Redacted Reply Iso MPI, Index Newspapers LLC v. City of Portland, No. 3:20-cv-1035-SI (D. Or.), Dkt. 144

Case 3:20-cv-01035-SI Document 144 Filed 08/14/20 Page 1 of 32
Matthew Borden, admitted pro hac vice

borden@braunhagey.com
J. Noah Hagey, admitted pro hac vice
hagey@braunhagey.com
Athul K. Acharya, OSB No. 152436
acharya@braunhagey.com
Gunnar K. Martz, admitted pro hac vice
martz@braunhagey.com
BRAUNHAGEY & BORDEN LLP
351 California Street, Tenth Floor
San Francisco, CA 94104
Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213
ksimon@aclu-or.org
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON
P.O. Box 40585
Portland, OR 97240
Telephone: (503) 227-6928
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
INDEX NEWSPAPERS LLC, a Washington Case No. 3:20-cv-1035-SI

limited-liability company, dba PORTLAND
MERCURY; DOUG BROWN; BRIAN
CONLEY; SAM GEHRKE; MATHIEU PLAINTIFFS’ REPLY IN SUPPORT OF
MOTION FOR PRELIMINARY
LEWIS-ROLLAND; KAT MAHONEY; INJUNCTION AGAINST FEDERAL
SERGIO OLMOS; JOHN RUDOFF; DEFENDANTS
ALEX MILAN TRACY; TUCK
WOODSTOCK; JUSTIN YAU; and those
similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND, a municipal
corporation; JOHN DOES 1-60, officers of
Portland Police Bureau and other agencies
working in concert; U.S. DEPARTMENT OF
HOMELAND SECURITY; and U.S.
MARSHALS SERVICE,
Defendants.
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

AGAINST FEDERAL DEFENDANTS
TABLE OF CONTENTS
Introduction ..................................................................................................................................... 1
Argument ........................................................................................................................................ 3
I. Plaintiffs have shown an overwhelming likelihood of success........................................... 4
A. Plaintiffs Are Likely to Prevail on Their Retaliation Claims .................................. 4
B. Plaintiffs Are Likely to Succeed on Their Access Claims .................................... 11
1. Public Streets, Parks, and Sidewalks Have Historically

Been Open to the Press and General Public.............................................. 12
2. Public Access Plays a Significant Positive Role in the

Functioning of Law Enforcement-Activity in Public Fora ....................... 13
3. Closure is Neither Essential Nor Narrowly Tailored to

Preserve Any Legitimate Interest .............................................................. 14
4. Closure Would Leave Plaintiffs With No Alternative

Opportunity to Observe and Report .......................................................... 15
II. Without an injunction, federal agents are liklely to irreparably harm

Plaintiffs ............................................................................................................................ 16
III. The balance of equities favors Plaintiffs ........................................................................... 20
IV. Plaintiffs’ proposed injunction is lawful and workable .................................................... 21
A. The Court Should Prohibit Federal Agents from Leaving Federal
Property ................................................................................................................. 21
B. The Court Should Require That Federal Agents Be Marked with
Large Identifying Codes ....................................................................................... 23
C. The Federal Agents’ Remaining Arguments Are Without Merit........................... 26
Conclusion .................................................................................................................................... 27
PAGE i - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

INJUNCTION AGAINST FEDERAL DEFENDANTS
TABLE OF AUTHORITIES
Page(s)
CASES
Americans for Prosperity Found. v. Harris,

809 F.3d 536 (9th Cir. 2015) ........................................................................................................ 9
Ariz. Students’ Ass’n v. Ariz. Bd. Of Regents,
824 F.3d 858 (9th Cir. 2016) ........................................................................................................ 5
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ..................................................................................................................... 7
Barney v. City of Eugene,
20 F. App’x 683 (9th Cir. 2001) ................................................................................................... 5
Bay Area Peace Navy v. United States,
914 F.2d 1224 (9th Cir. 1990) .................................................................................................... 15
Boardman v. Pac. Seafood Grp.,
822 F.3d 1011 (9th Cir. 2016) .................................................................................................... 20
Brinton Bus. Ventures, Inc. v. Searle,
248 F. Supp. 3d 1029 (D. Or. 2017) ............................................................................................. 9
Castro v. Cty. of Los Angeles,
833 F.3d 1060 (9th Cir. 2016) (en banc...................................................................................... 11
Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia,
751 F. Supp. 218 (D.D.C. 1990)................................................................................................... 8
Colten v. Kentucky,
407 U.S. 104 (1972) ............................................................................................................. 12, 13
Courthouse News Serv. v. Planet,
947 F.3d 581 (9th Cir. 2020) ................................................................................................ 12, 14
Doe v. Harris,
772 F.3d 563 (9th Cir. 2014) .................................................................................................. 4, 20
Elrod v. Burns,
427 U.S. 347 (1976) ................................................................................................................... 16
Estate of Shafer ex rel. Shafer v. City of Elgin,
2014 WL 6633106 (D. Or. Nov. 21, 2014) ................................................................................... 8
F.T.C. v. Affordable Media,
179 F.3d 1228 (9th Cir. 1999) .................................................................................................... 17
First Nat’l Bank of Bos. v. Belotti,
435 U.S. 765 (1978) ............................................................................................................. 21, 22
Flynt Distributing Co. Inc. v. Harvey,
734 F.2d 1389 (9th Cir. 1984) ...................................................................................................... 9
For The Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011)..................................................................................................... 16
Globe Newspaper Co. v. Superior Court for Norfolk Cty.,
457 U.S. 596 (1982) ................................................................................................................... 12
Gomez v. Vernon,
255 F.3d 1118 (9th Cir. 2001)..................................................................................................... 11
Greenpeace Found. v. Daley,
122 F. Supp. 2d 1110 (D. Haw. 2000) .................................................................................... 9, 10
PAGE ii - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

Greer v. Amesqua,
22 F. Supp. 2d 916 (W.D. Wis. 1998)......................................................................................... 16
Hicks v. City of Portland,
2006 WL 3311552 (D. Or. Nov. 8, 2006) ................................................................................... 13
Houdini, Inc. v. Goody Baskets, LLC,
166 F. App’x 946 (9th Cir. 2006) ................................................................................................. 9
Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137 (1999) ..................................................................................................................... 8
Leigh v. Salazar,
677 F.3d 892 (9th Cir. 2012) ...................................................................................................... 12
Lemon v. Kurtzman,
411 U.S. 192 (1973) ................................................................................................................... 24
Mendocino Envtl. Ctr. v. Mendocino Cty.,
192 F.3d 1283 (9th Cir. 1999) ...................................................................................................... 5
Menotti v. City of Seattle,
409 F.3d 1113 (9th Cir. 2005)....................................................................................................... 5
Mims v. City of Eugene,
145 F. App’x 194 (9th Cir. 2005) ................................................................................................. 5
Norsworthy v. Beard,
87 F. Supp. 3d 1164 (N.D. Cal. 2015) .......................................................................................... 9
Phelps-Roper v. Heineman,
57 F. Supp. 3d 1146 (D. Neb. 2014) (denying motion ................................................................. 8
Press-Enter. Co. v. Superior Court of California,
464 U.S. 501 (1984) ................................................................................................................... 12
Press-Enterprise Co. v. Superior Court of California,
478 U.S. 1 (1986) ................................................................................................................ Passim
Reed v. Lieurance,
863 F.3d 1196 (9th Cir. 2017) .................................................................................................... 15
Sanders Cty. Republican Cent. Comm. v. Bullock,
698 F.3d 741 (9th Cir. 2012) ...................................................................................................... 16
Smith v. City of Hemet,
394 F.3d 689 (9th Cir. 2005) ........................................................................................................ 8
Stormans, Inc. v. Selecky,
586 F.3d 1109 (9th Cir. 2009) .................................................................................................... 24
United States v. Cole,
84 F. Supp. 3d 1159 (D. Or. 2015) ................................................................................. 17, 20, 26
United States v. Laerdal Mfg. Corp.,
73 F.3d 852 (9th Cir. 1995) .................................................................................................. 17, 18
United States v. Stevens,
559 U.S. 460 (2010) ................................................................................................................... 20
United States v. W.T. Grant Co.,
345 U.S. 629 (1953) ............................................................................................................ Passim
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ....................................................................................................................... 17
PAGE iii - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

