Litigating the Federal Government's Conduct in Portland Protests
An overview of cases brought against the Department of Homeland Security and other government agencies following the deployment of federal officers to the Portland protests.
Published by The Lawfare Institute
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Editor’s Note: It’s possible there is some litigation missing from this roundup. Please email the editors or the author at sfry@jd20.law.harvard.edu with any relevant litigation missing from this summary. This page was last updated on July 28, 2020.
On June 26, President Trump announced an Executive Order instructing the Attorney General to prioritize investigations and prosecutions for the desecration of monuments, memorials and statues and for several other departments, including Homeland Security, to provide personnel to assist with protecting such monuments. Acting Secretary of Homeland Security Chad Wolf responded by preparing 2,000 federal agents—including Border Patrol agents, Immigration and Customs Enforcement officers and Coast Guard personnel—to assist the Federal Protective Service, the agency charged with protecting federal property.
Soon after, reports began to surface of federal agents in Portland, Oregon pulling protestors into unmarked vehicles, refusing to identify themselves and using indiscriminate and violent tactics against protestors and neutral observers alike. Several lawsuits have been initiated against the Department of Homeland Security (DHS) and other government agencies in response to these events. What follows is a run-through of litigation surrounding the federal government’s activity in Portland. While additional litigation has been filed against state and local authorities in Portland, this roundup includes only lawsuits against the federal government. These cases raise a wide range of constitutional and statutory claims, from more standard claims of violations of the First, Fourth and Fifth Amendments, the Administrative Procedure Act and civil rights violations under 42 U.S.C. § 1983 to more innovative claims under the Tenth Amendment, the Federal Vacancies Reform Act and the Appointments Clause.
Woodstock et al v. City of Portland et al (3:20-cv-01035)
On June 28, the ACLU of Oregon and Braunhagey & Borden LLP brought a class-action lawsuit in the U.S. District Court for the District of Oregon against the City of Portland on behalf of journalists and legal observers who were allegedly targeted and attacked by law enforcement. The named plaintiffs are The Portland Mercury, a newspaper and media company, as well as individual journalists and legal observers. U.S. District Judge Michael H. Simon granted a temporary restraining order (TRO) against the City of Portland and officers of the Portland Police Bureau on July 2.
On July 17, following President Trump’s Executive Order and the subsequent deployment of federal officers to Portland, plaintiffs amended their complaint adding DHS and the U.S. Marshals Service as defendants and seeking to enjoin DHS, the Marshals and their agents “from assaulting news reporters, photographers, legal observers, and other neutrals who are documenting Defendants’ violent response to protests over the murder of George Floyd.” The suit sought a TRO and preliminary injunction, as well as declaratory relief and monetary damages. The amended complaint includes allegations that federal agents shot photographer Lewis-Rolland with impact munitions 10 times as he filmed and photographed them and that local police struck independent attorney and legal observer Kat Mahoney “with a truncheon across the back, where the words ‘ACLU LEGAL OBSERVER’ are emblazoned on her vest.”
On July 23, Judge Simon granted a TRO enjoining the defendants for 14 days from arresting, threatening to arrest, seizing any photographic or recording equipment or press passes from or using physical force against “any person whom they know or reasonably should know is a Journalist or Legal Observer” unless the officers have probable cause. The order also exempts journalists and legal observers from an officer’s order to disperse.
Rosenblum v. John Does 1-10 et al (3:20-cv-01161)
On July 17, Oregon Attorney General Ellen Rosenblum brought suit in the U.S. District Court for the District of Oregon on behalf of the State of Oregon, its agencies and its citizens under the doctrine of parens patriae—a type of standing that allows state attorneys general to litigate on behalf of their state citizens—against DHS, Customs and Border Protection, the Marshals, and Federal Protective Service. The complaint alleged that federal law enforcement officers in military fatigues had been driving around downtown Portland in unmarked vehicles and detaining protestors. It also included specific allegations of the arrest of Mark Pettibone, who was allegedly “confronted by armed men dressed in camouflage who took him off the street, pushed him into a van,” put him into a cell and read his rights but did not tell him why he was arrested or provide him with a lawyer. He was later released with no paperwork, citation or record of the arrest. The suit consists of claims of violations of the First Amendment rights of Oregonians to protest racial inequality, violations of citizens’ Fourth and Fifth Amendment rights against unreasonable seizures and violations of due process, and a claim of public nuisance, as well as requested injunctive and declaratory relief.
On July 24, U.S. District Court Judge Michael Mosman denied the state’s motion for a broad temporary restraining order that would have required federal officers to identify themselves and placed some limitations on their ability to make arrests, finding that the state lacked standing.
