surrounding the Proud Boys hate-related event or so long as the state of emergency remained in

11 effect.

12

274. After the expiration of the state executive order, the federal deputation was in fact

13 no longer needed.

14

275. Deputations must be voluntary and consensual.

15

276. On September 29, 2020, Portland City Attorney Tracy Reeve wrote to the U.S.

16 Attorney’s Office in Portland to clearly and expressly communicate the City’s withdrawal of

17 consent to the federal deputation of the fifty-six PPB officers.

18

277. City Attorney Reeve explained that the Governor’s executive order had terminated,

19 and PPB “was back under the control and direction of the City of Portland, and specifically Police

20 Commissioner and Mayor Ted Wheeler and the Portland City Council.” Because the executive

21 order terminated, “[t]he City of Portland [did] not consent to the continuing federal deputization

22 of PPB officers and hereby formally withdr[e]w[] its consent to this deputization effective

23 immediately.”

24

278. As of September 29, 2020, the deputation stopped being voluntary and consensual

25 because Portland withdrew its consent; therefore, the deputations were of no further legal effect

26 on and after that date.

27

279. Neither the U.S. Attorney’s Office nor any other federal agency, including the

28 USMS, responded to City Attorney Reeve’s communication.

- 46 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 47 of 66

1

280. Instead, on September 30, 2020, U.S. Attorney Williams and United States Marshal

2 for the District of Oregon Russ Burger issued a press release regarding the deputation of the PPB

3 officers.

4

281. The release stated that the “U.S. Marshal will not cancel the cross-deputation of

5 local and state law enforcement officers.” In defense of their decision to commandeer Portland’s

6 police force, U.S. Attorney Williams and United States Marshal for the District of Oregon Burger

7 stated that continued deputation would provide “accountability and deterrence” for “criminal acts”

8 and would support “front line law enforcement officers and their families in a way that they have

9 not seen from City Hall.”

10

282. Despite Defendant agencies’ purported desire to hold individuals accountable for

11 and deter criminal acts, it is the responsibility of PPB and other local law enforcement to generally

12 address criminal activity in Portland. It is the responsibility of the State of Oregon and City of

13 Portland to enact laws and enforce laws that strike the proper balance between deterring criminal

14 activity and supporting First Amendment expression. And it is the responsibility of Portland, as

15 the employer of PPB officers, to support and protect local law enforcement.

16

283. On October 2, 2020, Mayor Wheeler, as Police Commissioner, directed PPB

17 officers to take no further action of any kind pursuant to the federal deputation, including the

18 enforcement of any federal law.

19

284. On December 31, 2020, the deputations from September 26, 2020 expired by their

20 terms. However, Portland continues to voluntarily deputize PPB officers as U.S. Marshals, and

21 with other federal agencies, to advance important law enforcement goals.

22

285. Nonetheless, because the federal government has previously refused to recognize

23 Portland’s withdrawal of consent to deputation, Portland remains concerned about current and

24 future deputation of PPB officers and Portland’s ability to terminate such relationships and ensure

25 that PPB officers are acting consistent with their obligations to Portland.

26

286. The practice of refusing to terminate the deputation of Portland’s officers limits the

27 City’s law enforcement discretion, creates potential conflict between Defendants and Portland over

28

- 47 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 48 of 66

1 the use and tactics of Portland’s own officers and other law enforcement personnel, and unlawfully

2 usurps the legislative and governance prerogative of local officials.

3

287. The Practice of continued, non-consensual deputation of Portland’s law

4 enforcement officers unconstitutionally infringes on Portland’s authority to end the deputation and

5 unconstitutionally compels local officers to continue to serve as federal law enforcement officials,

6 whether in name or in scope of authority.

7 Harm to Plaintiffs

8

Economic Injury

9

288. Plaintiffs have already suffered economic harms and will continue to suffer such

10 harms under the Policy and Practice.

11

Portland’s Economic Harms

12

289. At the time of the federal government’s deployment into Portland, protests in the

13 City were growing more peaceful and were more easily managed on a day-to-day basis by PPB.

14

290. As a direct result of the unlawful intervention by Defendants, Portland experienced

15 a significant increase in violent protests and civil disturbance. Dr. Robert Pape and his team of

16 researchers at the University of Chicago examined 122 protest events in Portland between May

17 28, 2020, and August 6, 2020, and found that violence behavior increased and peaceful protests

18 decreased during the 25 days when federal agents were present.

19

291. Following the removal of federal agents from the streets of Portland, PPB was

20 required to expend additional resources on crowd management and maintaining peace.

21

292. As a direct result of the unlawful intervention of Defendants, PPB was required to

22 spend additional money on overtime for patrol officers and other resources in response to the

23 heightened tensions within Portland.