RULES
Fed. R. Civ. P. 65(d)(1)(C) ............................................................................................................ 26
OTHER AUTHORITIES
11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948.1, at 139 (2d ed.
1995) .......................................................................................................................................... 17
PAGE iv - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

Plaintiffs respectfully submit this reply in support of their motion for a preliminaiy
injunction.
INTRODUCTION
The federal agents' Opposition presents the same legal ai·guments that the Comi has
aheady rejected, offers no new evidence on the merits or inepai·able haim, and largely does not
respond to the ai·guments and facts in the moving papers. The entire outpouring of jomnalist and
legal observer declai·ations remains uncontroverted. The expe1i testimony from Gil Kerlikowske,
the fonner Senate-approved Commissioner of U.S. Customs and Border Patrol and Police Chief
of Seattle during hundreds of volatile protests, is uncontroverted.
Plaintiffs are likely to win on their retaliation claims. Without submitting any evidence,
the federal agents assert that their repeated attacks on jomnalists and legal observers-often
when nobody else was ai·om1d- were "inadvertent." But their theo1y makes no sense, and their
own heavily-redacted documents tell a different sto1y. For example, in writing to Acting
Commissioner of CBP Mark Morgan, Acting Deputy Secretaiy Ken Cuccinelli opined that
although the Court's TRO was "offensive," it "shouldn't affect anything we're doing."
From: MORGAN, MARK A

Sent: Thursday, July 23, 2020 6:40:55 PM
To: AS2KTC <as2ktc@h hs.gov>
Cc: Mizelle, Chad ---■ ASlCFW - - - - - Albence, Matthew
; Alles, Randol h ---==:::::zJ5FE5
Cline, Richard K
Acting DHS Secretaiy Chad Wolf
My thoughts as well.
It will be claimed as an indication we were doing something wrong - def need TPs to push back.
Sent from my iPhone
On Jul 23, 2020, at 6:37 PM, AS2KTC ~ wrote:
It's offensive, but shouldn't affect anything we're doing.

Thx -
Ken
PAGE 1 - PLAINTIFFS ' REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

(Declaration of Athul K. Acharya (“Acharya Decl.”), Ex. 6 at 2.) Mr. Morgan’s response was to
warn his boss not to commit such plans to writing:
From: ,fQRGA
Date: Tirnrsday,
T
I recommend ...ve take thi off email and have a call .I
(Id. at 1.) This sort of insouciance and furtiveness shows that the retaliatory intent came from the
top down.
Plaintiffs are likely to prevail on their access claims. The federal agents do not refute that
in hundreds of similar protests in Seattle, police did not disperse journalists or legal observers
after declaring an unlawful assembly, that Seattle’s policy never resulted in any harm to law
enforcement, that no such harm has occurred in Portland, and that Portland police have been
capable of allowing journalists and legal observers to do their jobs during dispersals. As such, the
federal agents’ blanket policy of violently dispersing journalists and legal observers, who pose no
threat to law enforcement or public safety, unnecessarily deprives Plaintiffs of their First
Amendment rights. Nor does their policy provide for an alternative opportunity to observe and
report—a point the federal agents do not even address in their Opposition.
The federal agents assert that the likelihood of irreparable harm to Plaintiffs’ First
Amendment rights is “too remote,” but this ignores their own binding interrogatory responses in
which they admit that they have not stood down from Portland and have no intention of doing so.
Just yesterday, the Oregon State Police withdrew from policing the federal courthouse, making it
even more likely that the federal agents will resume their assault on the Fourth Estate.
For reasons that the Court has already articulated, the balance of equities and public
interest also strongly favor injunctive relief: “[T]he evidence before the Court shows that
PAGE 2 - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

journalists and legal observers attend the protests as ‘guardians of the public interest,’ not as
vandals.” (Dkt. 84 at 17.) Nothing in U.S. law (as opposed to North Korean or Russian law)
permits the government to use violence and intimidation to unilaterally control the news, right at
the critical point that it decides to use paramilitary force against its citizens. The First
Amendment acts as a structural check against government power so that this never occurs. And it
is the federal courts that must enforce this structural protection.
On the shape of appropriate injunctive relief, the federal agents also do not dispute that
they lack the training to constitutionally police on the streets of Portland. And their arguments
that they should be allowed to continue policing the protests without any accountability are
factually and legally unsupported.
For all these reasons, the Court should issue the preliminary injunction requested by
Plaintiffs.
ARGUMENT
At the TRO hearing, the federal agents attempted to stipulate that the TRO would serve
as a preliminary injunction. After the Court denied this request and ordered expedited discovery,
the federal agents refused to extend the hearing date for this motion, while at the same time slow-
rolling document productions, producing the first small tranche of custodial documents just two
days ago, improperly objecting at depositions, and redacting their documents into oblivion.
(Acharya Decl. ¶ 10 & Ex. 9; see, e.g., id., Ex. 8.) Despite the federal agents’ efforts to frustrate
the Court’s TRO by achieving de facto what the Court had denied, Plaintiffs easily meet the
standard for a preliminary injunction. Plaintiffs’ unrefuted evidence, including Mr. Kerlikowske’s
expert declaration, federal agents’ deposition testimony, the federal defendants’ written discovery
responses, and an avalanche of unrebutted declarations from journalists and legal observers, all
show that Plaintiffs are likely to win on the merits, have proven irreparable harm, and that the
balance of equities and public interest overwhelmingly militate in favor of prohibiting federal
agents from targeting and dispersing journalists and legal observers.

In contrast, the federal agents have not submitted any new evidence on the merits or
irreparable injury and have chosen, instead, to rely on the same materials and arguments that the
Court already has rejected. While it has been said that there is no new thing under the sun, those
tactics should fail here for all the reasons already given by the Court.
I. PLAINTIFFS HAVE SHOWN AN OVERWHELMING LIKELIHOOD OF

SUCCESS
Plaintiffs are overwhelmingly likely to succeed on their claims for retaliation and denial
of their right of access under the First Amendment. To obtain a preliminary injunction, Plaintiffs
need only “mak[e] a colorable claim that [their] First Amendment rights have been infringed, or
are threatened with infringement.” Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014). After that,
the government bears the burden of justifying the restriction on Plaintiffs’ speech. Id. The federal
agents have not come close to meeting that burden here, because they have offered no new
evidence and scant new argument on either claim.
A. Plaintiffs Are Likely to Prevail on Their Retaliation Claims

The federal agents offer no evidence to controvert the substantial evidence that they
retaliated against Plaintiffs. Instead, they offer legal arguments that the Court already rejected,
such as that that the First Amendment does not apply here. (Opp. at 15-16.) They claim that all of
Plaintiffs’ evidence of intent is “circumstantial,” even though intent is almost always proven
circumstantially, and even though they refused to produce the best evidence of their intent—
emails and text messages from the line agents policing the protests. (Opp. at 16-17; Acharya
Decl. ¶ 10 & Ex. 9.) They offer attorney argument in an attempt to explain away Plaintiffs’ video
evidence, but they ignore the declarations to which the videos were attached and offer no
evidence to rebut them. (Opp. at 17-19.) Finally, they attempt to impugn their former
commanding officer, Mr. Kerlikowske, by claiming that he is not an expert but merely a “retired
police chief.” (Opp. at 20, 32.) These redux arguments lack merit and further fail in light of the
new evidence now in the record.

