Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Applicants v. Illinois, et al.

Supreme Court briefOct 21, 2025

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No. 25A443

IN THE

Supreme Court of the United States

————————

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,

Applicants,

STATE OF ILLINOIS AND CITY OF CHICAGO,

Respondents.

————————

Brief of Chicago Headline Club, et al.,

as Amici Curiae in Opposition to Application for Stay

————————

STEVE ART

Counsel of Record

JON LOEVY

LOCKE BOWMAN

HEATHER LEWIS DONNELL

THERESA KLEINHAUS

JULIA RICKERT

JUSTIN HILL

LOEVY + LOEVY

311 North Aberdeen Street

Chicago, IL 60647

(312) 243-5900

steve@loevy.com

ELIZABETH WANG

ISAAC GREEN

LOEVY + LOEVY

2060 Broadway Suite 460

Boulder, CO 80302

DANIEL MASSOGLIA

HANNAH C. MARION

FIRST DEFENSE LEGAL AID

601 South California Avenue

Chicago, IL 60612

(336) 575-6968

DAVID B. OWENS

CIVIL RIGHTS & JUSTICE CLINIC

UNIVERSITY OF WASHINGTON LAW SCHOOL

William H. Gates Hall, Suite 265

Seattle, WA 98145

CRAIG B. FUTTERMAN

MANDEL LEGAL CLINIC

UNIVERSITY OF CHICAGO LAW SCHOOL

6020 South University

Chicago, IL 60637

(773) 702-9611

WALLACE HILKE

COMMUNITY JUSTICE &

CIVIL RIGHTS CLINIC

BLUHM LEGAL CLINIC,

NORTHWESTERN PRITZKER SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-2224

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................... ii

INTEREST OF AMICI CURIAE ................................................................... 1

SUMMARY OF ARGUMENT........................................................................ 2

ARGUMENT ................................................................................................. 2

CONCLUSION ............................................................................................. 10

TABLE OF AUTHORITIES

CASES

Maine v. Taylor,

477 U.S. 131 (1986) ........................................................................................ 2

Anderson v. City of Bessemer,

470 U.S. 564 (1985) ........................................................................................ 2

Glossip v. Gross,

576 U.S. 863 (2015) ........................................................................................ 2

Easley v. Cromartie,

532 U.S. 234 (2001) ........................................................................................ 2

Butte & Superior Co. v. Clark-Montana Co.,

249 U.S. 12 (1910) .......................................................................................... 3

Baker v. Schofield,

243 U.S. 114 (1917) ........................................................................................ 3

U.S. v. King,

48 U.S. (7 How.) 833 (1849) ........................................................................... 3

OTHER AUTHORITIES

Illinois v. Trump, No. 1:25-cv-12174 (Oct. 6, 2025 N.D. Ill.)........................ 5

Illinois v. Trump, No. 25-2798, ___ F.4th ___, 2025 WL 2937065

(7th Cir. 2025) ................................................................................................ 3

Village of Broadview v. U.S. Department of Homeland Security, et al.,

25-cv-12164, Doc. 35, at 16-17 (Oct. 9, 2025) ................................................ 6

INTEREST OF AMICI CURIAE 1

The press, clergy, and demonstrators filing this amicus brief are plaintiffs

in Chicago Headline Club v. Noem, 1:25-cv-12173 (N.D. Ill.) (Ellis, J.), a

putative class action in the Northern District of Illinois, in which they seek

injunctive and declaratory relief against the federal government, alleging that

federal immigration officers deployed to Chicago as part of “Operation Midway

Blitz” are routinely perpetrating violence against the press, religious

practitioners, and non-violent demonstrators, in violation of the First

Amendment, the Religious Freedom Restoration Act (RFRA), and other laws.

Judge Ellis has entered a temporary restraining order, and a preliminary

injunction hearing is set for November 5, 2025. Chicago Headline Club, No.

1:25-cv-12173, Docs. 42, 43 & 66.

Amici submit this short brief to provide factual input from the record being

developed in Chicago Headline Club that may assist the Court in its resolution

of the stay application in this case.

No party’s counsel in this case authored this brief in whole or in part. No party or

party’s counsel contributed any money intended to fund preparing or submitting this brief.

No person, other than amici, its members, or its counsel contributed money that was

intended to fund preparing or submitting this brief.

SUMMARY OF ARGUMENT

The government’s application for a stay should be denied. The government’s

factual account in support of its application distorts the record and it is

counterfactual, illustrating why this Court’s cases hold that appellate courts

must defer, except in extraordinary circumstances, to the factual findings of

federal district judges, particularly so at this stage of a civil case, where a court

has entered temporary relief in order to preserve the status quo while litigation

proceeds.

ARGUMENT

1. This Court holds that courts of appeals must defer to the factual findings

of district courts. Maine v. Taylor, 477 U.S. 131, 145 (1986). The reason for the

rule is that district courts have the most intimate view of the factual record

and are best equipped to weigh the evidence and testimony. Anderson v. City

of Bessemer, 470 U.S. 564, 576 (1985). Deference is particularly important at

the preliminary stage of civil litigation, when temporary relief has been

entered to preserve the status quo based on an embryonic record. Glossip v.

Gross, 576 U.S. 863, 882 (2015) (noting in reviewing a preliminary injunction

decision that “[w]here an intermediate court reviews, and affirms, a trial

court’s factual findings, this Court will not ‘lightly overturn’ the concurrent

findings of the two lower courts.”) (quoting Easley v. Cromartie, 532 U.S. 234,

242 (2001)).