24

293. Since July 2020 and continuing to the present, Portland’s elected leadership and

25 other city officials have spent hundreds of hours in meetings, discussions, and other planning

26 efforts to respond to the presence of federal agents and to plan for possible additional federal

27 intervention under the Policy.

28

- 48 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 49 of 66

1

294. In January 2021, Portland’s elected leadership and other city officials have spent

2 hours in discussions and other planning efforts to prepare for potential violent protests by pro-

3 Trump supporters.

4

Oakland’s Economic Harms

5

295. Although Plaintiff City of Oakland has not yet been subject to direct federal

6 intervention under the Policy, it has nonetheless already suffered and will continue to suffer

7 economic harms.

8

296. In response to the Policy, Oakland has also engaged in new outreach through the

9 departments that are members of its Emergency Operations Center, activities that would not have

10 been necessary and resources that would not have been required but for the Policy.

11

297. Oakland’s elected leadership has devoted time since July 2020 preparing for

12 possible federal intervention under the Policy. Due to the uncertainty caused by the Policy, city

13 officials had to return to such preparations after January 6, 2021.

14

298. Oakland’s economic harms will significantly increase if the City becomes a target

15 of deployment under the Policy, for many reasons. One such reason is the City’s “mutual aid”

16 agreements, as described above. The City’s mutual aid agreements with other governments have

17 never contemplated coming to the assistance of a sister government in the event of unprecedented

18 federal intervention, such as the interventions that have occurred and may occur under the Policy.

19

299. Oakland has had mutual aid requests rejected when the aid sought does not comport

20 with the agreements or conflicts with their partners’ policies.

21

300. Oakland will suffer significant economic harm if it cannot rely on mutual aid. In

22 the limited instances in which mutual aid has been unavailable, for instance, the Oakland Police

23 Department has been forced to cancel days off, pay substantial additional overtime, and divert

24 officers from their assigned duties.

25

301. Defendants did not take either Portland or Oakland’s economic harms into account

26 in enacting the Policy.

27

28

- 49 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 50 of 66

1

Budgetary and Other Uncertainty; Impairment of Ability to Provide Services

2

302. Plaintiffs depend on the clear delineation of and communication about federal,

3 state, and local police authority to safely govern and police their communities.

4

303. Plaintiffs must know or reasonably expect when federal law enforcement agents

5 will be or could be deployed in their cities, both as a constitutional and safety matter.

6

304. Plaintiffs have historically worked closely with Defendants’ local representatives

7 to ensure the safety of the federal property Defendants have authority to protect.

8

305. Even when the federal government has, in the past, intervened involuntarily in

9 cities, counties, or states, it has done so using lawful processes, such as by filing enforcement

10 actions in court or, in extreme and rare circumstances, formally invoking powers such as the

11 Insurrection Act and following such statutes’ requirements for a declaration. The Act is not

12 invoked secretly or ambiguously. 10 U.S.C. § 254.

13

306. The current Policy represents an entirely new process by which cities may find

14 federal law enforcement in the midst of civil protests, throughout their jurisdictions, and surveilling

15 their residents well beyond federal crimes or properties.

16

307. Plaintiffs’ uncertainty about whether, when, and with what parameters federal

17 agents may be deployed to their cities under the Policy prevents them from appropriately advising

18 their police departments and fire departments, among others, and from fully planning their budgets.

19

308. Further, Plaintiffs’ police departments, among other departments, have a strong and

20 abiding interest in the community relationships they have formed, often over many years, with

21 advocates, faith leaders, youth groups, and others in their jurisdictions. These relationships are

22 crucial to addressing racial justice issues, de-escalating and interrupting violence, and engaging in

23 successful long-term reform efforts. These relationships are also premised on Plaintiffs’ police

24 departments being able to fulfill the terms of their agreements, both formal and informal, with their

25 community partners. Uncertainty regarding whether, when, and why federal law enforcement

26 authorities, who lack any knowledge of these crucial agreements and understandings, may

27 intervene in Plaintiffs’ streets, harms Plaintiffs’ capacity to honor their commitments to their

28 residents and reduce violence in their communities.

- 50 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 51 of 66

1

309. Finally, because the full scope of the Policy is vague and unknown, Plaintiffs’ city

2 officials have no certainty about whether any particular decision they might make will lead to

3 federal intervention under the Policy.

