U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:20-cv-01175-JR

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Western States Center, Inc. et al v. United States Department of Homeland Security et al Assigned to: Magistrate Judge Jolie A. Russo Case in other court: Ninth Circuit, 20-35949 Cause: 28:2201 Declaratory Judgment

Date Filed: 07/21/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Western States Center, Inc. an Oregon public benefit corporation

represented by Clifford S. Davidson Snell & Wilmer LLP One Centerpointe Drive Ste 170 Lake Oswego, OR 97035 503-624-6800 Fax: 503-624-6888 Email: csdavidson@swlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly H. Dove Snell & Wilmer L.L.P. 3883 Howard Hughes Parkway Ste 1100 Las Vegas, NV 89169 702-784-5286 Email: kdove@swlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew M Jacobs Snell & Wilmer L.L.P. 400 E. Van Buren Ste. 1900 Phoenix, AZ 85004 602-382-6308 Fax: 602-382-6070 Email: ajacobs@swlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff First Unitarian Church of Portland, Oregon an Oregon religious nonprofit corporation
Plaintiff Sara D Eddie an individual
Plaintiff Representative Janelle S Bynum an elected official

represented by Clifford S. Davidson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly H. Dove (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew M Jacobs (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Clifford S. Davidson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly H. Dove (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew M Jacobs (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Clifford S. Davidson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly H. Dove (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew M Jacobs (See above for address)

Plaintiff Representative Karin A Power an elected official
V. Defendant United States Department of Homeland Security

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Clifford S. Davidson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly H. Dove (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew M Jacobs (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jason C. Lynch U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street NW Ste 11214 Washington, DC 20005 202-514-1359 Email: jason.lynch@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Aaron Hall DOJ-Civ 950 Pennsylvania Ave. Washington, DC 20530 202-353-8679 Email: jeffrey.a.hall@usdoj.gov ATTORNEY TO BE NOTICED
Jordan Von Bokern DOJ-Civ Federal Programs Branch

Defendant United States Customs and Border Protection
Defendant Federal Protective Service

1100 L Street NW Washington, DC 20005 202-305-7919 Email: jordan.l.von.bokern2@usdoj.gov ATTORNEY TO BE NOTICED
Michael Patrick Clendenen DOJ-Civ Civil Division, Federal Programs Branch 1100 L Street NW Ste 12028 Washington, DC 20005 202-532-5747 Email: michael.p.clendenen@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Aaron Hall (See above for address) ATTORNEY TO BE NOTICED
Jordan Von Bokern (See above for address) ATTORNEY TO BE NOTICED
Michael Patrick Clendenen (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Aaron Hall (See above for address)

Defendant United States Marshals Service

ATTORNEY TO BE NOTICED
Jordan Von Bokern (See above for address) ATTORNEY TO BE NOTICED
Michael Patrick Clendenen (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Aaron Hall (See above for address) ATTORNEY TO BE NOTICED
Jordan Von Bokern (See above for address) ATTORNEY TO BE NOTICED
Michael Patrick Clendenen (See above for address) ATTORNEY TO BE NOTICED

Date Filed

#

07/21/2020 1

07/22/2020 2

Docket Text
Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: AORDC-7011263 Filer is subject to the requirements of Fed. R. Civ. P. 7.1. Jury Trial Requested: No. Filed by Sara D Eddie, First Unitarian Church of Portland, Oregon, Janelle S Bynum, Western States Center, Inc., Karin A Power against All Defendants (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons to DHS, # 3 Proposed Summons to CBP, # 4 Proposed Summons to FPS, # 5 Proposed Summons US Marshals). (Davidson, Clifford) (Entered: 07/21/2020)
Notice of Case Assignment to Magistrate Judge Jolie A. Russo and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance

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

with Local Rule 3-5. Discovery is to be completed by 11/19/2020. Joint Alternate Dispute Resolution Report is due by 12/21/2020. Pretrial Order is due by 12/21/2020. Ordered by Magistrate Judge Jolie A. Russo. (rs) (Entered: 07/22/2020)
3 Summons Issued Electronically as to United States Department of Homeland Security. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 35. (rs) (Entered: 07/22/2020)
4 Summons Issued Electronically as to United States Customs and Border Protection. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 35. (rs) (Entered: 07/22/2020)
5 Summons Issued Electronically as to Federal Protective Service. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (rs) (Entered: 07/22/2020)
6 Summons Issued Electronically as to United States Marshals Service. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (rs) (Entered: 07/22/2020)
7 Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Andrew M. Jacobs. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-7029447. Filed by All Plaintiffs. (Attachments: # 1 Exhibit A - Court Admissions) (Jacobs, Andrew) (Entered: 07/24/2020)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Andrew M. Jacobs. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-7029447 7 : Reviewed and Ready for Ruling. (ecp) (Entered: 07/24/2020)
8 ORDER issued by Magistrate Judge Jolie A. Russo: Granting Plaintiffs' Application/Motion for Leave to Appear Pro Hac Vice 7 as to Attorney Andrew M. Jacobs. (gm) (Entered: 07/24/2020)

07/27/2020 9

Affidavit of Service of Summons Issued, 4 upon United States Customs and Border Protection served on 7/23/2020 Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 07/27/2020)

07/27/2020

10 Affidavit of Service of Summons Issued, 3 upon United States Department of Homeland Security served on 7/23/2020 Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 07/27/2020)

07/27/2020

11 Affidavit of Service of Summons Issued 5 upon Federal Protective Service served on 7/23/2020 Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 07/27/2020)

07/27/2020

12 Affidavit of Service of Summons Issued 6 upon United States Marshals Service served on 7/23/2020 Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 07/27/2020)

07/27/2020 13

Affidavit of Service of Summons Issued 6 , Summons Issued, 3 , Summons Issued, 4 , Summons Issued 5 upon All Defendants via certified mail pursuant to FRCP 4(i)(1) and (2) Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 07/27/2020)

07/27/2020 14

First Amended Complaint . Filed by Sara D Eddie, First Unitarian Church of Portland, Oregon, Janelle S Bynum, Western States Center, Inc., Karin A Power against All Defendants. (Davidson, Clifford) (Entered: 07/27/2020)

07/28/2020

15 Certificate of Service by All Plaintiffs of Amended Complaint 14

Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 07/28/2020)

07/29/2020 16

Motion for Preliminary Injunction , Motion for Temporary Restraining Order . Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 07/29/2020)

07/29/2020

17 Declaration of Clifford S. Davidson . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction, Motion

for Temporary Restraining Order 16 (Entered: 07/29/2020)

.) (Davidson, Clifford)

07/29/2020

18 Declaration of Dana Buhl . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction, Motion for

Temporary Restraining Order 16 (Entered: 07/29/2020)

.) (Davidson, Clifford)

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

19 Declaration of Representative Janelle Bynum . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction,

Motion for Temporary Restraining Order 16 Clifford) (Entered: 07/29/2020)

.) (Davidson,

20 Declaration of Representative Karin Power . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction, Motion

for Temporary Restraining Order 16 (Entered: 07/29/2020)

.) (Davidson, Clifford)

21 Declaration of Samuel Hill . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction, Motion for

Temporary Restraining Order 16 (Entered: 07/29/2020)

.) (Davidson, Clifford)

22 Declaration of Mayor Ted Wheeler . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction, Motion

for Temporary Restraining Order 16 (Entered: 07/29/2020)

.) (Davidson, Clifford)

23 Declaration of Amanda Dunham . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction, Motion for

Temporary Restraining Order 16 (Entered: 07/29/2020)

.) (Davidson, Clifford)

24 Declaration of Sara D. Eddie . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction, Motion for

Temporary Restraining Order 16 (Entered: 07/29/2020)

.) (Davidson, Clifford)

25 Declaration of Ryan Malia . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction, Motion for

Temporary Restraining Order 16 (Entered: 07/29/2020)

.) (Davidson, Clifford)

26 Certificate of Service by All Plaintiffs of Motion for Preliminary

Injunction Motion for Temporary Restraining Order 16 and related declarations Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 07/29/2020)

08/04/2020

27 Scheduling Order by Judge Michael W. Mosman. Response is due by 8/5/2020, regarding Motion for Temporary Restraining Order 16

. Ordered by Judge Michael W. Mosman. (dls) (Entered: 08/04/2020)

08/04/2020

28 ORDER: GRANTING the parties' email request to WITHDRAW, without prejudice the Motion for Temporary Restraining Order and

request for expedited hearing 16 . Plaintiffs will file a supplemental memorandum, and supplemental evidence, addressing mootness as it relates to the Preliminary Injunction Motion 16

by 8/10/2020. The Response is due by 8/24/2020 and the Reply is due by 9/8/2020 regarding Preliminary Injunction

Motion 16 . Ordered by Judge Michael W. Mosman. (dls) (Entered: 08/04/2020)

08/10/2020 29

Supplemental Memorandum in Support of Motion for Preliminary Injunction. Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction, Motion for Temporary Restraining Order 16

.) (Davidson, Clifford) (Entered: 08/10/2020)

08/10/2020

30 Second Declaration of Clifford S. Davidson and Exhibits 1 through 11. Filed by All Plaintiffs. (Related document(s): Memorandum in

Support of Motion 29 08/10/2020)

.) (Davidson, Clifford) (Entered:

08/10/2020

31 Declaration of Rev. Bill Sinkford . Filed by All Plaintiffs. (Related

document(s): Memorandum in Support of Motion 29 .) (Davidson, Clifford) (Entered: 08/10/2020)

08/10/2020

32 Declaration of Eric K. Ward . Filed by All Plaintiffs. (Related

document(s): Memorandum in Support of Motion 29 .) (Davidson, Clifford) (Entered: 08/10/2020)

08/10/2020

33 Second Declaration of Rep. Janelle Bynum . Filed by All Plaintiffs. (Related document(s): Memorandum in Support of Motion 29

.) (Davidson, Clifford) (Entered: 08/10/2020)

08/10/2020

34 Second Declaration of Sara Eddie . Filed by All Plaintiffs. (Related

document(s): Memorandum in Support of Motion 29 .) (Davidson, Clifford) (Entered: 08/10/2020)

08/10/2020

35 Certificate of Service by All Plaintiffs of Memorandum in Support

of Motion 29 , Declaration 32 , Declaration 34 , Declaration 30 , Declaration 31 , Declaration 33 Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 08/10/2020)

08/24/2020

36 Notice of Appearance of Jordan Von Bokern appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Von Bokern, Jordan) (Entered: 08/24/2020)

08/24/2020 37

Response in Opposition to Motion for Preliminary
Injunction Motion for Temporary Restraining Order 16 . Filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Von Bokern, Jordan) (Entered: 08/24/2020)

09/08/2020

38 Reply to Motion for Preliminary Injunction Motion for Temporary

Restraining Order 16 Oral Argument requested. Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 09/08/2020)

09/08/2020 39

Third Declaration of Clifford S. Davidson . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction, Motion

for Temporary Restraining Order 16 (Entered: 09/08/2020)

.) (Davidson, Clifford)

09/17/2020

40 Notice of Appearance of Jeffrey Aaron Hall appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Hall, Jeffrey) (Entered: 09/17/2020)

09/18/2020

41 Unopposed Motion for Extension of Time to Answer . Filed by All Defendants. (Attachments: # 1 Proposed Order) (Hall, Jeffrey) (Entered: 09/18/2020)

09/18/2020

42 ORDER issued by Magistrate Judge Jolie A. Russo: Granting Defendants' Unopposed Motion for Extension of Time 41 as follows: Defendants' answer will be due 14 days from the time that the Court resolves Plaintiffs' currently pending motion for a preliminary injunction or until 11/6/2020, whichever date is earlier, and without prejudice to Defendants' ability seek an additional

09/21/2020 09/21/2020 10/12/2020
10/19/2020
10/22/2020
10/22/2020

extension, provided sufficient good cause is shown, should circumstances warrant it. In addition, Corporate Plaintiffs are reminded to file their Corporate Disclosure Statements, which were due in this matter on 8/4/2020. (gm) (Entered: 09/18/2020)
43 Corporate Disclosure Statement . Filed by First Unitarian Church of Portland, Oregon. (Davidson, Clifford) (Entered: 09/21/2020)
44 Corporate Disclosure Statement . Filed by Western States Center, Inc.. (Davidson, Clifford) (Entered: 09/21/2020)
45 Notice re Reply to Motion 38 , Motion for Preliminary Injunction,
Motion for Temporary Restraining Order 16 (Notice of Supplemental Authority) Filed by All Plaintiffs. (Related document(s): Reply to Motion 38 , Motion for Preliminary
Injunction, Motion for Temporary Restraining Order 16 .) (Davidson, Clifford) (Entered: 10/12/2020)
46 Scheduling Order by Judge Michael W. Mosman regarding Motion for Preliminary Injunction Motion for Temporary Restraining
Order 16 . Oral Argument is set for 10/22/2020 at 02:00P3:00PM in Portland Courtroom 16/Videoconference before Judge Michael W. Mosman. Ordered by Judge Michael W. Mosman. (kms) (Entered: 10/19/2020)
47 Notice re Reply to Motion 38 , Motion for Preliminary Injunction,
Motion for Temporary Restraining Order 16 (Supplemental Authority) Filed by All Plaintiffs. (Related document(s): Reply to Motion 38 , Motion for Preliminary Injunction, Motion for
Temporary Restraining Order 16 .) (Attachments: # 1 Attachment Index Newspapers LLC opinion) (Davidson, Clifford) (Entered: 10/22/2020)
48 MINUTES of Proceedings: Oral Argument held before Judge Michael W. Mosman. A second hearing on Plaintiffs Motion for
Preliminary Injunction 16 is set for 10/30/2020 at 09:00AM in Portland by videoconference before Judge Michael W. Mosman. Clifford Davidson, Andrew Jacobs present as counsel for plaintiff(s). Jeffrey Hall present as counsel for defendant(s). Court Reporter: Bonita Shumway. Judge Michael W. Mosman presiding. (kms) (Entered: 10/23/2020)

10/30/2020

49 MINUTES of Proceedings: Oral Argument held before Judge Michael W. Mosman. Plaintiffs Motion for Preliminary

Injunction 16 is DENIED with respect to the Tenth Amendment Claim and GRANTED with respect to the 1st Amendment Claims. The Parties shall send the Court proposed orders on injunctive relief. Clifford Davidson, Andrew Jacobs present as counsel for plaintiff(s). Jeffrey Hall present as counsel for defendant(s).(Court Reporter Bonita Shumway.)Judge Michael W. Mosman presiding. (kms) (Entered: 10/30/2020)

11/03/2020

51 Scheduling Order by Judge Michael W. Mosman. Status Conference is set for 11/9/2020 at 04:00PM-5:00PM in Portland by videoconference before Judge Michael W. Mosman. Ordered by Judge Michael W. Mosman. (kms) (Entered: 11/03/2020)

11/03/2020

52 Notice of Appeal to the 9th Circuit from Permanent Injunction 50 (fee exempt status selected (AUSA)) . Filed by Federal Protective Service, United States Customs and Border Protection, United States Department of Homeland Security, United States Marshals Service. (Hall, Jeffrey) (Entered: 11/03/2020)

11/03/2020 53

Motion for Stay Pending Appeal and Administrative Stay. Filed by Federal Protective Service, United States Customs and Border Protection, United States Department of Homeland Security, United States Marshals Service. (Attachments: # 1 Attachment Declaration of Gabriel Russell) (Hall, Jeffrey) (Entered: 11/03/2020)

11/03/2020

54 Declaration of Brian S. Acuna . Filed by Federal Protective Service, United States Customs and Border Protection, United States Department of Homeland Security, United States Marshals Service. (Hall, Jeffrey) (Entered: 11/03/2020)

11/04/2020

USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal, 52 . Case Appealed to Ninth Circuit Case Number 20-35949 assigned. (ecp) (Entered: 11/04/2020)

11/04/2020

55 Unopposed Motion for Leave To File Document Under Seal. Filed by Federal Protective Service, United States Customs and Border Protection, United States Department of Homeland Security, United States Marshals Service. (Attachments: # 1 Exhibit CBP NZ-1 Declaration, # 2 Exhibit Misher Declaration, # 3 Proposed Order) (Hall, Jeffrey) (Entered: 11/04/2020)

11/04/2020

56 ORDER issued by Magistrate Judge Jolie A. Russo: Granting Defendants' Unopposed Motion to File an Unredacted Declaration in Support of Defendants' Motion To Stay the Preliminary

11/04/2020 11/05/2020 11/05/2020
11/05/2020
11/05/2020

Injunction Pending Appeal ( 53 (Entered: 11/04/2020)

) Under Seal 55 . (gm)

57 Exhibit 1 in Support of Motion for Stay Pending Appeal and

Administrative Stay (# 53 ). (DOCUMENT FILED UNDER SEAL). Filed by All Defendants. (eo) (Entered: 11/04/2020)

60 ORDER issued by Magistrate Judge Jolie A. Russo: Plaintiffs' Notices of Lodging of October 22, 2020 Hearing Transcript 58 & 59 filed on 11/5/2020 will be sealed as the official court transcript has not been filed in accordance with the policy of this court. (See policy at https://ord.uscourts.gov/index.php/filing-andforms/transcript-information.) (gm) (Entered: 11/05/2020)

61 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Preliminary Injunction Hearing (By Videoconference) held on 10/22/20 before Judge Michael W. Mosman, Court Reporter Bonita J. Shumway, telephone number (503)326-8188 or bonita_shumway@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 11/12/2020. Redaction Request due 11/30/2020. Redacted Transcript Deadline set for 12/7/2020. Release of Transcript Restriction set for 2/3/2021. (Shumway, Bonita) (Entered: 11/05/2020)

62 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on 10/30/2020 before Judge Michael W. Mosman, Court Reporter Bonita J. Shumway, telephone number (503)326-8188 or bonita_shumway@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 11/12/2020. Redaction Request due 11/30/2020. Redacted Transcript Deadline set for 12/7/2020. Release of Transcript Restriction set for 2/3/2021. (Shumway, Bonita) (Entered: 11/05/2020)

63 Response in Opposition to Motion for Stay Pending Appeal and

Administrative Stay 53 . Filed by Janelle S Bynum, Sara D Eddie, First Unitarian Church of Portland, Oregon, Karin A Power,

11/06/2020 11/06/2020 11/06/2020 11/09/2020 11/09/2020 11/09/2020

Western States Center, Inc.. (Jacobs, Andrew) (Entered: 11/05/2020)
64 Reply to Motion for Stay Pending Appeal and Administrative
Stay 53 . Filed by Federal Protective Service, United States Customs and Border Protection, United States Department of Homeland Security, United States Marshals Service. (Hall, Jeffrey) (Entered: 11/06/2020)
65 Order from USCA for the 9th Circuit, USCA # 20-35949 re Notice of Appeal, 52 . The emergency motion for a stay pending appeal (Docket Entry No. 7 ) is denied without prejudice to renewal following the district court's decision on the motion for stay pending appeal pending before it, or on November 11, 2020, whichever is first. The motion for an immediate administrative stay is denied. (ecp) (Entered: 11/06/2020)
66 Stipulated Motion for Extension of Time to Answer Amended
Complaint 14 . Filed by United States Department of Homeland Security, United States Customs and Border Protection, United States Marshals Service, Federal Protective Service. (Hall, Jeffrey) (Entered: 11/06/2020)
67 ORDER issued by Magistrate Judge Jolie A. Russo: Granting the parties' Stipulated Motion for Extension of Time to Answer 66 as follows: Answer deadline reset to 12/4/2020 for all defendants. The Parties will also confer pursuant to Federal Rule of Civil Procedure 26(f) and Local Rule 26-1 no later than 12/4/2020. (gm) (Entered: 11/09/2020)
68 Supplemental Declaration of Clifford S. Davidson . Filed by All Plaintiffs. (Related document(s): Permanent Injunction 50 .) (Attachments: # 1 Exhibit 1) (Davidson, Clifford) (Entered: 11/09/2020)
69 MINUTES of Proceedings: Status Conference held before Judge Michael W. Mosman. The Order for Preliminary Injunction 50 is
VACATED. Defendants' Motion for Stay 53 is DENIED as moot. Clifford S. Davidson and Andrew M. Jacobs present as counsel for plaintiff(s). Jeffrey Aaron Hall and Jason Ferrell for the United States Marshals Service present as counsel for defendant(s). Court Reporter: Bonita Shumway. Judge Michael W. Mosman presiding. (dls) (Entered: 11/09/2020)

11/19/2020 70

Order from USCA for the 9th Circuit, USCA # 20-35949 re Notice of Appeal 52 . The motion filed by the government on November 16, 2020 for voluntary dismissal of this appeal is granted. This appeal is dismissed. See Fed. R. App. P. 42(b); 9th Cir. R. 27-9.1. This order shall constitute the mandate. (jtj) (Entered: 11/19/2020)

12/01/2020

71 Notice of Appearance of Kelly H. Dove appearing on behalf of All Plaintiffs Filed by on behalf of All Plaintiffs. (Dove, Kelly) (Entered: 12/01/2020)

12/04/2020 72

Motion to Dismiss for Lack of Jurisdiction , Motion to Dismiss for Failure to State a Claim . Filed by United States Department of Homeland Security, United States Customs and Border Protection, United States Marshals Service, Federal Protective Service. (Hall, Jeffrey) (Entered: 12/04/2020)

12/04/2020 73

Motion for Stay of Discovery. Filed by Federal Protective Service, United States Customs and Border Protection, United States Department of Homeland Security, United States Marshals Service. (Hall, Jeffrey) (Entered: 12/04/2020)

12/07/2020

74 ORDER issued by Magistrate Judge Jolie A. Russo: Setting

Defendants' Rule 12 Motion to Dismiss 72 and Defendants'

Motion to Stay Discovery 73 on the under advisement calendar of 1/4/2021. (gm) (Entered: 12/07/2020)