The federal agents’ legal arguments fail for the reasons the Court gave in granting and
extending the TRO. The federal agents’ first and foremost response to Plaintiffs’ retaliation claim
is to contend simply that “[t]here is . . . no First Amendment inquiry to be made.” (Opp. at 15;
but see Dkt. 84 at 12 (analyzing Plaintiffs’ retaliation claims under the First Amendment).)
Similarly, their second argument relies on cases about indiscriminate crowd control against
protesters to respond to Plaintiffs’ claims about targeted retaliation against journalists and legal
observers. (Opp. at 15-16; but see Dkt. 84 at 12 (“this evidence does not support that the force
used on Plaintiffs were ‘unintended consequences’ of crowd control”).) None of those cases is
relevant to whether federal agents used targeted force to retaliate against journalists and legal
observers. Cf. Barney v. City of Eugene, 20 F. App’x 683, 685 (9th Cir. 2001) (protester’s claim
about tear gas); Mims v. City of Eugene, 145 F. App’x 194, 196 (9th Cir. 2005) (protester’s claim
about police wearing riot gear); Menotti v. City of Seattle, 409 F.3d 1113, 1124-25, 1155 (9th Cir.
2005) (protester’s claim about curfew and exclusion orders).
The federal agents argue next that “Plaintiffs’ case is entirely circumstantial,” but ignore
that retaliation cases expressly permit circumstantial evidence to prove retaliatory intent.
(Compare Opp. at 17, with Mot. at 15 (citing Ariz. Students’ Ass’n v. Ariz. Bd. Of Regents, 824
F.3d 858, 867 (9th Cir. 2016); Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300-01
(9th Cir. 1999)), and Dkt. 84 at 12.) They also ignore the testimony of their own agents that
indicates that when skilled marksmen like the federal agents, using accurate weapons like those
the federal agents wield, shoot a journalist or legal observer, it is because they intended to do so.
(Mot. at 17; see also
.)
The federal agents argue that Plaintiffs have “mustered no direct evidence” about the
agents’ intent. (Opp. at 17.) But when Plaintiffs attempted to obtain direct evidence—text
messages and emails from agents on the ground—the federal agents refused to produce it under
any circumstances. (Acharya Decl. ¶ 10.) Nevertheless, the federal agents’ production two days
ago did reveal some more direct evidence of retaliatory intent, in the form of DHS’s institutional

attitude toward journalists it dislikes: When Acting Secretary Chad Wolf read an unflattering
article by Buzzfeed journalist Hamed Aleaziz, he responded that Mr. Aleaziz was a part of the
“[d]eep state” and “not a real journalist.” (Acharya Decl., Ex. 10 (citing Hamed Aleaziz,
“Disturbing And Demoralizing”: DHS Employees Are Worried The Portland Protest Response Is
Destroying Their Agency’s Reputation, Buzzfeed News (July 21, 2020)).1)
Next, the federal agents attempt to explain away what Plaintiffs’ and Plaintiffs’
declarants’ videos show, without offering contrary evidence. (Opp. at 17-19.) The federal agents
have known about many of these incidents for several weeks and have not submitted even one
declaration attempting to explain them from any of their agents who was involved. In fact, the
evidence suggests that they did not even investigate those claims. (E.g., Russell Dep., Dkt. 137-1
at 79:25-80:3, 87:1-4, 100:9-11, 101:8-102:16, 105:15-23 (admitting that, contrary to his own
representations earlier in the deposition, Mr. Russell had not reviewed at least two of Plaintiffs’
declarations, had not viewed cited video, and was unfamiliar with their allegations).2) They had
the opportunity to depose Plaintiffs and their declarants but did not do that either. Nor do they
offer any rebuttal evidence of any type for the Court to consider. Instead, they seek to interpose
only their own selective interpretations of the videos—pure attorney argument—and ignore what
the declarants had to say about setting and context. For just a few examples:
 They argue that Daniel Hollis’s video “shows a large crowd behind him,” but do not
rebut his testimony that those protesters were “several yards behind [him] and not
doing anything threatening whatsoever.” (Compare Opp. at 18 n.3, with Dkt. 91 ¶ 7.)
A careful examination of Mr. Hollis’s video bears this testimony out.
1
https://www.buzzfeednews.com/article/hamedaleaziz/dhs-employee-anger-over-portland-
protest-response.
2
The federal agents neglect to discuss these discrepancies when they assert that Plaintiffs’
accusations of mendacity are “unfounded.” (Opp. at 24-25.) They gloss over many other
discrepancies too, especially the stark difference between their own account of an arrest of a
person marked “press” and that person’s video, which shows that they attacked him unprovoked.
(Mot. at 28 & n.12.)

 They argue that Plaintiff Kat Mahoney and Bruce Knivila’s videos show protesters
near them, but do not rebut their testimony (or their video evidence) that after one
federal agent stopped pepper-spraying when he got to them, another federal agent
strolled up and corrected the oversight.3 (Compare Opp. at 17 n.3, with Dkt. 94 ¶¶ 9-
12, and Dkt. 92 ¶¶ 4, 9-10.) This was after the Court had issued its TRO.
 They argue that Plaintiff Mathieu Lewis-Rolland was between federal agents and
protesters when federal agents shot him, but ignore his testimony and photographs
showing that the agent who shot at him had taken aim at him only two minutes
earlier. (Compare Opp. at 18, with Dkt. 44 ¶¶ 9, 11-13.)
They close this passage by suggesting that these attorney arguments, which are not competent
evidence, serve also to rebut Plaintiffs’ declarations that lack video, which are evidence even
without video. (Opp. at 18); cf. Ninth Circuit Jury Instructions Committee, Manual of Model
Civil Jury Instructions § 1.10 (2017 ed., 2019 update) (“Arguments and statements by lawyers
are not evidence.”); id. § 1.9 (evidence includes “the sworn testimony of any witness”).4
Next, the federal agents purport to address Mr. Kerlikowske’s expert testimony that
virtually all the incidents cataloged in Plaintiffs’ declarations are unnecessary and constitute
excessive force. (Kerlikowske Decl., Dkt. 135 ¶¶ 30-41; cf. Opp. at 20.) But they do not rebut it.
Instead, they assert incorrectly that Plaintiffs have not offered Mr. Kerlikowske’s opinion as an
expert. (Opp. at 20.) Mr. Kerlikowske was asked to render expert opinions on four topics and did
so. (Kerlikowske Decl. ¶ 4.) Mr. Kerlikowske’s testimony is well within his expertise. As a
person who oversaw hundreds of chaotic protests in Seattle and trained police officers on how to
police such protests, and as the former Senate-confirmed boss of many of the federal agents
3
The notion that this use of force was “inadvertent” beggars belief. (Cf. Opp. at 18.)
4
Their error on this evidentiary point is explained on the following page, where they confuse
allegations in a complaint with sworn testimony in a declaration. (Opp. at 19 (citing Ashcroft v.
Iqbal, 556 U.S. 662, 682 (2009)).)

here,5 Mr. Kerlikowske is an expert on policing protests and law-enforcement training. See
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999) (“[N]o one denies that an expert
might draw a conclusion from a set of observations based on extensive and specialized
experience.”); id. at 150 (“In [some] cases, the relevant reliability concerns may focus upon
personal knowledge or experience.”). The federal agents are obviously aware of their former
boss’s credentials, which, for example, include 47 years of law-enforcement experience in
hundreds of protests similar to Portland’s, studying crowd-control during protests in Northern
Ireland, and years of work in Internal Affairs and other management positions where he routinely
reviewed and analyzed use of force and formulated and approved hundreds of policies and
procedures related to crowd control and use of force. (Reply Declaration of Gil Kerlikowske
(“Kerlikowske Reply Decl.”) ¶¶ 1-5.)
Mr. Kerlikowske’s opinions are the type of expert testimony based on law-enforcement
experience that courts have repeatedly allowed. See, e.g., Smith v. City of Hemet, 394 F.3d 689,
703 (9th Cir. 2005) (admitting an expert declaration on “the training of police dogs and police
dog handlers” and “whether the officers’ conduct comported with law enforcement standards”);
Estate of Shafer ex rel. Shafer v. City of Elgin, No. 2:12-cv-00407-SU, 2014 WL 6633106, *8-9
(D. Or. Nov. 21, 2014) (permitting expert testimony on excessive force by longstanding members
of law enforcement). Courts have admitted crowd-control experts with less experience and
credentials than Mr. Kerlikowske. See, e.g., Christian Knights of the Ku Klux Klan Invisible
Empire, Inc. v. District of Columbia, 751 F. Supp. 218, 222 (D.D.C. 1990) (granting preliminary
injunction based, in part, on “affidavit and testimony by Robert Klotz, an independent consultant
and a nationally recognized expert in crowd control and a former Deputy Chief of the District of
Columbia Metropolitan Police Department who helped manage or was responsible for police
protection during demonstrations and marches from 1971 to 1980.”); Phelps-Roper v. Heineman,
57 F. Supp. 3d 1146, 1165 (D. Neb. 2014) (denying motion to exclude crowd control expert
5
The federal agents’ characterization of Mr. Kerlikowske as “a retired police chief” is
incomplete, to say the least. (Compare Opp. at 32, with Kerlikowske Decl. ¶ 1.)