In this case, the district court concluded that the facts justify preliminary

relief, Illinois v. Trump, No. 1:25-cv-12174, Doc. 70 (N.D. Ill. Oct. 10, 2025)

(Perry, J.), and a panel of the Seventh Circuit, applying the governing

standards just discussed, upheld that determination, Illinois v. Trump, No. 252798, ___ F.4th ___, 2025 WL 2937065 (7th Cir. 2025). This Court should not

disturb that factual conclusion unless it appears that the trial court committed

a clear error. Butte & Superior Co. v. Clark-Montana Co., 249 U.S. 12, 30

(1919); see also Baker v. Schofield, 243 U.S. 114, 118 (1917) (“Our

consideration of the evidence must be governed by the well-settled rule that,

when two courts have reached the same conclusion on a question of fact, their

finding will not be disturbed unless it is clear that their conclusion was

erroneous.”); United States v. King, 48 U.S. (7 How.) 833, 845 (1849) (“[T]he

decision of the Circuit Court upon [a] question of fact must, like the finding of

a jury, be regarded as conclusive.”).

2. The district court’s factual findings in this case are wholly consistent

with the district court’s factual findings in Chicago Headline Club, where the

district court has found that there is no generalized threat of violence against

federal employees, including agents of the Department of Homeland Security

(DHS), within the Northern District of Illinois. See Ex. A (transcript of Oct. 8

hearing in Chicago Headline Club), at 12–13 (pointing to evidence of peaceful

protest). To that end, Judge Ellis has found that federal agents are routinely

using excessive force against journalists gathering the news, clergy praying in

public spaces,

and

peaceful demonstrators,

in retaliation for their

constitutionally protected activities. Id. at 7-13; see also id. at 12 (pointing to

evidence “that defendants have assaulted and deployed tear gas, PepperBalls,

rubber bullets, flash-bang grenades, and other munitions against peaceful

protesters who were engaged in the lawful expression of their First

Amendment rights”).

Judge Ellis concluded that the plaintiffs—amici here—are likely to succeed

on the merits of their free press, exercise, and speech claims, and she entered

a temporary restraining order restricting unlawful tactics pending a hearing

on the plaintiffs’ motion for a preliminary injunction. See, e.g., id. at 10, 13; see

also Chicago Headline Club, No. 1:25-cv-12173, Doc. 43 at 5 (finding the

plaintiffs provided sufficient evidence of federal agents using “violent force

against people peacefully praying, including clergy members and lay

practitioners alike,” which “substantially burdens their exercise of religion,”

and “evidence that federal agents have used excessive force against those

peacefully protesting the federal agents’ presence and operations in the

Chicagoland area”). The litigation continues, including with in-court testimony

from CBP and ICE supervising officials on October 20, 2025.

3. The government’s factual presentation in its stay application in this case

amply demonstrates why the law demands deference to a district court’s

factual findings, particularly where facts are disputed. The government’s

account is counterfactual and contrary to the record being developed in Illinois

v. Trump, in Chicago Headline Club v. Noem, and in other pending litigation.

For instance, in its stay application, the government makes the following

contested and incorrect factual assertions:

a. The government asserts that, on October 4, 2025, the President

determined that Chicago was dangerous for federal agents. Application at

4, 11-12. Contrary evidence shows that a month earlier the President

declared Chicago was “about to find out why it’s called the Department of

WAR.” Chicago Headline Club, No. 1:25-cv-12173, Doc. 1. Moreover, DHS’s

memorandum seeking assistance from the Department of Defense includes

no findings about circumstances on the ground in Chicago. Illinois v.

Trump, No. 1:25-cv-12174, Doc. 13-10 (N.D. Ill. Oct. 6, 2025) (Decl. of

Sherief Gaber, Exhibits B and C). And a DHS supervisor wrote on October

8—four days later—that there were no issues at DHS’s Broadview, Illinois

facility that required federal intervention, given the good work of local law

enforcement. Illinois v. Trump, No. 1:25-cv-12174, Doc. 63-2 at ¶5 (N.D. Ill.

Oct. 9, 2025) (Supp. Decl. of Bria Scudder, Illinois Deputy Governor for

Public Safety).

b. The government contends that there is a pattern of violence targeted at

federal personnel and property in Illinois in recent weeks. Application at 4,

6. Contrary to this contention, in addition to Judge Perry’s findings in this

case, two other district judges have considered the government’s evidence

and have concluded that federal immigration agents in Chicago have faced

only isolated and minor incidents of civil disobedience, which have been

sufficiently addressed by the local authorities. Chicago Headline Club, No.

1:25-cv-12173, Ex. B (transcript of Oct. 6, 2025 hearing in Chicago Headline

Club), at 49 (Judge Ellis noting that “we have a different idea of what’s

going on in Chicago” in response to the Government’s assertion that federal

immigration

officers

are

facing

“riot

with

violent

terrorists

organizations”); Village of Broadview v. U.S. Department of Homeland

Security, et al., 25-cv-12164, Doc. 35, at 16-17 (N.D. Ill. Oct. 9, 2025) (Hunt,

J.) (noting that “there is evidence in the record and in the public domain

that reflects the Federal Defendants’ safety concerns are being addressed”

through cooperation with local and state authorities).

c. The government states that, since September 2025, protestors have

blocked access to the DHS facility in Broadview, Illinois, have slashed tires

of government vehicles, and have threatened federal employees.