12/09/2020

75 ORDER issued by Magistrate Judge Jolie A. Russo: Setting a Telephonic Rule 16 Conference for 12/14/2020 at 2:00PM in Portland Chambers before Magistrate Judge Jolie A. Russo. Local Rules 16-2(b) and 26-1 require that counsel confer prior to the conference. At the conference, counsel should be prepared to discuss the status of the case, relevant dates and deadlines, and any other significant issues. If consents are going to be filed, it is helpful if they are filed prior to the time of the conference, particularly if a firm trial date is desired. (gm) (Entered: 12/09/2020)

12/09/2020

76 Notice of Appearance of Jason C. Lynch appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Lynch, Jason) (Entered: 12/09/2020)

12/09/2020

77 Individual Party Consent to Jurisdiction by U.S. Magistrate Judge. (Entered: 12/09/2020)

12/10/2020 12/14/2020
12/18/2020 12/18/2020 12/22/2020 12/22/2020

78 Notice of Appearance of Michael Patrick Clendenen appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Clendenen, Michael) (Entered: 12/10/2020)
79 MINUTES OF PROCEEDINGS before Magistrate Judge Jolie A. Russo: Telephonic Rule 16 Conference held 12/14/20. Order: The parties shall confer and submit a proposed case management schedule by 12/21/2020 for the court's consideration. Clifford Davidson present as counsel for plaintiff(s). Jason Lynch; Jeffrey Hall; Michael Clendenen present as counsel for defendant(s). Court Reporter: (None). (gm) (Entered: 12/14/2020)
80 Response in Opposition to Motion for Stay of Discovery 73 . Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 12/18/2020)
81 Response in Opposition to Motion to Dismiss for Lack of
Jurisdiction Motion to Dismiss for Failure to State a Claim 72 . Filed by All Plaintiffs. (Davidson, Clifford) (Entered: 12/18/2020)
82 Notice in Response to the Court's Questions at the December 14, 2020, Rule 16 Conference Filed by All Defendants. (Lynch, Jason) (Entered: 12/22/2020)
83 ORDER issued by Magistrate Judge Jolie A. Russo: Based on Defendant's Notice 82 , the discovery deadline is extended as follows: Discovery to be completed by 11/30/2021. All other case management deadlines will be discussed following final ruling on the pending motions to dismiss and to stay discovery. (gm) (Entered: 12/22/2020)

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3:20-cv-01175-JR Start date: 1/1/1971 End date: 12/30/2020

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 Case 3:20-cv-01175-JR Document 1 Filed 07/21/20 Page 1 of 16

Clifford S. Davidson, OSB No. 125378 csdavidson@swlaw.com SNELL & WILMER L.L.P. One Centerpointe Drive, Suite 170 Lake Oswego, OR 97035 Telephone: (503) 624-6800 Facsimile: (503) 624-6888

Kelly H. Dove (pro hac vice to be filed) kdove@swlaw.com SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone: (702) 784-5200 Facsimile: (702) 784-5252

Andrew M. Jacobs (pro hac vice to be filed) ajacobs@swlaw.com SNELL & WILMER L.L.P. 400 East Van Buren Street, Suite 1900 Phoenix, AZ 85004 Telephone: (602) 382-6000 Facsimile: (602) 382-6070

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

WESTERN STATES CENTER, INC., an Oregon public benefit corporation; THE FIRST UNITARIAN CHURCH OF PORTLAND, OREGON, an Oregon religious nonprofit corporation; SARA D. EDDIE, an individual; OREGON STATE REPRESENTATIVE KARIN A. POWER, an elected official; and OREGON STATE REPRESENTATIVE JANELLE S. BYNUM, an elected official,

Case No. 3:20-cv-01175
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiffs,

vs.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; FEDERAL PROTECTIVE SERVICE; and UNITED STATES MARSHALS SERVICE

Defendants.

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1. This lawsuit concerns the rights of the people of Portland, and of Oregon, in the face of a Federal Government that, while extoling the nation’s Founders and the statues erected to them, disregards the history and laws that established federal government in the first place.
2. The Bill of Rights to the United States Constitution – insisted upon as a condition of entry into the Union by many who opposed federal government in the 1780s – protects liberty in its Tenth Amendment by allocating powers between the Federal Government, on one hand, and the states and the people, on the other. Every power that the Constitution does not specifically grant to the Federal Government, or forbid to the states, is reserved to the states and to the people. That mattered to the Framers of our Constitution, and it matters on the streets of Portland, Oregon right now.1
3. The point is this: whether, and how, to police is left to the states and their municipalities. Presidents cannot change that.
4. One long-recognized reason the police power is left to state and local officials is to permit communities to adopt the policing policies of their choosing—subject to certain limitations contained in the Constitution, such as the Fourth Amendment’s protections against unreasonable searches and seizures, the First Amendment’s protections of free speech, and the Fourteenth Amendment’s protections against discrimination. Oregonians have adopted such policies. For example, Oregon’s laws prevent racial profiling, establish training standards and provide certain immunities to law enforcement.

1 Indeed, the President himself has described the constitutional structure that the Framers created as “the culmination of thousands of years of western civilization and the triumph not only of spirit, but of wisdom, philosophy, and reason . . . .” https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-south-dakotas-2020-mount-rushmore-fireworks-celebrationkeystone-south-dakota/ (accessed 07/18/2020).

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5. One benefit of leaving the police power to the states, as the Framers of the

Constitution wisely did, is that it makes law enforcement accountable to the people. Because

Oregon and its municipalities control and direct policing, communities being policed may in turn

control how and by whom laws are enforced. And, those communities may do so much more

directly with respect to their local or state police than they could through Congress or federal

agencies.

6. Unwilling to accept the Framers’ constitutional constraints on his power, the

President last week fulfilled his promise to deploy militarized federal law enforcement personnel

to “quickly solve,” “for” local authorities, the supposed “problem” of protesters. As they were

ordered to do, defendants descended upon Portland. Though sent in the guise of bringing order to

Portland’s streets, their arrival has made things much worse for Portlanders.

7. Although the federal government is entitled to protect federal property and

personnel, and to enforce federal law in a lawful manner, defendants have far exceeded these

constitutional limitations. Without first obtaining arrest warrants, they have undertaken to pluck

Portlanders off the street, stuff them into vans, secrete them to unknown locations, and release

them—merely for walking home or protesting peacefully, and away from federal property.

8. Defendant Department of Homeland Security has stated publicly that the Federal

Government plans to expand its militarized presence throughout the United States. See

https://www.npr.org/2020/07/17/892393079/dhs-official-on-reports-of-federal-officers-

detaining-protesters-in-portland-ore

(accessed

July

20,

2020);2

https://www.chicagotribune.com/news/criminal-justice/ct-chicago-police-dhs-deployment-

20200720-dftu5ychwbcxtg4ltarh5qnwma-story.html (accessed July 20, 2020) (quoting the

2 Also in that interview, the federal official refused to state whether there had been more than one abduction from the streets of Portland, using unmarked vehicles and unidentified federal officers.

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President: “I’m going to do something that I can tell you, because we’re not going to leave New York and Chicago and Philadelphia, Detroit and Baltimore, and all of these — Oakland is a mess. We’re not going to let this happen in our country, all run by liberal Democrats . . . . We’re going to have more federal law enforcement, that I can tell you . . . . In Portland, they’ve done a fantastic job. They’ve been there three days and they really have done a fantastic job in a very short period of time, no problem.”)
9. The purpose of this lawsuit is to stop the federal government, its officials, and any others who have acted in concert with them, from depriving Portlanders of the right to be policed solely by those the Constitution permits, and who are accountable to Portlanders and Oregonians.
10. Another purpose of this lawsuit is to vindicate the First Amendment rights of a church whose religious practice includes activism and protest in the face of injustice.
JURISDICTION AND VENUE 11. This case arises under the laws of the United States—specifically, the Federal Constitution and 28 U.S.C. § 2201, the Declaratory Judgments Act. The Court therefore has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331. 12. Venue is proper under 28 U.S.C. § 1391(e)(1) because the defendants are agencies of the United States and officers of the United States acting in their official capacity, and (1) at least one plaintiff resides in this district; or (2) a substantial part of the events or omissions giving rise to the claims occurred in this district. 13. Alternatively, venue is proper in this district, pursuant to 28 U.S.C. § 1391(b)(2), because a substantial part of the events or omissions giving rise to the claims alleged herein occurred in this district. 14. Venue lies in the Portland Division of the District of Oregon, pursuant to LR 3-2, because a substantial part of the events or omissions giving rise to the claims occurred in

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Multnomah County, Oregon. A. Western States Center 15. Plaintiff Western States Center, Inc. (“WSC”) is an Oregon public benefit
corporation headquartered in Portland. Its mission is to strengthen the organizing capacity of often marginalized communities; to provide training, leadership development and organizational capacity to social movements and leaders; to promote peaceful protest and reconciliation; and to defend democracy and democratic engagement. WSC teaches peace, de-escalation and reconciliation. During the protests in Portland throughout 2018 and 2019, WSC worked closely with the City of Portland to deescalate conflict between protesters and Portland Police Bureau. WSC sponsored one of the first intentional non-violent rallies in front of Portland City Hall in 2018.
16. Defendants’ overreach into the affairs of local law enforcement has caused WSC to suffer injury. Beginning on May 26, 2020, when George Floyd was killed in Minneapolis, WSC devoted significant resources to deescalating conflict between the Portland Police Bureau and protesters, and was making progress in this regard. Then the Federal Government arrived and began to undertake purported law enforcement actions on the streets of Portland. Defendants harmed WSC by inserting itself into the policing of Portland, which disrupted WSC’s efforts and frustrated its mission. This required WSC to divert resources away from other programs in order to address the chaos the defendants caused when they overstepped the constitutional bounds limiting their authority to engage in purported law enforcement activities. Unless defendants are enjoined, WSC will have to continue diverting resources to address defendants’ unlawful acts.
17. Defendants’ unlawful actions in Portland have necessitated additional expenditures, including but not limited to the following: (1) WSC spent funds from its communications retainer to issue statements and disseminate information to the public and to

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WSC’s supporters; (2) the executive director has spent approximately 70-percent of his time, over the past four days, addressing the disruption defendants’ police practices have caused; (3) the executive director involved two other staff members in his efforts; and (4) WSC has had to retain a second communications firm. Unless defendants are enjoined, WSC will have to continue diverting, and expending, resources to address defendants’ continued unlawful acts.
B. First Unitarian Church of Portland 18. Plaintiff The First Unitarian Church of Portland, Oregon (“First Unitarian”) is a domestic religious nonprofit corporation located in Portland. Founded in 1866, First Unitarian draws upon a long heritage of social activism. In fact, activism and social justice are central tenants of the church; its stated mission is, among other things, “to act for social justice.” First Unitarian has organized a Social Justice Council and a Police Accountability Team. 19. First Unitarian also has assembled a protest witness group, the purpose of which is to equip congregants to observe and monitor protests and the police response to them. It is part of First Unitarian’s social justice mission—a fundamental aspect of religious life and practice—to encourage protest against unjust laws and government actions. The congregation has been quite active in the George Floyd protests. Moreover, First Unitarian’s witnessing activities are themselves a form of expression and assembly separately protected by the First Amendment. Because defendants began policing the streets of Portland, and throwing suspected protestors into unmarked vehicles even when peaceful, participation in the protest witness group has dropped and First Unitarian’s social justice mission has been harmed. There was not a similar drop when Portland Police Bureau maintained their role as the police in Portland, and federal law enforcement limited itself to protecting federal facilities and personnel. 20. First Unitarian is hesitant to encourage its congregants to protest even though such protesting is peaceful, because defendants’ unconstitutional targeting of peaceful protestors

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increases both the risk of bodily harm to congregants and the likelihood of the church’s civil liability to congregants who are injured or traumatized in the course of abduction by federal law enforcement. Through their unconstitutional overreach into general policing, defendants have thwarted First Unitarian’s pursuit of social activism as a tenet of faith.
21. Furthermore, the Tenth Amendment reserves to First Unitarian Portland, a Portland resident, the right to be policed only by Portland Police Bureau or state authorities when appropriate—and by federal authorities only to the extent authorized by valid federal law, federal regulation or the Federal Constitution.
C. Sara Eddie 22. Plaintiff Sara Eddie is an individual residing in Portland. She is a legal observer volunteer with the ACLU of Oregon. As a neutral legal observer, she attends and observes demonstrations and protests, and documents what she sees—including any police abuses or any violence or vandalism by protestors. Since approximately June 1, 2020, Ms. Eddie has acted as a legal observer at numerous protests in the aftermath of the killing of George Floyd. Ms. Eddie views objective, neutral legal observing as an important way to give back to the community and to protect civil rights. Defendants’ overreaching police activities, including abductions of peaceful protestors off the streets of Portland, have caused Ms. Eddie to cease her service as a legal observer downtown, where the largest and most turbulent protests occur. She does not want to risk being “disappeared,” especially because she cares for her 96-year-old grandfather and has two children. 23. Defendants’ unconstitutional overreach has caused Ms. Eddie damage. Because of defendants’ actions in connection with protests and the understandable concern they have caused her, she has refrained from exercising her First Amendment right to observe law enforcement and from undertaking her meaningful volunteer work. As the largest, most frequent, and most turbulent protests occur downtown, defendants’ unconstitutional acts in downtown Portland have

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constrained her ability to contribute meaningfully as a legal observer. She will continue to refrain from legal observing until the Court enjoins defendants’ unconstitutional conduct.
24. Furthermore, the Tenth Amendment reserves to Ms. Eddie, a Portland resident, the right to be policed only by Portland Police Bureau or state authorities when appropriate—and by federal authorities only to the extent authorized by valid federal law, federal regulation or the Federal Constitution.
D. Oregon State Representative Karin Power 25. Representative Karin A. Power is the duly-elected representative of Oregon’s 41st House District, which encompasses Milwaukie, Oak Grove and parts of Southeast Portland. She is the Vice-Chair of the House Judiciary Committee, which oversees, creates and modifies state civil and criminal laws; oversees the judicial system; and sets the certification and licensure requirements for criminal justice public safety professionals, including Portland police officers. As a legislator, she makes and enacts laws, including on issues of law enforcement. Defendants’ violations of the Tenth Amendment frustrated her right and ability to set state law enforcement policy applicable in Portland and throughout the state of Oregon. By infringing upon the sovereignty of the State of Oregon, defendants have diminished Representative Power’s ability to establish law enforcement policy as her constituents direct. 26. Furthermore, in her capacity as a citizen, Representative Power has the right to be policed solely by state and local authorities—and by federal authorities only to the extent authorized by valid federal law, federal regulation or the Federal Constitution. E. Oregon State Representative Janelle Bynum 27. Representative Janelle S. Bynum is the duly-elected representative of Oregon’s 51st House District, which encompasses East Portland, Damascus, Gresham, Boring, North Clackamas and Happy Valley. She is the mother of four Black children, two of whom are male. She fears

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terribly for their safety while federal law enforcement are present, especially given that federal law enforcement is not subject to Oregon’s anti-profiling legislation and other policing policies, and her family’s freedom of movement through Portland now is severely restricted.
28. Representative Bynum also is the Chair of the House Judiciary Committee, which oversees, creates and modifies state civil and criminal laws; oversees the judicial system; and sets the certification and licensure requirements for criminal justice public safety professionals, including Portland police officers. As a legislator, she makes and enacts laws, including on issues of law enforcement. She also has introduced and shepherded significant law enforcement legislation. Defendants’ violations of the Tenth Amendment frustrated her right and ability to set state law enforcement policy applicable in Portland and throughout the state of Oregon. By infringing upon the sovereignty of the State of Oregon, defendants have diminished Representative Power’s ability to establish law enforcement policy as her constituents direct.
29. Furthermore, in her capacity as a citizen, Representative Bynum, and her children, have the right to be policed solely by state and local authorities—and by federal authorities only to the extent authorized by valid federal law, federal regulation or the Federal Constitution.
F. Defendants 30. Defendant United States Department of Homeland Security is a Cabinet-level department of the Federal Government. Its stated missions involve anti-terrorism, border security, immigration and customs. It was created in 2002, combining 22 different federal departments and agencies into a single Cabinet agency. 31. Defendant United States Customs and Border Protection is an agency within the Department of Homeland Security. Its stated mission is: “[t]o safeguard America's borders thereby protecting the public from dangerous people and materials while enhancing the Nation's global economic competitiveness by enabling legitimate trade and travel.”

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32. Defendant Federal Protective Service is another agency within and under the control of the Department of Homeland Security. Its stated mission on its website is “To prevent, protect, respond to and recover from terrorism, criminal acts, and other hazards threatening the U.S. Government’s critical infrastructure, services, and the people who provide or receive them.”
33. Defendant United States Marshals Service is an agency within and under the control of the United States Department of Justice. According to a Fact Sheet on its website, “it is the enforcement arm of the federal courts, involved in virtually every federal law enforcement initiative.”
GENERAL ALLEGATIONS 34. On May 26, 2020, a Minneapolis police officer killed George Floyd while three other police officers watched and did nothing. 35. That same day, protests erupted across the United States. Most of the protesters acted peacefully. Some of them did not. A. Local Authorities, Accountable to Local People, Address the George Floyd
Protests. 36. The protests have continued since May 26. The vast majority of the hundreds-ofthousands of protesters across the county have acted peacefully. 37. The situation in Portland has been no different. Tens of thousands of Portlanders have protested peacefully, while some have resorted to vandalism. Portland Police Bureau also has alleged that some of the protestors have committed acts of violence. 38. With respect to the vandalism and alleged violence: local law enforcement, aided by the Oregon State Police and other state agencies, have been handling the situation. 39. The law enforcement response has been (until now) an Oregon-based response accountable to Oregonians. Indeed, over the course of the protests of the past several weeks, the

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Portland Police Bureau and state agencies have altered their approaches in response to local
criticism and to the concerns of the citizens of Portland and Oregon.
40. That is how democracy works in our Federal Republic. The Tenth Amendment
reserves to the States and their people the right to self-govern absent the legitimate exercise of
federal power: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
41. This foundational principle—that the states and the Federal Government share
power—is called federalism.
42. Justice Kennedy, writing for a unanimous Supreme Court and affirming that
individuals may invoke the Tenth Amendment to challenge federal laws and actions, described the
purpose of federalism:
“The federal system rests on what might at first seem a counterintuitive insight, that freedom is enhanced by the creation of two governments, not one. The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived . . . . [F]ederalism secures to citizens the liberties that derive from the diffusion of sovereign power. Some of these liberties are of a political character. The federal structure allows local policies more sensitive to the diverse needs of a heterogeneous society, permits innovation and experimentation, enables greater citizen involvement in democratic processes, and makes government more responsive by putting the States in competition for a mobile citizenry. Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. [. . . .]

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By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”
Bond v. United States, 564 U.S. 211, 220-22 (2011) (quotations and citations omitted)
B. The Federal Government Tries to Arrogate to Itself the Power to Police Cities.
43. Without Congressional authorization, and without invoking any specific power
granted to him, the President of the United States decided to use the power of the federal
government to quell protests occurring throughout the country, including in Portland.
44. On June 1, 2020, the President clearly warned of the militarizing of the streets of
Portland, Oregon that soon followed:
“Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled . . . . If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”

https://www.whitehouse.gov/briefings-statements/statement-by-the-president-39/

(accessed

07/18/2020).

45. At a June 21, 2020 rally in Tulsa, Oklahoma, the President complained:

“Two days ago, leftist radicals in Portland, Oregon ripped down a statue of George Washington and wrapped it in an American flag and set the American flag on fire.”

46. At his July 4, 2020 rally at Mt. Rushmore, the President announced that he was “deploying federal law enforcement to protect our monuments, arrest the rioters, and prosecute offenders to the fullest extent of the law.” https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-south-dakotas-2020-mount-rushmore-fireworks-celebrationkeystone-south-dakota/ (accessed 07/18/2020). The context of that statement makes clear that he

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was referring generally to statues and symbols “of our national heritage” more broadly, and not to federal property.
47. The President’s officials have indulged the President’s whim. Based on media reports, a sworn declaration filed in the Oregon Attorney General’s lawsuit also pending before this Court, and comments made by federal officials, plaintiffs are informed and believe, and on the basis of such information and belief allege, that federal law enforcement agencies and personnel, including but not limited to the defendants in this action, began abducting suspected protesters off of Portland streets—even though such protestors were acting peacefully.
48. The abducting officials did not identify themselves or their agencies, and obscured identifying markers such as badges or name tags.
49. These abductions occurred outside the jurisdiction of federal law enforcement. 50. Those abducted were not attacking federal property or personnel. 51. Those abducted were not on federal property at the time they were abducted. In fact, those abducted reportedly were walking home, on city streets, after having peacefully protested. 52. To plaintiffs’ knowledge, defendants have not obtained arrest warrants prior to abducting Portlanders. 53. Plaintiffs do not challenge defendants’ authority to guard lawfully federal property and personnel. Rather, plaintiffs ask the Court to honor and restore the balance of power the Framers put in place through the Tenth Amendment. 54. Thus, while the federal government may protect its property and personnel, the federal government is constrained by the Constitution from policing the City of Portland broadly speaking, and there is no positive delegation of authority in any law that makes the federal government’s recent forays into general policing in Portland either legal or constitutional. The

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Court should enjoin the defendants from conducting law enforcement activities unless defendants lawfully are enforcing a validly-enacted federal law, or unless they are acting within the immediate vicinity of federal facilities in order to protect those facilities. If defendants wish to seize someone, then they must obtain a warrant, have probable cause, and otherwise comply with the Fourth Amendment.
FIRST CLAIM FOR RELIEF (Violation of Tenth Amendment) (By all plaintiffs against all defendants) 55. Plaintiffs reallege, and incorporate by reference, the allegations of the foregoing paragraphs. 56. By conducting traditional law enforcement activities on the sidewalks and streets of Portland—as opposed to within the vicinity, or on the premises, of government property— defendants have encroached upon powers explicitly reserved to the State of Oregon, and to Oregon’s citizens, pursuant to the Tenth Amendment. 57. Defendants conducted such law enforcement activities under color of federal law. 58. Each plaintiff has standing to bring this claim because each has suffered cognizable injuries that are redressable through injunctive relief, and the Tenth Amendment confers a substantive, personal right. See, e.g. Bond v. United States, 564 U.S. 211, 220-22 (2011). 59. There is no adequate remedy under state law. SECOND CLAIM FOR RELIEF (Violation of First Amendment Right of Free Exercise) (By First Unitarian Portland against all defendants) 60. First Unitarian realleges, and incorporates by reference, the allegations of paragraphs 1 to 54.