where plaintiff “acknowledge[d] [expert’s] general experience in law enforcement and crowd
control” and all her objections went to weight, rather than admissibility).
The federal agents’ objections that Mr. Kerlikowske’s testimony is “not appropriate or
helpful” or that he does not sufficiently explain his methods (Opp. at 20) go to weight, rather
than admissibility. In any event, courts may consider inadmissible evidence in ruling on a motion
for a preliminary injunction, and assign it whatever weight they deem appropriate. See
Greenpeace Found. v. Daley, 122 F. Supp. 2d 1110, 1114 (D. Haw. 2000) (citing Flynt
Distributing Co. Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984)) (refusing to strike expert
declaration because “[t]he Federal Rules of Evidence do not apply to preliminary injunction
hearings in general” and “[t]he Court may consider inadmissible evidence to determine the
likelihood of irreparable harm in deciding a motion for a preliminary injunction”); Americans for
Prosperity Found. v. Harris, 809 F.3d 536, 540 n.3 (9th Cir. 2015) (“Due to the urgency of
obtaining a preliminary injunction at a point when there has been limited factual development,
the rules of evidence do not apply strictly to preliminary injunction proceedings.” (quotation
marks omitted)); Houdini, Inc. v. Goody Baskets, LLC, 166 F. App’x 946, 947 (9th Cir. 2006)
(“the rules of evidence do not strictly apply to preliminary injunction proceedings”); Brinton
Bus. Ventures, Inc. v. Searle, 248 F. Supp. 3d 1029, 1032 (D. Or. 2017) (“in deciding a motion for
a preliminary injunction, the Court has broad discretion to consider all arguments and evidence,
including hearsay and other inadmissible evidence, declarations from interested parties, and
arguments raised for the first time in a reply”).6
Because the federal agents do not even try to rebut Mr. Kerlikowske’s opinions, his
analysis that the federal agents repeatedly used unnecessary force against journalists and legal
observers (Kerlikowske Decl. ¶¶ 30-41), which is strong circumstantial proof of intent, is
unrefuted. For example, they do not contest that:
6
“In view of the streamlined and expedited nature of preliminary injunction proceedings,” expert
declarations at the preliminary injunction stage need not comply with the requirements of
Rule 26. Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1182 (N.D. Cal. 2015).

Federal agents shot journalist Garrison Davis in the back with a

tear-gas canister and shot at him with pepper balls when he was
merely taking video of federal officers, and there were no
protesters around him. (Dkt. 43 ¶¶ 4, 13-14.) Under these
circumstances, these acts more likely than not constitute excessive
use of force because (1) he was not doing anything threatening and
was “moving back” from the federal officers when he was shot
with the tear gas cannister, (2) it is inappropriate and dangerous to
shoot anyone with a tear gas cannister, (3) he was shot in the back
so it is not arguable that he posed an immediate threat, (4) it is
inappropriate and dangerous to shoot at anyone with pepper balls,
as they are supposed to be shot at the ground so that they explode
and release the contents, (5) when the pepper balls were shot at
him, he was taking videos from the side of the protest, and no
protesters were near him, and (6) at the time all these events
occurred, he was wearing a helmet marked “PRESS” and
displaying his press pass.
(Kerlikowske Decl. ¶ 32.)
It is similarly unrefuted that “police forces under leadership trained and experienced in
civil disturbances are able to protect public safety without excluding press and legal observers”;
that “most of the personnel in the federal agencies that were sent to Portland appear to lack
[such] training and experience”; and that rather than give less-lethal weaponry to every federal
agent policing the protests, “only a small group of well-trained people who are familiar with the
restraint necessary” to use such weapons should be given them. (Kerlikowske Decl. ¶¶ 19, 23,
28.) These are unrefuted facts that the Court can, and should, take into account in its findings and
conclusions. See Greenpeace Found. v. Daley, 122 F. Supp. 2d at 1114.
Finally, the federal agents argue that the constitutional violations to which Plaintiffs’
declarants have testified are “ad hoc” occurrences for which Plaintiffs cannot seek injunctive
relief against DHS and USMS. (Opp. at 20.) In addition to disregarding all the other unrefuted
evidence in the record, this argument ignores the sheer volume of supposedly inadvertent
headshots, butt shots, heart shots, press-pass shots, and more. (E.g., Dkt. 94 ¶ 5 (head); Dkt. 87
¶ 9 (head); Dkt. 81 ¶ 7 (arm, but aimed at head); id. ¶¶ 12-13 (head); Dkt. 71 ¶ 11 (buttocks);
Dkt. 95 ¶ 5 (heart); Dkt. 62 ¶ 7 (press pass, just below the heart).) Moreover, it ignores that not
one federal agent has been disciplined for any of the incidents to which Plaintiffs and declarants

testified. (Dkt. 124-4 at 6 (“DHS admits that it has not disciplined any of its employees related to
their treatment of a journalist or legal observer in Portland”); Dkt. 101-1 ¶ 19.)
“[A] policy-marker’s pronouncement that he has not . . . discipline[d] officers that
retaliated against” individuals exercising First Amendment rights is evidence of a policy or
custom sufficient to hold the entity he represents accountable. Gomez v. Vernon, 255 F.3d 1118,
1127 (9th Cir. 2001). The federal agents attempt to interpose their “formal use-of-force policies”
(Opp. at 21), but a defendant cannot escape its “actual routine practices” by “pointing to a
pristine set of policies.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075 n.10 (9th Cir. 2016)
(en banc).7 Thus, the federal agents’ final argument against retaliation also fails, and the Court
should find that Plaintiffs are likely to succeed on their retaliation claim.
B. Plaintiffs Are Likely to Succeed on Their Access Claims

The federal agents’ argument that Plaintiffs have no right of access relies on distorting the
caselaw and ignoring Plaintiffs’ arguments. Most of their brief on this topic simply adheres to the
same arguments they made at the TRO stage—such as that the right of access is limited to
criminal trials or that protesters have masqueraded as press—without addressing the Court’s
holdings or Plaintiffs’ arguments and evidence since then. The Court should reject these
arguments as foreclosed by the Court’s prior decisions. What remains is a tortured, circular
reading of Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986) (“Press-
Enterprise II”) that no court has ever adopted, as well as a last-ditch resort to caselaw that
predates Press Enterprise II by more than a decade and is consistent with it anyway. The Court
should reject these, too.
7
For the same reason, the federal agents’ argument that Plaintiffs “admit that their [retaliation]
claim is [not based] on an official policy of retaliation” because Plaintiffs do not identify a
“written policy” is wide of the mark. (Opp. at 10.)