Application at 8. However, while there have been demonstrations in

Broadview, any assertion that protesters have shut down access to the

facility is incorrect. Throughout Operation Midway Blitz, the facility has

remained operational and accessible to agents and their vehicles. See, e.g.,

Chicago Headline Club, No. 1:25-cv-12173, Docs. 22-6 (Decl. of William

Paulson) ¶6 (describing vehicles accessing the Broadview facility); 22-12

(Decl. of Autumn Reidy-Hamer) ¶22 (same); 22-15 (Decl. of Scott Sakiyama)

¶22 (“No protesters stood at Beach Street and Harvard Street and any ICE

vehicle could have easily moved in and out of that entrance”); 22-21 (Decl.

of Paul Goyette) ¶13 (protesters near gate voluntarily moved out of the way

of vehicles exiting the ICE facility). When individuals have committed acts

of civil disobedience and attempted to block the path of ICE vehicles, the

Illinois State Police have responded to maintain a clear roadway, Chicago

Headline Club, No. 1:25-cv-12173, Doc. 22-16 (Decl. of Charles Thrush) ¶32,

and regular law enforcement tools are more than sufficient to deal with

such occurrences, Chicago Headline Club, No. 1:25-cv-12173, Doc. 22-32

¶¶84, 86 (Expert Decl. of Gil Kerlikowske, Former Commissioner of CBP).

d. The government contends that “rioters” have used physical force,

including fireworks, bottles, rocks, and tear gas, against federal employees

at Broadview. Application at 8. But the record in Chicago Headline Club

demonstrates that the Broadview protests have been non-violent and

prayerful, that the use of physical force by bad actors has been minimal and

isolated, and that violence is being perpetrated there principally by federal

officials. Chicago Headline Club, No. 1:25-cv-12173, Docs. 22-16 (Decl. of

Charles Thrush) ¶¶ 7, 9; 22-17 (Decl. of Raven Geary) ¶ 8; 22-19 (Decl. of

Colin Boyle) ¶¶ 5, 8; 22-6 (Decl. of William Paulson) ¶ 11; 22-12 (Decl. of

Autumn Reidy-Hamer) ¶ 5; 22-5 (Decl. of Alderman Byron Sigcho-Lopez) ¶

6. Local officials from the Village of Broadview itself have found that federal

agents, and not civilians demonstrating, are the parties who have provoked

unrest. See Village of Broadview Executive Order No. 2025-01 (Oct. 6, 2025)

available at: https://broadview-il.gov/media/33thwv3u/vob-executive-orderno2025-01.pdf (Mayor of Broadview concluding that violence by federal

officials warranted placing time limits on protests).

e. The government states that, on October 4, 2025, CBP vehicles were

ambushed in Chicago on a public road, resulting in a shooting and a riot.

Application at 9. While the full factual record regarding the shooting of a

woman by federal officers has yet to emerge, multiple accounts suggest that

federal officers initiated the chain of events that led to the shooting. 2 In

addition, what the government calls a “riot” was instead a largely peaceful

gathering of civilians concerned about a high-speed chase, a shooting, and

the presence of military equipment in their normally quiet Brighton Park

neighborhood, Chicago Headline Club, No. 1:25-cv-12173, Docs. 22-39

(Supp. Decl. of Paul Goyette); 22-41 (Decl. of Enrique Espinoza). The

Chicago Police Department quickly responded and controlled the crowd,

2 See Tia Ewing, Conflicting accounts emerge in ICE shooting that injured Chicago

woman,

FOX32

Chicago

(Oct.

2025,

4:52

PM),

available

at:

https://www.fox32chicago.com/news/conflicting-accounts-ice-shooting-injured-chicago-woman

(last accessed Oct. 20, 2025); Jake Sheridan, Federal agents shoot Chicago woman they accuse

of ‘boxing in’ vehicle in Brighton Park, Chicago Tribune. (Updated Oct. 4, 2025, 8:22 PM),

https://www.chicagotribune.com/2025/10/04/ice-shooting-chicago-guard/ (last accessed Oct. 20,

2025) (citing account stating federal officers collided with civilian cars).

setting a perimeter between civilians and federal agents, Chicago Headline

Club, No. 1:25-cv-12173, Doc. 22-41 ¶6. Despite all this, federal agents

released numerous canisters of tear gas and flashbangs on the peaceful

crowd. Chicago Headline Club, No. 1:25-cv-12173, Docs. 22-39 ¶¶15, 18; 2241 ¶¶7, 8. Chicago police officers were stifled from doing their jobs because

of the tear gas. Chicago Headline Club, No. 1:25-cv-12173, Docs. 22-39 ¶ 15;

22-41 ¶8.

A final factual point is worth mentioning. As it does in Chicago Headline

Club, the government relies heavily in its application on a declaration

submitted by Russell Hott, who was until recently assigned as the ICE Field

Director in Chicago. E.g., Application at 6-11 27-28 (citing D. Ct. Doc. 62-2). No

party in any case has been able to cross-examine Hott’s declarations. Contrary

to the government’s contentions based on Hott’s declaration, Hott wrote to

Illinois State Police officials on October 8, 2025, praising local law

enforcement’s ability to manage security and demonstrators at the Broadview

facility. D. Ct. Doc. 63-2 at 3, 10-11. Moreover, when Judge Ellis entered an

order on October 16, 2025, commanding Hott to appear to testify on October 20

in Chicago Headline Club regarding Operation Midway Blitz, No. 1:25-cv12173, Doc. 51, the government responded the next day, saying that Hott’s

final day as the ICE Field Director in Chicago was October 17, 2025, and

asserting that he lacked the knowledge necessary to provide testimony about

DHS incidents occurring in Chicago, No. 1:25-cv-12173, Doc. 55.