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61. Defendants have deprived Portlanders the right to protest peacefully, and to transit peacefully to and from protest locations. Defendant have done so through, among other things, unwarranted seizures and detentions, including stuffing people into unmarked vehicles, performed under color of federal law.
62. Defendants have not indicated that they will stop this practice. 63. There is no adequate remedy under state law. 64. As alleged previously in this Complaint, protest is a key aspect of First Unitarian’s faith, mission and religious practice. 65. By abducting people peacefully protesting, or transiting to or from protests, in Portland, defendants have chilled, and will continue to chill, First Unitarian’s pursuit of its religious mission and faith, and the exercise of that faith by First Unitarian’s congregants.
THIRD CLAIM FOR RELIEF (28 U.S.C. § 2201—Declaratory Judgment)
(By all plaintiffs against all defendants) 66. Plaintiffs reallege, and incorporate by reference, the allegations of the preceding paragraphs. 67. There is an actual controversy among the parties, inasmuch as one or more of the defendants has engaged in actions violating plaintiffs’ civil rights and none of the defendants has either acknowledged such actions or agreed to stop them. In fact, defendants have stated that they intend to continue such actions. 68. Plaintiffs therefore are entitled to a declaration that defendants’ actions are, or have been, unconstitutional, and to an injunction against committing the acts alleged herein in the future. / / /

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PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for relief as follows:
A. A judgment declaring that defendants are violating the Tenth Amendment, and Free Exercise Clause of the First Amendment, through the conduct alleged in this Complaint;
B. An injunction permanently restraining defendants, and any persons working in concert with them, from (1) engaging in law enforcement activities other than in the immediate defense of federal personnel or property, and only to the extent necessary to remove an imminent threat or arrest someone observed violating federal law, and (2) seizing or arresting individuals within the jurisdiction of this Court without either probable cause to believe that a federal crime has been committed, or a warrant, consistent with the requirements of the Federal Constitution;
C. Attorney fees and expenses pursuant to 28 U.S.C. § 2412(b); and D. Such other relief as this Court deems just and proper.

Dated: July 21, 2020

SNELL & WILMER L.L.P.
By /s/ Clifford S. Davidson Clifford S. Davidson, OSB No. 125378 Kelly H. Dove (pro hac vice to be filed) Andrew M. Jacobs (pro hac vice to be filed)
Attorneys for Plaintiffs

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Clifford S. Davidson, OSB No. 125378 csdavidson@swlaw.com SNELL & WILMER L.L.P. One Centerpointe Drive, Suite 170 Lake Oswego, OR 97035 Telephone: (503) 624-6800 Facsimile: (503) 624-6888

Andrew M. Jacobs (pro hac vice) ajacobs@swlaw.com SNELL & WILMER L.L.P. 400 East Van Buren Street, Suite 1900 Phoenix, AZ 85004 Telephone: (602) 382-6000 Facsimile: (602) 382-6070 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

WESTERN STATES CENTER, INC., an Oregon public benefit corporation; THE FIRST UNITARIAN CHURCH OF PORTLAND, OREGON, an Oregon religious nonprofit corporation; SARA D. EDDIE, an individual; OREGON STATE REPRESENTATIVE KARIN A. POWER, an elected official; and OREGON STATE REPRESENTATIVE JANELLE S. BYNUM, an elected official,

Case No. 3:20-cv-01175-JR
FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiffs,

vs.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; FEDERAL PROTECTIVE SERVICE; and UNITED STATES MARSHALS SERVICE

Defendants.

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INTRODUCTION 1. This lawsuit concerns the rights of the people of Portland, and of Oregon, in the face of a federal government that, while extolling the nation’s Founders and the statues erected to them, disregards the history and laws that established federal government in the first place. 2. The Bill of Rights to the United States Constitution – insisted upon as a condition of entry into the Union by many who opposed federal government in the 1780s – protects liberty in its Tenth Amendment by allocating powers between the Federal Government, on one hand, and the states and the people, on the other. 3. That principle is alive and vital today to Americans exercising the expressive freedoms guaranteed to them by the Bill of Rights in its First Amendment. Vindicating the rights of private citizens to bring claims where the federal government injures them through overstepping its limited powers in violation of the Tenth Amendment, a unanimous United States Supreme Court explained in 2011 that:
Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated government power cannot direct or control their actions….By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.
The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.
Bond v. United States, 564 U.S. 211, 220-22 (2011) (quotations and citations omitted)

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The Constitution’s Reservation of the Police Power to the States 4. The United States Constitution unquestionably denies the federal government the plenary authority to police Portland, Oregon that it presently seeks to exercise. Every power that the Constitution does not specifically grant to the Federal Government, or forbid to the states, is reserved to the states and to the people. Whether, and how, to police is left to the states, like Oregon, and delegated in part to their municipalities, including Portland. Presidents cannot change that. 1 5. One long-recognized reason the police power is left to state and local officials is to permit communities to adopt the policing policies of their choosing—subject to certain limitations contained in the Constitution, such as the Fourth Amendment’s protections against unreasonable searches and seizures, the First Amendment’s protections of free speech, and the Fourteenth Amendment’s protections against discrimination. Oregonians have adopted such policies. For example, Oregon’s laws prevent racial profiling, establish training standards and provide certain immunities to law enforcement. 6. One benefit of leaving the police power to the states, as the Framers of the Constitution wisely did, is that it promotes law enforcement accountability within policed communities. Because Oregon and its municipalities control and direct policing, policed communities may in turn control how and by whom laws are enforced. And, those communities may do so much more directly with respect to their local or state police than they could through Congress or federal agencies.

1 Indeed, the President himself has described the constitutional structure that the Framers created as “the culmination of thousands of years of western civilization and the triumph not only of spirit, but of wisdom, philosophy, and reason . . . .” https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-south-dakotas-2020-mount-rushmore-fireworks-celebrationkeystone-south-dakota/ (accessed 07/18/2020).

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The President’s Design to Deter First Amendment-Protected Speech and Activity, and the Defendant Agencies’ Scheme to Deter Speech Through a Variety of Illegal and Arguably
Otherwise Legal Policing, All of Which Violates the Tenth Amendment 7. Unwilling to accept the Framers’ constitutional constraints on his power, the President fulfilled his promise to deploy militarized federal law enforcement personnel to “quickly solve,” “for” local authorities, the supposed “problem” of protesters. As they were ordered to do, the defendant agencies descended upon Portland. Though sent in the guise of bringing order to Portland’s streets, their arrival has made things much worse for Portlanders. 8. The federal government is entitled to protect federal property and personnel, and to enforce federal law in a lawful manner. Defendants have far exceeded these constitutional powers in violation of the Tenth Amendment. Without first obtaining arrest warrants, defendants have undertaken to pluck Portlanders off the street, stuff them into vans, secrete them to unknown locations, and release them—merely for walking home or protesting peacefully, and away from federal property. 9. These federal authorities have conducted general policing away from and out of the sight of the courthouse they are supposedly immediately engaged in defending, roving blocks away to chase, attack and arrest protesters. These actions away from any federal situs plainly violate the Tenth Amendment, even if they are sometimes conducted in a manner that would otherwise be legal. 10. But the agency defendants’ design to suppress speech does not consist solely of Tenth Amendment-violative attacks on citizens engaged in First Amendment activities beyond the line of sight to the Hatfield Courthouse. 11. The agency defendants exhibit a conspicuous pattern of policing performed with the goal to deter the First Amendment-protected activities of gathering in political protest, and of observing and reporting upon political protest. Both near and removed from the situs of the

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Hatfield Courthouse, the agency defendants are gassing crowds without provocation or fair warning. Their forces beat and gassed a man with his hands at his sides for the offense of speaking reproachfully to them as an example. Their forces arrest and release persons away from the federal situs supposedly being defended. Their forces march in formation away from the federal situs, gassing and arresting persons objecting to that already unconstitutional and thus illegal conduct, which is itself thus unconstitutional and illegal. Their forces shoot with projectile bullets clearly visibly identified working press, and have done so even after the entry of Judge Simon’s order enjoining such conduct (discussed below).
12. In sum, the defendant agencies have engaged in procedural violations of the Tenth Amendment, by policing in a plenary fashion too far from the Hatfield Courthouse.
13. But their unwanted presence in Portland has an additional purpose: to carry out an evident scheme to suppress First Amendment activity through a pattern of oppressive policing, including plenary policing away from the Hatfield Courthouse, Fourth Amendment violations in the manner such already-illegal policing is executed, hostility to the act of protest itself, and a conscious spectacularity in policing that is reminiscent of the attempt to “shock and awe” Iraq at the time of American military action there in 2003. This scheme also deters the expressive and Free Exercise rights of those who for reasons of religion and conscience would bear witness to these violations, and the undeserving victims of them, as observers.
14. The federal government has no right to do plenary policing out of the sight of the Hatfield Courthouse, and its design to suppress speech with which the President disagrees through this conduct is patent and obviously illegal. This Court should enjoin it, both preliminarily and ultimately through a permanent injunction.
15. Though beyond the immediate scope of this suit and the relief it directly seeks, if the Court does not enjoin the Government on the ground in Portland, then this pattern of illegal

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plenary policing is just getting started. Defendant Department of Homeland Security, and the

President, have stated publicly that the Federal Government plans to expand its militarized

presence throughout the United States. See https://www.whitehouse.gov/briefings-

statements/remarks-president-trump-operation-legend-combatting-violent-crime-american-cities/

(accessed July 22, 2020) (the President announcing “surge of federal law enforcement” because

he was dissatisfied with state and local public safety efforts);

https://www.npr.org/2020/07/17/892393079/dhs-official-on-reports-of-federal-officers-

detaining-protesters-in-portland-ore

(accessed

July

20,

2020);2

https://www.chicagotribune.com/news/criminal-justice/ct-chicago-police-dhs-deployment-

20200720-dftu5ychwbcxtg4ltarh5qnwma-story.html (accessed July 20, 2020) (quoting the

President: “I’m going to do something that I can tell you, because we’re not going to leave New

York and Chicago and Philadelphia, Detroit and Baltimore, and all of these — Oakland is a mess.

We’re not going to let this happen in our country, all run by liberal Democrats . . . . We’re going

to have more federal law enforcement, that I can tell you . . . . In Portland, they’ve done a fantastic

job. They’ve been there three days and they really have done a fantastic job in a very short period

of time, no problem.”)

16. This Court should enforce the Tenth Amendment against the federal government

that only came to exist in the first place in 1791 because there is a Bill of Rights including a First

Amendment right to speak and protest, a separate First Amendment right to the free exercise and

practice of religion; a Fourth Amendment right against unreasonable arrests and searches; and a

Tenth Amendment reservation of powers to the states, including the right to local control of

policing. The Tenth Amendment is, as the Supreme Court reminded us in 2011, a bulwark of

2 Also in that interview, the federal official refused to state whether there had been more than one abduction from the streets of Portland, using unmarked vehicles and unidentified federal officers.

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liberty, because “federalism protects the liberty of the individual from arbitrary power.” Bond, 564 U.S. at 222. Portland, and Oregon, and the people who live, assemble, and protest in Portland, Oregon, have a constitutional right to be protected against the continuing spectacular federal overreach unleashed in the streets of Portland.
JURISDICTION AND VENUE 17. This case arises under the laws of the United States—specifically, the Federal Constitution and 28 U.S.C. § 2201, the Declaratory Judgments Act. The Court therefore has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331. 18. Venue is proper under 28 U.S.C. § 1391(e)(1) because the defendants are agencies of the United States and officers of the United States acting in their official capacity, and (1) at least one plaintiff resides in this district; or (2) a substantial part of the events or omissions giving rise to the claims occurred in this district. 19. Alternatively, venue is proper in this district, pursuant to 28 U.S.C. § 1391(b)(2), because a substantial part of the events or omissions giving rise to the claims alleged herein occurred in this district. 20. Venue lies in the Portland Division of the District of Oregon, pursuant to LR 3-2, because a substantial part of the events or omissions giving rise to the claims occurred in Multnomah County, Oregon.
A. Western States Center 21. Plaintiff Western States Center, Inc. (“WSC”) is an Oregon public benefit corporation headquartered in Portland. Its mission is to strengthen the organizing capacity of often marginalized communities; to provide training, leadership development and organizational capacity to social movements and leaders; to promote peaceful protest and reconciliation; and to

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defend democracy and democratic engagement. WSC teaches peace, de-escalation and reconciliation. During the protests in Portland throughout 2018 and 2019, WSC worked closely with the City of Portland to deescalate conflict between protesters and Portland Police Bureau. WSC sponsored one of the first intentional non-violent rallies in front of Portland City Hall in 2018.
22. Defendants’ overreach into the affairs of local law enforcement has caused WSC to suffer injury. Beginning on May 26, 2020, when George Floyd was killed in Minneapolis, WSC devoted significant resources to deescalating conflict between the Portland Police Bureau and protesters, and was making progress in this regard. Then the Federal Government arrived and began to undertake purported law enforcement actions on the streets of Portland. Defendants harmed WSC by inserting itself into the policing of Portland, which disrupted WSC’s efforts and frustrated its mission. This required WSC to divert resources away from other programs in order to address the chaos the defendants caused when they overstepped the constitutional bounds limiting their authority to engage in purported law enforcement activities. Unless defendants are enjoined, WSC will have to continue diverting resources to address defendants’ unlawful acts.
23. Defendants’ unlawful actions in Portland have necessitated additional expenditures, including but not limited to the following: (1) WSC spent funds from its communications retainer to issue statements and disseminate information to the public and to WSC’s supporters; (2) the executive director has spent approximately 70-percent of his time, over the past four days, addressing the disruption defendants’ police practices have caused; (3) the executive director involved two other staff members in his efforts; and (4) WSC has had to retain a second communications firm. Unless defendants are enjoined, WSC will have to continue diverting, and expending, resources to address defendants’ continued unlawful acts.

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B. First Unitarian Church of Portland 24. Plaintiff The First Unitarian Church of Portland, Oregon (“First Unitarian”) is a domestic religious nonprofit corporation located in Portland. Founded in 1866, First Unitarian draws upon a long heritage of social activism. In fact, activism and social justice are central tenants of the church; its stated mission is, among other things, “to act for social justice.” First Unitarian has organized a Social Justice Council and a Police Accountability Team. 25. First Unitarian has had a social justice council for many years and recently has assembled a protest witness group, the purpose of which is to equip congregants to observe and monitor protests and the police response to them. It is part of First Unitarian’s social justice mission—a fundamental aspect of religious life and practice—to encourage protest against unjust laws and government actions. The congregation has been quite active in the George Floyd protests. Moreover, First Unitarian’s witnessing activities are themselves a form of expression and assembly separately protected by the First Amendment. Because defendants began policing the streets of Portland, and throwing suspected protestors into unmarked vehicles even when peaceful, congregant participation in the protests has dropped and First Unitarian’s social justice mission has been harmed. There was not a similar drop when Portland Police Bureau maintained their role as the police in Portland, and federal law enforcement limited itself to protecting federal facilities and personnel. 26. First Unitarian has become hesitant to encourage its congregants to protest even though such protesting is peaceful, because defendants’ unconstitutional targeting of peaceful protestors increases both the risk of bodily harm to congregants and the likelihood of the church’s civil liability to congregants who are injured or traumatized in the course of abduction by federal law enforcement. Through their unconstitutional overreach into general policing, defendants have thwarted First Unitarian’s pursuit of social activism as a tenet of faith, and thus its and its members

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Free Exercise rights. 27. Furthermore, the Tenth Amendment reserves to First Unitarian Portland, a Portland
resident, the right to be policed only by Portland Police Bureau or state authorities when appropriate—and by federal authorities only to the extent authorized by valid federal law, federal regulation or the Federal Constitution.
C. Sara Eddie 28. Plaintiff Sara Eddie is an individual residing in Portland. She is a legal observer volunteer with the ACLU of Oregon. As a neutral legal observer, she attends and observes demonstrations and protests, and documents what she sees—including any police abuses or any violence or vandalism by protestors. Since approximately June 1, 2020, Ms. Eddie has acted as a legal observer at numerous protests in the aftermath of the killing of George Floyd. Ms. Eddie views objective, neutral legal observing as an important way to give back to the community and to protect civil rights. Defendants’ overreaching police activities, including abductions of peaceful protestors off the streets of Portland, have caused Ms. Eddie to cease her service as a legal observer downtown, where the largest and most turbulent protests occur. She does not want to risk being “disappeared,” especially because she cares for her 96-year-old grandfather and has two children. 29. Defendants’ unconstitutional overreach has caused Ms. Eddie damage. Because of defendants’ actions in connection with protests and the understandable concern they have caused her, she has refrained from exercising her First Amendment right to observe law enforcement and from undertaking her meaningful volunteer work. As the largest, most frequent, and most turbulent protests occur downtown, defendants’ unconstitutional acts in downtown Portland have constrained her ability to contribute meaningfully as a legal observer. She will continue to refrain from legal observing in downtown Portland until the Court enjoins defendants’ unconstitutional conduct.

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30. Furthermore, the Tenth Amendment reserves to Ms. Eddie, a Portland resident, the right to be policed only by Portland Police Bureau or state authorities when appropriate—and by federal authorities only to the extent authorized by valid federal law, federal regulation or the Federal Constitution.
D. Oregon State Representative Karin Power 31. Representative Karin A. Power is the duly-elected representative of Oregon’s 41st House District, which encompasses Milwaukie, Oak Grove and parts of Southeast Portland. She is the Vice-Chair of the House Judiciary Committee, which oversees, creates and modifies state civil and criminal laws; oversees the judicial system; and sets the certification and licensure requirements for criminal justice public safety professionals, including Portland police officers. As a legislator, she makes and enacts laws, including on issues of law enforcement. Defendants’ violations of the Tenth Amendment frustrated her right and ability to set state law enforcement policy applicable in Portland and throughout the state of Oregon. By infringing upon the sovereignty of the State of Oregon, defendants have diminished Representative Power’s ability to establish law enforcement policy as her constituents direct. 32. Furthermore, in her capacity as a citizen, Representative Power has the right to be policed solely by state and local authorities—and by federal authorities only to the extent authorized by valid federal law, federal regulation or the Federal Constitution. And she has the right as a citizen to gather with political protesters, to participate in political protest, and to observe political protest, all of which the defendants seek to chill or prevent—and have chilled and prevented, in the case of Rep. Power—through their First Amendment-suppressive activities. E. Oregon State Representative Janelle Bynum 33. Representative Janelle S. Bynum is the duly-elected representative of Oregon’s 51st House District, which encompasses East Portland, Damascus, Gresham, Boring, North Clackamas

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and Happy Valley. She is the mother of four Black children, two of whom are male. She fears terribly for their safety while federal law enforcement are present, especially given that federal law enforcement is not subject to Oregon’s anti-profiling legislation and other policing policies, and her family’s freedom of movement through Portland now is severely restricted.
34. Representative Bynum also is the Chair of the House Judiciary Committee, which oversees, creates and modifies state civil and criminal laws; oversees the judicial system; and sets the certification and licensure requirements for criminal justice public safety professionals, including Portland police officers. As a legislator, she makes and enacts laws, including on issues of law enforcement. She also has introduced and shepherded significant law enforcement legislation. Defendants’ violations of the Tenth Amendment frustrated her right and ability to set state law enforcement policy applicable in Portland and throughout the state of Oregon. By infringing upon the sovereignty of the State of Oregon, defendants have diminished Representative Power’s ability to establish law enforcement policy as her constituents direct.
35. Furthermore, in her capacity as a citizen, Representative Bynum, and her children, have the right to be policed solely by state and local authorities—and by federal authorities only to the extent authorized by valid federal law, federal regulation or the Federal Constitution. And she has the right as a citizen to gather with political protesters, to participate in political protest, and to observe political protest, all of which the defendants seek to chill or prevent—and have chilled and prevented, in the case of Rep. Bynum—through their First Amendment-suppressive activities.
F. Defendant Federal Agencies 36. Defendant United States Department of Homeland Security is a Cabinet-level department of the Federal Government. Its stated missions involve anti-terrorism, border security, immigration and customs. It was created in 2002, combining 22 different federal departments and

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agencies into a single Cabinet agency.

37. Defendant United States Customs and Border Protection is an agency within the

Department of Homeland Security. Its stated mission is: “[t]o safeguard America's borders thereby

protecting the public from dangerous people and materials while enhancing the Nation's global

economic competitiveness by enabling legitimate trade and travel.”

38. Defendant Federal Protective Service is another agency within and under the

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

protect, respond to and recover from terrorism, criminal acts, and other hazards threatening the

U.S. Government’s critical infrastructure, services, and the people who provide or receive them.”

39. Defendant United States Marshals Service is an agency within and under the control

of the United States Department of Justice. According to a Fact Sheet on its website, “it is the

enforcement arm of the federal courts, involved in virtually every federal law enforcement

initiative.”

GENERAL ALLEGATIONS

40. On May 26, 2020, a Minneapolis police officer killed George Floyd while three

other police officers watched and did nothing.

41. That same day, protests erupted across the United States. Most of the protesters

acted peacefully. Some of them did not.

A. Local Authorities, Accountable to Oregonians, Address the George Floyd

Protests.

42. The protests have continued since May 26. The vast majority of the hundreds-of-

thousands of protesters across the county have acted peacefully.