1. Public Streets, Parks, and Sidewalks Have Historically Been Open to

the Press and General Public
The federal agents first argue that “an unlawful gathering subjected to a legitimate
dispersal order is [not] a ‘place and process’ that has ‘historically been open to the press and
general public.’” (Opp. at 12 (emphasis added).) By that logic, preliminary criminal hearings
subjected to a legitimate closure order, voir dire hearings that have been subjected to a legitimate
closure order, criminal trials that have been subjected to a legitimate closure order, horse gathers
for which access has been limited to designated viewing areas, and newly filed nonconfidential
civil complaints that have not yet been the subject of judicial action—all of these fall outside the
doctrinal framework of Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986)
(“Press-Enterprise II”).
Unsurprisingly, no court has taken such a circular view of the right of access. Press-
Enterprise II, 478 U.S. at 10 (considering whether “the right of access applies to preliminary
hearings” generally); Press-Enter. Co. v. Superior Court of California, 464 U.S. 501, 505 (1984)
(“Press-Enterprise I”) (“the process of selection of jurors” generally); Globe Newspaper Co. v.
Superior Court for Norfolk Cty., 457 U.S. 596, 605 (1982) (“criminal trials” generally); Leigh v.
Salazar, 677 F.3d 892, 900 (9th Cir. 2012) (“horse gathers” generally); Courthouse News Serv. v.
Planet, 947 F.3d 581, 590-92 (9th Cir. 2020) (“no court has held or even suggested that the
public character of judicial records depends on whether the proceedings have progressed to a
stage requiring a judge to act on the papers”). Nor does it matter if a statute permits closure, or if
closure is permissible under circumstances other than those at issue. Press-Enterprise II, 478
U.S. at 3-4, 13-15 (finding a right of access even though California law permitted closure for the
sake of fairness to the defendant); (cf. Opp. at 10-12 (arguing that federal cases and statutes
permit dispersal of “a criminal gathering”)).
The correct analysis is the one this Court conducted—whether “[t]he public streets,
sidewalks, and parks historically have been open to the press and general public.” (Dkt. 84 at 14-
15.) Of course, they have. The federal agents cite only two new cases to support their arguments
to the contrary. The first, Colten v. Kentucky, 407 U.S. 104 (1972), is not relevant because it

involved a challenge to a state law governing interfering with the police that had a mens rea
requirement, which the state courts had found the individual’s conduct had met. Id. at 108-09. In
other words, the individual’s intent was not to exercise any constitutionally protected freedom at
all—it was only to “cause inconvenience and annoyance.” Id. (quotation marks omitted). The
federal agents do not argue that that is Plaintiffs’ purpose, and Colten does not stand for the
proposition that federal agents can disperse journalists and legal observers who are legitimately
exercising their First Amendment rights. Id.; (cf. Opp. at 12-13). (Also, Colten was decided 13
years before Press-Enterprise II.)
The federal agents also cite Hicks v. City of Portland, No. CV 04-825-AS, 2006 WL
3311552 (D. Or. Nov. 8, 2006) (Opp. at 11), which held that a protestor had no right to disobey a
lawful order to disperse. But that was not a right-of-access case, and it had nothing to do with
newsgathering, reporting, and observing by individuals who pose no threat to public safety or
law enforcement. Id. at *12. The federal agents’ argument on this point only illustrates the
broader flaw with their argument: As they did in the TRO briefing, they do not accept that Press-
Enterprise II controls this case, that press and protesters are engaged in different activities and
therefore judged under different standards, or that Plaintiffs’ right of access is independent of
others’ right to speak or assemble, even if at the same time and in the same place. (See Opp. at
11-14; cf. Mot. at 19-20.)
2. Public Access Plays a Significant Positive Role in the Functioning of

Law Enforcement-Activity in Public Fora
Because public streets, sidewalks, and parks have historically been open to the public, the
next question is whether “whether public access plays a significant positive role in the
functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8. On this
question, the federal agents fail entirely to grapple with Plaintiffs’ argument that public
observation of law-enforcement activity in public fora facilitates direly needed public
accountability for law-enforcement officials. (Mot. at 18-19.) Instead, the federal agents respond
with arguments about where members of the press and legal observers might stand. (Opp. at 13-

14.) Plaintiffs have stated that they do not object to adding standing to the side, when possible, as
one non-exclusive indicium that a person is a journalist. (Mot. at 31-32.)
3. Closure is Neither Essential Nor Narrowly Tailored to Preserve Any

Legitimate Interest
The final question is whether “closure is essential to preserve higher values and is
narrowly tailored to serve those interests.” Courthouse News, 947 F.3d at 595 (quoting Press-
Enterprise II, 478 U.S. at 13-14)). On this point, the federal agents do not meaningfully engage
with the arguments or evidence in the moving papers. Instead, they repeat the same arguments
about workability and narrow tailoring that this Court already rejected in granting Plaintiffs’
motion for a TRO. (Opp. at 14-15.) The federal agents’ arguments are even weaker now in light
of the undisputed expert testimony that police did not disperse journalists in hundreds of equally,
if not more, chaotic protests in Seattle (Kerlikowske Decl. ¶ 15), and the representations by co-
defendant the City of Portland that not dispersing reporters is workable:

My understanding from talking to my client is, no, the TRO and
the stipulated preliminary injunction have not been unworkable or
have not created unsurmountable problems with the City.
My understanding is, yes, there are occasional challenges with
trying to identify is someone a journalist or not or a legal observer
or not in a certain crowd situation. But my understanding is that it
has been workable, and that is why we have stipulated to a
preliminary injunction with the plaintiffs in this case.
(Fed. TRO Hrg. Tr. at 30:10-19.8) These two facts alone show that the federal agents’ policy of
indiscriminately dispersing everyone is not narrowly tailored because it needlessly sweeps in
Plaintiffs’ protected activities.
In contrast, the federal agents have submitted no new evidence on narrow tailoring or
workability since the TRO. (Cf. Dkts. 138-1 to 138-7.) Instead, they argue that “[t]ear gas, for
8
In a parting shot, the federal agents insinuate that Plaintiffs have chosen for nefarious reasons
not to bring recent violations of the preliminary injunction by Portland police officers to the
Court’s attention. (Opp. at 35 & n.12.) In reality, the reason is much more anodyne: These events
are recent, under investigation, and do not relate to workability; and, in stark contrast to the
federal agents, the City is productively meeting and conferring with Plaintiffs on this issue.
(Acharya Decl. ¶ 14.)

example, cannot be aimed at protesters but not the adjacent press representatives,” ignoring yet
again the injunctive relief sought expressly exempts federal agents from liability for “incidentally
expos[ing]” a journalist or legal observer to tear gas. (Opp. at 14; cf. Mot. at 3 ¶ 9.) In any event,
rubber bullets, flash-bang grenades, paint bullets, pepper balls, and pepper spray all can be
aimed. (E.g., ; Mot. at 17.)
Similarly, the federal agents argue that Plaintiffs identify no alternatives to dispersing
press and protesters alike, but in fact, the unrefuted expert testimony is that declining to disperse
protesters creates no risk to law enforcement and that the police did not disperse reporters and
legal observers in hundreds of similar protests in Seattle. (Kerlikowske Decl. ¶¶ 3, 15-17.) The
federal agents could have taken added steps to mitigate risk if they perceived any, such as
leaving an officer back to liaise with press who are behind a skirmish line or requesting meetings
with journalists and freelancers before a protest takes place, but they admittedly have not done
so. (Mot. at 15; Kerlikowske Decl. ¶¶ 16-17.) Like many things, the federal agents ignore this
expert testimony. (Opp. at 14-15.) They also ignore that they still cannot identify any instance
where any federal agent was injured by someone who somehow gained an advantage by falsely
identifying themselves as press. (Opp. at 10-15.)
4. Closure Would Leave Plaintiffs With No Alternative Opportunity to

Observe and Report
Finally, the federal agents offer no response to the separate and independent reason why
their policy violates the First Amendment—it leaves Plaintiffs with no alternative opportunity to
observe and report on protests and law-enforcement activity at protests. (Mot. at 23); cf. Reed v.
Lieurance, 863 F.3d 1196 (9th Cir. 2017); Bay Area Peace Navy v. United States, 914 F.2d 1224,
1229 (9th Cir. 1990) (“The Peace Navy cannot employ effective alternative water-borne methods
of communicating with the audience on the pier . . . .”). As the Court observed in its TRO,
“[f]ederal agents are using tear gas, which decreases visibility, and the protests are at night.
Reporting from a few blocks away is not a viable alternative location.” (Dkt. 84 at 15.)
* * *

Each of above reasons—that the protests are taking place in public spaces that have
historically been open to press, that public access plays a significant positive role in ensuring
law-enforcement accountability to the people, that blanket closure is neither essential nor
narrowly tailored to a legitimate government interest, and that blanket closure leaves Plaintiffs
with no alternative observation opportunity—is a separate and independent reason why Plaintiffs
have shown a likelihood of success on their access claims.
II. WITHOUT AN INJUNCTION, FEDERAL AGENTS ARE LIKLELY TO