4

310. Recent events also made clear that this harm is ongoing. Defendants’ intervention

5 to quell Black Lives Matter protests in Portland as well as their deployment to other Democrat-run

6 cities during the summer of 2020 contrast sharply with the preparation for and response to the

7 January 6, 2021 pro-Trump siege on the U.S. Capitol. The wide variation in response cannot be

8 explained by difference in threat levels to federal property. Accordingly, the pretextual

9 explanations for the Policy have created confusion and sowed doubt about when and how

10 Defendants will respond to protests, unrest, or violence in Plaintiff cities.

11

311. Plaintiffs continue to respond to Black Lives Matter protests, as well as protests by

12 groups on both the left and the right, without the ability to anticipate or predict how Defendants

13 will respond under the Policy. This uncertainty makes responding to and policing these protests

14 more challenging and costly.

15

312. Together, these injuries perceptibly impair Plaintiffs’ ability to provide the services

16 they were formed to provide and frustrate Plaintiffs’ goals and values.

17

313. Under the Policy, federal enforcement actions are likely to violate or contravene

18 Plaintiffs’ otherwise lawful policies and values.

19

Activity Considered Impermissible by Local Policy Permitted Under the Policy

20

314. Plaintiffs have specific policies, practices, and procedures for activities such as the

21 use of force or use of surveillance by law enforcement authorities.

22

315. The City of Portland has a use of force policy, Directive 1010.00, and a crowd

23 control policy, Directive 0635.10. These policies govern a number of PPB policies, practices, and

24 procedures in responding to demonstrations, including PPB’s use of impact munitions and

25 chemical agents. The use of chemical agents has been further restricted by order of Portland’s

26 Police Commissioner, consistent with the City’s values on policing.

27

316. The City of Oakland has a use of force policy, DGO K-3, and a crowd control

28 policy, Training Bulletin III-G. Those documents govern a number of Oakland Police Department

- 51 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 52 of 66

1 policies, practices, and procedures, including its use of nonlethal impact weapons and chemical

2 agents, as well as video and photographic recording of protesters engaged in protected First

3 Amendment activity.

4

317. These policies and trainings are intended to govern Plaintiffs’ police departments’

5 interactions with their communities. Based on those policies and trainings, in Plaintiffs’

6 communities, residents have expectations for their interactions with local law enforcement.

7 Federal law enforcement officers have not been trained in municipal community policing, critical

8 civilian crowd management, and/or de-escalation techniques. The unconstrained actions of federal

9 forces undermine the work of local law enforcement, including ongoing violence prevention

10 programs and community engagement.

11

318. Under the Policy, Plaintiff City of Portland has been unable to adhere to its local

12 policies favoring de-escalation of potentially volatile situations because Defendants’ actions under

13 the Policy have inflamed local passions, encouraged violence, and generated the need for PPB

14 response where it otherwise would not have been needed.

15

Frustration of Federal Court Orders; Separation of Powers

16

319. Plaintiffs are each, separately, under federal court orders that govern the activities

17 of their police departments in various ways.

18

320. Plaintiff City of Portland’s police department operates in part under a Negotiated

19 Settlement Agreement in United States v. City of Portland, Case No. 3:12-cv-02265-SI (D. Or.

20 2012), as well as recent injunctions in Don’t Shoot Portland v. City of Portland, Case No. 3:20-

21 cv-00917-HZ (D. Or. 2020) and Index Newspapers LLC v. City of Portland, Case No. 3:20-cv-

22 01035-SI (D. Or. 2020).

23

321. Plaintiff City of Oakland’s police department operates under a longstanding

24 Negotiated Settlement Agreement in Delphine Allen. v. City of Oakland, Master Case File No.

25 C00-4599-TEH (N.D. Cal. 2012), as well as under a recent injunction in Anti Police-Terror Project

26 v. City of Oakland, Case No. 20-cv-03866-JCS (N.D. Cal. 2020).

27

28

- 52 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 53 of 66

1

322. Collectively, these various court orders bind Plaintiffs’ police departments’

2 activities, including governing many of their policies, practices, and procedures, and limiting their

3 use of various forms of force.

4

323. Under the Policy, as carried out in, at a minimum, Portland, Defendants used arrest

5 techniques, force, and surveillance that would facially violate Plaintiffs’ federal court orders.

6

324. Plaintiff City of Oakland would face the same bind if any deployments are sent to

7 Oakland under the Policy.

8

Loss of Use and Enjoyment of Public Facilities

9

325. Portland has provided bike and vehicle lanes in its right-of-way on Main Street and

10 Southwest 3rd Avenue.

11

326. FPS’s fence and barriers, erected without permission, prevent the use of enjoyment

12 of this public land by Portland and its residents. See Gingery v. City of Glendale, 831 F.3d 1222,

13 1227 (9th Cir. 2016).

14

Loss of Legislative Prerogative

15

327. Plaintiff City of Portland shares in Oregon’s sovereign general police power to

16 provide for the health and safety of its residents.

