Free Speech

Oregon Doesn't Get Injunction Against Certain Federal Enforcement Procedures

The State asked the court to impose "(1) a requirement that officers identify themselves and their agency before arresting or detaining any person; (2) a requirement that officers explain to any person being seized that he or she is being arrested or detained; and (3) an enjoinder against arrests that lack probable cause."


From Judge Michael W. Mosman's opinion yesterday in Rosenblum v. Does (D. Or.):

In the wake of the tragic killing of George Floyd in Minneapolis, international protests have demanded fundamental changes to our criminal justice system, particularly to police culture and tactics. These important protests have, in Portland, centered on a four-block area that includes the U.S. Courthouse, known as the Mark O. Hatfield Courthouse. By virtue of it being a federal building, the law enforcement personnel involved are federal agents.

One of the most difficult tasks for law enforcement in a free country like ours is to support robust protests while still maintaining order through lawful methods…. It is … common for [police-citizen] interactions [in such cases] to result in lawsuits, with protesters contending the police violated their First and Fourth Amendment rights and seeking redress by money damages and injunctive relief. There is a well-established body of law paving the way for such lawsuits to move forward in federal court.

This is not such a lawsuit. It is a very different case, a highly unusual one with a particular set of rules. In the first place, although it involves allegations of harm done to protesters by law enforcement, no protester is a plaintiff here. Instead, it is brought by the State of Oregon under a rarely used doctrine called parens patriae.

In the second place, it is not seeking redress for any harm that has been done to protesters. Instead, it seeks an injunction against future conduct, which is also an extraordinary form of relief. Under the governing law for such cases, the State of Oregon must make a very particularized showing in order to have standing to bring a parens patriae lawsuit, a task made even more challenging by the nature of the remedy it seeks. Because it has failed to do so—most fundamentally, because it has not shown it is vindicating an interest that is specific to the state itself—I find the State of Oregon lacks standing here and therefore deny its request for a temporary restraining order. I do so without reaching the merits of the underlying claims….

For about eight weeks, these protests against police brutality and systemic racism have been a nightly occurrence in the area of the Multnomah County Justice Center (which includes the local jail) and the Hatfield Courthouse. At the beginning of July, Acting Secretary of the Department of Homeland Security Chad Wolf announced that his agency would deploy special units of officers to protect federal property…. [R]eports [then] surfaced that federal officers were "grabbing protesters, pulling them off the sidewalks of downtown, and shoving them into unmarked vehicles." … I will refer to the alleged interactions between police and protesters as "seizures" for purposes of this opinion because, while it is unclear whether they constitute arrests, detentions, or something else, they are seizures for purposes of the Fourth Amendment.

The State argues that the alleged seizures are unlawful for several reasons: (1) they violate the Fourth [and Fifth] Amendment rights of the individuals being seized, … [and (2)] they violate the First Amendment rights of individuals who wish to protest but are discouraged from doing so because they fear being seized…. In the motion before me, the State is seeking a temporary restraining order that would impose three remedies: (1) a requirement that officers identify themselves and their agency before arresting or detaining any person; (2) a requirement that officers explain to any person being seized that he or she is being arrested or detained; and (3) an enjoinder against arrests that lack probable cause….

[W]hile the complaint paints a picture of numerous protesters being seized from the streets of Portland by unidentified agents, the State's evidence in its brief and at the hearing consists of just two examples.

First, it presents two declarations from an individual who claims he was detained by federal officers without probable cause. There is no video of this arrest and no evidence relating to its legality other than Mr. Pettibone's sworn statements. Defendants have not refuted the State's allegation that Mr. Pettibone's seizure lacked probable cause. I therefore assume, only for purposes of this opinion, that this seizure was unlawful and constituted a violation of Mr. Pettibone's rights under the Fourth and Fifth Amendments.

As its second example, the State has offered a video, which it states has been circulated heavily online, and which appears to show an individual being seized without any verbal explanation from officers. The video shows the seizure but does not show any context for what preceded it. It therefore does not speak to probable cause one way or another because it is equally plausible that the individual was an innocent bystander or that he had committed some criminal act just before officers seized him. There is simply no way to know on the record before me, and I am not permitted to assume one way or the other. It is not, for purposes of this opinion, evidence of an arrest that lacked probable cause.