The changing and disputed nature of the government’s evidence in these

cases is precisely the reason that this Court defers to district courts’ factual

findings, including credibility determinations. The government contends that

the district court’s “disregard for the sworn declarations of federal officials [is]

indefensible,” Application at 19, but the district court had good reason to

question those declarations, at this stage, based on the evidence currently in

the record. This Court should defer to that judgment.

CONCLUSION

For the foregoing reasons, the government’s application for a stay should

be denied.

October 21, 2025

Respectfully Submitted,

/s/ Steven Art

Counsel of Record

JON LOEVY

LOCKE BOWMAN

HEATHER LEWIS DONNELL

THERESA KLEINHAUS

JULIA RICKERT

JUSTIN HILL

LOEVY + LOEVY

311 North Aberdeen Street

Chicago, IL 60647

(312) 243-5900

steve@loevy.com

ELIZABETH WANG

ISAAC GREEN

LOEVY + LOEVY

2060 Broadway Suite 460

Boulder, CO 80302

DAVID B. OWENS

CIVIL RIGHTS & JUSTICE CLINIC

UNIVERSITY OF WASHINGTON LAW

SCHOOL

William H. Gates Hall, Suite 265

Seattle, WA 98145

CRAIG B. FUTTERMAN

MANDEL LEGAL CLINIC

UNIVERSITY OF CHICAGO LAW

SCHOOL

6020 South University

Chicago, IL 60637

(773) 702-9611

APPENDIX TABLE OF CONTENTS

Page

Exhibit A, October 8, 2025 Transcript ..............................1a

Exhibit B, October 6, 2025 Transcript...............................81a

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHICAGO HEADLINE CLUB, BLOCK

CLUB CHICAGO, CHICAGO NEWSPAPER

GUILD LOCAL 34071, NABET-CWA

LOCAL 54041, ILLINOIS PRESS

ASSOCIATION, RAVEN GEARY,

CHARLES THRUSH, STEPHEN HELD,

DAVID BLACK, WILLIAM PAULSON,

AUTUMN REIDY-HAMER, and LEIGH

KUNKEL,

Plaintiffs,

KRISTI NOEM, Secretary, U.S.

Department of Homeland Security

(DHS); TODD LYONS, Acting

Director, U.S. Immigration and

Customs Enforcement (ICE);

MARCOS CHARLES, Acting Executive

Associate Director, Enforcement

and Removal Operations, ICE;

RUSSELL HOTT, Chicago Field

Office Director, ICE; RODNEY S.

SCOTT, Commissioner, U.S.

Customs and Border Protection

(CBP); GREGORY BOVINO, Chief

Border Patrol Agent, CBP; DANIEL

DRISCOLL, Director of the Bureau

of Alcohol, Tobacco, Firearms

and Explosives (ATF); WILLIAM K.

MARSHALL III, Director of the

Federal Bureau of Prisons (BOP);

PAMELA BONDI, Attorney General

of the United States; U.S.

DEPARTMENT OF HOMELAND SECURITY;

U.S. DEPARTMENT OF JUSTICE;

UNIDENTIFIED FEDERAL OFFICER

DEFENDANTS; UNIDENTIFIED FEDERAL

AGENCY DEFENDANTS; and DONALD J.

TRUMP, President of the

United States,

Defendants.

)

Case No. 25 C 12173

Chicago, Illinois

October 8, 2025

2:40 p.m.

Appendix 001

TRANSCRIPT OF PROCEEDINGS EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

BEFORE THE HONORABLE SARA L. ELLIS

APPEARANCES:

For the Plaintiffs:

LOEVY & LOEVY

BY: MR. JONATHAN I. LOEVY

MR. STEVEN E. ART

311 N. Aberdeen Street, Third Floor

Chicago, Illinois 60607

LOEVY & LOEVY

2060 Broadway, Suite 460

Boulder, Colorado 80302

For the Defendants:

U.S. DEPARTMENT OF JUSTICE

BY: MR. SEAN SKEDZIELEWSKI (via video)

950 Pennsylvania Avenue NW

Washington, D.C. 20530

Court Reporter:

KELLY M. FITZGERALD, RPR, RMR, CRR

Official Court Reporter

United States District Court

219 S. Dearborn Street, Room 1412

Chicago, Illinois 60604

312-818-6626

kmftranscripts@gmail.com

PROCEEDINGS REPORTED BY STENOTYPE

TRANSCRIPT PRODUCED USING COMPUTER-AIDED TRANSCRIPTION

Appendix 002

(Proceedings heard in open court:)

THE COURT:

Ms. Johnson.

THE CLERK:

All right.

Case 25 CV 12173, Chicago Headline Club,

et al. v. Noem, et al.

MR. LOEVY:

Good afternoon, Your Honor.

Jon Loevy for

the plaintiffs.

MS. WANG:

Elizabeth Wang for the plaintiffs.

MR. ART:

And Steve Art for the plaintiffs.

afternoon, Your Honor.

THE COURT:

And --

MR. SKEDZIEWLEWSKI:

THE COURT:

Mr. Skedziewlewski.