43. The situation in Portland has been no different. Tens of thousands of Portlanders

have protested peacefully, while some have resorted to vandalism. The Portland Police Bureau

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also has alleged that some of the protestors have committed acts of violence.
44. With respect to the vandalism and alleged violence: local law enforcement, aided
by the Oregon State Police and other state agencies, have been handling the situation.
45. The law enforcement response has been (until now) an Oregon-based response
accountable to Oregonians. Indeed, over the course of the protests of the past several weeks, the
Portland Police Bureau and state agencies have altered their approaches in response to local
criticism and to the concerns of the citizens of Portland and Oregon.
46. That is how democracy works in our federal republic. The Tenth Amendment
reserves to the States and their people the right to self-govern absent the legitimate exercise of
federal power: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
47. This foundational principle—that the states and the Federal Government share
power—is federalism.
48. Justice Kennedy, writing for a unanimous Supreme Court and affirming that
individuals may invoke the Tenth Amendment to challenge federal laws and actions, described the
purpose of federalism:
“The federal system rests on what might at first seem a counterintuitive insight, that freedom is enhanced by the creation of two governments, not one. The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived . . . . [F]ederalism secures to citizens the liberties that derive from the diffusion of sovereign power.
Some of these liberties are of a political character. The federal structure allows local policies more sensitive to the diverse needs of

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a heterogeneous society, permits innovation and experimentation, enables greater citizen involvement in democratic processes, and makes government more responsive by putting the States in competition for a mobile citizenry. Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. [. . . .]
By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.” Bond v. United States, 564 U.S. 211, 220-22 (2011) (quotations and citations omitted)
B. The President Announces in Many Ways His Desire to Quell Civil Protests
With Force Through the Use of the Military or Through Plenary Policing.
49. Without Congressional authorization, and without invoking any specific power
granted to him, the President of the United States decided to use the power of the federal
government to quell protests occurring throughout the country, including in Portland. He
announced his intentions over and over.
50. On June 1, 2020, the President clearly warned of the militarizing of the streets of
Portland, Oregon that soon followed:
“Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled . . . . If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”
https://www.whitehouse.gov/briefings-statements/statement-by-the-president-39/ (accessed
07/18/2020).
51. On June 10, 2020, the President continued stating his plan to engage in plenary

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federal law enforcement – conducting general policing in a state’s space, without an identifiable federal interest. That day, he directed the Mayor of Seattle, in response to the establishment of the Capitol Hill Autonomous Zone there, “Take back your city NOW. If you don’t do it, I will. This is not a game. These ugly Anarchists must be stooped [sic] IMMEDIATELY. MOVE FAST!” @Donald J. Trump, Twitter (June 11, 2020, 11:08 a.m.), https://twitter.com/realDonaldTrump/status/1271142274416562176.
52. At a June 21, 2020 rally in Tulsa, Oklahoma, the President complained that in Portland, Oregon, demonstrators had burned an flag, apparently unaware of or indifferent to the fact that The United States Supreme Court reaffirmed that flag-burning is constitutionally protected speech in Texas v. Johnson, 491 U.S. 397 (1990):
“Two days ago, leftist radicals in Portland, Oregon ripped down a statue of George Washington and wrapped it in an American flag and set the American flag on fire.” 53. On June 26, 2020, the President promised “retribution” against the “agitators” on national television. When asked in a public forum on Fox News “what steps is the Administration taking to give us back our streets,” the President stated “And at some point, there’s going to be retribution because there has to be. These people are vandals, but they’re agitators, but they're really — they’re terrorists, in a sense.” https://www.politico.com/news/2020/06/26/trumpretribution-protesters-statues-340957 54. At his July 4, 2020 rally at Mt. Rushmore, the President announced that he was “deploying federal law enforcement to protect our monuments, arrest the rioters, and prosecute offenders to the fullest extent of the law.” https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-south-dakotas-2020-mount-rushmore-fireworks-celebrationkeystone-south-dakota/ (accessed 07/18/2020). The context of that statement makes clear that he

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was referring generally to statues and symbols “of our national heritage” more broadly, and not to federal property. And the reference to arresting rioters, which does not have any stated nexus to federal property or crimes, is a clear foreshadowing of the agencies’ attempt at exercising plenary policing authority away from a federal situs, as they since have in Portland.
55. On July 20, 2020, the President made clear that the policing conducted by agencies he directs is aimed at curtailing political expression he does not like. The President stated, “These people are not protesters, these people are anarchists. These are people that hate our country and we’re not going to let it go forward.” The President has thus defined the law enforcement mission of the defendants as causing the cessation of expression by “people that hate our country.” https://www.foxnews.com/politics/trump-vows-to-send-federal-agents-dhs-chicago (accessed July 22, 2020).
56. The President’s threats of “retribution” against “agitators” – which singles out expression and organizing – and his desire to squelch “people that hate our country” – which singles out sentiment and not crime – strongly supports the inference that defendants have a program and practice of taking people off the streets for purposes of chilling expression offensive to the federal government. https://www.npr.org/2020/07/17/892393079/dhs-official-on-reportsof-federal-officers-detaining-protesters-in-portland-ore (accessed July 25, 2020). So does defendant Acting Director of the Department of Homeland Security Chad Wolf’s statement that his agency’s officers “are having to go out and proactively arrest individuals” in Portland. Compare Minority Report (S. Spielberg, director, 2002) (warning of dystopian future in which a department of precrime arrests people before they are expected to commit crimes as one at odds with free will and human dignity).

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C. The Federal Government Complies with the President’s Directive and Engages in a Campaign of Speech-Suppressive General Policing of Portland.
57. The President’s officials have indulged the President’s diktat to punish dissent. The Defendant federal law enforcement agencies and personnel arrived in force in Portland on or around July 5. Since then federal agents, including but not limited to the defendants in this action and persons acting at their direction, began engaging in a program of retributive “policing” that consists variously of: (1) attempts at asserting a plenary power to police Portland away from and out of sight of the Hatfield courthouse; (2) policing in manners evidencing a design to deter First Amendment protected activity, including attacks on press, Fourth Amendment-violative brutality, gassing persons without cause, and abducting suspected protesters off of Portland streets—even though such protestors were acting peacefully. These different clusters of “retribution” include:
1. Federal Agents Conduct Plenary Policing Operations – Away From the Federal Facilities They Are Supposedly Defending – in Portland. a. Operations Across a Wide Swath of Downtown Portland on the Night of July 11.
58. On the night of July 11, 2020, federal agents conducted a patrol. through an area of downtown Portland. that was in the nature of pacification. It lacked any apparent link to a federal situs or the curtilage around a federal situs.
59. A group of federal officers began a patrol near a federal site and walked three blocks in one direction, and then executed a turn and walked three blocks in another direction.
60. This patrol comprised six linear blocks and took approximately four minutes of brisk walking.
61. During the patrol, the federal agents cleared a city park at Lownsdale Square. They also shot a tear gas cannister directly at a person riding a scooter.

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62. There was no federal building then being attacked to which this patrol logically responded. The patrol was not in the nature of “hot pursuit” of a malefactor from a federal situs broadly through Portland. It was simply a patrol of armed federal agents some number of blocks from a federal situs, not in immediate reaction to any public emergency at a federal situs.
b. Federal Agents Engage in Plenary Policing 63. There are many other reports and depictions of federal agents conducting plenary policing away from and out of the sight of the Hatfield Courthouse. By way of example: https://www.nytimes.com/video/us/100000007243995/portland-protests-federalgovernment.html (accessed July 26, 2020); https://www.nytimes.com/2020/07/25/us/portlandfederal-legal-jurisdictioncourts.html?action=click&module=Top%20Stories&pgtype=Homepage (accessed July 26, 2020); https://twitter.com/hungrybowtie/status/1287314986943930368 (accessed July 26, 2020); https://m.facebook.com/randy.blazak/videos/10159970769049307/ (accessed July 27, 2020).
c. Federal Agents Engage in Plenary Policing By Patrolling and Picking Up Persons For Questioning, Including But Not Limited to the Documented Instance of Mark Pettibone.
64. Federal agents have followed a program of abducting persons outside the jurisdiction of federal law enforcement, including but not limited to Mark Pettibone. Mr. Pettibone documented his abduction in a declaration in Rosenblum v. U.S. Dep’t of Homeland Security, Civ. No. 3:20-cv-01161-MO (D. Or.), ECF 7.
65. Those abducted, including Mr. Pettibone, were not attacking federal property or personnel.
66. Those abducted, including Mr. Pettibone, were not on federal property at the time

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they were abducted. In fact, those abducted reportedly were walking home, on city streets, after having peacefully protested.
67. When conducting the abductions of Portlanders, the federal agents do so without first obtaining arrest warrants.
68. Mr. Pettibone testified in his declaration that he had seen a video of another Portlander being picked up in a like manner – by individuals in camouflage fatigues, placing them in an unmarked van – and that it was not him.
69. In the July 22, 2020 hearing on the Oregon Attorney General’s Motion for Temporary Restraining Order, the same federal defendants through their counsel, the Department of Justice, offered no justification for the arrest of Mr. Pettibone when confronted with his declaration.
70. Given the Government’s failure despite fair notice to controvert the Oregon Attorney General’s showing that Mr. Pettibone was arrested while engaging in no illegal activity and apparently without probable cause, it is clear that Mr. Pettibone, among others, was arrested in violation of the Fourth Amendment, and not within any federal curtilage making rational the federal exercise of police power against him in the first place.
d. Deputy Secretary Cuccinelli of the Department of Homeland Security Admits Federal Agents Are Picking Up Protesters in Unmarked Vehicles, Sometimes Incorrectly.
71. Consistent with Pettibone’s testimony, Ken Cuccinelli, the Deputy Secretary of the defendant Department of Homeland Security, was asked in a July 17 interview with National Public Radio that federal agents used unmarked vehicles to pick up protesters in U.S. cities, and admitted this occurs, stating, “Well, in Portland, they have.” He also admitted that someone taken

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into custody in this manner and questioned was “not the right person, and that person was released,” thus confirming that the federal practice has caused and can cause the detention of peaceful protesters, engaged in the exercise of their First Amendment freedoms. https://www.npr.org/2020/07/17/892393079/dhs-official-on-reports-of-federal-officersdetaining-protesters-in-portland-ore (accessed July 22, 2020).
72. Plaintiffs do not challenge defendants’ authority to guard, lawfully, federal property and personnel. Rather, plaintiffs ask the Court to honor and restore the balance of power the Framers put in place through the Tenth Amendment.
2. The Federal Defendants Conduct a Pattern of Policing in Portland to Eliminate and to Deter Speech, Including Against the Government Itself.
73. While the federal government may protect its property and personnel, the federal government is constrained by the Constitution from policing the City of Portland broadly speaking, and there is no positive delegation of authority in any law that makes the federal government’s recent forays into general policing in Portland either legal or constitutional. The Court should enjoin the defendants from conducting law enforcement activities unless defendants lawfully are enforcing a validly-enacted federal law, or unless they are acting within the immediate vicinity of federal facilities in order to protect those facilities. If defendants wish to seize someone, then they must obtain a warrant, have probable cause, and otherwise comply with the Constitution.
a. Time and Again, Federal Agents Target and Attack Members of the Press, Making Clear the Design of the Federal Defendants to Injure and Frighten Journalists to Suppress Speech.
74. In a separate suit in which Judge Simon has issued a temporary restraining order against assaults on clearly identified journalists, there has been proof of many discrete instances

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of federal agents – working within the defendant federal agencies – targeting journalists. 75. On July 15, 2020, federal agents shot a tear gas canister directly at clearly marked
journalist Justin Yau, while he was standing 40 feet from protesters to make clear he was not part of their protest. Index Newspapers v. City of Portland, et al., Civ. No. 3:20-cv-1035-SI, ECF 56, at ¶¶ 3-6 (Yau Decl.).
76. On July 19, 2020, federal agents assaulted clearly-marked photojournalist Jungho Kim. They pushed protesters away from the area in which he was taking pictures. Then, while he was 30 feet from the federal agents and near no one, a federal agent shot him just below his heart with a less lethal projectile munition. He was uninjured because he wore a ballistic vest. Separately, he also saw federal agents firing munitions into a group of press and legal observers. Index Newspapers v. City of Portland, et al., Civ. No. 3:20-cv-1035-SI, ECF 62, at ¶¶ 5-7 (Kim Decl.).
77. On July 19, 2020, federal agents assaulted Associated Press photojournalist Noah Berger while he was covering protests. Carrying two large professional cameras and two press passes, he was initially shot twice with less lethal munitions. Index Newspapers v. City of Portland, et al., Civ. No. 3:20-cv-1035-SI, ECF 72, at ¶¶ 1-4 (Berger Decl.).
78. But this group of federal agents was just getting started attacking Mr. Berger. As the federal agents “rushed” an area he was photographing, he identified himself as press and retreated from the rushed area, saying he was leaving. While holding his press pass and stating he was with the press, he was struck by one federal agent – then two others joined – and he was struck many times with batons. Not content to club the photographer, an agent dispensed pepper spray into his face. (Berger Decl, ¶¶ 7-9.)
79. On July 23, Judge Simon of this Court enjoined the use of physical force against journalists, unless those journalists are reasonably believed then to be engaging in a crime. Index

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Newspapers v. City of Portland, et al., Civ. No. 3:20-cv-1035-SI, ECF 84, Temporary Restraining Order, at page 18, paragraph 1.
80. In the early hours of the morning of July 24, after entry of that Order, federal agents shot in the face with some form of projectile a very clearly marked working journalist, standing with camera equipment at a cut-out in the wire fence outside the Hatfield courthouse. The video of her shooting reveals no proximate protesting, but in any event, with agents decamped at some distance within the Hatfield courthouse compound area, the projectile was not shot in defense of officer safety and was instead an intended assault on the very clearly marked journalist.
b. The Department of Homeland Security Bans Drones in All of Portland, to Hide Its Illegal Conduct and to Deter Reporting of It.
81. The Department of Homeland Security has issued a temporary flight restriction over the entire City of Portland for unmanned aircraft systems. This directive, like the activities of the federal defendants themselves, is not reasonably spatially constrained.
82. Defendant the Department of Homeland Security has thus further inhibited surveillance and viewing of the area suddenly subject to aggressive federal occupation and policing. The restriction was put in place on July 16 and ends on August 16.
c. The Violent, Fourth Amendment Violative Assault on 53 Year Old Navy Veteran Christopher David.
83. On July 18, 2020, federal agents violently assaulted Navy veteran Christopher David. David, wearing a Navy sweatshirt and Navy logos in the hopes of disarming the agents enough to speak with them, approached a group of federal agents and stood with his hands empty and at his sides. David has stated that he asked whether the agents were enlisted and asked why they were not obeying an oath to the Constitution in their actions.

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84. As their response, one federal agent clubbed David with a baton three times, in the torso and lower body, a second approached and sprayed a chemical agent in his face, and a third clubbed him twice from behind.
85. According to public reports, David’s hand was broken in two places by the federal agents and required surgery.
d. The Unprovoked Shooting and Gassing of Prof. Maureen Healy While She Was Peacefully Protesting in a Group.
86. On July 21, Professor Maureen Healy, the Chair of the History Department of Lewis and Clark College, and a teacher of European History with a specialization in the rise of fascism in 20th Century Europe, was peacefully protesting when federal agents gassed her and shot her in the head, concussing her.
87. Prof. Healy was in what she described as “large crowd of ordinary folks,” led by “Black Lives Matter voices,” that was “singing songs,” “chanting,” and saying in memory names of Black people killed by police, before observing a moment of silence at the George Floyd mural on SW Yamhill Street.
88. As Prof. Healy wisely stated after the fact, “I am knowledgeable about the historical slide by which seemingly vibrant democracies succumbed to authoritarian rule. Militarized federal troops are shooting indiscriminately into crowds of ordinary people in our country. We are on that slide.”
89. The Tenth Amendment secures rights to the states and the people, and as Justice Kennedy wrote in 2011 in Bond, it is a guarantee of individual liberties against “arbitrary power.” 564 U.S. at 222. Those other liberties must include the Fourth Amendment right to freedom from assault by federal officers who lack probable cause and who should not be permitted under the Tenth Amendment to attempt the general policing of downtown Portland.

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e. The Unprovoked Shooting, Gassing, and Pursuit with Drawn Weapons of Amanda Dunham.
90. On July 20, 2020, Amanda Dunham was demonstrating peacefully near the Multnomah County Justice Center – not the Hatfield Courthouse – and thus in a local/state, and not federal, zone of interest to begin with. Dunham was protesting in support of the Black Lives Matter movement and to express her opposition to the presence of federal law enforcement in Portland.
91. Dunham was unarmed. She neither caused nor attempted to cause any damage to any property of any kind. She did not witness any protestor behave in a violent or threatening manner.
92. That did not stop the federal agents from attacking the peaceful protesters. The federal agents gave no warning, and made no announcement purporting to declare the gathering unlawful.
93. The federal agents instead swarmed into the crowd of demonstrators, shooting rubber bullets and deploying tear gas. During their assault on the protestors, they struck Dunham from behind with three rubber bullets in her back, upper arm, and elbow, causing extreme pain and seriously injuring her elbow.
94. Rather than pursue anyone in particular, the federal agents indiscriminately chased off protesters, continuing to shoot rubber bullets and deploy tear gas. The agents followed alreadydispersed protesters blocks away.
95. Without ever arresting or speaking to Dunham, the federal agents casually terrorized her. Having chased her two and a half blocks from the Hatfield Courthouse to where her car was parked, at the intersection of 3rd Avenue and Taylor Avenue, federal agents blocked the intersection where her car was parked. Multiple federal agents trained their weapons on Dunham.

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96. When Dunham turned the running lights on her car without starting her engine, Dunham could see the beams from the laser scopes of their weapons on her dashboard. Dunham turned her running lights off and was afraid of being shot at or killed, despite causing no damage and doing nothing wrong.
97. Underscoring their lack of probable cause to detain Dunham, the federal agents did not arrest, question, or detain Dunham. They simply dispersed a peaceful public assembly without warning, chased protesters several blocks, and brandished lethal force, without furnishing even a pretextual law enforcement purpose.
f. The Unprovoked Gassing of a Crowd of Demonstrators, Including Portland Mayor Ted Wheeler.
98. On July 22, 2020, at 11 p.m., Portland Mayor Ted Wheeler engaged in public assembly with constituents protesting near the Hatfield Courthouse.
99. The crowd in which the Mayor was standing in dialogue with Oregonians about law enforcement and the federal presence was gassed by federal agents.
100. The Mayor has commented publicly that he “saw nothing that provoked this response.” Thus, like Mark Pettibone, the Mayor did not himself engage in unlawful activity, nor did he see unlawful or disorderly behavior that would have justified the gassing of the crowd in which he stood on July 22, 2020.
FIRST CLAIM FOR RELIEF (Violation of Tenth Amendment) (By all plaintiffs against all defendants) 101. Plaintiffs reallege, and incorporate by reference, the allegations of paragraphs 1 to 100. 102. The Tenth Amendment to the United States Constitution reserves the police power

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to the states. 103. Stated another way: given the Tenth Amendment, the United States government
lacks the plenary power to police within the states. 104. And while, given the Tenth Amendment, Congress cannot give the federal
government the plenary power to police within the states, of relevance today in Portland, Congress has made clear just how limited its grant of power is to the Department of Homeland Security to arrest persons.
105. To avoid turning Department of Homeland Security officers into free-range plenary police within the states, in 40 United States Code Section 1315 (“Section 1315”), Congress conferred upon DHS officers the very clearly delimited power to make warrantless arrests only of persons who the officer (1) directly witnesses committing a federal crime, or (2) reasonably believes is committing or has committed federal felonies.
106. Section 1315 provides:
(2) Powers.—While engaged in the performance of official duties, an officer or agent designated under this subsection may—
(A) enforce Federal laws and regulations for the protection of persons and property;
[…]
(C) make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a federal felony. 107. By conducting law enforcement activities on the sidewalks and streets of Portland—as opposed to on the premises or within the curtilage of government property—

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defendants have encroached upon powers explicitly reserved to the State of Oregon, and to Oregon’s citizens, pursuant to the Tenth Amendment.
108. Illustrating their violation of the Tenth Amendment, the federal authorities have conducted arrests that are not within the authorization of Section 1315.
109. The conduct of law enforcement activities described in this complaint is not justified on the facts of the particular instances of policing by the doctrine of hot pursuit, under which there is continued and direct contact with someone observed in the midst of committing a federal crime.
110. Defendants conducted such law enforcement activities under color of federal law. 111. Each plaintiff has standing to bring this claim because each has suffered cognizable injuries that are redressable through injunctive relief, and the Tenth Amendment confers a substantive, personal right upon each plaintiff. See, e.g., Bond v. United States, 564 U.S. 211, 22022 (2011). Each plaintiff has been deprived the application, and protections, of Oregon law, and the right to be policed by local police accountable to the local community. 112. There is no adequate remedy under state law. 113. The federal defendants should be prevented by temporary, preliminary, and permanent injunction from policing in violation of the Tenth Amendment. This means not conducting general policing other than on federal property or curtilage, and only pursuing persons with identifiable probable cause in a continuous sequence of events from federal property or curtilage.
SECOND CLAIM FOR RELIEF (Violation of First Amendment, Alone or in Combination with the Tenth Amendment)
(By all plaintiffs against all defendants) 114. Plaintiffs reallege, and incorporate by reference, the allegations of paragraphs 1 to

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113. 115. Through the foregoing course of conduct, the defendants have through federal
policing sought to silence, cancel, and thwart speech and assembly while it occurs, in violation of the First Amendment.
116. Through the foregoing course of conduct, the defendants have through federal policing sought to silence, cancel, and thwart speech and assembly while it occurs specifically because of its viewpoint, in violation of the First Amendment.
117. Through the foregoing course of conduct, and by silencing, canceling, and thwarting protest speech and protest assemblies while they occur, the defendants have actively imposed a regime of federally acceptable speech, in violation of the First Amendment.
118. Through the foregoing course of conduct, the defendants have through federal policing sought to deter speech because of its viewpoint, in violation of the First Amendment.
119. This course of conduct has chilled each of the plaintiffs from exercising their First Amendment rights, by inducing them not to participate, or not to fully participate, in the protests under continuing attack from the federal forces in Portland, and inducing them not to attend or observe those protests.
120. That chilling of participation in protests and chilling of public assembly, while the seeming object of the defendants’ course of conduct, violates the First Amendment rights of speech, assembly and political participation enjoyed by all of the plaintiffs.
121. The defendants’ violation of the First Amendment rights of plaintiffs and all Oregonians stands separate and apart from the defendants’ Tenth Amendment violations as they conduct plenary policing in downtown Portland.
122. Yet Bond reminds us that the Tenth Amendment functions to guarantee citizens their liberties and to permit citizens redress for injuries they suffer. For that reasons, plaintiffs’

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First Amendment injuries are redressable in this suit both in and of themselves, and also through plaintiffs’ claims under the Tenth Amendment. This is so because the Tenth Amendment is a structural principle in service and protection of other constitutional liberties.
123. Even if this Court were to determine that the conduct challenged in this Complaint provides no basis for liability under the Tenth Amendment, it nonetheless remains independently actionable as a claim for violation of the First Amendment.
124. This Court should bar the federal defendants by temporary, preliminary, and permanent injunction from policing in violation of the First Amendment. This means only arresting or using force against identified individuals for whom there is probable cause to believe the individual is committing a federal crime. It also means not shooting identified members of the press who are not then committing crimes. It also means not conducting law enforcement sweeps beyond federal property or curtilage, to create intendedly “federal” conflicts with people away from the federal land that is the only justification for the presence of the federal forces, so as to allow federal forces to engage American civilians in a quasi-military manner off the grounds or curtilage of the Hatfield Courthouse.
THIRD CLAIM FOR RELIEF (Violation of Fourth Amendment, Alone or in Combination with the First and Tenth Amendments)
(By all plaintiffs against all defendants) 125. Plaintiffs realleges, and incorporates by reference, the allegations of paragraphs 1 to 124. 126. The beatings brazenly conducted on camera, the terrorizing of peaceful protesters, the shootings of protesters, journalists, and observers alike, the abduction of Mark Pettibone and others, all of the foregoing conduct violates the Fourth Amendment.