17

328. The federal government’s commandeering of Portland law enforcement, complete

18 once Defendant DOJ and then-Attorney General Barr refused to cancel the deputation of the PPB

19 officers, pressed these officers into service in disregard of the City’s own legislative and

20 enforcement priorities.

21

22

23

24

25

26

27

28

- 53 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 54 of 66

1

CLAIMS FOR RELIEF

2

FIRST CLAIM FOR RELIEF

3

(Administrative Procedure Act—Action Not in Accordance with the Law)

4

(Against All Defendants)

5

(5 U.S.C. § 706)

6

329. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

7 paragraphs of this First Amended Complaint.

8

330. Under the APA, courts must “hold unlawful and set aside agency action” that is not

9 in accordance with law, in excess of statutory authority, contrary to constitutional right, or without

10 observance of procedure required by law. 5 U.S.C. § 706(2).

11

331. Defendants may only exercise authority conferred by statute. City of Arlington v.

12 FCC, 569 U.S. 290, 297-98 (2013).

13

332. Defendants’ Policy is “final agency action” under the APA because it is fairly

14 characterized as Defendants’ final word on the matter and has legal consequences for Plaintiffs’

15 resident protesters during civil protests, as well as, independently, for Plaintiffs facing economic

16 harms and federal encroachment on police powers and the “take over” of their jurisdictions. See

17 U.S. Army Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807, 1813 (2016) (quoting Bennett

18 v. Spear, 520 U.S. 154, 177-78 (1997)); see also New York v. U.S. Immigration & Customs

19 Enforcement, 431 F. Supp. 3d 377, 386-88 (S.D.N.Y. 2019).

20

333. Agency action need not be in writing, or ever known to the public, to be judicially

21 reviewable as “final” action. See Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 138-39 (D.D.C.

22 2018); Wagafe v. Trump, 2017 WL 2671254, at *1, *10 (W.D. Wash. 2017); Venetian Casino

23 Resort, LLC v. EEOC, 530 F.3d 925, 931 (D.C. Cir. 2008) (concluding that “the record” as a whole

24 “leaves no doubt” that a policy exists, even though “the details ... are still unclear”).

25

334. Furthermore, each instance where Defendants, through their officers, employees,

26 and agents, directly or constructively, unlawfully deployed or commanded federal law

27 enforcement to act in excess of or contrary to law constitutes “final agency action” under the APA.

28

- 54 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 55 of 66

1

335. 40 U.S.C. § 1315(b)(1) allows the Secretary of DHS to designate certain federal

2 employees “as officers and agents for duty in connection with the protection of property owned or

3 occupied by the Federal Government and persons on the property, including duty in areas outside

4 the property to the extent necessary to protect the property and persons on the property.” These

5 authorized duties include enforcing federal laws, making arrests if federal crimes are committed

6 in the presence of an officer, and conducting investigations on and off the property for crimes

7 against the property or persons on the property.

8

336. 40 U.S.C. § 1315(d)(3) further allows the Secretary to “utilize the facilities and

9 services of Federal, State, and local law enforcement agencies, with the consent of the agencies.”

10

337. 40 U.S.C. § 1315(e) also allows the Secretary to “enter into agreements with

11 Federal agencies and with State and local governments to obtain authority for officers and agents

12 designated under this section to enforce Federal laws and State and local laws concurrently with

13 other Federal law enforcement officers and with State and local law enforcement officers” “[]for

14 the protection of property owned or occupied by the Federal Government and persons on the

15 property.”

16

338. These statutory provisions do not authorize the designation of employees for

17 general law enforcement purposes in United States cities where the intent, mission, and purpose

18 of the designation is not reasonably connected to such federally stated interests. Significantly, 40

19 U.S.C. § 1315 does not represent Congressional authorization to suppress insurrections under the

20 Militia Clause. See U.S. Const. art. I, § 8, cl. 15.

21

339. Further, these statutory provisions do not authorize the expansion of federal

22 property into City- or State-owned rights-of-way, or the takeover of City property for federal

23 purposes, without the consent of the non-federal agencies, as Defendants assert.

24

340. The Policy therefore oversteps the constitutional limitations on the federal police

25 powers, including as enumerated in the Militia Clause, the Republican Form of Government

26 Clause, and the Tenth Amendment, and is not in accordance with and exceeds Defendants’

27 authority under 40 U.S.C. § 1315 because it (a) authorizes the designation of such agents to quell

28 civil protests and surveil and engage with threats to damage or destroy any public monument,

- 55 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 56 of 66

1 memorial, or statue, regardless of whether they are owned or leased by the GSA or on land owned

2 or leased by the GSA, and to engage in activity under the pretext of protecting such objects for the

3 purposes of viewpoint discrimination and (b) authorizes the expansion of federal physical

4 boundaries and the take-over of City rights-of-way for the purposes of securing federal property,

5 without the express consent of the City.