The State argues that, regardless of whether the officers had probable cause for the arrest, the lack of verbal identification from the federal officers renders the seizure unreasonable for purposes of the Fourth Amendment. Defendants argue that the officers were otherwise identifiable, given their official uniforms and insignia, and that no verbal identification was required. {It appears that the State has largely backed away from any argument that the federal agents were not at all identifiable as law enforcement. Mr. Pettibone acknowledges that their uniforms said "Police," and the video shows agents wearing clothing clearly marked as "Police."} Whether these seizures are reasonable or unreasonable is a close legal question that I will not answer here. What I will do is assume without deciding that this seizure was constitutionally unreasonable, while stressing that this is not a legal ruling for purposes of future litigation.

Taken together, for purposes of this opinion, the State has presented just one example of an arrest without probable cause and one example of an unreasonable seizure. That is the sum total of the evidence before me that underpins the legal injuries the State asserts in its brief and that I address below. Notably, the State does not request any relief with respect to Defendants' use of unmarked vans, a fact that has been widely reported in both local and national media. The use of unmarked vehicles is therefore irrelevant to the legal analysis that follows, and I do not consider that practice at all….

Judge Mosman concluded that the state didn't satisfy the standards required to sue the federal government on behalf of its citizens:

The State asserts a two-part injury to its quasi-sovereign interest in protecting its citizens from unlawful seizures: (1) that Oregonians are at greater risk now of being victimized by genuine kidnappers, and (2) that Oregonians are at a greater risk of violence by the police if they reasonably resist what they believe to be a genuine kidnapping when they mistake federal agents for kidnappers.

The State's theory is that individuals who oppose the protests could assume the attire of federal police and mimic these unlawful arrests in order to kidnap protesters, thus subjecting them to the risks discussed here. The State reasserted this theory at oral argument, insisting repeatedly that it had an interest in protecting its citizens against the potential for kidnappings, both real and mistaken. This bi-fold injury rests on a "public health and welfare" theory of parens patriae that seeks to vindicate the constitutional rights of Oregon's citizens, and it meets the requirement that it be independent of the interest of any one individual. It does not, however, satisfy the requirements of general Article III standing because it is purely hypothetical.

In order to sue in federal court, a "constitutional minimum" of standing must be met. That minimum requires three elements to be satisfied: (1) the plaintiff must have suffered an "injury in fact"—i.e., an invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent (as opposed to conjectural or hypothetical), (2) there must be a causal connection between the injury and the offending conduct, and (3)

Oregon's asserted interest fails the first prong of Lujan because the injury the State asserts is entirely conjectural. First, the State candidly admits that it does not have a shred of evidence that counter-protesters have ever, anywhere, kidnapped a protester or anyone associated with protests. Second, the asserted interest rests on an utterly implausible inference. The State's reasoning is that counter-protesters, once they learn of seizures of protesters by federal agents, will dress up like police and go out on private missions to kidnap protesters. This despite the fact that such kidnappings are Measure 11 felonies in Oregon, punishable by mandatory minimum sentences of up to 70-90 months in prison. I do not discount the animosity among these groups and had I been asked to assume that the ongoing conflict would result in fistfights, or theft, or destruction of signs, or damage to vehicles, that would have made sense. But the idea that seizures by law enforcement will lead to kidnappings by private parties is a bridge too far.

I put in a similar category the State's asserted interest in preventing a spate of cases in which protesters mistakenly think the federal agents who are seizing them are actually counter-protest kidnappers. Again, there is no evidence to support such an assertion. The State has not pointed to any instance in which a protester was subjected to state violence because she believed she was resisting a kidnapping. In both instances of a federal seizure it is either admitted or clearly visible that the agents' uniforms say "Police." The State further admitted at oral argument that, to its knowledge, counter-protesters have never dressed up as police.