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127. Through all of the foregoing described in this complaint, the defendants have through federal policing deprived Oregonians of their rights not to be arrested without probable cause, and to be secure in their persons, in violation of the Fourth Amendment.
128. By supplanting Oregon’s own policing – making good on the President’s threat on June 1 and 10 that the cities will “do it” or “he will” – the federal defendants have simultaneously both deprived Oregonians of their Tenth Amendment rights to determine their own policing, and have inflicted particular, Fourth Amendment-grounded injuries on plaintiffs and all Oregonians while violating the Tenth Amendment.
129. All of this merits an injunction prohibiting further violations of the Tenth Amendment, and of the Fourth Amendment in the conduct of the federal policing actions now underway in Portland. Only by barring violations of the Fourth Amendment which in turn chill and deter speech and assembly can this Court end the promised and First Amendment-violative federal “retribution” for protesting, and restore First Amendment-guaranteed liberty to the American public square.
FOURTH CLAIM FOR RELIEF (Violation of First Amendment Right of Free Exercise)
(By First Unitarian Portland against all defendants) 130. Plaintiffs realleges, and incorporate by reference, the allegations of paragraphs 1 to 129. 131. Defendants have deprived Portlanders the right to protest peacefully, and to transit peacefully to and from protest locations. Defendant have done so through, among other things, unwarranted seizures and detentions, including stuffing people into unmarked vehicles, performed under color of federal law, and the foregoing pattern of aggression against press, observers, and protesters, often in violation of the First Amendment or the Fourth Amendment.

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132. Defendants have not indicated that they will stop these practices. 133. There is no adequate remedy under state law. 134. Protest is a key aspect of First Unitarian’s faith, mission and religious practice. 135. By abducting people peacefully protesting, transiting to or from protests, or observing a protest without even participating, defendants have chilled, and will continue to chill, First Unitarian’s pursuit of its religious mission and faith, and the exercise of that faith by First Unitarian’s congregants in Portland. 136. For these reasons, this Court should enjoin the federal defendants of the scope of conduct described in Paragraphs 108, 118, and 129.
FIFTH CLAIM FOR RELIEF (Violation of First Amendment, Alone or in Combination with Tenth Amendment)
(By Representative Bynum and Representative Power against all defendants) 137. Representatives Bynum and Power reallege, and incorporate by reference, the allegations of paragraphs 1 to 130, including the allegations of other violations of the First Amendment and Tenth Amendment, separately or in combination. 138. Representatives Bynum and Power have additional First and Tenth Amendment injuries specific to their governmental roles. 139. Oregon’s sovereignty consists in substantial part of its authority to make laws that govern its citizens and the public spaces in Oregon. See Oregon Const., Art. IV, Sec. 1. 140. Thus, on one level, the actions of the federal government that displace Oregon’s police power displace laws of general application and appropriate the lawmaking role of the Oregon legislature by substituting a different and novel system of law enforcement. 141. Moreover, Article I, Section 22 of Oregon’s Constitution provides:

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Section 22. Suspension of operation of laws. The operation of the laws shall never be suspended, except by the authority of the Legislative Assembly. 142. Thus, if there was to be a cancellation of the regime of enforcing generally applicable criminal laws in downtown Portland in favor of some other authority – including a federal authority, which would be permissible for Oregon to decide – Oregon’s constitution teaches that only the Oregon Legislature gets to decide that. The President does not get to decide that, given the Tenth Amendment, nor do the respective secretaries of the defendant federal agencies. They cannot suspend the operation of Oregon law in favor of federal law where and when it suits them. 143. In this further way, the conduct of the federal agencies is in derogation of the Tenth Amendment and very specifically in derogation of the constitutional role of Oregon’s legislators, whose authority to suspend the operation of laws the federal government has appropriated for itself. 144. For these reasons, Representatives Bynum and Power are therefore are separately entitled to an injunction of the same scope and attributes described in Paragraphs 108, 118, and 129.
SIXTH CLAIM FOR RELIEF (28 U.S.C. § 2201—Declaratory Judgment)
(By all plaintiffs against all defendants) 145. Plaintiffs reallege, and incorporate by reference, the allegations of paragraphs 1 to 138. 146. There is an actual controversy among the parties, inasmuch as one or more of the defendants has engaged in actions violating plaintiffs’ civil rights and none of the defendants has either acknowledged such actions or agreed to stop them. In fact, defendants have stated that they

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intend to continue such actions. 147. Plaintiffs therefore are entitled to a declaration that defendants’ actions are, or have
been, unconstitutional for all of the above-stated reasons, and to an injunction against committing the acts alleged herein in the future, of the same scope and attributes described in Paragraphs 108, 118, and 129.
PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for relief as follows:
A. A judgment declaring that defendants are, through the foregoing course of conduct alleged in this Complaint: (1) violating the Tenth Amendment rights of plaintiffs by policing Portland beyond federal property or its curtilage; (2) violating the First Amendment rights of plaintiffs; (3) violating both the First and Tenth Amendments jointly; and (4) violating the Free Exercise Clause of the First Amendment;
B. An injunction permanently restraining defendants, and any persons working in concert with them, from:
(1) consistent with the Tenth Amendment, engaging in law enforcement activities other than in the immediate defense of federal personnel or property on federal property or its curtilage, except to the extent necessary to remove an imminent threat or to arrest someone violating federal law in a manner compliant with 40 U.S.C. § 1315(b)(2)(C) (“Section 1315”);
(2) consistent with the Fourth Amendment and Section 1315, seizing or arresting individuals within the jurisdiction of this Court without either (a) a warrant, (b) the arresting officer seeing the federal crime allegedly committed or (c) the arresting officer having probable cause to believe that the arrested person committed a federal felony;
(3) making warrantless arrests in violation of the Fourth Amendment;

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(4) consistent with the First Amendment, the Fourth Amendment, Section 1315 and the orders of any judicial officer of this District Court, physically contacting and approaching protestors, medics, journalists, or other observers of protests at a distance of more than 100 yards from the property line of the Hatfield Courthouse unless the protestor, medic, journalist, or other observers of protests is then presently injuring the structure of the Hatfield Courthouse, or injuring an officer defending the Hatfield Courthouse at a distance of less than 100 yards from the property line of the Hatfield Courthouse.
(5) consistent with the First Amendment, Fourth Amendment, Section 1315 and the orders of any judicial officer of this District Court, striking with batons, shooting with projectiles, or pushing to the ground persons within 100 yards of the property line of the Hatfield Courthouse who are not resisting instructions from the officer engaging those persons, unless there has been a prior instruction for a crowd to clear the area containing the person with time sufficient for the crowd to disperse;
(6) consistent with the First Amendment, Fourth Amendment and Section 1315 and the orders of any judicial officer of this District Court, striking with batons, gassing, shooting with projectiles, or pushing to the ground persons who are not resisting instructions from the officer engaging those persons, more than 100 yards from the property line of the Hatfield Courthouse; and
(7) consistent with the First and Fourth Amendments and Section 1315 and the orders of any judicial officer of this District Court, pursuing protestors who are not personally engaged in violence toward the Hatfield Courthouse or an officer guarding it beyond the distance of 100 yards from the property line of the Hatfield Courthouse. / / / / / /

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C. Attorneys’ fees and expenses pursuant to 28 U.S.C. § 2412(b); and D. Such other relief as this Court deems just and proper.

Dated: July 27, 2020

SNELL & WILMER L.L.P.

By /s/ Clifford S. Davidson Clifford S. Davidson, OSB No. 125378 Andrew M. Jacobs (pro hac vice)
Attorneys for Plaintiffs

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Clifford S. Davidson, OSB No. 125378 csdavidson@swlaw.com SNELL & WILMER L.L.P. One Centerpointe Drive, Suite 170 Lake Oswego, OR 97035 Telephone: (503) 624-6800 Facsimile: (503) 624-6888

Andrew M. Jacobs (pro hac vice) ajacobs@swlaw.com SNELL & WILMER L.L.P. 400 East Van Buren Street, Suite 1900 Phoenix, AZ 85004 Telephone: (602) 382-6000 Facsimile: (602) 382-6070

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

WESTERN STATES CENTER, INC., an Oregon public benefit corporation; THE FIRST UNITARIAN CHURCH OF PORTLAND, OREGON, an Oregon religious nonprofit corporation; SARA D. EDDIE, an individual; OREGON STATE REPRESENTATIVE KARIN A. POWER, an elected official; and OREGON STATE REPRESENTATIVE JANELLE S. BYNUM, an elected official,
Plaintiffs,

Case No. 3:20-cv-01175-JR
MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
ORAL ARGUMENT REQUESTED
EXPEDITED HEARING REQUESTED

vs.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; FEDERAL PROTECTIVE SERVICE; and UNITED STATES MARSHALS SERVICE

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Defendants.

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TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1 MOTION......................................................................................................................................... 1 MEMORANDUM .......................................................................................................................... 4 FACTS RELEVANT TO DETERMINATION OF THE MOTIONS ........................................... 4
A. The Federal Government and the Defendant Agencies Would Not Exist But for the Constitutional Amendments at Issue in This Litigation— Which Were Passed to Prevent the Very Abuses of Liberty the Defendants Inflict on Portland Today......................................................................4
B. The Killing of George Floyd Gives Rise to Protests, Which the Administration Denounces as Anarchistic and Hatred of America and Resolves to Suppress by Displacing Local Policing with Federal Forces in Violation of the Tenth Amendment. ....................................................................5 1. The Killing of George Floyd Ignites Nationwide Protests. ........................ 5 2. The President Labels the Protesters Anarchists, Says They Hate America, Demands That Mayors Stop the Protests, and Repeatedly Promises to Police Cities Federally If the Protests Continue. ........................................ 5
C. Consistent with the President’s Plan to Suppress Dissenting Speech, and the Promise of “Proactive” Arrests, Federal Authorities in Portland Begin Operations Attacking Protesters, Which Emanate from the Hatfield Courthouse But Far Exceed Fairly Defending It. ....................................................8 1. Federal Agents Conduct Plenary Policing Operations Away from the Federal Facilities They Are Supposedly Defending. .................................. 8 2. The Federal Defendants Conduct a Pattern of Policing in Portland to Eliminate and Deter Speech...................................................................... 11 (a) Attacks on Journalists; City-Wide Drone Ban.............................. 11 (b) The Violent, Fourth Amendment-Violative Assault on 53Year-Old Navy Veteran Christopher David. ................................ 12 (c) The Unprovoked Shooting and Gassing of Prof. Maureen Healy While She Was Peacefully Protesting in a Group. ............. 13 (d) The Unprovoked Shooting, Gassing, and Pursuit of Amanda Dunham, Ending with Weapons Drawn......................... 13

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TABLE OF CONTENTS (Continued)
Page
(e) The Unprovoked Gassing of a Crowd of Demonstrators, Including Portland Mayor Ted Wheeler. ...................................... 14
3. The Defendants Chill Constitutionally Protected Speech of Americans Wishing to Speak Out for Racial Justice and Black Lives Matter and Against Federal Occupation...................................................................... 15
LEGAL STANDARD................................................................................................................... 16
ARGUMENT ................................................................................................................................ 17
I. PLAINTIFFS HAVE A STRONG LIKELIHOOD OF SUCCESS ON THEIR TENTH AMENDMENT CLAIM AS EVIDENCE SHOWS DEFENDANTS ARE CONDUCTING PLENARY POLICING IN PORTLAND. ................................... 17
A. The Tenth Amendment Forbids Plenary Policing by the Federal Government............................................................................................................17
B. The Record Demonstrates That the Federal Government Is Attempting to Exercise Plenary Police Power, in Violation of the Tenth Amendment, in a Manner Far More General and Pervasive Than Occasional Hot Pursuits of Identified Persons Violating Federal Law Near the Courthouse. ......................18
II. PLAINTIFFS HAVE A STRONG LIKELIHOOD OF SUCCESS ON THE MERITS OF THEIR FIRST AMENDMENT CLAIMS, BECAUSE THE RECORD REVEALS MANY TYPES OF FIRST AMENDMENT VIOLATIONS BY THE FEDERAL DEFENDANTS, AND PROVES THAT THEIR FIRST AND FOURTH AMENDMENT VIOLATIONS ARE CHILLING PROTECTED SPEECH............................................................................................................................ 24
A. Defendants Have Violated the First Amendment by Unprovoked Attacks on Protesters...........................................................................................................25
B. Defendants Have Violated the First Amendment by Policing Far from the Hatfield Courthouse. ..............................................................................................26
C. Defendants Have Violated the First Amendment Because They Have Abundantly Chilled Speech in Portland by Aggressively Policing in Patrols Away from the Courthouse, Randomly Picking Up People in Derogation of 40 U.S.C. § 1315 and Attacking Peaceful Protesters Like Dunham and David. ...............................................................................................28

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TABLE OF CONTENTS (Continued)
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D. The President’s Declared Intentions in Executive Order 13933 and Related Public Statements Establish That Operation Legend Is Meant to Quash Speech and to Redirect Speech Away from Dissent and Protest, Making Operation Legend Presumptively Unconstitutional. ................................29
III. PLAINTIFFS ARE LIKELY TO SUFFER IRREPARABLE HARM BY THE CONTINUED VIOLATION OF THEIR CONSTITUTIONAL RIGHTS. ..................... 32
IV. THE BALANCE OF THE EQUITIES FAVORS PLAINTIFFS. .................................... 34 V. THE PUBLIC INTEREST FAVORS ENJOINING CONSTITUTIONAL
VIOLATIONS. ................................................................................................................. 34 REQUESTED INJUNCTION ...................................................................................................... 34

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TABLE OF AUTHORITIES

Page

Federal Cases
Abay v. City of Denver, No. 20-CV-01616-RBJ, 2020 WL 3034161 (D. Colo. June 5, 2020) ................................ 29, 33
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .................................................................................................. 16
Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) .................................................................................................. 34
Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012) .................................................................................................... 32
Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243 (1833) ......................................................................................................... 4
Bay Area Peace Navy v. U.S., 914 F.2d 1224 (9th Cir. 1990) ............................................................................................ 27, 28
Black Lives Matter Seattle-King Cty. v. City of Seattle, Seattle Police Dep’t, 2020 WL 3128299 (W.D. Wash. June 12, 2020) ............................................................... 26, 28
Bond v. U.S., 572 U.S. 844 (2014)...................................................................................................... 17, 18, 24
Boos v. Barry, 485 U.S. 312 (1988).................................................................................................................. 25
Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009) .................................................................................................. 28
Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir. 2008) ................................................................................................ 25
City of Boerne v. Flores, 521 U.S. 507 (1997).................................................................................................................. 17
Cohen v. California, 403 U.S. 15 (1971).................................................................................................................... 25
Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1996) ............................................................................................ 27, 28
Cox v. Louisiana, 379 U.S. 536 (1965).................................................................................................................. 25
DISH Network v. F.C.C., 653 F.3d 771 (9th Cir. 2011) .................................................................................................... 32
Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) .............................................................................................. 32, 33

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TABLE OF AUTHORITIES (Continued)

Page

Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018), cert. denied, 139 S. Ct. 2614 (2019) ................................................................................... 25, 26
Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................. 32
Flagg Bros. v. Brooks, 436 U.S. 149 (1978).................................................................................................................. 18
Gibbons v. Ogden, 9 Wheat. 1 (1824) ..................................................................................................................... 17
Jones v. Parmley, 465 F.3d 46 (2d Cir. 2006) ................................................................................................. 25, 26
Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ...................................................................................... 32, 33, 34
Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010 (9th Cir. 2008) .................................................................................................. 32
Marbury v. Madison, 5 U.S. 137, 177 (1803).......................................................................................................... 1, 29
Matal v. Tam, 137 S. Ct. 1744 (2017)........................................................................................................ 30, 31
McCulloch v. Maryland, 4 Wheat. 316 (1819) ................................................................................................................. 17
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ........................................................................................ 32, 33, 34
Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283 (9th Cir. 1999) .................................................................................................. 28
Monterey Mech. Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) .................................................................................................... 32
Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892).................................................................................................................. 21
Nat’l Rifle Ass’n of Am. v. Cuomo, 350 F. Supp. 3d 94 (N.D.N.Y. 2018) ............................................................................ 30, 31, 33
Nelson v. NASA, 530 F.3d 865 (9th Cir. 2008), rev’d on other grounds, 562 U.S. 134 (2011)........................................................................... 32
Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003) ..................................................................................................... 31

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TABLE OF AUTHORITIES (Continued)
Page
Oregon v. Trump, 406 F. Supp. 3d 940 (D. Or. 2019), appeal filed, Oct. 4, 2019 .............................................................................................. 17, 18, 34
R.A.V. v. St. Paul, 505 U.S. 377 (1992)............................................................................................................ 30, 32
Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015)............................................................................................................ 29, 32
Ridley v. Massachusetts Bay Transp. Auth., 390 F.3d 65 (1st Cir. 2004)....................................................................................................... 30
Sammartano v. First Judicial Dist. Ct., 303 F.3d 959 (9th Cir. 2002) .................................................................................................... 34
Sierra Club v. Trump, 963 F.3d 874 (9th Cir. 2020) .................................................................................................... 18
U.S. v. Lopez, 514 U.S. 549 (1995).................................................................................................................. 17
U.S. v. McIntosh, 833 F.3d 1163 (9th Cir. 2016) .................................................................................................. 18
U.S. v. Pheaster, 544 F.2d 353 (9th Cir. 1976) .................................................................................................... 21
Ward v. Rock Against Racism, 491 U.S. 781 (1989).................................................................................................................. 30
White v. Lee, 227 F.3d 1214 (9th Cir. 2000) .................................................................................................. 28
Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008)...................................................................................................................... 16
Zieper v. Metzinger, 474 F.3d 60 (2d Cir. 2007) ....................................................................................................... 31
Federal Statutes
40 U.S.C. § 1315.................................................................................................................... passim 40 U.S.C. § 1315(b)(2)(C) ............................................................................................ 2, 10, 18, 35 40 U.S.C. § 1315(e) ...................................................................................................................... 18
Rules
Fed. R. Civ. P. 65(a) ....................................................................................................................... 1

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TABLE OF AUTHORITIES (Continued)
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Other Authorities Erwin Chemerinsky, Constitutional Law: Principles and Policies 488 (4th Ed. 2011)............. 4, 5 John P. Kaminski, Restoring the Grand Security: The Debate Over a Federal Bill of
Rights 1787-1792, 33 Santa Clara L. Rev. 887, 897 (1993)....................................................... 4 U.S. Const. Amend XIV, § 5 ........................................................................................................ 17 U.S. Const. Amend. I ............................................................................................................. passim U.S. Const. Amend. IV .......................................................................................................... passim U.S. Const. Amend. X ........................................................................................................... passim

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INTRODUCTION The federal administration’s war on disagreement has come to the streets of Portland. After the killing of George Floyd, Americans of all races and regions took to the streets to protest in support of Black Lives Matter and against police brutality. The President soon announced that the protestors “hate” America and are anarchists against whom there must be “retribution.” The President demanded that the nation’s mayors crack down forthwith. If they did not, the President threatened to police for them—supplanting the States’ reserved power to conduct plenary policing in violation of the Tenth Amendment. His Acting Secretary for Homeland Security later consistently announced the agency’s Orwellian plan for “proactive” arrests of protestors. Federal agents in Portland have followed the speech-suppressive design our government’s leaders outlined. They police away from federal facilities and more broadly than the Tenth Amendment and federal law permit. They police illegally time and again. They violate the First Amendment by attacking peaceful protestors away from federal facilities and shooting press and photographers. They violate the Fourth Amendment through those attacks, through unprovoked gassing often away from federal facilities, and through intendedly spectacular displays of force. Fortunately, it is “emphatically the province and duty of” this Court “to say what the law is,” a principle established when a different high federal official refused to act legally. Marbury v. Madison, 5 U.S. 137, 177 (1803). This Court should enjoin the defendants so that the federal government obeys the Constitution that created and constrains it.
MOTION Pursuant to Federal Rule of Civil Procedure 65(a), the Plaintiffs Western States Center, Inc., The First Unitarian Church of Portland, Oregon, Sara Eddie, Oregon State Representative Karin A. Power and Oregon State Representative Janelle S. Bynum (“Plaintiffs”) move this Court to enjoin the Defendants the United States Department of Homeland Security, United