IRREPARABLY HARM PLAINTIFFS
The irreparable-harm requirement has two components: The harm asserted must be
“irreparable” and it must be “likely to result.” All. For The Wild Rockies v. Cottrell, 632 F.3d
1127, 1135 (9th Cir. 2011). The federal agents briefly argue that First Amendment injuries are
not irreparable,9 but the core of their argument is (1) that protests outside the Hatfield
Courthouse have abated, and (2) that even if they resume, federal agents are unlikely to police
them because state and local police will do so in their stead. (Opp. at 22-23.) But the federal
agents are bound by their sworn admissions that they have not left Portland, have no idea when
they are leaving, and will leave only when the protests end. (Acharya Decl., Ex. 2 at 2; id., Ex. 4
at 3.) In any event, their factual premises are false: The protests have returned to the federal
courthouse, and the Oregon State Police have announced that they are leaving, making
irreparable harm even more imminent than when the Court extended the TRO.10
9
The federal agents cite Rendish v. City of Tacoma, 123 F.3d 1216, 1226 (9th Cir. 1997) to argue
that retaliation claims are carved out of the blackletter rule that injuries to First Amendment
rights are irreparable. (Opp. at 22.) This argument is inapplicable to Plaintiffs’ access claims.
And in any event, Rendish involved the unusual context of an employment claim by a public
employee, and does not purport to overrule the “long line of precedent establishing that ‘the loss
of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.’” Sanders Cty. Republican Cent. Comm. v. Bullock, 698 F.3d 741, 748 (9th
Cir. 2012) (quotation marks and alteration omitted; ultimately quoting Elrod v. Burns, 427 U.S.
347, 373 (1976)).
10
Maxine Bernstein, State police pull troopers out of Portland, return them to regular
assignments, OregonLive (Aug. 13, 2020), https://www.oregonlive.com/crime/2020/08/state-
police-pull-troopers-out-of-portland-return-troopers-to-regular-assignments.html.

The federal agents argue that there is no imminent threat to Plaintiffs’ First Amendment
rights because federal agents have stopped trying to quell the protests. (Opp. at 9-11, 21-25.) But
an alleged wrongdoer must satisfy a high bar to “moot the need for injunctive relief” by his or
her own conduct. F.T.C. v. Affordable Media, 179 F.3d 1228, 1237 (9th Cir. 1999). Once
Plaintiffs meet their initial burden to show that there exists “some cognizable danger” that the
federal agents’ conduct will irreparably harm them (see Mot. at 23-26), the federal agents must
“carry the ‘heavy’ burden of showing that there is ‘no reasonable expectation that the wrong will
be repeated’” if they wish to avoid an injunction. United States v. Cole, 84 F. Supp. 3d 1159,
1169-70 (D. Or. 2015) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953));
Affordable Media, 179 F.3d at 1237-38. This burden-shifting framework makes sense: otherwise,
a defendant could always defeat a motion for preliminary injunctive relief by temporarily
stopping the conduct that gave rise to the suit. See Affordable Media, 179 F.3d at 1238. The law
does not require courts to countenance this sort of “cat-and-mouse game[smanship].” Cole, 84 F.
Supp. 3d at 1170.
In determining whether the federal agents have met their heavy burden, courts may
consider:
the degree of scienter involved; the isolated or recurrent nature of
the infraction; the defendant’s recognition of the wrongful nature
of his conduct; the extent to which the defendant’s professional and
personal characteristics might enable or tempt him to commit
future violations; and the sincerity of any assurances against future
violations.
United States v. Laerdal Mfg. Corp., 73 F.3d 852, 855 (9th Cir. 1995) (quotation marks omitted);
Cole, 84 F. Supp. 3d at 1170; see also W.T. Grant, 345 U.S. at 633 (courts may consider “the
bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some
cases, the character of the past violations”).11 All of these factors militate against finding that the
federal agents have mooted Plaintiffs’ need for injunctive relief:
11
W.T. Grant, Cole, and Laerdal are all in the context of permanent injunctions, but the
preliminary-injunction context merely changes the timeframe: Plaintiffs must show that they are
likely to suffer irreparable harm “before a decision on the merits can be rendered.” Winter v. Nat.
 The federal agents violated journalists’ and legal observers’ rights dozens of times.
(See generally Dkts. 43-44, 55-64, 71-78, 80-82, 87-95, 115-118); Laerdal, 73 F.3d at
855 (considering “the isolated or recurrent nature of the infraction”).
 Their supposed voluntary cessation has lasted a mere 16 days as of this filing, and it
includes “six of use of force incidents (including less than lethal use of force), two
deployments of the Quick Response Force (QRF), and six Task Force arrests.” (Jones
Aug. 11 Decl. ¶ 11.)
 Rather than recognize the wrongful nature of their conduct, the federal agents have
insisted they have every right to disperse journalists. (Opp. at 16-21; Opp. TRO
Extension, Dkt. 113 at 16-17; Opp. TRO, Dkt. 67 at 18-21.) This “repeated self-
justification is sufficient to show a likelihood of future violation.” Laerdal, 73 F.3d at
856.
 Upon hearing of the TRO, Acting Deputy Secretary Ken Cuccinelli opined that
although it was “offensive,” it “shouldn’t affect anything we’re doing.” (Acharya
Decl., Ex. 6 at 2.) In response, Acting CBP Commissioner Mark Morgan said: “I
recommend we take this off email and have a call.” (Id. at 1.) This shows that “the
defendant’s professional and personal characteristics might enable or tempt him to
commit future violations.” W.T. Grant, 345 U.S. at 634.
 The federal agents also sought to short-circuit this Court’s jurisdiction so that they
could seek a stay in the Court of Appeals, further calling into question the sincerity of
their assurances against future violations. (Fed. TRO Hrg. Tr. 28:3-10, 36:12-24; Mot.
Reconsideration, Dkt. 101 at 12-13.)
 Rather than comply with the TRO, the federal agents essentially ignored it and
continued to shoot journalists and legal observers. (See generally Dkts. 87-95.) Their
Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (quoting 11A C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure § 2948.1, at 139 (2d ed. 1995)).

following “one adjudicated violation with [several] others” is also sufficient to show a
likelihood of future violation. W.T. Grant, 345 U.S. at 634.
 Finally, the federal agents’ own discovery responses state that they “reserve the right”
to use force against “any participant in a protest [who] breaks the law, including
journalists or legal observers.” (Acharya Decl., Ex. 1 at 2; id., Ex. 3 at 2.) And they
consider a journalist who continues reporting after an dispersal order a
“lawbreak[er].” (Opp. at 34.) So they have expressly reserved the “right” to violently
disperse journalists and legal observers.
All of this goes to show that if they step outside the courthouse, federal agents fully
intend to use violence to disperse journalists and legal observers—and they have refused to limit
or even explain what will cause them to do so, other than their (unilateral) decision that state and
local police have failed to meet their (undisclosed) performance standards. (Acharya Decl., Ex. 1
at 2; id., Ex. 3 at 2.12) In sworn discovery responses, the federal agents have admitted that as long
as there is “any threat” to federal property, Diligent Valor troops will be standing by to quell the
protests, because they “cannot know” whether state and local police will “sufficiently protect
federal property” from such threats. (Acharya Decl., Ex. 1 at 2; id., Ex. 2 at 2; id., Ex. 3 at 2; id.,
Ex. 4 at 3; see also id., Ex. 7 at 4 (similar).) Meanwhile, even as the federal agents were filing
their brief from Washington, D.C., protests resumed outside the Hatfield Courthouse in Portland,
complete with tear gas and riot police. See n.10, supra. And yesterday, the Oregon State Police
have announced that they are leaving, further heightening the likelihood that the federal agents
will soon be policing protests in Portland again. Id.
When the vaunted July 30 deal was struck between federal and state authorities,
Governor Kate Brown initially announced that Diligent Valor troops were “leav[ing] downtown
12
The federal agents produced to Plaintiffs an email that may contain more detail on this point,
but—like much of their production—most of it is improperly redacted. (Acharya Decl., Ex. 8.)