All right.

defendants, Your Honor.

Good

Good afternoon.

Sean Skedziewlewski for

Good afternoon.

All right.

Good afternoon,

Nope, say it again for me, because I'm going to get it

right today.

MR. SKEDZIEWLEWSKI:

THE COURT:

Okay.

Skedziewlewski.

All right.

Okay.

Thank you.

So, first, I want to thank

everybody for giving me the two kind of redlined versions of a

proposed TRO.

Here we go.

Okay.

Is there anything anybody wants to add or have me

Appendix 003

consider or bring up?

thank you for getting that to me, Mr. Skedziewlewski.

know it was a quick turnaround, so I appreciate that.

So I've read that.

I've read the government's response.

And I

I've read the competing redlined

orders.

Anything anybody wants to add at this point?

Mr. Loevy?

MR. LOEVY:

Your Honor, it's our understanding that

there are loose ends that were left over from Monday that we're

trying to narrow things and, you know, resolve.

stand on -- on where it all is.

THE COURT:

And Mr. Skedziewlewski?

MR. SKEDZIEWLEWSKI:

So we will

All right.

I'll just highlight one point

that we made in the brief, Your Honor, that I think if we were

to come to agreement on early would make our discussion of the

rest of the proposals perhaps a lot simpler and easier to come

to agreement on, and that's the scope of the relief.

We propose in the -- in our brief that the relief

should be limited to the Broadview facility.

And we make a

suggestion in our proposed redline TRO as to how we might do

that, but I think we're flexible on exactly what that would

look like.

But if that's in place, then a lot of our concerns

about how the TRO would impact, you know, operations in the

Appendix 004

field that aren't, at least from defendants' point of view,

related to plaintiffs' claims, since those wouldn't be

impacted, we would have a lot fewer concerns and it could

potentially streamline the rest of today's hearing.

THE COURT:

So I saw that.

And given the record

before me, however, these issues are not limited to Broadview.

And if I were -- if I felt secure that this was only happening

at the Broadview facility and was not happening out in the

field, I would be happy to limit it to Broadview, but I don't

believe that that is the case.

the TRO simply to Broadview.

MR. SKEDZIEWLEWSKI:

THE COURT:

MR. SKEDZIEWLEWSKI:

on.

Okay.

And so I'm not going to limit

Understood, Your Honor.

I -- I know -In that case, I'm happy to move

Yep.

THE COURT:

Okay.

And I -- I understand that you are

disappointed, but that's where I come out on that.

So other than what's been filed and what we discussed

on Monday, though, you've got nothing more to add and you're

okay with me kind of getting to the nitty-gritty of my ruling?

MR. SKEDZIEWLEWSKI:

Your Honor, defendants look

forward to being able to submit a sort of substantive merits

argument in the future with rebuttal evidence, but at this time

we -- yes, we stand on our arguments in this Court on Monday --

on Monday.

And without waiving our objections to an

Appendix 005

entrance -- any potential entrance of a temporary restraining

order, we're amenable to -- to proceeding, sort of discussing

the -- the workability and breadth of an order that the Court

might decide to enter.

THE COURT:

Okay.

Great.

All right.

So, first, I'm -- so in order to obtain a

TRO, plaintiffs need to satisfy three threshold requirements:

First, that there's some likelihood of success on the merits;

second, that there's an inadequate remedy at law; and third,

that irreparable harm will result if the relief is not granted.

If the plaintiff satisfies these three factors, then I

conduct a balancing test: weighing the harm the denial of the

preliminary injunction would cause the plaintiff against the

harm to the defendant if I were to grant it.

temporary restraining order rather than a preliminary

injunction, but the standards are the same.

And here it's a

The balancing process involves a sliding scale

approach.

merits, the less the balance of harms needs to weigh in its

favor and vice versa.

interest, which includes taking into account any effects on

nonparties.

The more likely the plaintiff is to win on the

I'm also to consider the public

So the first issue before the Court is standing.

need to address plaintiffs' standing, which the defendants have

challenged.

To establish standing to seek injunctive relief,

Appendix 006

the plaintiffs must allege an actual or imminent threat of

suffering a concrete and particular -- particularized injury in

fact, which plaintiffs can fairly trace to the defendants'

conduct and that a favorable judicial decision will likely

prevent or redress.

In order to have standing, plaintiffs must face a real

and immediate threat of future injury.

And while the defendants argue that the plaintiffs

have not established that their injuries are likely to recur, I

disagree.

the ongoing and sustained pattern of conduct that plaintiffs

have documented over the last month that show no signs of

stopping.

The risk of future injury is not speculative given

Plaintiffs indicate that they intend to continue their

reporting, ministering, and protesting.

have acted indiscriminately in the past, the risk of

reoccurrence is not speculative, and I find that plaintiffs

have standing to pursue their claims.

Because defendants

For their First Amendment claims, plaintiffs also have

standing based on the chilling effect of defendants' conduct,

given that some of the plaintiffs have expressed the defendants

'actions have caused them to limit their activities.

The organizations have standing to sue on behalf of

their members and for their own injuries.

An organization has

standing to sue on behalf of its members when its members would

Appendix 007

otherwise have standing to sue in their own right, the interest

it seeks to protect are germane to the organization's purpose,

and neither the claim asserted nor the relief requested

requires the participation of individual members in the

lawsuit.