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States Customs and Border Protection, the Federal Protective Service, and the United States Marshals Service (“Defendants”) from actions contrary to the United States Constitution, in particular the First, Fourth and Tenth Amendments.
Specifically, Plaintiffs move this Court for both a temporary restraining order and a preliminary injunction enjoining defendants, and any persons working in concert with them, from:
(1) consistent with the Tenth Amendment, engaging in law enforcement activities other than in the immediate defense of federal personnel or property on federal property or its curtilage, except to the extent necessary to remove an imminent threat or to arrest someone violating federal law in a manner compliant with 40 U.S.C. § 1315(b)(2)(C) (“Section 1315”);
(2) consistent with the Fourth Amendment and Section 1315, seizing or arresting individuals within the jurisdiction of this Court without either (a) a warrant, (b) the arresting officer seeing the federal crime allegedly committed or (c) the arresting officer having probable cause to believe that the arrested person committed a federal felony;
(3) making warrantless arrests in violation of the Fourth Amendment; (4) consistent with the First Amendment, the Fourth Amendment, Section 1315 and
the orders of any judicial officer of this District Court, physically contacting and approaching protestors, medics, journalists, or other observers of protests at a distance of more than 100 yards from the property line of the Hatfield Courthouse unless the protestor, medic, journalist, or other observers of protests is then presently injuring the structure of the Hatfield Courthouse, or injuring

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an officer defending the Hatfield Courthouse at a distance of less than 100 yards from the property line of the Hatfield Courthouse; (5) consistent with the First Amendment, Fourth Amendment, Section 1315 and the orders of any judicial officer of this District Court, striking with batons, shooting with projectiles, or pushing to the ground persons within 100 yards of the property line of the Hatfield Courthouse who are not resisting instructions from the officer engaging those persons, unless there has been a prior instruction for a crowd to clear the area containing the person with time sufficient for the crowd to disperse; (6) consistent with the First Amendment, Fourth Amendment and Section 1315 and the orders of any judicial officer of this District Court, striking with batons, gassing, shooting with projectiles, or pushing to the ground persons who are not resisting instructions from the officer engaging those persons, more than 100 yards from the property line of the Hatfield Courthouse; and (7) consistent with the First and Fourth Amendments and Section 1315 and the orders of any judicial officer of this District Court, pursuing protestors who are not personally engaged in violence toward the Hatfield Courthouse or an officer guarding it beyond the distance of 100 yards from the property line of the Hatfield Courthouse. In support of their motion, Plaintiffs rely upon the following memorandum, the Declarations of Dana Buhl, Rep. Janelle Bynum, Rep. Karin Power, Sara Eddie, Mayor Ted Wheeler, Samuel Hill, Ryan Malia, Amanda Dunham and Clifford S. Davidson; publiclyaccessible information described and cited herein; the Court’s file; matters subject to judicial notice; and such further evidence and argument as this Court may entertain.

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MEMORANDUM FACTS RELEVANT TO DETERMINATION OF THE MOTIONS
A. The Federal Government and the Defendant Agencies Would Not Exist But for the Constitutional Amendments at Issue in This Litigation—Which Were Passed to Prevent the Very Abuses of Liberty the Defendants Inflict on Portland Today.
It is important to remember that we have a federal government because we have a Bill of Rights – including the First, Fourth, and Tenth Amendments – all of which are relevant to this lawsuit, and are vital to circumscribing any President’s and any administration’s powers to flout state sovereignty and quash dissent. The absence of a Bill of Rights enjoining federal infringement of individual liberties was “the single most important obstacle to the ratification of the Constitution.” John P. Kaminski, Restoring the Grand Security: The Debate Over a Federal Bill of Rights 1787-1792, 33 Santa Clara L. Rev. 887, 897 (1993). Because the Constitution’s text “contains few provisions concerning individual liberties,” several states “were concerned about the absence of an enumeration of rights” and refused to ratify it without the caveat that it would be immediately amended to add a Bill of Rights. Erwin Chemerinsky, Constitutional Law: Principles and Policies 488 (4th Ed. 2011); see also Kaminski, supra, at 906-07 (describing how Patrick Henry “urged the [Virginia] convention to adopt the Constitution conditionally with amendments.”). Accordingly, at the first Congress in 1789, James Madison drafted amendments to the Constitution. See Chemerinsky, supra, at 12, 488. Congress ratified twelve amendments and the states ratified ten. Id. at 488. “These amendments became known as the Bill of Rights.” Id. Since its ratification, the Bill of Rights has been applied to protect individual liberties from intrusion from the federal government. See Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833) (“In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the

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apprehended encroachments of the general government not against those of the local governments.”); Chemerinsky, supra, at 5.
This is not an abstract history lesson. This is what the Tenth, First, and Fourth Amendments are for. As guarantors of the states’ rights to police themselves, and of liberties to speak, assemble, and be free from unreasonable arrests and searches, those amendments are important constraints on the federal government. They were a condition placed on agreement to a federal constitution by the great many Founders who feared an oppressive federal regime. The federal litigants in this Court in 2020 would not exist without them.

B. The Killing of George Floyd Gives Rise to Protests, Which the Administration Denounces as Anarchistic and Hatred of America and Resolves to Suppress by Displacing Local Policing with Federal Forces in Violation of the Tenth Amendment.

1. The Killing of George Floyd Ignites Nationwide Protests. On May 26, 2020, Minneapolis police officer Derek Chauvin killed George Floyd while three other police officers watched. All four officers were charged with varying degrees of homicide. Almost immediately, the nation was roiled by protests, as Americans of all races, ages, and backgrounds, in all regions of our country, took to the streets in support of the Black Lives Matter movement and against police brutality. Portland likewise experienced protests on a nightly basis, in the thousands of people per night downtown for several consecutive weeks. The crowd size downtown began to taper off, as organizers announced weekly, rather than nightly, protests. That is, until federal agents arrived.

2. The President Labels the Protesters Anarchists, Says They Hate America, Demands That Mayors Stop the Protests, and Repeatedly Promises to Police Cities Federally If the Protests Continue.
Only days after Chauvin killed George Floyd, the President decided to use the power of
the federal government to quell protests of the killing by using armed force to conduct policing in

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the states. On June 1, 2020, the President warned that he would soon militarize the streets of our nation’s cities unless the nation’s local officials quashed the protests as he required:

“Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled . . . . If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”

https://www.whitehouse.gov/briefings-statements/statement-by-the-president-39/ (Davidson

Ex. 1)

The President’s threats to conduct plenary federal law enforcement continued. On June 10,

2020, the President made clear that if Seattle did not evict protesters from a space it let them

occupy, his government would conduct general policing in Seattle, without an identifiable federal

interest. He did so by directing the Mayor of Seattle through Twitter, in response to the

establishment of the Capitol Hill Autonomous Zone, “Take back your city NOW. If you don’t do

it, I will. This is not a game. These ugly Anarchists must be stooped [sic] IMMEDIATELY. MOVE

FAST!”

@realDonaldTrump,

Twitter

(June

11,

2020.),

https://twitter.com/realDonaldTrump/status/1271142274416562176 (Davidson Ex. 2.)

Aside from threatening plenary policing, the President also made clear his content-based

desire to suppress the continuing protests. On June 21, 2020, the President complained that in

Portland, Oregon, demonstrators had “set the American flag on fire.” (Davidson Ex. 3.) On

June 26, 2020, the President promised “retribution” against the “agitators” on national television.

When asked in a public forum on Fox News “what steps is the Administration taking to give us

back our streets,” the President stated “And at some point, there’s going to be retribution because

there has to be. These people are vandals, but they’re agitators, but they’re really — they’re

terrorists, in a sense.” https://www.politico.com/news/2020/06/26/trump-retribution-protesters-

statues-340957 (Davidson Ex. 4.)

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Also on June 26, the President issued an Executive Order commenting on the protests in which he said that “worse” than violence or imperiling public safety, state and local governments “apparently have lost the will or the desire to stand up to the radical fringe and defend the fundamental truth that America is good, her people are virtuous, and that justice prevails in this country to a far greater extent than anywhere else in the world.” Exec. Order No. 13933, 85 FR 40081.
On July 20, the President again expressed his plan to suppress speech he does not like through policing by the defendant agencies. He stated, “These people are not protesters, these people are anarchists. These are people that hate our country and we’re not going to let it go forward.” The President has thus defined the law enforcement mission of the defendants as causing the cessation of expression by “people that hate our country.” https://www.foxnews.com/politics/trump-vows-to-send-federal-agents-dhs-chicago (accessed July 22, 2020) (Davidson Ex. 5). Significantly, Chad Wolf, the acting Director of the Department of Homeland Security confirmed that his agency’s officers “are having to go out and proactively arrest individuals” in Portland. (Davidson Ex. 6.) Compare Minority Report (S. Spielberg, director, 2002) (warning of dystopian future in which a Department of Precrime arrests people before they are expected to commit crimes as one at odds with free will and human dignity). Proactive means beforehand. Even on the very date of this filing, the President threatened: “If they don’t secure their city soon, we have no choice – we’re going to have to go in and clean it out.” (Davidson Ex. 17.)

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C. Consistent with the President’s Plan to Suppress Dissenting Speech, and the Promise of “Proactive” Arrests, Federal Authorities in Portland Begin Operations Attacking Protesters, Which Emanate from the Hatfield Courthouse But Far Exceed Fairly Defending It.
Since arriving in Portland, federal forces began engaging in a program of retributive “policing” that consists of: (1) attempts at asserting a plenary power to police Portland more than 100 yards from the Hatfield courthouse; (2) policing in manners evidencing a design to deter First Amendment protected activity, including attacks on press, Fourth Amendment-violative brutality, gassing persons without cause, and abducting suspected protesters off of Portland streets—even though such protestors were acting peacefully.
1. Federal Agents Conduct Plenary Policing Operations Away from the Federal Facilities They Are Supposedly Defending.
By July 11, 2020, federal agents had begun conducting more wide-ranging and general policing than the mere defense of the Hatfield Courthouse’s perimeter. That night, federal agents swept through an area of downtown Portland in an operation that was in the nature of pacification. It lacked any apparent link to a federal situs or the curtilage around a federal situs. A group of federal officers began a patrol near a federal site and walked three blocks in one direction, and then executed a turn and walked three blocks in another direction. (Hill Decl. ¶¶3-11 & Exs. 111.). This patrol comprised six linear blocks and took 4 minutes of brisk walking. (See Hill Decl. ¶11.). During the patrol, the federal agents cleared a city park at Lownsdale Square. (Hill Decl. ¶¶4-6.) They also shot tear gas directly at a person riding a scooter. (Hill Decl. ¶8 & Ex. 7.) There was no federal building then being attacked to which this patrol logically responded. The patrol was not in the nature of “hot pursuit” of a malefactor from a federal situs broadly through Portland. It was simply a forced march of protesters by armed federal agents some number of blocks from a federal situs, not in immediate reaction to any public emergency at a federal situs. (See Hill Decl. ¶¶5, 6, 8, 9.) Such marches continue to occur. (Hill Decl. ¶14.)

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Ryan Malia, who attended demonstrations spanning the night of July 23 and the morning of July 24, 2020, recounts that federal agents launched smoke grenades and tear gas, as well as pepper balls, toward the west and north. When they did so, they were standing at SW Main Street and 5th Ave.—two blocks from the Hatfield Courthouse. (Malia Decl. ¶4.) The same thing happened one street north, at SW Salmon Street and 5th Ave. (Id.) Malia also witnessed the arrest of a peaceful protestor, located west of 4th Ave., holding an American flag and a leaf blower. (Malia Decl. ¶¶6, 7) On July 25, 2020, Malia observed federal agents advance as far as 10th Ave., while firing munitions, tackling protesters and making arrests. (Malia Decl. ¶9.)
Federal agents have also engaged in plenary policing away from the Hatfield Courthouse when they abducted persons outside the jurisdiction of federal law enforcement, including but not limited to Mark Pettibone. Pettibone documented his abduction in a declaration in Rosenblum v. U.S. Dep’t of Homeland Security, Civ. No. 3:20-cv-01161-MO (D. Or.). Pettibone was not attacking, or on or near, federal property or personnel when abducted. Rather, he was walking home after peacefully protesting. (Davidson Ex. 7 ¶2.) When the Oregon Attorney General raised Pettibone’s abduction in her office’s request for a Temporary Restraining Order, the Government did not respond by suggesting that there was probable cause to arrest him, nor that his arrest complied with 40 U.S.C. § 1315. (Davidson Decl. ¶9.) Pettibone testified in his declaration that he had seen a video of another Portlander being picked up in a like manner – by individuals in camouflage fatigues, placing them in an unmarked van – and that it was not him. (Davidson Ex. 8 ¶5.)
Consistent with these reports, Ken Cuccinelli, the Deputy Secretary of the defendant Department of Homeland Security, was asked in a July 17 interview with National Public Radio whether federal agents used unmarked vehicles to pick up protesters in U.S. cities, and admitted this, stating, “Well, in Portland, they have.” He also admitted that someone taken into custody in

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this manner and questioned was “not the right person, and that person was released,” thus confirming that the federal practice has caused and can cause the detention of peaceful protesters, engaged in the exercise of their First Amendment freedoms. https://www.npr.org/2020/07/17/892393079/dhs-official-on-reports-of-federal-officersdetaining-protesters-in-portland-ore (Davidson Ex. 9.).
This “catch and release” policy, inflicted on at least Pettibone and acknowledged by Deputy Secretary Cuccinelli, on its face exceeds the limits on the Department of Homeland Security’s authority to arrest, codified in 40 U.S.C. § 1315(b)(2)(C). That law allows DHS agents to “make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a federal felony.” Id. That language does not allow a federal dragnet roving across Portland. Rather, it would have permitted the officers to apprehend Pettibone if he in their presence committed a federal offense. But he did not and they did not. Instead, they saw someone on a street, not committing any offense, and questioned him to decide whether he was that person. Such a practice, while effective at deterring First Amendment expression and assembly, does not honor Congress’ choice to constrain DHS to arresting people they see committing a federal offense or believe have committed a felony, and does not comply with the Constitution.
There have been many other reports of plenary policing by the federal authorities, outside of the vicinity of the Hatfield Courthouse. Observers report and depict the federal agents engaging in policing away from the situs of the Hatfield Courthouse. By way of example: https://www.nytimes.com/video/us/100000007243995/portland-protests-federalgovernment.html (accessed July 26, 2020); https://www.nytimes.com/2020/07/25/us/portlandfederal-legal-jurisdiction-

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courts.html?action=click&module=Top%20Stories&pgtype=Homepage (accessed July 26, 2020) (Ex. 10); https://twitter.com/hungrybowtie/status/1287314986943930368 (accessed July 26, 2020); https://m.facebook.com/randy.blazak/videos/10159970769049307/ (accessed July 27, 2020).
2. The Federal Defendants Conduct a Pattern of Policing in Portland to Eliminate and Deter Speech. (a) Attacks on Journalists; City-Wide Drone Ban.
As evidence in a separate lawsuit and from outside that lawsuit makes clear, the federal defendants have a program and practice of injuring journalists in a patent effort to suppress and deter speech. In a separate suit in which Judge Simon issued a temporary restraining order against assaults on journalists, there has been substantial evidence of many discrete instances of federal agents – working within the defendant federal agencies – targeting journalists.
On July 15, 2020, federal agents shot a tear gas canister directly at clearly marked journalist Justin Yau, while he was standing 40 feet from protesters to make clear he was not part of their protest. Index Newspapers v. City of Portland, et al., Civ. No. 3:20-cv-1035-SI, ECF 56, at ¶¶3-6 (Yau Decl.). On July 19, 2020, federal agents assaulted clearly marked photojournalist Jungho Kim. They pushed protesters away from the area in which he was taking pictures. Then, while he was 30 feet from the federal agents and near no one, a federal agent shot him just below his heart with a less lethal projectile munition. Separately, he also saw federal agents firing munitions into a group of press and legal observers. Index Newspapers v. City of Portland, et al., Civ. No. 3:20cv-1035-SI, ECF 62, at ¶¶5-7 (Kim Decl.). On July 19, 2020, federal agents assaulted Associated Press photojournalist Noah Berger while he was covering protests. Carrying two large professional cameras and two press passes, he was initially shot twice with less lethal munitions. Index Newspapers v. City of Portland, et al., Civ. No. 3:20-cv-1035-SI, ECF 72, at ¶¶1-4 (Berger Decl.).

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But this group of federal agents was just getting started attacking Berger. As the federal agents “rushed” an area he was photographing, he identified himself as press and retreated from the rushed area, saying he was leaving. While holding his press pass and stating he was with the press, he was struck by one federal agent, then by two others, and was struck many times with batons. Not content to club the photographer, federal agents pepper sprayed his face. (Berger Decl, ¶¶7-9.)
Meanwhile, the DHS Security has issued a temporary flight restriction over the entire City of Portland for unmanned aircraft systems effective July 16. This directive’s lack of spatial constraint further shows the defendants’ design to range freely around Portland, and to prevent citizens from questioning these activities, no matter how far from any federal situs.
(b) The Violent, Fourth Amendment-Violative Assault on 53-YearOld Navy Veteran Christopher David.
On July 18, 2020, federal agents violently assaulted Navy veteran Christopher David. David, wearing a Navy sweatshirt and Navy logos in the hopes of disarming the agents enough to speak with them, approached a group of federal agents and stood with his hands empty and at his sides, lacking any weapon and making no movement toward the group of armed officers. https://www.nytimes.com/2020/07/20/us/portland-protests-navy-christopher-david.html (Davidson Ex.11.) David recounted that he asked whether the agents were enlisted and asked why they were not obeying an oath to the Constitution. The video of the assault on David establishes the prima facie violation of the Fourth Amendment that ensued. https://www.nytimes.com/2020/07/20/us/portland-protests-navy-christopher-david.html (Davidson Ex.11.) As their response, one federal agent clubbed David with a baton three times, in the torso and lower body, a second approached and sprayed a chemical agent in his face, and a third clubbed him twice from behind. According to public reports, the federal agents broke David’s hand in two places and he required surgery. (Id.)

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(c) The Unprovoked Shooting and Gassing of Prof. Maureen Healy While She Was Peacefully Protesting in a Group.
On July 21, Professor Maureen Healy, the Chair of the History Department of Lewis and Clark College, and a teacher of European History with a specialization in the rise of fascism in 20th Century Europe, was peacefully protesting when federal agents gassed her and shot her in the head, concussing her. https://pamplinmedia.com/pt/9-news/474921-383910-lewis-and-clarkhistory-department-chair-shot-at-protest (accessed July 28, 2020) (Davidson Decl. Ex. 12.) Healy was in what she described as “large crowd of ordinary folks,” led by “Black Lives Matter voices,” that was “singing songs,” “chanting,” and saying in memory names of Black people killed by police, before observing a moment of silence at the George Floyd mural on SW Yamhill Street. (Id.). As Healy wisely stated, “I am knowledgeable about the historical slide by which seemingly vibrant democracies succumbed to authoritarian rule. Militarized federal troops are shooting indiscriminately into crowds of ordinary people in our country. We are on that slide.” (Id.)
(d) The Unprovoked Shooting, Gassing, and Pursuit of Amanda Dunham, Ending with Weapons Drawn.
On July 20, 2020, Amanda Dunham was demonstrating peacefully near the Multnomah County Justice Center – not the Hatfield Courthouse – and thus in a state and not a federal zone of interest to begin with. (Dunham Decl., ¶2) Dunham was protesting in support of the Black Lives Matter movement and against the presence of federal law enforcement in Portland. (Id.) She was unarmed and neither caused nor attempted to cause any damage to any property of any kind. (Id.) She did not witness any protester behave in a violent or threatening manner. (Id.)
That did not stop the federal agents who were in part the object of the protest from attacking the peaceful protesters. (Dunham Decl., ¶¶2-6.) The agents gave no warning, and made no announcement declaring the gathering unlawful. (Id. ¶3.) They swarmed into the crowd of demonstrators, shooting rubber bullets and deploying tear gas. (Id.) They struck Dunham from

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behind with three rubber bullets in her back, upper arm, and elbow, causing extreme pain and injuring her elbow. (Id. ¶4.) Rather than pursuing anyone in particular, the agents indiscriminately chased off protesters, continuing to shoot rubber bullets and deploying tear gas. (Id. ¶5.) The agents followed already dispersed protesters blocks away. (Id. ¶6.)
Without ever speaking to Dunham, the federal agents terrorized her. (Dunham Decl. ¶¶79.) They chased her two and a half blocks to where her car was parked, at the intersection of 3rd Avenue and Taylor and blocked the intersection. (Id. ¶7.) Multiple federal agents trained their weapons on Dunham. (Id.) When Dunham turned on her car’s running lights without starting the engine, Dunham could see the beams from the laser scopes of the agents’ weapons on her dashboard. (Id.) Dunham turned her running lights off and was afraid of being shot at or killed, despite having done nothing wrong. Underscoring their lack of probable cause to detain Dunham, the federal agents did not arrest, question, or detain her. Yet they dispersed a peaceful public assembly without warning, chased protesters, and brandished lethal force, without any legitimate law enforcement purpose.
(e) The Unprovoked Gassing of a Crowd of Demonstrators, Including Portland Mayor Ted Wheeler.
On July 22, 2020, at 11 p.m., Portland Mayor Ted Wheeler engaged in public assembly with constituents protesting near the Hatfield Courthouse. The crowd in which the Mayor was standing in dialogue with Oregonians about law enforcement and the federal presence was gassed by federal agents for no apparent reason. Thus, like Pettibone, the Mayor did not himself engage in unlawful activity, nor did he see unlawful or disorderly behavior that would have justified the gassing of the crowd in which he stood on July 22, 2020. (See Wheeler Decl.)