Portland”13 She was soon forced to clarify that they were merely starting a “phased withdrawal.”
Id. Stephen Miller’s retort speaks volumes: “It’s not a phased withdrawal either.” (Acharya Decl.,
Ex. 5.) Just so: it is not a withdrawal at all, and these recent events only highlight the imminent
danger that the federal agents will return to their unlawful activities.
Plaintiffs have therefore more than met their burden to show that there exists “some
cognizable danger” that they will once again unlawfully be subjected to violent reprisal and
dispersal by the federal agents “before a trial on the merits [can] be held.” Cole, 84 F. Supp. 3d at
1169 (quoting W.T. Grant, 345 U.S. at 633); Boardman v. Pac. Seafood Grp., 822 F.3d 1011,
1023 (9th Cir. 2016). And the federal agents have fallen far short of their heavy burden to moot
Plaintiffs’ need for injunctive relief.14 Cole, 84 F. Supp. 3d at 1169.

“[T]he First Amendment protects against the Government; it does not leave us at the
mercy of noblesse oblige.” Doe, 772 F.3d at 581 (quoting United States v. Stevens, 559 U.S. 460,
480 (2010)). Just as the Court would not “uphold an unconstitutional statute merely because the
Government promised to use it responsibly,” so it should not refrain from enjoining
unconstitutional conduct merely because the government promises never to do it again—and the
federal agents have not even done that. See id.; (Acharya Decl., Exs. 1-4). The Court should
disregard their tenuous assertions to the contrary and find that Plaintiffs have shown a likelihood
of irreparable harm.
III. THE BALANCE OF EQUITIES FAVORS PLAINTIFFS

The federal defendants argue that “[o]n balance,” the equities and public interest favor
denying an injunction. (Opp. at 26.) But in truth, the federal agents “balance” nothing. They
13
Brakkton Booker, Oregon Gov. Says Federal Officers Will Begin Phased Withdrawal From
Portland, NPR (July 29, 2020), https://www.npr.org/sections/live-updates-protests-for-racial-
justice/2020/07/29/896638122/oregon-gov-says-federal-officers-will-begin-phased-withdrawal-
from-portland.
14
They also argue that Plaintiffs lack standing. (Opp. at 6-10.) This argument appears to be made
purely to ensure it is preserved for appeal, and is mistaken for all the reasons this Court stated in
its TRO. (Dkt. 84 at 9-12.)

consider only the public’s interest in protecting federal property and federal courts. (Opp. at 25-
26.) They do not even discuss, let alone balance, that interest against the constitutional rights of
journalists or the public’s interest in a free press. Cf. First Nat’l Bank of Bos. v. Belotti, 435 U.S.
765, 783 (1978) (“the First Amendment goes beyond protection of the press and the self-
expression of individuals to prohibit government from limiting the stock of information from
which members of the public may draw”). But these are not incommensurable or irreconcilable
interests. Mr. Kerlikowski’s unrebutted expert testimony explains that well-trained, competently
led police forces can protect both interests. (Kerlikowske Decl. ¶ 19.) This reason, in addition to
those discussed in Plaintiffs’ opening brief (Mot. at 26-27), shows that the balance of equities
and public interest favor granting a preliminary injunction.
IV. PLAINTIFFS’ PROPOSED INJUNCTION IS LAWFUL AND WORKABLE

The federal agents close their brief with a blunderbuss of arguments on workability that
are already refuted or easily refuted. Only two bear particular note. First, the Court should
prohibit federal agents from leaving federal property to engage with protesters because they are
not properly trained in policing crowds and will be less likely to violate Plaintiffs’ constitutional
rights if they remain in a defense posture by forming a perimeter inside the courthouse fence.
Second, the Court should require federal agents who police protests to bear large identifying
codes would because it would facilitate accountability to the Court. The federal agents’
arguments that it would be unworkable do not hold water.
A. The Court Should Prohibit Federal Agents from Leaving Federal Property
The federal agents offer one paragraph in opposition to Plaintiffs’ request that the federal
agents be prohibited from leaving federal land. (Opp. at 29.) That paragraph does not address any
of the arguments in the moving papers. (Mot. at 31.)
Instead, the federal agents argue that “the relief is not tailored to the harms alleged in this
case.” (Opp. at 29.) But that is untrue. There is now undisputed expert testimony that it is easier
to avoid shooting or harming journalists and legal observers when defending the courthouse by
forming a perimeter inside the courthouse fence. (Kerlikowske Decl. ¶¶ 8-10.) Because in this

defensive posture they can more easily target wrongdoers and avoid hmiing press an d legal
observers standing to the side, preventing federal agents from raging through the streets of
Portlan d makes it far less likely that they will "inadve1ient[ly]" haim journalists or legal
observers. (Cf Opp. at 18.)
Conversely, there is unrebutted testimony that the federal agents ai·e not properly trained
in dealing with civil disturbances out in the streets. Mr. Kerlikowske has offered unrefuted
testimony that "police forces under leadership trained and experienced in civil disturbances are
able to protect public safety without excluding press an d legal observers or violating any of the
other restrictions in the TRO." (Id. ,i 19.) The federal defendants ' own briefing claims that it is
impossible for them to meet this standai·d. (Opp. at 17-20 (arguing that shooting, teai·-gassing,
and bombing dozens of reporters an d legal obse1vers within the short span before and aBer the
Comi issued its TRO was "inadve1ient").)
The federal agents offer no defense to Mr. Kerlikowske's criticisms of their operations
and training.15 Mr. Kerlikowske explains: "Effective crowd control in the context of volatile
protests involves constructing plans to minimize conflict, and to facilitate rather than suppress
First Amendment activities. I have not seen such plans for the federal defendants in this case,
which helps explain why they have been so unsuccessful in their policing effo1is." (Id. ,i 20.)
Mr. Kerlikowske fuiiher provides numerous unrefuted reasons why the federal agents were
unprepai·ed and unequipped to safely engage with the crowds, including:
• There is no single federal agent mnning their operation. (Id. ,i 22.)
• "Most of the personnel in the federal agencies that were sent to Po1iland appeai· to
lack ti·aining an d experience dealing with the types of protests ongoing in Po1iland.
In 1g t o t eir o ~ecb ons,

they cannot ai·gue that they were properly trained or controve1i Mr. Kerlikowske declai·ation. If
anything, their improper objections an d improper redactions in the ti·aining materials they
produced should give rise to the inference that the materials they ai·e concealing unden nine their
claims.
PAGE 22 - PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

Putting less-lethal weapons in their hands and sending them to police protests is a
dangerous and ill-conceived policy.” (Id. ¶ 23.)
 And many of the federal agents are trained to use force in situations where the people
they are confronting are all engaged in wrongdoing and have few rights, such as
people in a prison riot, people trying to run across the border, people guarding stash
houses, or heavily-armed criminals and fugitives. (Id. ¶ 26-27.)
Mr. Kerlikowske’s unrebutted declaration concludes: “To the extent that the federal
agents are having any difficulties, such problems arise from the failure of supervision and
leadership, lack of experience, and failure of leadership to ensure that the agents are properly
trained for civil disturbances/unrest.” (Id. ¶ 29.) Prohibiting the federal agents from policing
outside the bounds of federal property, when they have already shown that they are incapable of
safely doing so in a manner that keeps them from unnecessarily assaulting journalists and legal
observers, is entirely tailored to the harms at issue. It is also consonant with DHS Commander
Gabriel Russell’s testimony that FPS does not have the authority to issue dispersal orders off
federal property. (Dkt. 123 at 17 (citing Mr. Russell’s testimony).) The evidence in the record
fully supports such relief, and the federal agents should be so enjoined.
B. The Court Should Require That Federal Agents Be Marked with Large
Identifying Codes
The federal agents do not address the harm posed by anonymous policing. (Cf. Mot. at
30; Kerlikowske Decl. ¶ 42.) They offer a handful reasons for not wanting prominent markings.
They argue that the relief is “not tailored to the alleged harm,” that some of them already have
markings, that numbers would interfere with their access to gear, expose them to retaliation, and
allow people to estimate their numbers. (Opp. at 28.) None of these arguments has merit.
First, the harm, as stated in the moving papers, is that when law enforcement is permitted
to ‘turn around their badges,’ metaphorically speaking, this tells them that they will not be held
accountable for their conduct and, according to the federal agents, they have no way of telling
which of them has violated the Court’s TRO. (Mot at 30-31.) Making them wear prominent

