Rosenblum v. John Does 1-10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

ELLEN ROSENBLUM,

Plaintiff,

Case No. 3:20-cv-01161-MO

v.

OPINION AND ORDER

JOHN DOES 1-10; UNITED STATES

DEPARTMENT OF HOMELAND

SECURITY; UNITED STATES

CUSTOMS AND BORDER

PROTECTION SERVICE; UNITED

STATES MARSHALS SERVICE; and

FEDERAL PROTECTIVE SERVICE,

Defendants.

MOSMAN, J.,

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. This is even more

challenging when the subject of the protests concerns police tactics. It is not unusual, following

major protests, for some of the people involved to allege that the police crossed a line—a

constitutional line—in the course of their interactions. It is also common for these interactions 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.

BACKGROUND

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. Pl.’s Mot. [ECF 5] at 3. Reports from Portland media

documented federal officers engaging with protesters at the Hatfield Courthouse as early as July

1. Id. Within less than two weeks, reports surfaced that federal officers were “grabbing

protesters, pulling them off the sidewalks of downtown, and shoving them into unmarked

vehicles.” Id. The State filed this lawsuit on July 17, seeking to enjoin federal officers from

continuing in that practice. Compl. [ECF 1]. The State filed this motion on July 20, with oral

argument on July 22. Min. of Proceedings [ECF 17]. 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 Amendment rights of the individuals being seized, (2) they violate those

persons’ Fifth Amendment due process rights1, (3) they violate the First Amendment rights of

individuals who wish to protest but are discouraged from doing so because they fear being

seized, and (4) they constitute a public nuisance. Compl. [1] at 5-8. The State does not further its

public nuisance argument in its motion for a restraining order, so I will not consider it in the

analysis below.

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. Compl. [1] at 9. The state lists other remedies in its complaint, but as

1 While the State alleges Fourth and Fifth Amendment violations separately, it

acknowledged that these two claims play out identically for purposes of this motion. I therefore

address the Fifth Amendment claims congruently with the Fourth Amendment.

established at oral argument, these are the only remedies at issue in this motion. Id.; Draft Tr. at

53-54.

Before I begin my analysis of whether the state should receive its requested restraining

order, I will resolve preliminary legal questions that underpin the analysis below.

First, while 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.2 First, it presents two declarations from an individual who claims

he was detained by federal officers without probable cause. Pettibone Decl. [ECF 1-1]; Second

Pettibone Decl. [ECF 7]. 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. Potter Decl. [ECF 6] ¶ 6 (citing Senator Jeff Merkley

(@SenJeffMerkley), Twitter (Jul. 16, 2020, 12:53 PM)3. 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

2 The State initially included a third example, but it withdrew that video because it

recorded events that occurred in San Diego. Not. of Withdrawal [ECF 12].

3 Senator Merkley’s tweet of the video can be located at:

https://twitter.com/SenJeffMerkley/status/1283852273089683464

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. Pl.’s Mot. [5] at 16-17.4 Defendants argue that the officers

were otherwise identifiable, given their official uniforms and insignia, and that no verbal

identification was required. Def.’s Resp. [ECF 15] at 15-16. 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. See,

e.g., Potter Decl. Ex. 6 [6-3] (“OPB Article”). The use of unmarked vehicles is therefore

irrelevant to the legal analysis that follows, and I do not consider that practice at all. The relief

sought here has only to do with verbal identification by officers and probable cause, and my

analysis focuses on that relief alone.

//

4 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,” Pettibone Decl. [1-1] ¶ 3, and the video shows agents wearing clothing

clearly marked as “Police.”

LEGAL STANDARD

The standard for a temporary restraining order (“TRO”) is “essentially identical” to the

standard for a preliminary injunction. Chandler v. Williams, No. CV 08-962-ST, 2010 WL

3394675, at *1 (D. Or. Aug. 26, 2010) (citing Stuhlbarg Int’l Sales Co. v. John D. Brushy and

Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)). “A preliminary injunction is ‘an extraordinary and

drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the

burden of persuasion.’” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (citation omitted).

In order to meet that burden, “[a] plaintiff seeking a preliminary injunction must establish that he

is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

public interest.” Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). In addition to

meeting these requirements, as a threshold matter, a Plaintiff must have standing to sue. See

Allen v. Wright, 468 U.S. 737, 750-51 (1984).