6

341. Internal memoranda, internal email communications, internal policies, various

7 public statements, and activities or failures to act in cities such as Portland and Washington, D.C.

8 reveal a distinct and meaningful policy shift to use federal law enforcement to unilaterally step in

9 or replace local law enforcement departments that do not subscribe to President Trump’s view of

10 domestic “law and order” and to quell viewpoints, speech, or protests with which President Trump

11 disagrees. These interventions were intended to pressure local officials and police departments to

12 react more aggressively to stop or thwart racial justice protests.

13

342. The animating intent of the Policy was to use property protection as the pretextual

14 justification for viewpoint discrimination.

15

343. The Policy was implemented to suppress protests or other activities in progressive,

16 Democratic-controlled cities where protestors expressed support for Black Lives Matter or other

17 racial justice actions, causes that President Trump and his administration did not support, under

18 the pretext of protecting federal property. The Policy was implemented either through direct

19 intervention in, and deployment of federal law enforcement to, cities, such as Defendants did in

20 Portland in July 2020, or via threats to do so in order to pressure state and local law enforcement

21 to shut down or severely limit the extent of such protests as quickly as possible, including through

22 the use of racially discriminatory tactics and excessive use of force.

23

344. Pursuant to the Policy, Defendants improperly designated and deployed “officers

24 and agents” to Portland, which constitutes a final agency action subject to review under the APA.

25 As a result, all of the DHS personnel purporting to be designated FPS agents under 40 U.S.C. §

26 1315 were unlawfully deployed and unable to exercise any authority under the statute whatsoever.

27

345. Only the Secretary of DHS or someone exercising his lawfully delegated authority

28 may delegate DHS employees to guard federal property. 40 U.S.C. § 1315(b)(1); 6 U.S.C. §

- 56 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 57 of 66

1 112(b)(1) (“[t]he Secretary . . . may delegate any of the Secretary’s functions to any officer,

2 employee, or organizational unit of the Department”). According to the OIG Report, the Acting

3 Secretary delegated the authority to designate FPS officers to the Under Secretary for

4 Management, who in turn further delegated this authority to the FPS Director. That second

5 delegation to the FPS Director was not authorized by law and not properly delegated.

6

346. The FPS Director did not properly designate any DHS employees to be deployed

7 to Portland. Designation requires specifically identifying employees for deployment. 40 U.S.C. §

8 1315(b)(1). The FPS Director did not designate any specific employees for deployment, but rather

9 circulated broadly worded designation memoranda to leadership in various DHS components. The

10 memoranda reference an attached distribution list of personnel to be deployed, but at the time they

11 were distributed, there were no such lists attached. As a result, Defendants’ deployment of federal

12 agents to Portland supposedly pursuant to 40 U.S.C. § 1315 was unlawful.

13

347. Defendants’ unlawful actions have caused, are causing, and will continue to cause

14 harm to Plaintiffs as alleged above, and there is a substantial likelihood that the requested relief

15 will redress this harm.

16

SECOND CLAIM FOR RELIEF

17

(Administrative Procedure Act—Arbitrary and Capricious)

18

(Against All Defendants)

19

(5 U.S.C. § 706(2)(A))

20

348. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

21 paragraphs of this First Amended Complaint.

22

349. 5 U.S.C. § 706(2)(A) provides that a court shall hold unlawful and set aside agency

23 action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

24 law.

25

350. Long-established principles of federalism, paired with congressional limitations,

26 restrict the ability of the federal government to unilaterally deploy domestic military or police

27 interventions.

28

- 57 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 58 of 66

1

351. Defendants have adopted a Policy to circumvent these limitations and deploy

2 federal agents using property protection as the pretextual justification for viewpoint

3 discrimination.

4

352. The Policy was implemented to suppress protests or other activities in progressive,

5 Democratic-controlled cities where protestors expressed support for Black Lives Matter or other

6 racial justice actions, causes that President Trump and his administration did not support, under

7 the pretext of protecting federal property.

8

353. The contours of the Policy are not reasonably connected to the facially neutral

9 standards of 40 U.S.C. § 1315. As detailed above, there is no consistently and reasonably

10 discernable connection between threats to federal property and Defendants’ responses to those

11 threats.

12

354. Accordingly, Defendants’ purported justification for the Policy is pretextual and,

13 thus, arbitrary and capricious under the Administrative Procedure Act.

14

355. In enacting the Policy, Defendants have also acted arbitrarily and capriciously

15 because Defendants did not fully consider the foreseeable harms of their policy and did not

16 adequately explain the decision-making rationale behind the policy change, beyond a pretextual

17 rationale.