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3. The Defendants Chill Constitutionally Protected Speech of Americans Wishing to Speak Out for Racial Justice and Black Lives Matter and Against Federal Occupation.
Sadly for American constitutionalism, the defendants thrust into Portland by the President
are fulfilling his objective of quashing and chilling speech the President deems noxious.
Representative Karin Power explained eloquently how the federal forces succeeded in deterring
her from engaging in First Amendment-protected protest and assembly:
I am nine months pregnant and am too fearful for the health of my unborn son to participate in protests downtown. I fear for the well-being of my unborn son and family if I am gassed, sprayed, or severely injured by federal law enforcement— like so many other peaceful protesters. My constituents have recounted fearfully, and in horror, being unexpectedly chased, gassed, sprayed and shot at by federal law enforcement in the course of protesting peacefully.
(Power Decl. ¶5). The same was true of Representative Janelle Bynum. Rep. Bynum explained that the course
of policing by the federal agents in Portland has deterred her from exercising her First Amendment
rights, for fear of being targeted or attacked:
On a personal level, I am afraid to participate in protests downtown. I fear for my safety and for the well-being of my family if I am severely injured by federal law enforcement—like so many other peaceful protesters…. The federal authorities simply pose too great a danger to us.
(Bynum Decl. ¶¶7-9.)
The federal forces quashed the speech of Amanda Dunham, whom they assaulted and
chased for peacefully protesting on state property and terrorized by training weapons on her. After
that, Dunham was too scared to return to protest over the next many days. (Dunham Decl. ¶10).
Sara Eddie is now too fearful to observe protests downtown due to the federal forces’ abductions,
shootings and gassing. (Eddie Decl. ¶¶5-8).

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First Unitarian has seen its members’ rights to freely exercise their faith chilled, and its own bearing witness to social injustice in the world – a central tenet of Unitarian Universalist practice – has likewise been chilled by the federal policing. (Buhl Decl. ¶¶3-7).
Finally, Navy veteran Christopher David and Professor Maureen Healy have been deterred from exercising their rights to protest, in the way people in undemocratic countries often are, by being maimed or injured by their government. David had to leave the scene of the protest because a federal agent smashed his hand, breaking it. Professor Healy had to leave a protest because she was concussed by an impact munition fired by a federal agent. Neither was arrested or charged with anything. Yet their speech was met with violence sufficient to eject them from the public forum. That chilled protest as surely as a player ejected from a game cannot score.
LEGAL STANDARD “A plaintiff seeking a preliminary injunction must establish that [they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 19 (2008). Plaintiffs must establish that irreparable harm is likely, not just possible, to obtain a preliminary injunction. Id. Under the Ninth Circuit’s approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker one. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). This Circuit has adopted and applied a version of the sliding scale approach called the “serious questions test” under which a preliminary injunction may issue where the likelihood of success is such that “serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff’s] favor.” Id. (citation omitted).

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Here, each factor supports injunctive relief in Plaintiffs’ favor under both Plaintiffs’ First and Tenth Amendment claims. See Oregon v. Trump, 406 F. Supp. 3d 940, 958 (D. Or. 2019) (recognizing that injunctive relief may be awarded under the Tenth Amendment where federal government action undermined the plaintiffs’ “exercise of ... sovereign power to create and enforce a legal code”).
ARGUMENT
I. PLAINTIFFS HAVE A STRONG LIKELIHOOD OF SUCCESS ON THEIR TENTH AMENDMENT CLAIM AS EVIDENCE SHOWS DEFENDANTS ARE CONDUCTING PLENARY POLICING IN PORTLAND. A. The Tenth Amendment Forbids Plenary Policing by the Federal Government. The federal government does not possess a plenary police power; the federal Constitution
withholds it. U.S. v. Lopez, 514 U.S. 549, 564-66 (1995); see id. at 584-85 (Thomas, J., concurring) (“[W]e always have rejected readings of . . . the scope of federal power that would permit Congress to exercise a police power”). The Framers withheld that power by declining to enumerate it in the Federal Constitution. McCulloch v. Maryland, 4 Wheat. 316, 405 (1819); see Gibbons v. Ogden, 9 Wheat. 1, 195 (1824) (“The enumeration presupposes something not enumerated.”) As a result, and by the Tenth Amendment’s operation, plenary police power is reserved solely to the states. Bond v. U.S., 572 U.S. 844, 858 (2014) (“Perhaps the clearest example of traditional state authority is the punishment of local criminal activity.”); Lopez, 514 U.S. at 567 (characterizing “criminal law enforcement” as an area in which “States historically have been sovereign”). The federal government may intrude into powers historically reserved to the states solely if there is a positive grant of power to it by the Constitution—such as that contained in Section 5 of the Fourteenth Amendment, enacted after the Civil War as part of the Reconstruction Amendments to protect civil rights. See City of Boerne v. Flores, 521 U.S. 507, 517 (1997).

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When a state wishes to challenge federal government intrusion upon state and local law enforcement and lawmaking sovereignty, this Court may adjudicate the dispute. Oregon v. Trump, 406 F. Supp 3d 940, 958 (D. Or. 2019), appeal filed, Oct. 4, 2019 (collecting authorities).
Likewise, when an individual person or organization suffers injury as a result of federal overreach, or of federal disregard of a structural component of the federal Constitution (such as federalism), that individual may sue in this Court. Bond, 564 U.S. at 221-24 (so holding; “if the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.”); see Sierra Club v. Trump, 963 F.3d 874, 888-89 (9th Cir. 2020); U.S. v. McIntosh, 833 F.3d 1163, 1175 (9th Cir. 2016).
B. The Record Demonstrates That the Federal Government Is Attempting to Exercise Plenary Police Power, in Violation of the Tenth Amendment, in a Manner Far More General and Pervasive Than Occasional Hot Pursuits of Identified Persons Violating Federal Law Near the Courthouse.
This Court should enjoin the defendant federal agencies because they have purported to arrogate to themselves power to conduct plenary policing—a power reserved to the State of Oregon and, by delegation, Oregon’s municipalities. By “plenary policing,” plaintiffs mean the maintenance of a police force that enforces ordinary criminal law. See Flagg Bros. v. Brooks, 436 U.S. 149, 173 n.8 (1978) (“[I]t is clear that the maintenance of a police force is a unique sovereign function” of state and local government.); Bond, 572 U.S. at 864 (noting that the federal government’s authority to criminalize typically is limited to areas with national impact). Impermissible “plenary policing” is also that which the Department of Homeland Security cannot do without an agreement with local authorities: (1) enforce state or local laws (40 U.S.C. § 1315(e)), (2) act to protect property other than federal property (id. [tying law enforcement power to protection of federal property]), or (3) make warrantless arrests for misdemeanors or infractions (40 U.S.C. § 1315(b)(2)(C).). This includes ranging broadly away from the areas of federal

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buildings to engage protesters blocks away from them, who were not then engaging federal

buildings or officers at them, and who thus could not possibly be committing federal crimes when

sought out by federal patrols for that engagement.

As described below, Federal officials’ stated intentions, as well as the defendants’ specific

actions on the ground in Portland, support a preliminary injunction to stop plenary policing in

violation of the Tenth Amendment.

(1) Stated intent to conduct plenary policing. The federal government’s public

statements make plain that the government means to intrude upon Oregon’s reserved, plenary

police powers, by supplanting local authorities whom the President deems ineffective. Numerous

public statements clear the federal scheme to conduct plenary policing:

• “I can’t stand back & watch this happen to a great American City, Minneapolis. A

total lack of leadership. Either the very weak Radical Left Mayor, Jacob Frey, get

his act together and bring the City under control, or I will send in the National

Guard & get the job done right.....” @realDonaldTrump, Twitter (May 28, 2020),

https://twitter.com/realDonaldTrump/status/1266231100172615680 (Davidson

Ex. 13);

• “....These THUGS are dishonoring the memory of George Floyd, and I won’t let

that happen. Just spoke to Governor Tim Walz and told him that the Military is with

him all the way. Any difficulty and we will assume control but, when the looting

starts, the shooting starts. Thank you!” @realDonaldTrump, Twitter (May 28,

2020),

https://twitter.com/realDonaldTrump/status/1266231100780744704

(Davidson Ex. 14);

• “Take back your city NOW. If you don’t do it, I will. This is not a game. These

ugly Anarchists must be stooped [sic] IMMEDIATELY. MOVE FAST!”

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@realDonaldTrump,

Twitter

(June

11,

2020),

https://twitter.com/realDonaldTrump/status/1271142274416562176 (Davidson

Ex. 2.);

• “And at some point, there’s going to be retribution because there has to be. These

people are vandals, but they’re agitators, but they’re really — they’re terrorists, in

a sense.” https://www.politico.com/news/2020/06/26/trumpretribution-protesters-

statues-340957 (Davidson Ex. 4);

• “These people are not protesters, these people are anarchists. These are people that

hate our country and we’re not going to let it go forward.”

https://www.foxnews.com/politics/trump-vows-to-send-federal-agents-dhs-

chicago (Davidson Ex. 5);

• With respect to Portland: “Attacking federal police officers and law enforcement

officers which they have done for 52 nights in a row is a federal crime. And so the

department, because we don’t have that local support, that local law enforcement

support, we are having to go out and proactively arrest individuals.”

https://www.newsweek.com/portland-federal-agents-minority-report-1519574

(Davidson Ex. 6);

• “In recent weeks, there has been a radical movement to defund, dismantle, and

dissolve our police departments. Extreme politicians have joined this anti-police

crusade and relentlessly vilified our law enforcement heroes. To look at it from any

standpoint, the effort to shut down policing in their own communities has led to a

shocking explosion of shootings, killings, murders, and heinous crimes of violence.

This bloodshed must end. This bloodshed will end.

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Today, I’m announcing a surge of federal law enforcement into American communities plagued by violent crime. We’ll work every single day to restore public safety, protect our nation’s children, and bring violent perpetrators to justice. We’ve been doing it, and you’ve been seeing what’s happening all around the country. We’ve just started this process, and, frankly, we have no choice but to get involved.” https://www.whitehouse.gov/briefings-statements/remarks-presidenttrump-operation-legend-combatting-violent-crime-american-cities/ (Davidson Ex. 15.) Typically, when someone announces that they will do something, and then takes steps to do it, a reasonable factfinder may infer that they are doing or preparing to do that thing. See FRE 803(3), Advisory Committee Notes (“The rule of Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285… (1892), allowing evidence of intention as tending to prove the doing of the act intended, is, of course, left undisturbed.”); U.S. v. Pheaster, 544 F.2d 353, 376 (9th Cir. 1976) (discussing Hillmon). This case is no different; the Court should draw that inference here. And this record presents ample direct evidence of unconstitutional policing by federal agents. (2) Record evidence of plenary policing. Unfortunately, federal agents have achieved the stated goal of conducting plenary policing, when one examines the record of their patrols far from the Hatfield Courthouse, and pursuits that started away from federal property and led further afield. And while these unconstitutional patrols are conducted by shadowy figures using enormous federal power without identification in contradiction to how local policing works, the testimonial evidence of named Portlanders makes plain these Tenth Amendment violations. Ryan Malia, who attended demonstrations spanning the night of July 23 and the morning of July 24, 2020, recounts that federal agents smoke grenades and tear gas, as well as pepper balls, toward the west and north. When federal agents did so, they were standing an SW Main Street and

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5th Ave.—two blocks from the Hatfield Courthouse. (Malia Decl. ¶4.) The same thing happened one street north, at SW Salmon Street and 5th Ave. (Id.) Malia also witnessed the arrest of a peaceful protestor, located west of 4th Ave., holding an American flag and a leaf blower. (Malia Decl. ¶¶6, 7.) On July 25, 2020, Malia observed federal agents advance as far as 10th Ave – very far from the federal situs they are supposedly defending, while firing munitions, tackling protesters and making arrests. (Malia Decl. ¶9.)
Amanda Dunham’s harrowing testimony also supports this point. On July 20, 2020, Dunham was demonstrating peacefully near the Multnomah County Justice Center – not the Hatfield Courthouse – and thus in a state and not a federal zone of interest to begin with. (Dunham Decl. ¶2.) Dunham was testifying in support of the Black Lives Matter movement and to express her opposition to the presence of federal law enforcement in Portland. (Id.) She was unarmed. (Id.) She neither caused nor attempted to cause any damage to any property of any kind. (Id.) She did not witness any protester behave in a violent or threatening manner. (Id.)
That did not stop the federal agents who were in part the object of the protest from attacking the peaceful protesters. (Dunham Decl., ¶¶2-6.) The federal agents gave no warning, and made no announcement purporting to declare the gathering unlawful. (Id. ¶3.) The federal agents instead swarmed into the crowd of demonstrators, shooting rubber bullets and deploying tear gas. (Id.) During their assault on the protestors, they struck Dunham from behind with three rubber bullets in her back, upper arm, and elbow, causing extreme pain and seriously injuring her elbow. (Id. ¶4.) Rather than pursuing anyone in particular, the federal agents indiscriminately chased off protesters, continuing to shoot rubber bullets and deploying tear gas. (Id. ¶5.) The agents followed already dispersed protesters blocks away. (Id. ¶6.)
Without ever arresting or speaking to Dunham, the federal agents casually terrorized her. (Dunham Decl. ¶¶7-9.) Having chased her two and a half blocks from the Hatfield Courthouse to

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where her car was parked, at the intersection of 3rd Avenue and Taylor, federal agents blocked the intersection where her car was parked. (Id. ¶7.) Multiple federal agents trained their weapons on Dunham. (Id. ¶7.) When Dunham turned on the running lights without starting her engine, Dunham could see the beams from the laser scopes of their weapons on her dashboard. (Id.) Dunham turned her running lights off and was afraid of being shot at or killed, despite causing no damage and doing nothing wrong. Underscoring their lack of probable cause to detain Dunham, the federal agents did not arrest, question, or detain Dunham. They simply dispersed a peaceful public assembly without warning, chased protesters several blocks, and brandished lethal force, without furnishing even a pretextual law enforcement purpose.
Mark Pettibone’s account of his abduction—unchallenged by the Government during the TRO hearing in in Rosenblum v. U.S. Dep’t of Homeland Sec., Civ. No. 3:20-cv-01161-MO (D. Or.)—also evidences plenary policing. Pettibone was not on federal property at the time he was abducted, and was simply walking home after peaceful protest—supplying no cause for his seizure. (Davidson Ex. 7 ¶2.) When the Oregon Attorney General raised Pettibone’s abduction in her office’s request for a Temporary Restraining Order, the Government did not respond by suggesting that there was actually probable cause to arrest him, nor that his arrest complied with 40 U.S.C. § 1315. (Davidson Decl. ¶9.) Pettibone testified in his declaration that he had seen a video of another Portlander being picked up in a like manner – by individuals in camouflage fatigues, placing them in an unmarked van – and that it was not him. (Davidson Decl. Ex. 8 ¶5.)
Sam Hill describes a brisk forced march by federal agents from Lownsdale Square, at 3rd, all the way to Broadway four blocks away (and out of sight of the Hatfield Courthouse). In the several hours he attended the protests as a photographer, he did not observe violent behavior by the protestors. But he did see federal agents gas and shoot protestors as part of their broad sweep across downtown. (See generally Hill Declaration.)

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This ample testimonial record is well augmented by and consistent with publicly available videos and articles cited above and in the Davidson Declaration.
All of this record evidence demonstrates that plaintiffs have a probability of successfully showing that federal agents in Portland are flouting Tenth Amendment limitations on their power. They are ranging around Portland. They have prohibited drone overflights—not just near the Hatfield Courthouse, but throughout the entire City. (Davidson Ex. 16.) Just as the President and agency heads have been telling us for weeks, defendants intend for their agents to roam about the city and supplant local authorities because, in the administration’s view, the local authorities aren’t enforcing local criminal laws sufficiently or in a manner to the President’s liking.
As explained above, plaintiffs do not have to stand for this or rely on any authority but their own to end this. The Supreme Court in Bond emphatically held that ordinary citizens may invoke the Tenth Amendment when injured. 564 U.S. at 221-22. That is because federalism, a structural element of the Federal Constitution, protects individual liberties. Plenary policing by the federal government—rather than by state and local police answerable under the laws of the state of Oregon, and subject to the policing standards plaintiffs Bynum and Power help set—is on its face a cognizable injury. But to make matters worse, the federal agents in Portland are chilling Portlanders from exercising their First Amendment rights, as so many—too many—have attested. (Bynum Decl. ¶¶7-9; Power Decl. ¶5; Buhl Decl. ¶¶4-6; Eddie Decl. ¶6; Dunham Decl. ¶¶8-10.)

II. PLAINTIFFS HAVE A STRONG LIKELIHOOD OF SUCCESS ON THE MERITS OF THEIR FIRST AMENDMENT CLAIMS, BECAUSE THE RECORD REVEALS MANY TYPES OF FIRST AMENDMENT VIOLATIONS BY THE FEDERAL DEFENDANTS, AND PROVES THAT THEIR FIRST AND FOURTH AMENDMENT VIOLATIONS ARE CHILLING PROTECTED SPEECH.
The law here is very bad for the defendant agencies – it establishes with crystal clarity that

political expression is a fundamental constitutional liberty, and that our Constitution looks

skeptically upon restrictions of speech, even where, as here, police fear disorder will ensue where

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they do not quash speech. The First Amendment provides that all citizens have a right to hold and express their personal political beliefs. See Cohen v. California, 403 U.S. 15, 24 (1971). Organized political protest is a form of “classically political speech.” Boos v. Barry, 485 U.S. 312, 318 (1988).“[P]olice may not interfere with orderly, nonviolent protests merely because they disagree with the content of the speech or because they simply fear possible disorder.” Jones v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006) (citing Cox v. Louisiana, 379 U.S. 536, 550 (1965)). Indeed, “it has long been clearly established that the First Amendment bars retaliation for protected speech and association.” Buck v. City of Albuquerque, 549 F.3d 1269, 1292 (10th Cir. 2008). There are four compelling, independent reasons that plaintiffs have a strong likelihood of success on the merits of their First Amendment claims, as follows:
A. Defendants Have Violated the First Amendment by Unprovoked Attacks on Protesters.
Plaintiffs have a strong likelihood of success because in violation of the First and Amendment, defendants have attacked protesters, who enjoy robust constitutional protections and are patently immune from such assaults. “[O]ur constitutional command of free speech and assembly is basic and fundamental and encompasses peaceful social protest, so important to the preservation of the freedoms treasured in a democratic society.” Cox, 379 U.S. at 574. Non-violent protesters have the right to be free from excessive force. Edrei v. Maguire, 892 F.3d 525, 540–41 (2d Cir. 2018), cert. denied, 139 S. Ct. 2614 (2019)). While government officials may stop or disperse a protest when faced with an “immediate threat to public safety, peace, or order,” this authority is not without limits. Id. at 541. Among other things, officials have an obligation, “absent imminent harm,” to inform demonstrators that they must disperse, and may not use unreasonable force. Id.

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For example, police assaulting non-violent protesters by “beating them with ... riot batons,

dragging them by their hair and kicking them.” Parmley, 465 F.3d at 53. Police are also not

permitted to gratuitously employ “pain compliance techniques,” such as bending protesters’ wrists,

thumbs, and fingers backwards. Edrei, 892 F.3d at 541–42. Pain associated with these techniques

is “comparable [to] amounts of force” that courts have considered unreasonable when “used during

the arrest of a nonviolent suspect.” Id. Likewise, the Western District of Washington has

recognized that the use of weapons such as tear gas, pepper spray, and projectiles causes burning,

intense pain, and/or bruising constitutes excessive force as used against non-violent protesters.

Black Lives Matter Seattle-King Cty. v. City of Seattle, Seattle Police Dep’t, 2020 WL 3128299,

at *3 (W.D. Wash. June 12, 2020).

Defendants are employing all of the above techniques in violation of the First Amendment.

As detailed above, they have fired projectiles into a non-violent gathering without any warning to

disperse. (Dunham Decl. ) Their agents have repeatedly clubbed with a baton and pepper-sprayed

the face a non-violent protester with his hands empty and at his sides, posing no threat.

(https://www.nytimes.com/2020/07/20/us/portland-protests-navy-christopher-david.html

&

Davidson Ex. 11.) They are spraying so much tear gas that many protesters wear gas masks as

protection. Non-violent, peaceful demonstrators have been shot with rubber bullets and seriously

injured. (See Dunham Decl.; Davidson Ex. 12.) Even the preliminary evidence overwhelmingly

shows that the federal agents are violating the First Amendment by their gratuitous and excessive

use of force against protesters.

