In July 2020, Protect Democracy, Debevoise & Plimpton LLP, and Perkins Coie LLP filed a lawsuit on behalf of Don’t Shoot Portland, an organization founded by Black Lives Matter activist Teressa Raiford; and protesters Demetria Hester, Danialle James, Bev Barnum, Sabrina Cerquera, and Lisa Kipersztok. The lawsuit contended that federal law enforcement officers exceeded the limits of their authority in Portland, Oregon, in response to protests have persisted following the killing of George Floyd, a Black man, by police in Minneapolis.

Federal agents from the Department of Homeland Security (DHS) and the U.S. Marshals Service were deployed in Portland on approximately July 4, 2020, purportedly to “protect federal property.” It soon became clear, however, that their mission was much broader and that their tactics went far beyond permissible law enforcement behavior. Video footage showed the officers gassing, beating, and kidnapping peaceful protesters while wearing no badges or name tags and driving unmarked vehicles. Furthermore, on July 22, 2020, President Trump announced plans to expand the administration’s authoritarian tactics in Portland to other U.S. cities.

The lawsuit alleged that the administration’s actions violated protesters’ Fourth Amendment rights as well as constituting viewpoint discrimination in violation of the First Amendment. The mobilization of federal agents against Black Lives Matter protesters stood in stark contrast to the administration’s lack of response to anti-COVID quarantine protesters who stormed government buildings in other states. Notably, President Trump tweeted his support of anti-quarantine protesters while speaking out against the Black Lives Matter movement.

The lawsuit also claimed that DHS Acting Secretary Chad Wolf, who was never confirmed by the Senate, unlawfully served in his role, making his orders regarding the Portland deployment void.

Two days after the plaintiffs informed the Department of Justice that they would be filing an emergency temporary restraining order, the Trump administration agreed to withdraw its “surge” of federal troops.

Protect Democracy will continue to intervene any time the federal government oversteps its authority, including by expanding this unlawful deployment of federal agents to additional U.S. cities.

Q: Who are the plaintiffs in this case?

The plaintiffs are Don’t Shoot Portland (also called Don’t Shoot PDX), an organization that was founded by Black Lives Matter activist Teressa Raiford; and five other Black Lives Matter protesters: Demetria Hester, Danialle James, Bev Barnum, Sabrina Cerquera, and Lisa Kipersztok.

Q: What relief are the plaintiffs requesting?

The plaintiffs are asking the court for injunctive relief and a declaration that:

1. Congress has only authorized DHS to protect federal property under 40 U.S.C § 1315

2.  DHS agents’ intimidation of protesters through surveillance because of their views; use of militarized and unmarked force; excessive deployment of crowd-control measures such as tear gas, pepper balls, and non-lethal munitions; and warrantless arrests, or custodial detentions without probable cause, are unlawful

3.  U.S. Marshals’ actions other than those laid out in 28 U.S.C. § 566 and in a manner not authorized by the Constitution are unlawful

4.  Defendant Wolf is not lawfully serving as Secretary of the Department of Homeland Security, and any policies, orders, or directives he issues are void

Q: How is this lawsuit different from the one filed by the ACLU?

In June, the ACLU filed a lawsuit against Portland police and city officials on behalf of legal observers and local journalists, not protesters themselves. It was filed in the U.S. District Court for the District of Oregon, Portland Division, unlike this lawsuit which was filed in the U.S. District Court for the District of Columbia. The court entered a temporary restraining order in that case, blocking Portland police from dispersing, arresting, threatening to arrest, or targeting force against journalists or legal observers at protests until October 30.

On July 17, 2020, the ACLU amended its complaint to include the Department of Homeland Security and U.S. Marshals Service as defendants. On July 23, 2020, the court extended the temporary restraining order against Portland police to the federal defendants, barring them from the same activities against journalists or legal observers.

Q: Didn’t Don’t Shoot Portland file another lawsuit?

Don’t Shoot Portland has filed other lawsuits in the past to address the tactics used by the Portland Police Bureau (PPB). As a result of one of those lawsuits, the PPB was enjoined from using the following: FN 303 semi-automatic less-lethal riot guns and 40MM less-lethal launches, with or without an OC (chemical irritant) payload; rubber ball distraction devices; aerosol restraints; and long range acoustic devices. Federal law enforcement agents are not currently restrained from using these devices.

Q: Is the federal deployment in Portland the same mission as the one President Trump and Attorney General Barr say will happen in other cities?

In Portland, federal agents have been deployed under “Operation Diligent Valor,” a Department of Homeland Security-led operation to quell protests in the name of protecting federal property. The Trump administration has plans to expand the deployment of federal agents against protests or other civil unrest to other cities—including Baltimore, Chicago, and Philadelphia—through “Operation Legend,” a Department of Justice-led “surge of federal law enforcement into American communities plagued by violent crime,” which will involve federal agents from the FBI, ATF, and DEA.

 

Donald Ayer, Former Deputy Attorney General, George H.W. Bush Administration

The lawsuit filed today by @protctdemocracy @DontShootPDX + @WallOfMoms correctly challenges the administration’s attempted overreach. Particularly important as Trump begins sending federal agents into more cities.

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Nikolas Bowie, Assistant Professor of Law, Harvard Law School

Secret police don’t belong in this country. Excellent new lawsuit filed by @protctdemocracy, @DontShootPdx, and @WallOfMoms, challenging the federal government’s use of force in our cities as unconstitutional, illegal, and wrong.

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Elizabeth Goitien, Co-Director of the Liberty and National Security Program at the Brennan Center for Justice

Important lawsuit filed today by @protctdemocracy on behalf of Don’t Shoot Portland, Wall of Moms, and individual protesters, alleging that DHS agents far exceeded the legal authority used to justify their deployment.

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Leah Litman, Assistant Professor of Law, University of Michigan Law School

Unidentified federal officers shouldn’t be tear-gassing and beating up nonviolent protesters who are advocating for racial justice. Excited to see this new suit by @protctdemocracy @DontShootPdx @WallOfMoms challenging what’s happening in Portland.

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Andrew Manuel Crespo, Professor of Law, Harvard Law School

BREAKING: New 4th Amendment lawsuit in #PDX filed just now by @protctdemocracy on behalf of nightly protesters, including leader of the Wall of Moms. This is the strongest 4th Amendment lawsuit so far. Similar case in Denver won an order blocking tear gas as excessive force.

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Richard Primus, Theodore J. St. Antoine Collegiate Professor of Law, University of Michigan Law School

This is a necessary lawsuit. The Administration’s use of armed federal agents against political protestors is dangerous & deeply concerning & augurs very poorly for the near future unless it’s checked. Kudos to @protctdemocracy for answering this call.

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Daphna Renan, Professor of Law, Harvard Law School

What makes this lawsuit from @protctdemocracy @DontShootPdx + @WallOfMoms so crucial is that it shows that federal authority–though broad–confronts statutory and constitutional limits when usurped in the service of authoritarian tactics.

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Laurence Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School

The actions of federal agents in Portland violate federal law & the Constitution. The lawsuit filed today by @protctdemocracy @DontShootPDX + @WallOfMoms is an important step in the battle against the unconstitutional actions of the Trump administration.

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Steve Vladeck, A. Dalton Cross Professor in Law, University of Texas School of Law

Couldn’t agree with @DaphnaRenan more. That some (or even much) of what DHS is doing in Portland is lawful doesn’t mean that *all* of it is. This new lawsuit from @protctdemocracy, @DontShootPdx, and @WallOfMoms is an important step toward drawing that critical line.