18

356. In implementing the Policy, Defendants failed to consider, among many things,

19 the direct and destructive impacts on local governments in their administration of general public

20 safety, and the aforementioned harms that have and will flow to Plaintiffs.

21

357. Defendants’ unlawful action has caused, is causing, and will continue to cause

22 harm to Plaintiffs as alleged above, and there is a substantial likelihood that the requested relief

23 will redress this harm.

24

25

26

27

28

- 58 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 59 of 66

1

THIRD CLAIM FOR RELIEF

2

(Federal Vacancies Reform Act; Homeland Security Act)

3

(Against Defendants Pekoske and DHS)

4

(5 U.S.C. § 3345 et seq.; 6 U.S.C. § 113)

5

358. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

6 paragraphs of this First Amended Complaint.

7

359. The Secretary of Homeland Security may be appointed by the President only with

8 the advice and consent of the Senate, 6 U.S.C. § 112(a)(1), and when the Office of the Secretary

9 is vacant, the order of succession is governed by the FVRA and/or the HSA.

10

360. Under those authorities, Mr. Wolf was not legally authorized to hold the position

11 of Acting Secretary.

12

361. Under those authorities, Mr. Wolf was not legally authorized to perform the duties

13 and functions of the Secretary of Homeland Security.

14

362. Because Mr. Wolf was without legal authority to hold his position or to perform its

15 duties or functions, any contributions he made to the Policy or steps he took or is taking to enact

16 or enforce the Policy, or later to ratify the Policy, “shall have no force or effect,” 5 U.S.C.

17 § 3348(d)(1), “may not be ratified,” id. § 3348(d)(2), and must be set aside.

18

363. Because no lawfully acting Secretary of Homeland Security has taken the necessary

19 steps to properly ratify the Policy, its legal status remains unchanged.

20

FOURTH CLAIM FOR RELIEF

21

(Administrative Procedure Act—In Excess of Authority)

22

(Against Defendants Pekoske and DHS)

23

(5 U.S.C. § 706(2)(C))

24

364. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

25 paragraphs of this First Amended Complaint.

26

365. Because Mr. Wolf was not legally authorized to hold the position of Acting

27 Secretary, any action he took to contribute to, direct, revise, promulgate, enact, or enforce the

28

- 59 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 60 of 66

1 Policy, or later to ratify the Policy, is “in excess of authority” under the APA and therefore must

2 be held to be unlawful and set aside.

3

366. Because no lawfully acting Secretary of Homeland Security has taken the necessary

4 steps to properly ratify the Policy, its legal status remains unchanged.

5

FIFTH CLAIM FOR RELIEF

6

(Administrative Procedure Act—Not in Accordance with Law)

7

(Against Defendants Pekoske and DHS)

8

(5 U.S.C. § 706(2)(C))

9

367. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

10 paragraphs of this First Amended Complaint.

11

368. Because Mr. Wolf was not legally authorized to hold the position of Acting

12 Secretary, any action he took to contribute to, direct, revise, promulgate, enact, or enforce the

13 Policy, or later to ratify the Policy, is “not in accordance with law” under the APA and therefore

14 must be held to be unlawful and set aside.

15

369. Because no lawfully acting Secretary of Homeland Security has taken the necessary

16 steps to properly ratify the Policy, its legal status remains unchanged.

17

SIXTH CLAIM FOR RELIEF

18

(Anti-Commandeering)

19

(Plaintiff City of Portland Against Defendants Wilkinson and DOJ)

20

(U.S. Const., amend. X)

21

370. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

22 paragraphs of this First Amended Complaint.

23

371. The Tenth Amendment to the United States Constitution preserves the states’

24 historic, sovereign, and fundamental autonomy to regulate their own affairs, including and

25 especially the operations of their state and local governments.

26

372. General police powers are among those reserved to the States. “A state’s ability to

27 regulate its internal law enforcement activities is a quintessential police power.” United States v.

28

- 60 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 61 of 66

1 California, 921 F.3d 865, 887 n.11 (9th Cir. 2019), cert. denied, 2020 WL 3146844 (June 15,

2 2020).

3

373. States are permitted to delegate their police powers to their municipalities. “[T]he

4 delegated power of municipalities is as broad as the police power of the state, except as that power

5 may be restricted by terms of the grant or by the state constitution.” D.C. v. John R. Thompson

6 Co., 346 U.S. 100, 109 (1953).

7

374. Oregon has so delegated its police power to its municipalities, which include the

8 City of Portland. Article XI, section 2 of the Oregon Constitution grants the “legal voters of every

9 city and town . . . power to enact and amend their municipal charter, subject to the Constitution

10 and criminal laws of the State of Oregon.” Portland’s charter identifies its power and authority to

11 exercise within the City and City-owned property “all the powers commonly known as the police

12 power to the same extent as the State of Oregon has or could exercise said power within said areas,

13 and to make and enforce within said areas all necessary or appropriate . . . police . . . and safety

14 laws and regulations.” Portland City Charter § 2-105.