As standing is the dispositive issue in this case, I take up that analysis first without

reaching the question of whether the State has met its burden to prove the merits of its motion for

a TRO.

DISCUSSION

Two features of this case make the standing analysis unusual. First is the fact that, in a

typical case alleging these types of constitutional harms, the aggrieved individual would sue on

his own behalf. Here, however, the State of Oregon—by way of Attorney General Ellen

Rosenblum—has brought a suit alleging these same kinds of constitutional claims on a theory

that they harm the state’s citizenry writ large. Second, Oregon does not seek to redress past

harms, as would be the norm in an individual claim of this type, but rather seeks to enjoin future

conduct. Both of these features—the identity of the plaintiff and the nature of the requested

remedy—render the standing inquiry an unusually high bar to clear.

I. Parens Patriae

Oregon asserts that it has standing to sue on behalf of its citizens under a doctrine known

as parens patriae. In order to assert parens standing, a state plaintiff must plead an injury to its

citizenry that meets the usual Article III requirements—that it be “be concrete, particularized,

and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable

ruling.” Missouri ex rel. Koster v. Harris, 847 F.3d 646, 651 (9th Cir. 2017) (citation omitted). It

must also meet two special requirements. First, the State must articulate “an interest apart from

the interests of particular private parties, i.e., the State must be more than a nominal party.” Id.

(quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez (“Snapp”), 458 U.S. 592, 607

(1982). Second, “[t]he State must express a quasi-sovereign interest” that has been violated.

Snapp, 458 U.S. at 607.

The category of interests that qualify as “quasi-sovereign” is relatively broad. It includes,

as the two primary categories, the health and well-being of a state’s citizens and the state’s right

not to be discriminatorily denied its rightful status within the federal system. Snapp, 458 U.S. at

607. Here, the State has asserted a quasi-sovereign interest in the civic and physical well-being

of its people to be free from violations of their constitutional rights, Pl.’s Mot. [5] at 10, and it

alleges a series of injuries to its citizenry that implicate that interest.5

5 Defendants argue that a state may never sue the federal government via parens patriae.

Defs.’ Resp. [15] at 10 (citing Nevada v. Buford, 918 F.2d 854, 858 (9th Cir. 1990)). The State

relies on district court cases that claim that the Supreme Court’s decision in Massachusetts v.

EPA, 549 U.S. 497 (2007) removed any previous bar to a state suing the federal government via

parens patriae. See Mot. [5] at 9-10 (citing Aziz v. Trump, 231 F.Supp.3d 23, 30 (E.D. Va.

2017)). Neither party cites a Ninth Circuit decision that post-dates Massachusetts v. EPA which

squarely answers this question. However, at least the D.C. Circuit and the Seventh Circuit have

a. The Fourth Amendment

At the highest level of abstraction, the State argues that it has a quasi-sovereign interest in

protecting its citizens from unlawful seizures. See Pl.’s Mot. [5] at 10. This argument is not

fleshed out in the briefing, nor did the state do so at oral argument. Presumably, the State’s

theory is that the State of Oregon is harmed when its citizens are subjected to widespread

unlawful seizures of their persons. While it is arguable that this could be a quasi-sovereign

interest to support a parens theory of standing, it is highly unlikely that it would do so in a case

with no more than two identifiable unlawful seizures. But in any event, this argument fails to

confer standing for the State to seek an injunction, which I address in greater detail below.

More specifically, 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. Pl.’s Mot. [5] at 9. 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

concluded that Massachusetts v. EPA did not remove the bar that prevents states from suing the

federal government in parens patriae. Government of Manitoba v. Bernhardt, 923 F.3d 173, 181-

83 (D.C. Cir. 2019); Michigan v. EPA, 581 F.3d 524, 529 (7th Cir. 2009). For the purposes of

this opinion, I assume without deciding that the State may sue the federal government in parens

patriae. If it cannot, such a bar would obviously be fatal to this suit.

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.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). 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) it must be “likely” that the injury will be redressed by a favorable

decision from the court. Id. at 560-61 (citations omitted); see also Spokeo, Inc. v. Robins, 136 S.

Ct. 1540, 1547 (2016). Plaintiffs bear the burden of proving all three elements. Lujan, 504 U.S.

at 561.

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. See Draft Tr. at 31. 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.6 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

6 ORS 137.700 (listing Measure 11 crimes and mandatory minimum sentences).

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. Draft. Tr. at 31.