Finally, the State's asserted interest here fails the third prong of [the test for standing in such cases]: redressability. The State's requested solution to the kidnapping problem is to require actual federal agents to verbally identify themselves as such, presumably guaranteeing that they are the real deal. But if one is willing to go along with the State's concerns about copycat kidnappers, it requires me to assume that such nefarious characters are willing to dress up like federal agents and willing to commit the very serious crime of kidnapping, but that they would blanch at the thought of identifying themselves as police. The requested remedy here is a linguistic Maginot line, of no use in the real world….

Elsewhere in its briefing, the State also [expresses a concern about] … a chilling effect upon its citizens' First Amendment rights of free speech and assembly …. The "chilling effect" injury comes closest to satisfying the Article III standing requirements described above. It is the only one of the alleged harms that has any evidentiary support in the record.

At argument, however, the State seemed to assert this interest on the theory that speech would be chilled by the fear of kidnappings. It relies on statements by declarants who claim their protest speech was chilled by this fear. This theory creates a problem under the third prong of [te standing test], similar to the problem with the State's alleged interest in Fourth Amendment violations, which requires that the alleged harm be redressable by the remedy that a plaintiff seeks. The injury the State asserts—a chilling of its citizens' speech—is not actually redressable by the requested remedy, given that citizens could still believe they might be kidnapped even if police are required to verbally identify themselves. Apparently, the word "police" and other official insignia on uniforms has not quelled this fear among the public, and it is highly questionable whether the requested relief would do so either.

More fundamentally, the "chilling effect" injury presents a problem for the State under the parens patriae doctrine. While the State has asserted a quasi-sovereign interest in the civic well-being of its citizens, and the "chilling effect" injury is a violation of that interest, parens patriae also requires that the state's interest be more than a nominal interest in an individual dispute. In other words, it must be a harm to the state and its citizens more broadly.

This is the problem with the "chilling effect" injury. Oregonians, like all Americans, have individual rights to freedom of speech and assembly, conferred by the First Amendment. They can, and often do, bring individual lawsuits to vindicate those rights. And the State of Oregon has not explained why this case is different, why the chilled speech it alleges here injures the state in a way that is distinct from the individual harms that it also alleges. Perhaps there is an argument or a theory that could draw this distinction. The State did not manage to do so in its briefing or at oral argument, and I find that this interest, while it may or may not satisfy Article III, does not satisfy the requirements of parens standing….

Judge Mosman also concluded that the state hadn't shown enough evidence of federal government misconduct to justify an injunction against future misconduct:

Even assuming arguendo that the State has generally pleaded parens patriae standing, … [its] theory rests, fundamentally, on the idea that the unlawful seizures described above violate citizens rights. The State simply did not present enough evidence that those unlawful seizures are likely to continue.

Standing is a remedy-specific inquiry. "Past exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does not continue to suffer adverse effects." In other words, injunctive relief requires more than a showing that a plaintiff has been harmed; it requires a showing that she will likely be harmed again….

The State could try to show, for example, that all of Defendants' seizures are illegal, or that they are under orders to fail to identify themselves or to make random arrests without probable cause. The state has shown none of this. It has presented no evidence of any official orders or policies and has presented no evidence that these allegedly illegal seizures are a widespread practice. Despite the broad language in the complaint, Oregon has shown—at most—that this type of seizure has happened twice. {In its briefing and at oral argument, the State described what has happened here in Portland as "disappearance squad[s]" and "disappearing" people. This is apparently a reference to "the Disappeared," i.e., the 30,000 people who were tortured and murdered by the Argentine military junta 40 years ago. Even taking every word of the State's arguments and evidence at face value, this comparison seems out of proportion.} …

The State's argument, regardless of how it is framed, rests on too little evidence to satisfy [precedents related to injunctions against unconstitutional government activity]….

Judge Mosman's opinion doesn't foreclose First and Fourth Amendment damages lawsuits by people who claim their own rights were violated; those lawsuits would be decided normally, based on their own facts. It's just that federal agents' actions would be governed by First and Fourth Amendment law, not by an extra injunction issued by a federal court.