Western State Center, Inc. et al v. U.S. Department of Homeland Security et al (3:20-cv-01175)
On July 21, Western State Center (WSC), a public benefit corporation, First Unitarian Church of Portland, a religious nonprofit corporation, an individual legal observer Sara Eddie and Oregon State Representatives Karin A. Power and Janelle Bynum brought suit in the U.S. District Court for the District of Oregon against DHS, Customs and Border Protection, Federal Protective Service, and the Marshals. The complaint describes its purpose as “to stop the federal government . . . from depriving Portlanders of the right to be policed solely by those the Constitution permits, and who are accountable to Portlanders and Oregonians” and to “vindicate the First Amendment rights of a church whose religious practice includes activism and protest in the face of injustice.” The complaint alleges that unconstitutional overreach by federal law enforcement has restrained the plaintiffs from exercising their First Amendment rights, violated plaintiffs’ Fourth Amendment rights and encroached on powers reserved to the State of Oregon in violation of the Tenth Amendment. The plaintiffs seek injunctive and declaratory relief. The case is currently assigned to U.S. Magistrate Judge Jolie A. Russo.
Paul v. Trump et al (3:20-cv-01188)
On July 21, Jeff Paul filed a complaint in the U.S. District Court for the District of Oregon against Donald Trump, Chad Wolf, and John Does 1-100 after Paul was allegedly beaten by federal agents during a Black Lives Matter protest in downtown Portland. He stayed overnight for treatment in the emergency room. The complaint alleged violations of Paul’s First Amendment right to freedom of speech, freedom of assembly and freedom to petition the government; violations of his Fourth Amendment rights by using excessive physical force and chemical agents; threatened violations of his First and Fourth Amendment rights and a conspiracy to deprive him of his civil rights in violation of 42 U.S.C. § 1983. The plaintiff seeks monetary damages and declaratory and injunctive relief. The case is currently assigned to U.S. Magistrate Judge Stacie F. Beckerman.
Wise et al v. City of Portland et al (3:20-cv-01193)
On July 22, Perkins Coie and the ACLU of Oregon brought a lawsuit in the District Court of Oregon on behalf of individual protest medics against the City of Portland, DHS, the U.S. Marshals Service and individual officers. The complaint is brought by four protest medics who typically display large red crosses on their clothing and provide medical services to demonstrators, including: “distributing eye wash and eye wipes to protestors in anticipation of tear gas attacks, offering personal protective equipment so that protestors can observe COVID-19 physical distancing protocols, ensuring that protestors remain adequately hydrated and fed, and rendering direct care when police injure protestors.” The plaintiffs allege that officers have intentionally targeted and retaliated against protest medics and injured the individual plaintiffs, including shooting rubber bullets at a medic providing aid to a protester on a bench. The complaint includes civil rights claims under 42 U.S.C. § 1983; First Amendment violations; Fourth Amendment violations due to excessive force, false arrest and unreasonable seizure and an Administrative Procedure Act claim that the federal officers’ conduct in implementing the Executive Order to protect federal monuments and property was arbitrary and capricious. Plaintiffs seek monetary damages and declaratory and injunctive relief. The case has been assigned to U.S. District Court Judge Karin J. Immergut.
Don’t Shoot Portland et al v. Chad Wolf et al (1:20-cv-02040)
On July 27, Don’t Shoot Portland, Wall of Moms and individual organizers filed suit against DHS, Customs and Border Protection, Immigration and Customs Enforcement, the Federal Protective Service, DOJ, the Marshals and their respective agency leadership in the U.S. District Court for the District of Oregon. The complaint alleges violations of the APA by violation of 40 U.S.C. § 1315 and by arbitrary and capricious agency action; violation of plaintiffs’ First Amendment rights to speech, assembly and petition; violation of plaintiffs’ Fourth Amendment rights against unreasonable seizure and, in the alternative; violation of plaintiffs’ Fifth Amendment due process rights; violation of the APA by violation of the Constitution; violation of the Appointments Clause (U.S. Const. art. II, § 2, cl. 2), unlawful appointment under 6 U.S.C. §§ 112-113 and/or the Federal Vacancies Reform Act and violation of the APA 5 U.S.C. § 706(2). The plaintiffs, “a diverse group of women-founded organizations and individual women in Portland, Oregon, who are leading, participating, and standing in solidarity with historic lawful protests against police brutality and in support of Black Lives Matter”, request declaratory and injunctive relief. The case has been assigned to U.S. District Court Judge Christopher R. Cooper.