Finally, the State’s asserted interest here fails the third prong of Lujan: 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.

b. The First Amendment

Elsewhere in its briefing, the State also appears to assert three other harms to its citizens

that violate its interest in their well-being: (1) a chilling effect upon its citizens’ First

Amendment rights of free speech and assembly, (2) a diminishment in public confidence in law

enforcement, and (3) a significant cost to the state in prosecuting kidnappings after the fact. Pl.’s

Mot. [5] at 11. The second and third of these alleged harms must be dismissed for the same

reasons described above—they are both hypothetical, with no evidence in the record to support

either of them. In fact, the State did not address its “confidence in law enforcement” theory at

oral argument or anywhere in its briefing, other than the passing reference noted here.

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. See Pl.’s Decl.’s [ECF 8-11]. 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. See Pl.’s

Decl.’s [ECF 8-11]. This theory creates a problem under the third prong of Lujan, 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. See Snapp, 458 U.S. at 600-01. In other words, it must be a harm to the state and its

citizens more broadly. Id. 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.

II. Standing for Injunctive Relief

Even assuming arguendo that the State has generally pleaded parens patriae standing, it

does not have standing to seek the specific remedy it requests. Through its motion, Oregon seeks

a temporary restraining order that would require Defendants to identify themselves and their

agency before detaining or arresting any person off the streets in Oregon; explain to any person

being arrested or detained that she is subject to arrest or detention and explain the basis for the

seizure; and to refrain from arresting protesters without probable cause or a warrant. Pl.’s Mot.

[5] at 20; Compl. [1] at 9. Even if the State had parens standing to vindicate broadly its citizens

First and Fourth Amendment rights, or standing on a theory of one of the more specific injuries

discussed above, any formulation of its quasi-sovereign interest would fail to confer standing to

seek an injunction because every 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. See Lyons v. City of Los Angeles, 461 U.S. 95,

105, 109 (1983) (holding that the plaintiff had standing to pursue damages for his past injury but

lacked standing to pursue injunctive relief to prevent future harm). “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.” Mayfield, 599 F.3d at 970 (citation omitted). 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. Lyons, 461 U.S. at 111 (“[An injunction] is

unavailable absent a showing of irreparable injury, a requirement that cannot be met where there

is no showing of any real or immediate threat that the plaintiff will be wronged again in a similar

way.”).

This case is nearly on all fours with Lyons. In that case, the plaintiff was subjected to an

unconstitutional chokehold by City of Los Angeles police officers, and he sought injunctive

relief to prevent them from using chokeholds in the future. Lyons, 461 U.S. at 97-98. The United

States Supreme Court held that he could not seek injunctive relief because he had no evidence

that he would be subject to an unconstitutional chokehold again. Id. at 105-6. The court

provided two primary examples of how a plaintiff could show the required “real or immediate

threat that [he] will be wronged again:” either, “(1) that all police officers in Los

Angeles always choke any citizen with whom they happen to have an encounter, whether for the

purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized

police officers to act in such manner.” Id. at 106.

The same is true here. The State has alleged that the purportedly illegal seizures by

Defendants have caused an injury to its citizens’ rights to speech and assembly. In other words,

the State must show that the illegal seizures—analogous to the chokeholds in Lyons—will occur

again in the future. 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.7 At oral argument, when asked what evidence it

could present to show the likelihood of future harm, the State pointed to the fact that Defendants

have defended against this lawsuit. Tr. at 39-40. Not only is defending a lawsuit not evidence of

constitutionally unlawful behavior, it is not sufficient to support the showing the State is required

to make under Lyons.

The State’s argument, regardless of how it is framed, rests on too little evidence to satisfy

Lyons. The State has not met its burden to show that it has standing to seek injunctive relief, and

I find that it does not have that standing. The State’s motion is therefore denied, as a temporary

restraining order is unavailable on the record presented here.

CONCLUSION

For the reasons described above, Plaintiff’s Motion for a Temporary Restraining Order

[5] is DENIED.

IT IS SO ORDERED.

DATED this 24th day of July, 2020.

s/ Michael W. Mosman

MICHAEL W. MOSMAN

United States District Judge

7 In its briefing and at oral argument, the State described what has happened here in

Portland as “disappearance squad[s]” and “disappearing” people. Pl.’s Mot. [5] at 4; Draft Tr. at

24. 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.