markings is tailored to preventing the federal agents from anonymously attacking Plaintiffs and
avoiding responsibility for violating the Court’s injunction. It is a necessary and proper corollary
to the relief the Court granted Plaintiffs in the TRO, to ensure that such relief is actually
effective. (Fed. TRO Ext. Hrg. Tr. 27:23-30:9.)
The case that the federal defendants rely on for the principle that an injunction should be
tailored to the harm to the plaintiffs is not on point. Rather, Stormans, Inc. v. Selecky, 586 F.3d
1109, 1140 (9th Cir. 2009), dealt with vacating a rule regarding the day-after pill as to a whole
industry as opposed to ruling on an as-applied challenge by one religious objector. It did not
purport to straitjacket district courts. As repeatedly explained by Plaintiffs and still unaddressed
by the federal agents, equity permits federal courts to fashion remedies that are necessary, fair
and workable, such as this one. (Mot. at 30-31 (citing Lemon v. Kurtzman, 411 U.S. 192, 200
(1973) (plurality op.)).)
Second, as shown by their own declarations, the markings federal agents currently have
make it impossible to identify them as they appear to journalists and legal observers. (E.g., CBP
SOG-1 Decl., Dkt. 138-3, Ex. 1 (small marking on back of helmet), Ex. 4 (small marking in
colors that blend into uniform), Ex. 5 (small marking on shoulder), Ex. 13 (similar), Ex. 15
(small marking on lapel), Ex. 17 (small marking on side of helmet); CBP SOD-1. Decl., Dkt.
138-7, Ex. 3 (small, uniform-colored marking on shoulder).) With two exceptions, these
markings are not visible from the front and even then, hardly visible at all—much less from 200
feet, the range of the weapons they are using. (Plaintiffs’ Reply iso Extending TRO, Dkt. 123 at
16.)
Third, the federal agents’ arguments that putting on a jersey would interfere with the
functionality of their uniforms (e.g., Olson Decl., Dkt. 138-5 ¶ 5) is misplaced. Prominent
marking could simply be painted on, as shown below:

(Cf. Olson Decl. ¶ 10; CBP SOG-1 Decl. at 6, 8, 11.)
Finally, the federal agents’ arguments that “violent protesters” would count federal agents
or retaliate them (Opp. at 28) only show that right now their identification system is set up to
ensure that nobody can see their markings. There is no reason to believe that someone who
wanted to would be incapable of counting (or reasonably estimating) the number of federal
agents present. Nor is there reason to believe that any protestor would want to retaliate against

any specific federal agent, and the federal agents are unable to identify any instance of this
occurring. Such harms are entirely speculative, and do not counterbalance the compelling need
for accountability—especially given what the federal agents have done to date.16
C. The Federal Agents’ Remaining Arguments Are Without Merit

The federal agents argue that the provision of the proposed injunction relating to making
arrests and seizing equipment is unwarranted without a showing that they have arrested or seized
the equipment of a journalist or legal observer. (Opp. at 27.) But Plaintiffs “need not show that
violations of the law are ongoing, or even that they ever began: ‘the purpose of an injunction is
to prevent future violations.’” Cole, 84 F. Supp. 3d at 1170 n.15 (quoting W.T. Grant Co., 345
U.S. at 633) (emphasis added in original). Given that the federal agents have notoriously arrested
protesters in unmarked vans, and their own argument that they will not differentiate between
protesters and press absent an injunction, this relief is appropriate.
The federal agents argue that the portions of the proposed injunction setting forth indicia
of being a journalist or a legal observer “do not ‘describe in reasonable detail . . . the act or acts
restrained or required.’” (Opp. at 28 (quoting Fed. R. Civ. P. 65(d)(1)(C)).) In fact, this injunction
is much more detailed than ones other courts have entered in similar situation, such as the two
injunctions the U.S. District Court for the Eastern District of Missouri entered in cases related to
media at the Ferguson protests. (Hussein v. Cty. of St. Louis, No. 4:14-cv-1410-JAR (Nov. 21,
2014), Dkt. 39;17 Hussein v. Cty. of St. Louis, No. 4:14-cv-1410-JAR (Nov. 21, 2014), Dkt. 40.18)
Finally, the federal agents’ argument about the qualified-immunity provision is fully
refuted in Plaintiffs’ Reply in Support of Extending the TRO (Dkt. 123 at 17-20).
16
As noted above, the only evidence in the record is that federal agents have repeatedly retaliated
against journalists and legal observers, not vice versa.
17
Available at https://www.aclu-mo.org/sites/default/files/field_documents/039_-
_order_regarding_city_of_ferguson.pdf.
18
Available at https://www.aclu-mo.org/sites/default/files/field_documents/040_-
_order_regarding_county_0.pdf.

CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court enter a
preliminary injunction against the federal agents.
Dated: August 14, 2020 Respectfully Submitted,
By: /s/ Matthew Borden

Matthew Borden, pro hac vice
J. Noah Hagey, pro hac vice
Athul K. Acharya, OSB No. 152436
Gunnar K. Martz, pro hac vice
BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213

ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs


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Case 3:20-cv-01035-SI Document 144 Filed 08/14/20 Page 1 of 32

Matthew Borden, admitted pro hac vice

UNITED STATES DISTRICT COURT

INDEX NEWSPAPERS LLC, a Washington Case No. 3:20-cv-1035-SI

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

I. Plaintiffs have shown an overwhelming likelihood of success........................................... 4

A. Plaintiffs Are Likely to Prevail on Their Retaliation Claims .................................. 4

1. Public Streets, Parks, and Sidewalks Have Historically

2. Public Access Plays a Significant Positive Role in the

3. Closure is Neither Essential Nor Narrowly Tailored to

4. Closure Would Leave Plaintiffs With No Alternative

II. Without an injunction, federal agents are liklely to irreparably harm

III. The balance of equities favors Plaintiffs ........................................................................... 20

IV. Plaintiffs’ proposed injunction is lawful and workable .................................................... 21

Conclusion .................................................................................................................................... 27

PAGE i - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

Americans for Prosperity Found. v. Harris,

PAGE ii - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

PAGE iii - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

Fed. R. Civ. P. 65(d)(1)(C) ............................................................................................................ 26

PAGE iv - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

of Seattle during hundreds of volatile protests, is uncontroverted.

From: MORGAN, MARK A

Acting DHS Secretaiy Chad Wolf

Sent from my iPhone

On Jul 23, 2020, at 6:37 PM, AS2KTC ~ wrote:

It's offensive, but shouldn't affect anything we're doing.

PAGE 1 - PLAINTIFFS ' REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

warn his boss not to commit such plans to writing:

I recommend ...ve take thi off email and have a call .I

PAGE 2 - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

is the federal courts that must enforce this structural protection.

factually and legally unsupported.

agents from targeting and dispersing journalists and legal observers.

PAGE 3 - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

I. PLAINTIFFS HAVE SHOWN AN OVERWHELMING LIKELIHOOD OF

evidence and scant new argument on either claim.

A. Plaintiffs Are Likely to Prevail on Their Retaliation Claims

new evidence now in the record.

PAGE 4 - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

2005) (protester’s claim about curfew and exclusion orders).

(Mot. at 17; see also

PAGE 5 - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

Destroying Their Agency’s Reputation, Buzzfeed News (July 21, 2020)).1)

A careful examination of Mr. Hollis’s video bears this testimony out.

PAGE 6 - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

earlier. (Compare Opp. at 18, with Dkt. 44 ¶¶ 9, 11-13.)

PAGE 7 - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

boss’s credentials, which, for example, include 47 years of law-enforcement experience in

hundreds of protests similar to Portland’s, studying crowd-control during protests in Northern

(“Kerlikowske Reply Decl.”) ¶¶ 1-5.)

PAGE 8 - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

arguments raised for the first time in a reply”).6

observers (Kerlikowske Decl. ¶¶ 30-41), which is strong circumstantial proof of intent, is

unrefuted. For example, they do not contest that:

PAGE 9 - PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY

Federal agents shot journalist Garrison Davis in the back with a

conclusions. See Greenpeace Found. v. Daley, 122 F. Supp. 2d at 1114.