Organizations demonstrate an injury in fact if they

show that defendants' conduct impaired, which means to directly

affect and interfere with, their ability to conduct their

business or services.

I find that plaintiffs have met these requirements in

this case for both associational and organizational standing.

Plaintiffs' news organizations indicate that defendants'

activities have frustrated their efforts to defend journalist

safety and working conditions.

So having found that the plaintiffs have standing,

then I go through the various factors.

So the first is likelihood of success.

To meet this

requirement, a plaintiff must demonstrate that its claim has

some likelihood of success on the merits.

depends on the facts of the case at hand because of the

Seventh Circuit's sliding scale approach.

requires a strong showing that normally includes a

demonstration of how the applicant proposes to prove the key

elements of its case.

meet this standard.

What amounts to some

But it at least

A mere possibility of success does not

Appendix 008

So turning to the First Amendment retaliation claim.

To prevail, plaintiffs must ultimately show that they engaged

in activity protected by the First Amendment, that they

suffered a deprivation that would likely deter First Amendment

activity in the future, and the First Amendment activity was at

least a motivating factor in defendants' decision to take the

retaliatory action.

Here, the allegations in the complaint establish that

this claim has some likelihood of success.

that the defendants retaliated against them while they were

engaged in news gathering and/or protesting, which are both

activities protected by the First Amendment.

allegedly involved being shot with impact or chemical

munitions, gassed, pepper sprayed, hit with near lethal

grenades and/or otherwise threatened with arrest.

Plaintiffs allege

This retaliation

All of this conduct would likely deter First Amendment

activity in the future.

I also find that plaintiffs' allegations are likely

sufficient to infer that their First Amendment activities were

the motivating factors in defendants' conduct.

can be established through either direct or circumstantial

evidence, including suspicious timing, ambiguous, oral, or

written statements, or behavior towards or comments directed at

other people in the protected group.

Turning to the RFRA claim.

Proof of motive

RFRA prohibits the federal

Appendix 009

government from imposing substantial burdens on religious

exercise, absent a compelling interest pursued through the

least restrictive means.

Under the burden shifting framework of RFRA, once a

claimant makes a prima facie case that the application of a law

or regulation substantially burdens his religious practice, the

burden shifts to the government to justify the burden under

strict scrutiny.

A plaintiff can prove a government policy or act

substantially burdens their religious practice if the

government policy or act compelled them to perform acts

undeniably at odds with fundamental tenets of their religious

beliefs; two, put substantial pressure on them to modify their

behavior and to violate their beliefs; or three, bears direct,

primary, and fundamental responsibility for rendering a

religious exercise effectively impracticable.

In assessing whether a burden is substantial, we focus

primarily on the intensity of the coercion applied by the

government and not the centrality of the religious practice in

question.

Here, Reverend Black and the putative religious

exercise class argue that they're likely to succeed on their

claim because defendants' use of violent force against people

peacefully praying, including clergy members and lay

practitioners alike, substantially burdens their exercise of

Appendix 010

religion.

And what is relevant here is the second factor, which

is to put a substantial pressure on them to modify their

behavior and violate their beliefs.

Plaintiffs argue that defendants' use of force puts

substantial pressure on Reverend Black and other similarly

situated people to modify their behavior and violate their

beliefs under highly coercive threats of violence.

that defendants have engaged in the policy, pattern, and

practice of targeting people visibly engaged in prayer and

other religious exercise with PepperBalls, tear gas, and other

physical violence without provocation.

They allege

They argue that this forces Reverend Black and others

to choose between their health and safety on the one hand and

authentically practicing their faith on the other.

Plaintiffs submitted declarations from Father Curran

who states that he's restricted who he invites to join prayer

vigils at Broadview and has stopped using the vigils as an

opportunity to provide religious education to Catholic students

because of the high risk of violence.

This alleged coercion is enough to show a likelihood

of success on the merits of plaintiffs' RFRA claim.

I also find that defendants' policy, pattern, and

practice of using force against people praying or otherwise

practicing their religion cannot survive strict scrutiny

Appendix 011

because I have not identified a compelling government interest

using the least restrictive means.

Turning to the Fourth Amendment claim.

Plaintiffs

contend that defendants' actions are unreasonable and

constitute excessive force in violation of the Fourth

Amendment.

in violation of the Fourth Amendment.

Excessive force is a form of unreasonable seizure

We normally evaluate these claims based on whether the

officers' actions were objectively reasonable under the

circumstances.

law enforcement officers' assessments about the appropriate use

of force in dangerous situations.

however, when police officers or law enforcement officers

employ force that is clearly excessive or unreasonable under

the circumstances.

And courts should give considerable leeway to

But that latitude ends,

Reasonableness must be judged from the perspective of

a reasonable officer on the scene and not in hindsight.

Here, plaintiffs have presented declarations and

evidence that defendants have assaulted and deployed tear gas,

PepperBalls, rubber bullets, flash-bang grenades, and other

munitions against peaceful protesters who were engaged in the

lawful expression of their First Amendment rights.

occurs under the Fourth Amendment when an officer, by means of

physical force or show of authority, has in some way restrained

the liberty of a citizen.

The seizure

Appendix 012

And there are courts that have found that the use of

pepper spray and similar projectiles amount to a seizure for

Fourth Amendment purposes.

And I find here that the plaintiffs have demonstrated

a likelihood of success on the merits here because they have

presented evidence that the protesters and members of the

putative class have been protesting peacefully and the

expression of force in relation to those protests is

unreasonable and excessive from the defendants here, that the

use of pepper spray could be considered excessive force if it's

used without justification, that assaulting citizens who are

safely detained without any provocation violates clearly

established constitutional principles.