B. Defendants Have Violated the First Amendment by Policing Far from the Hatfield Courthouse.
By policing away from the federal situs they purport to defend, the defendants
simultaneously violate the Tenth Amendment, because the federal government is not a community

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police agency, and the First Amendment, because they cannot squelch speech in service of securing an overbroad public space in supposed defense of security – here, the security of the Hatfield Courthouse. Two Ninth Circuit cases are instructive: Bay Area Peace Navy v. U.S., 914 F.2d 1224 (9th Cir. 1990); Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1996). In Peace Navy, the Ninth Circuit rejected as over extensive a 75-yard safety and security zone around the San Francisco pier during fleet week, where Peace Navy, a group of antiwar demonstrators, typically demonstrated. Id. at 1227. The Ninth Circuit rejected the proposed zone of speech restriction because it “burden[ed] substantially more speech than [was] necessary to further the government’s legitimate interests.” Id. at 1128. So it should be here. There is no reason for the Government to send squads of armed DHS agents on patrols as far from the Hatfield Courthouse agents to confront protesters while standing at Main Street and 5th Ave.—two blocks from the Hatfield Courthouse. (Malia Decl. ¶4.). The agents Sam Hill testified conducted a sweep from Lownsdale Square, at 3rd, all the way to Broadway four blocks away (see Hill Decl.), were not defending the Hatfield Courthouse. And the agents had no reason to be at Third and Taylor, confronting Amanda Dunham without probable cause that far from the Hatfield Courthouse. Nor should they have advanced as far as 10th Ave., while firing munitions, tackling protesters and making arrests on July 25. (Malia Decl. ¶9.) This is all the promised “proactive” policing, and it is all unconstitutional. As the Ninth Circuit held in Peace Navy, the government “is not free to foreclose expressive activity in public areas on mere speculation about danger.” Id.
Collins is likewise instructive. There, the Ninth Circuit held that a citywide ban on demonstrations in the wake of the Rodney King verdict violated the First Amendment. 110 F.3d at 1372 (“The law is clear that First Amendment activity may not be banned simply because prior similar activity led to or involved instances of violence.”). That is functionally what the federal forces are doing in Portland – citing prior demonstrations, they sweep out broadly to suppress in

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an overbroad geographic zone. This, Peace Navy and Collins teach they cannot do. This Court should restrain the defendants generally to a 100 yard defense perimeter, which encompasses a wider area than that disallowed in Peace Navy, encompasses the full block in front of the courthouse, and allows more than fair distance to defend the actual Hatfield Courthouse.
C. Defendants Have Violated the First Amendment Because They Have Abundantly Chilled Speech in Portland by Aggressively Policing in Patrols Away from the Courthouse, Randomly Picking Up People in Derogation of 40 U.S.C. § 1315 and Attacking Peaceful Protesters Like Dunham and David.
To prevail on a First Amendment claim, plaintiffs must “prove only that the officials’ actions would have chilled or silenced ‘a person of ordinary firmness from future First Amendment activities,’ not that their speech and petitioning were ‘actually inhibited or suppressed.’” White v. Lee, 227 F.3d 1214, 1241 (9th Cir. 2000). Indeed, it “would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in [their] protected activity.” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999). The mere threat of harm, without further action, can have a chilling effect. Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009).
Here, the defendants’ use of excessive force has caused injury sufficient to chill a person of ordinary firmness from continuing to engage in that political protest. Black Lives Matter SeattleKing Cty. v. City of Seattle, Seattle Police Dep’t, 2020 WL 3128299, at *3 (W.D. Wash. June 12, 2020) (holding that use of less-lethal, crowd control weapons such as tear gas and pepper spray is “excruciating” and chills speech).
The federal agents have used physical weapons and chemical agents to prevent not just peaceful demonstration, but also the media’s ability to document the demonstrations and plaintiffs’ and third parties’ ability to offer aid to demonstrators. See supra at pp. 8-16. They have taken

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people without any appearance of a legal arrest, instilling fear that demonstrators may be “disappeared” like Pettibone (See Davidson Exs. 7, 8; Eddie Decl. ¶6.)
Plaintiffs have witnessed – both in-person and in extensive video coverage – what happens to protesters who, like themselves are unarmed and not causing property damage or otherwise breaking the law. Indeed, both Ms. Eddie and Ms. Dunham report that, as mothers, they are fearful of participating in the demonstrations because they worry they will be “disappeared” or killed. (Eddie Decl. ¶6; Dunham Decl. ¶10.) Representatives Bynum and Power also report being chilled from exercising their First Amendment rights by the fear of attack by federal agents. (Bynum Decl. ¶¶7-10; Power Decl. ¶5). And plaintiff First Unitarian has had its practice of bearing witness to social justice as Free Exercise under the First Amendment, as well as its members’ First Amendment rights of assembly and free exercise chilled. (Buhl Decl. ¶¶3-6.)
All this must stop. As the District of Colorado put it well in a case concerning Denver’s protests after the death of George Floyd, “peaceful demonstrators’ legitimate and credible fear of police retaliation is silencing their political speech—the very speech most highly valued under the First Amendment.” 2020 WL 3034161, at *3. To say “what the law is,” as Marbury commands, this Court must safeguard the amendment that is First for good reason. Without freedom of speech, democracy fails. The evidence is sufficient and the law is clear. This Court should enjoin the defendants as requested.
D. The President’s Declared Intentions in Executive Order 13933 and Related Public Statements Establish That Operation Legend Is Meant to Quash Speech and to Redirect Speech Away from Dissent and Protest, Making Operation Legend Presumptively Unconstitutional.
The First Amendment prohibits the government from restricting expression, as it has here, because of “its message, its ideas, its subject matter, or its content.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (citation omitted). Content-based laws—those that target speech based

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on its communicative content—are presumptively unconstitutional. Id. (citing R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992)). Even where restriction or restrictive activity may be facially content neutral, they are considered content-based if they “cannot be ‘justified without reference to the content of the regulated speech,’ or were adopted by the government ‘because of disagreement with the message [the speech] conveys.’” Id. at 164 (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
This President’s crackdown on political protest is a paradigmatic violation of R.A.V. that is presumptively unconstitutional. His June 26 Executive Order criticized state and local governments, directing the use of force wrapped in the frank judgment that while disorder or violence are bad, the failure to condemn and combat noxious protest is “worse,” stating that “they apparently have lost the will or the desire to stand up to the radical fringe and defend the fundamental truth that America is good….” Exec. Order No. 13933, 85 FR 40081. This language makes the defendants a Constitutionally prohibited “truth” squad, deployed to enforce the President’s “truth.” It is openly hostile towards the protestors’ messages and communicates that any speech questioning certain beliefs of the Administration will be quashed. See Ridley v. Massachusetts Bay Transp. Auth., 390 F.3d 65, 82 (1st Cir. 2004) (“The bedrock principle of viewpoint neutrality demands that the state not suppress speech where the real rationale for the restriction is disagreement with the underlying ideology or perspective that the speech expresses.”).
The Executive Order’s language exceeds the bounds of protected government advocacy because it is directly tied to government action used to “silence or muffle the expression of disfavored viewpoints.” Nat’l Rifle Ass’n of Am. v. Cuomo, 350 F. Supp. 3d 94, 112 (N.D.N.Y. 2018) (citing Matal v. Tam, 137 S. Ct. 1744, 1758 (2017)). “[T]he First Amendment prohibits government officials from encouraging the suppression of speech in a manner which ‘can

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reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.’” Zieper v. Metzinger, 474 F.3d 60, 65– 66 (2d Cir. 2007).
The threat to speech and First Amendment rights here is even clearer than that in NRA v. Cuomo, where Governor Cuomo’s press release encouraged insurance companies and financial institutions to “reevaluate” their relationship with the National Rifle Association. There, the court concluded that the NRA stated a free speech claim, because in the totality of the circumstances the press release and related guidance letters “constituted implicit threats of adverse action against financial institutions and insurers that did not disassociate from the NRA.” 350 F. Supp. 3d at 11218. The language here is stronger and worse. It directly calls out persons with conflicting viewpoints from the Administration’s, namely the “radical fringe” or the “left-wing extremists who have . . . explicitly identified themselves with ideologies — such as Marxism — that call for the destruction of the U.S. system of government.” Exec. Order 13933, 85 FR 40081.
The Order then not only suggests – but directs – that action be taken against these individuals. If government speech that “can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to [an] official's request” can give rise to a valid First Amendment claim, then the speech here certainly does. Okwedy v. Molinari, 333 F.3d 339, 342 (2d Cir. 2003). The President’s announcement of official disfavor of the challenged speech necessarily invalidates all subsequent action taken in furtherance of its unconstitutional mandate because the government may not undertake action that “silence[s] or muffle[s] the expression of disfavored viewpoints.” See Tam, 137 S. Ct. at 1758.
Plaintiffs need only show a likelihood of success, or serious questions going to the merits. The Order’s content strongly suggests that actions taken in furtherance of this Order aim to suppress a certain ideology, and violate the First Amendment. The President’s July 20 statement

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linking the protesters’ ideology to his reaction makes this analysis inescapable. (Davidson Decl. Ex. 5) (“These people are not protesters, these people are anarchists. These are people that hate our country and we’re not going to let it go forward.”).) This Court should follow R.A.V. and Town of Gilbert and enter the requested injunction.
III. PLAINTIFFS ARE LIKELY TO SUFFER IRREPARABLE HARM BY THE CONTINUED VIOLATION OF THEIR CONSTITUTIONAL RIGHTS. It is well established that the deprivation of constitutional rights “unquestionably
constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)). Constitutional injuries cannot adequately be remedied with monetary damages. See Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008) (“Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm.”), rev’d on other grounds, 562 U.S. 134 (2011); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (“We have stated that an alleged constitutional infringement will often alone constitute irreparable harm.”).
In considering a preliminary injunction, the deprivation of First Amendment rights “even for minimal periods of time, unquestionably constitute[s] irreparable injury.” Elrod, 427 U.S. at 374. The harm is particularly irreparable where, as here, a plaintiff seeks to engage in political speech, as “timing is of the essence in politics” and “[a] delay of even a day or two may be intolerable . . . .” Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (citing Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010, 1020 (9th Cir. 2008)); see also Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (adopting the proposition); Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014) (holding that “a ‘colorable First Amendment claim’ is ‘irreparable injury sufficient to merit the grant of relief’”); DISH Network v. F.C.C., 653 F.3d 771, 776 (9th Cir. 2011) (holding that “a First Amendment claim certainly raises the specter of

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irreparable harm and public interest considerations”); Melendres, 695 F.3d at 1002 (holding that the deprivation of First Amendment rights is “well established” to constitute irreparable harm). “The harm is particularly irreparable where, as here, a plaintiff seeks to engage in political speech . . . .” Klein, 584 F.3d at 1208. Put another way, because plaintiffs can show a likely constitutional, and particularly First Amendment violation, they need not separately show irreparable harm because the violation is the irreparable harm. Nat’l Rifle Ass’n, 2019 WL 9042815, at *12 (citing Harris, 772 F.3d at 583).
Plaintiffs will be irreparably harmed absent an injunction. The demonstrations are ongoing, and if immediate relief is not granted, plaintiffs’ speech will be chilled and their First Amendment rights thus impermissibly curtailed. See Abay v. City of Denver, No. 20-CV-01616-RBJ, 2020 WL 3034161, at *4 (D. Colo. June 5, 2020) (enjoining police from employing chemical weapons or projectiles against people engaging in peaceful protests or demonstrations). Eddie testified that the federal agents’ violence against protesters and their “catch-and-release” program have made her so fearful of observing peaceful protest that she has stopped participating. (Eddie Decl. ¶¶ 5-8.) Likewise, Dunham was injured by being shot by rubber bullets and terrified after a line of federal agents trained their weapons on her, even though she had behaved peacefully at all times, had not committed any crime, and was not arrested at any point. Fearing that she might not only be arrested, but killed, she discontinued participating in the protests, at least temporarily. (See Dunham Decl.) Reps. Bynum and Power have likewise testified that they have been chilled from attending protests. (Bynum Decl. ¶¶6-9; Power Decl. ¶5)
As in Abay, irreparable harm has already occurred in the suppression of speech, and such harm will continue if this relief is denied. See id. Defendants will continue to use force, secure in the knowledge that retrospective claims take significant time, effort, and money to pursue. Abay,

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2020 WL 3034161, at *4. Plaintiffs have therefore amply demonstrated the requisite likelihood of irreparable harm.
IV. THE BALANCE OF THE EQUITIES FAVORS PLAINTIFFS. The balance of equities tips sharply in favor of enjoining constitutional violations. Klein,
584 F.3d at 1208. [B]y establishing a likelihood that Defendants are engaged in conduct that violates the Constitution, Plaintiffs have necessarily also established that the balance of the equities favor a preliminary injunction. Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014).
V. THE PUBLIC INTEREST FAVORS ENJOINING CONSTITUTIONAL VIOLATIONS. “[I]t is always in the public interest to prevent the violation of a party’s constitutional
rights.” Melendres, 695 F.3d at 1002. Because plaintiffs have demonstrated that they are likely to succeed on the merits of constitutional claims, this factor favors issuing their requested injunction. See Oregon v. Trump, 406 F. Supp. 3d 940, 975 (D. Or. 2019) (injunction enforcing the Tenth Amendment would serve the public interest by thwarting the defendants’ encroachment upon powers constitutionally reserved to the states); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002) (“[T]he public interest favors the exercise of First Amendment rights .... we ‘have consistently recognized the significant public interest in upholding First Amendment principles.’”).
REQUESTED INJUNCTION Plaintiffs move this Court for both a temporary restraining order and a preliminary injunction enjoining defendants, and any persons working in concert with them, from:
1) consistent with the Tenth Amendment, engaging in law enforcement activities other than in the immediate defense of federal personnel or property on federal

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property or its curtilage, except to the extent necessary to remove an imminent threat or to arrest someone violating federal law in a manner compliant with 40 U.S.C. § 1315(b)(2)(C) (“Section 1315”); 2) consistent with the Fourth Amendment and Section 1315, seizing or arresting individuals within the jurisdiction of this Court without either (a) a warrant, (b) the arresting officer seeing the federal crime allegedly committed or (c) the arresting officer having probable cause to believe that the arrested person committed a federal felony; 3) making warrantless arrests in violation of the Fourth Amendment; 4) consistent with the First Amendment, the Fourth Amendment, Section 1315 and the orders of any judicial officer of this District Court, physically contacting and approaching protestors, medics, journalists, or other observers of protests at a distance of more than 100 yards from the property line of the Hatfield Courthouse unless the protestor, medic, journalist, or other observers of protests is then presently injuring the structure of the Hatfield Courthouse, or injuring an officer defending the Hatfield Courthouse at a distance of less than 100 yards from the property line of the Hatfield Courthouse; 5) consistent with the First Amendment, Fourth Amendment, Section 1315 and the orders of any judicial officer of this District Court, striking with batons, shooting with projectiles, or pushing to the ground persons within 100 yards of the property line of the Hatfield Courthouse who are not resisting instructions from the officer engaging those persons, unless there has been a prior instruction for a crowd to clear the area containing the person with time sufficient for the crowd to disperse;

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6) consistent with the First Amendment, Fourth Amendment and Section 1315 and the orders of any judicial officer of this District Court, striking with batons, gassing, shooting with projectiles, or pushing to the ground persons who are not resisting instructions from the officer engaging those persons, more than 100 yards from the property line of the Hatfield Courthouse; and
7) consistent with the First and Fourth Amendments and Section 1315 and the orders of any judicial officer of this District Court, pursuing protestors who are not personally engaged in violence toward the Hatfield Courthouse or an officer guarding it beyond the distance of 100 yards from the property line of the Hatfield Courthouse.

Dated: July 29, 2020

SNELL & WILMER L.L.P.
By /s/ Clifford S. Davidson Clifford S. Davidson, OSB No. 125378 Andrew M. Jacobs (admitted pro hac vice)
Attorneys for Plaintiffs

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CERTIFICATE OF COMPLIANCE This brief complies with the applicable word-count limitation under LR 7-2(b), 26-3(b), 54-1(c), or 54-3(e) because it contains 10,958 words, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of cases and authorities, signature block, exhibits, and any certificates of counsel. I have relied upon the word-count feature of Microsoft Word in creating this certificate.

Dated: July 29, 2020

SNELL & WILMER L.L.P.
By /s/ Clifford S. Davidson Clifford S. Davidson, OSB No. 125378 Andrew M. Jacobs (admitted pro hac vice)
Attorneys for Plaintiffs

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 Western States Center, Inc. v. United States Department of..., Slip Copy (2020) 2020 WL 6555054

2020 WL 6555054 Only the Westlaw citation is currently available.
United States District Court, D. Oregon, Portland Division.
WESTERN STATES CENTER, INC., an Oregon public benefit corporation; The First Unitarian Church of Portland, Oregon, an Oregon religious
nonprofit corporation; Sara D. Eddie, an individual; Oregon State Representative Karin A.
Power, an elected official; and Oregon State Representative Janelle S. Bynum, an elected
official, Plaintiffs, v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; United States Customs and Border Protection; Federal Protective Service; and United States Marshals Service, Defendants.
No. 3:20-cv-01175-JR |
Signed 11/02/2020
Attorneys and Law Firms
Clifford S. Davidson, Snell & Wilmer LLP, Lake Oswego, OR, Andrew M. Jacobs, Pro Hac Vice, Snell & Wilmer L.L.P., Phoenix, AZ, for Plaintiffs.
Jeffrey Aaron Hall, Jordan Von Bokern, DOJ-Civ, Washington, DC, for Defendants.
ORDER FOR PRELIMINARY INJUNCTION
MOSMAN, United States District Judge
*1 Plaintiffs seek an injunction to protect their First Amendment rights to Freedom of Speech and Freedom of Worship, and a more general right to limited federal policing powers under the Tenth Amendment. I have rejected Plaintiffs’ Tenth Amendment argument, primarily because it is not likely to succeed on the merits. I have also found Plaintiffs’ Free Exercise claim, while doctrinally distinct from Free Speech, to be almost indistinguishable as to remedy and redressability.

Plaintiffs’ claims center on protests outside the Mark O. Hatfield U.S. Courthouse (“U.S. Courthouse”) in downtown Portland. Plaintiffs assert the right to come to the U.S. Courthouse area and peacefully protest. They also claim some federal agents have chilled their exercise of that right by engaging in retaliatory conduct towards other peaceful protesters, by the unwarranted use of force. The showing that the federal agents have any retaliatory motive is non-existent. Unfortunately for the federal agents, they operate under the burden of statements from the President (and for Border Patrol agents, Acting Secretary Wolf) expressing precisely such a motivation. For these and other reasons discussed at oral argument, I have found Plaintiffs are entitled to some form of injunctive relief.
Injunctions are supposed to be grounded in redressability. They typically should prevent action so that the threatened harm does not occur, without infringing on a defendant’s legitimate interests or actions. What they must not do is paper over a problem with endless lawyer talk. This is particularly true here, where Plaintiffs seek finely-drawn limitations on law enforcement conduct in a situation that can involve hundreds or even thousands of protesters in a small area in front of the U.S. Courthouse, some of whom are engaged in violent conduct, in the middle of the night, all obscured by the smoke from commercial grade fireworks.
Plaintiffs have candidly acknowledged that nonviolent protesters found in the midst of such a melee cannot readily be distinguished from violent protesters. They have suggested an injunction that covers them when they are a certain number of feet away from any violent protesters. This seems unworkable to me, not the least because it presupposes a static situation, one in which they can know where the crowd is going to move or what the stranger next to them will do next.
Instead of an injunction grounded in the behavior of individuals in a crowd, I have focused on the primary relief sought by Plaintiffs: a geographical solution that focuses on where certain federal law enforcement activity can occur. Plaintiffs assert, and I agree, that this will provide them with a zone of safety where they can peacefully protest without fear of retaliation. As will be set out more precisely below, I have limited Defendants’ crowd control activities to an extended city block around the U.S. Courthouse. Within that sphere, called the “Excluded Area,” federal law enforcement can engage in crowd control activities subject to all the pre-existing limits, constitutional or otherwise, on their conduct, but not covered by this injunction. Beyond that line federal agents must cease crowd control activities, including

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clearing people away from the U.S. Courthouse.
*2 While focusing on a geographic area where crowd control is, or is not, permitted, this injunction in no way limits pre-existing protections or authorities. It remains the case, for example, that federal agents cannot individually target protesters in retaliation for their speech, anywhere or anytime. It also remains the case, for example, that within or beyond the Excluded Area, federal agents can make arrests or engage in “hot pursuits” according to longstanding rules governing such activities.
The Court ORDERS as follows:
1. Plaintiffs’ Motion for Preliminary Injunction [ECF 16] is GRANTED in part;
2. The Court hereby ENJOINS Defendants United States Department of Homeland Security, United States Customs and Border Protection, Federal Protective Service, and United States Marshals Service, and all persons working at their direction within the physical boundaries of the Portland Division of the United States District Court for the District of Oregon (the “Enjoined Parties”), as follows: 3. The Enjoined Parties may not employ general crowd control measures—as distinguished from lawful activity directed at individual protesters—farther than one extended block in all directions from the U.S. Courthouse. One extended block is defined as the most distant side of the far sidewalk from the U.S. Courthouse. For example, one extended block to the west is the west side of the west sidewalk on SW Fourth Avenue. The corners are defined by where the extended blocks intersect. For example, where the west side of the west sidewalk on SW Fourth Avenue meets the north side of the north sidewalk of SW Taylor Street is one corner. This is the Excluded Area. The Enjoined Parties may employ general crowd control measures while they are physically located in the Excluded

Area, even if those activities have consequences beyond the Excluded Area.1
4. “Lawful activity directed at individual protesters” includes, for example, the following:
a. lawfully making arrests without a warrant for any offense against the United States committed in the presence of an officer or agent, or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony (see 40 U.S.C. § 1315(b)(2)(C));
b. conducting investigations, on and off the property in question, of offenses that may have been committed against property owned or occupied by the Federal Government or persons on the property (see 40 U.S.C. § 1315(b)(2)(E));
c. engaging in hot pursuit of a suspect believed to have violated federal law (United States v. Jackson, 139 F. App’x 83, 85–86 (10th Cir. 2005)).
5. This Order does not cover federal law enforcement activity at any other location than the U.S. Courthouse.
6. This Order shall be in effect until further order from this Court. The Court will set a hearing for the week of November 9, 2020, to evaluate the injunction, including whether or not warnings are needed prior to the use of crowd control measures.
IT IS SO ORDERED.
All Citations
Slip Copy, 2020 WL 6555054

Footnotes

1

Plaintiffs have also raised the issue of warnings prior to the use of crowd control measures. Before instituting

warning requirements, I want to have a more developed record on the need for warnings. I will reconsider this issue

if Plaintiffs demonstrate how an injunction could effectively contain warning requirements to redress their injuries.