15

375. The USMS’s refusal to honor the cancellation of the deputation of PPB’s officers,

16 by and through then-Attorney General Barr and DOJ, commandeered a key Portland law

17 enforcement agency and unduly interferes with Portland’s police functions as delegated to it by

18 the State of Oregon, in violation of the Tenth Amendment. This Practice unconstitutionally

19 infringed on Portland’s authority to determine the status and deputation of PPB’s officers, and

20 unconstitutionally compelled PPB’s officers to continue to serve under the force and guise of

21 federal law.

22

376. Defendants DOJ and Wilkinson have violated the authority of Portland to control

23 and direct its own police officers and, in doing so, caused confusion regarding the role and

24 authority of deputized PPB officers and any legal obligations of these officers to execute orders

25 issued under the authority of the United States.

26

377. Portland continues to work with the federal government to deputize PPB officers.

27 There is ongoing uncertainty about Portland’s ability to terminate such relationships, if desired,

28 going forward and ensure that PPB officers are acting consistent with their obligations to Portland

- 61 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 62 of 66

1

378. The violation caused by Defendants DOJ and Wilkinson causes ongoing harm to

2 Portland and its residents.

3

SEVENTH CLAIM FOR RELIEF

4

(Declaratory Judgment Act)

5

(Against All Defendants)

6

(28 U.S.C. §§ 2201-2202)

7

379. Plaintiffs incorporate by reference the allegations set forth in each of the preceding

8 paragraphs of this First Amended Complaint.

9

380. The Policy therefore oversteps the constitutional limitations on the federal police

10 powers, including as enumerated in the Militia Clause, the Republican Form of Government

11 Clause, and the Tenth Amendment, and is not in accordance with and exceeds Defendants’

12 authority under 40 U.S.C. § 1315 because it (a) authorizes the designation of such agents to quell

13 civil protests and surveil and engage with threats to damage or destroy any public monument,

14 memorial, or statue, regardless of whether they are owned or leased by the GSA or on land owned

15 or leased by the GSA, and to engage in activity under the pretext of protecting such objects for the

16 purposes of viewpoint discrimination and (b) authorizes the expansion of federal physical

17 boundaries and the take-over of City rights-of-way for the purposes of securing federal property,

18 without the express consent of the City.

19

381. Defendants’ purported justification for the Policy is wholly pretextual and, thus,

20 arbitrary and capricious under the APA.

21

382. In enacting the Policy, Defendants have also acted arbitrarily and capriciously

22 because Defendants did not fully consider the foreseeable harms of their policy and did not

23 adequately explain the decision-making rationale behind the policy change, beyond a pretextual

24 rationale.

25

383. Because Mr. Wolf was without legal authority to hold his position or to perform its

26 duties or functions, any contributions he made to the Policy or steps he took or is taking to enact

27 or enforce the Policy “shall have no force or effect,” 5 U.S.C. § 3348(d)(1), “may not be ratified,”

28 id. § 3348(d)(2), and must be set aside.

- 62 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 63 of 66

1

384. Because Mr. Wolf was not legally authorized to hold the position of Acting

2 Secretary, any action he took to contribute to, direct, revise, promulgate, enact, or enforce the

3 Policy, or later to ratify the Policy, is “in excess of authority” under the APA and therefore must

4 be held to be unlawful and set aside.

5

385. Because Mr. Wolf was not legally authorized to hold the position of Acting

6 Secretary, any action he took to contribute to, direct, revise, promulgate, enact, or enforce the

7 Policy, or later to ratify the Policy, is “not in accordance with law” under the APA and therefore

8 must be held to be unlawful and set aside.

9

386. Because no lawfully acting Secretary of Homeland Security has taken the necessary

10 steps to properly ratify the Policy, its legal status remains unchanged.

11

387. An actual, present, and justiciable controversy exists between Plaintiffs and

12 Defendants concerning the legality of the Policy and regarding whether Mr. Wolf had legal

13 authority to hold his position or perform its duties or functions.

14

388. Plaintiffs seeks a declaratory judgment from this Court that the Policy is not in

15 accordance with law, in excess of statutory authority, contrary to constitutional right, or without

16 observance of procedure required by law pursuant to 5 U.S.C. § 706(2); that the Policy is arbitrary,

17 capricious, an abuse of discretion, or otherwise not in accordance with law within the meaning of

18 5 U.S.C. § 706(2)(A); that Mr. Wolf is without legal authority to hold his position or to perform

19 its duties or functions; and that aspects of the Policy promulgated under the purported authority of

20 Mr. Wolf must be set aside and/or enjoined.

21

389. Defendants DOJ and Wilkinson have unduly interfered with Portland’s police

22 functions as delegated to it by the State of Oregon, in violation of the Tenth Amendment, by

23 refusing to cancel the deputation of the PPB officers at Portland’s request.