All right.

So then the next factor is irreparable

harm or inadequate remedy at law.

plaintiffs have shown a likelihood of success on the merits,

then I would consider whether the plaintiffs have demonstrated

irreparable harm and that they have inadequate -- an inadequate

remedy at law.

In First Amendment cases, the likelihood of success on

If I find that the

the merits will often be the determinative factor.

The loss of First Amendment freedoms, even for a

minimal period of time, unquestionably constitutes irreparable

injury.

is presumed in First Amendment cases.

Thus, under Seventh Circuit case law, irreparable harm

Moreover, quantifying a

Appendix 013

First Amendment injury is difficult, and damages are therefore

not an adequate remedy.

Turning to RFRA.

Although that claim is statutory,

RFRA protects First Amendment free exercise rights.

supply the First Amendment irreparable harm analysis to those

claims as well.

likely violates the First Amendment, plaintiffs have

established that they will suffer irreparable harm if the Court

denies their motion for a TRO.

So courts

Because I found that defendants' conduct

Turning to the Fourth Amendment, it is a closer

question on irreparable harm.

stemming from an illegal search or seizure does not

presumptively cause irreparable harm because it's a

constitutional tort analogous to a personal injury claim where

money damages will be awarded.

A Fourth Amendment violation

However, plaintiffs here have shown irreparable harm

because of the ongoing denial of Fourth Amendment rights, which

is an irreparable harm in and of itself.

Seventh Circuit noted that in Campbell v. Miller, 373 F.3d 834

at 835, noting that the right party to sue for injunctive

relief for Fourth Amendment violations is someone who the same

events are likely to happen to again.

And the

The Seventh Circuit noted that as well in Preston v.

Thompson, 589 F.2d 300 at 303, Footnote 3.

The existence of a

continuing constitutional violation constitutes proof of an

Appendix 014

irreparable harm, and its remedy certainly would serve the

public interest.

All right.

The next factor is balance of harms -- or

the next two factors I consider together would be the balance

of harms and public interest.

If the plaintiffs meet all the threshold requirements,

the Court then weighs the harm the denial of the TRO would

cause the plaintiffs against the harm to the defendants if I

were to grant it.

scale approach.

merits, the less the balance of harms needs to weigh in the

plaintiffs' favor and vice versa.

This balancing process involves a sliding

The more likely the plaintiff is to win on the

When the government is a party, the balance of

equities and the public interest factors merge.

has a strong interest in having a government that conducts

itself fairly and according to its stated regulations and

policies, as well as the Constitution and laws.

And the public

So looking at the First Amendment and RFRA claims,

once -- once the moving party establishes a likelihood of

success on the merits, the balance of harms normally favors

granting injunctive -- preliminary injunctive relief because

injunctions protecting First Amendment freedoms are always in

the public interest.

same analysis applies to the plaintiffs' RFRA claim.

And just as with irreparable harm, the

Because I find defendants' conduct likely violates the

Appendix 015

First Amendment, the balances of equities weighs in favor of

granting the TRO.

Turning to the Fourth Amendment, it is difficult to

conceive of how an injunction requiring a party to comply with

the Constitution could be harmful.

favor plaintiffs because without a TRO, they will be subject to

defendants' ongoing violation of their Fourth Amendment right

to be free from excessive force, and the public interest is

served when courts uphold constitutional rights.

All right.

The balances of equities

So now we will turn to the scope of

relief.

an injunction -- any injunction that I issue would violate the

Supreme Court's prohibition on universal injunctions.

find that any injunction that I enter would not violate that

prohibition on universal injunctions because the effects on

nonparties are incidental to the need to provide complete

relief to the named plaintiffs.

So the first issue that the defendants raised is that

But I

And if I were to limit a TRO solely to the named

plaintiffs, it would be utterly unworkable.

haven't yet considered a class certification motion, plaintiffs

do seek to proceed on behalf of a putative class of peaceful

and nonviolent individuals who are present at demonstrations to

participate, observe, record, report, or pray.

And while I

And while I might have some concerns about the

ascertainability of the class, I do note that to the extent

Appendix 016

that plaintiffs can conditionally show that class certification

pursuant to Rule 23(b)(2) is appropriate, the concern about

universal injunctions is also addressed then by proceeding as a

class.

And I would ask that at the preliminary injunction

hearing that we deal with the class certification issue.

I am limiting the TRO to this district.

And at this

stage, it's time-limited given that it's only a TRO and we will

be having a preliminary injunction hearing.

And I'm not limiting the TRO to Broadview because I do

find that plaintiffs have provided sufficient evidence to

demonstrate that this is occurring throughout the district and

it is not limited to the Broadview facility.

I do note that the defendants have a concern that the

TRO merely tells the defendants to obey the law.

The

Seventh Circuit, however, does not have a per se ban on "obey

the law" injunctions, unlike other circuits.

the law" injunctions raise overbreadth and vagueness concerns,

I don't find the provisions in the TRO here are overbroad or

vague.

that the injunction specifically state and describe in

reasonable detail the acts that are restrained or required.

As to the scope of relief, finally, I do raise the

And while "obey

Instead, they comply with Rule 65(d)'s requirements

question of whether the TRO can be directed at President Trump.