24

390. An actual, present, and justiciable controversy exists between Portland and

25 Defendants DOJ and Wilkinson concerning the constitutionality of Defendants’ refusal to cancel

26 the deputation.

27

28

- 63 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 64 of 66

1

391. Portland seeks a declaratory judgment from this Court that Defendant DOJ’s and

2 Defendant Wilkinson’s refusal to cancel the deputation of PPB officers is violative of the Tenth

3 Amendment and the anti-commandeering doctrine.

4

5

PRAYER FOR RELIEF

6

Wherefore, Plaintiffs respectfully request that this Court:

7

1. Issue an order holding unlawful, vacating, and setting aside Defendants’ Policy;

8

2. Declare that the Policy is not in accordance with law, in excess of statutory

9

authority, contrary to constitutional right, or without observance of procedure

10

required by law pursuant to 5 U.S.C. § 706(2);

11

3. Declare that the Policy is arbitrary, capricious, an abuse of discretion, or

12

otherwise not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A);

13

4. Declare that the cross-designation of federal agents in June and July 2020 as well

14

as their deployment to Portland pursuant to the Policy was unlawful;

15

5. Declare that aspects of the Policy promulgated under the purported authority of

16

Mr. Wolf must be set aside and/or enjoined;

17

6. Declare that Defendant DOJ’s and Defendant Wilkinson’s commandeering of

18

local law enforcement is unlawful under the Tenth Amendment and order them to

19

immediately cancel the at-issue deputation of PPB officers;

20

7. Award Plaintiffs costs, expenses, and reasonable attorneys’ fees; and

21

8. Award any other relief the Court deems just and proper.

22

23

24

25

26

27

28

- 64 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 65 of 66

1 DATED: January 21, 2021

Respectfully submitted,

2

OFFICE OF THE CITY ATTORNEY

CITY OF OAKLAND 3

4

By: /s/ Barbara J. Parker

Barbara J. Parker, City Attorney

5

Maria Bee, Chief Assistant City Attorney

Zoe Savitsky, Supervising Deputy City Attorney

6

Malia McPherson, Deputy City Attorney

7

One Frank H. Ogawa Plaza, 6th Floor Oakland, California 94612

8

Telephone: (510) 238-3601; Fax: (510) 238-6500

bparker@oaklandcityattorney.org

9

mbee@oaklandcityattorney.org

zsavitsky@oaklandcityattorney.org

10

mmcpherson@oaklandcityattorney.org

11

Counsel for the City of Oakland

12

OFFICE OF THE CITY ATTORNEY

CITY OF PORTLAND

13

By: /s/ Robert Taylor

14

Robert Taylor, Interim City Attorney

15

Denis Vannier, Senior Deputy City Attorney Naomi Sheffield, Deputy City Attorney

16

1221 SW 4th Avenue, Suite 430

Portland, Oregon 97204

17

Telephone: (503) 823-4047; Fax: (503) 823-3089

robert.taylor@portlandoregon.gov

18

Counsel for the City of Portland

19 By: /s/ Jonathan B. Miller

20

Jill Habig, President

Jonathan B. Miller, Legal Director

21

LiJia Gong, Counsel

4096 Piedmont Avenue #149

22

Oakland, California 94611

23

Telephone: (301) 335-3828

jill@publicrightsproject.org

24

jon@publicrightsproject.org

lijia@publicrightsproject.org

25

Counsel for the Cities of Oakland and Portland 26

27

28
- 65 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:20-cv-07184-EMC Document 42 Filed 01/21/21 Page 66 of 66

1

FILER’S ATTESTATION

2

Pursuant to Civil Local Rule 5-1(i)(3), regarding signatures, Jonathan B. Miller, hereby

3 attests that concurrence in the filing of this document has been obtained from all the signatories

4 above.

5

6 DATED: January 21, 2021 7

/s/ Jonathan B. Miller Jonathan B. Miller

8

CERTIFICATE OF SERVICE

9 I, Jonathan B. Miller, hereby certify that the foregoing was filed through the CM/ECF
10
system in the Northern District of California and will be sent electronically to the registered 11

12 participants.

13

14 DATED: January 21, 2021 15

/s/ Jonathan B. Miller Jonathan B. Miller

16

17

18

19

20

21

22

23

24

25

26

27

28 - 66 -