Injunctive relief typically is not available against the

Appendix 017

President, although courts do have a limited ability to enjoin

the President to carry out ministerial, nondiscretionary

duties.

remedy the harms they face without enjoining the President

directly, I find it unnecessary to resolve that question, and I

except President Trump from the scope of the injunction at this

time.

Because I find that plaintiffs can obtain relief to

Then the last issue is security.

Rule 65(c) provides

that the Court may issue a preliminary injunction or a

temporary restraining order only if the movant gives security

in an amount that the Court considers proper to pay the costs

and damages sustained by any party found to have been

wrongfully enjoined or restrained.

law identifies two scenarios where I may forgo requiring a

bond.

The Seventh Circuit case

First, I may not require a bond if the enjoined party

does not demonstrate it will incur any damages from the

injunction.

give the opposing party absolute security against incurring any

loss from the injunction would exceed the applicant's ability

to pay, and the district court balances often implicitly the

relative cost to the opponent of a smaller bond against the

cost to the applicant of having to do without a preliminary

injunction or a temporary restraining order that he may need

desperately.

Second, I may forgo a bond when a bond that would

Appendix 018

Both scenarios support waiving the bond requirement

here.

First, the government has not offered any expected

damages that would result from an erroneous TRO.

The training

costs that the government brought up previously I find are not

going to be significant here.

essentially directs agents and officers to follow the training

that they've already received on use of force, that they've

already received on crowd control, and is essentially directing

them to follow their own rules, policies, regulations, the laws

that apply to them, and the behavior that the Constitution

demands.

The TRO that will be entered

So I don't find that requiring plaintiffs to post a

bond, I -- I can't even put a number on what it would be to

cover these alleged training costs.

More importantly, when a court implicitly balances a

potential cost of injunctive relief against the harm to speech

if an injunction is denied, free speech prevails.

case here.

plaintiffs to post a bond.

So I will decline and am declining to require

And then the last issue before we get to the language

of the TRO is the stay.

order pending appeal.

That is the

So defendants have asked me to stay my

When deciding whether to issue a stay pending appeal,

courts consider whether the stay applicant has made a strong

Appendix 019

showing that they are likely to succeed on the merits, whether

the applicant will be irreparably injured absent a stay,

whether issuance of a stay will substantially injure the other

parties interested in the proceeding, and where the public

interest lies.

of showing that the circumstances justify an exercise of that

discretion.

The party requesting the stay bears the burden

Here, in requesting a stay, defendants did not address

any of these factors in their request for a stay or explain why

a stay would be warranted.

of demonstrating these factors and have not done so and I find

that the public interest lies in issuing the TRO and preventing

continuing constitutional violations and I do not find that the

defendants have made a strong showing that they are likely to

succeed on the merits, I don't find that they will be

irreparably injured absent a stay, and I do find that issuing a

stay will substantially injure the plaintiffs who are

interested in this proceeding.

decision pending appeal.

Because defendants have the burden

I am not going to stay my

So having ruled, now comes the painful part.

All right.

So does everybody have the competing

proposed orders?

MR. ART:

MR. SKEDZIEWLEWSKI:

THE COURT:

Yes, Judge.

Okay.

Yes, Your Honor.

All right.

Let me just organize

Appendix 020

myself here for a second.

All right.

So I'm looking at both versions.

So what

I'm looking at, so that everybody is on the same page, I am

looking at the redline of plaintiffs' initial proposed order to

the updated proposed order on plaintiffs' side.

defendants' side, I'm looking at defendants' proposed order

that is redlined to the plaintiffs' I think original proposed

order.

All right.

we will do our best.

Okay.

And then on

And it's going to be a little messy, but

So I am looking at paragraph 1.

So the first

full paragraph, defendants requested that I add the language

"when deployed in and around or operating within 500 feet of

the Broadview ICE facility."

I'm not limiting the TRO to that.

All right.

I'm not including that, because

Then A.

And I noticed that plaintiffs put

in headings throughout the TRO.

I actually like the headings.

Mr. Skedziewlewski, do you have any objections to

those headings?

There's just two of them.

is the -- basically journalists and then others.

Do you have any objection to that?

MR. SKEDZIEWLEWSKI:

It's A and B, which

No -- no objection to the

headings, Your Honor.

THE COURT:

Okay.

All right.

Then turning to 1.a., so the government suggested that

Appendix 021

we strike out "or reasonably should know is a journalist."

I'm

not going to take that out.

where we discuss the indicia that officers would consider, and

so it should -- "reasonably should know" needs to be included

there to cover that.

That covers the later section

I've had some time to think, and I know we had a

discussion about the last phrase at the first sentence, which

is unrelated to failing to obey a dispersal order.

thinking it through, I think it is more appropriate to remove

that phrase, that I think this section reads better if that

phrase is removed and makes more sense.

And in

Journalists still, while they are protected and have

protected rights, they still, I think, under the Constitution

could be ordered to disperse and leave a particular area, which

doesn't mean that they couldn't continue to report from a

different area, but I do think that they could be told

everybody needs to leave this one particular area and you can

report from over here.

So to not make things more complicated or more

difficult, I am going to remove that last phrase.

So it'll read:

"Unless defendants have probable cause

to believe that the individual has committed a crime."

The defendants wanted to change "ask" to "order."

don't know that that really makes a difference one way or the

other.

They --

Appendix 022

MR. LOEVY:

Not from the plaintiff.

THE COURT:

Okay.

generally don't make requests.

"order."

And they issue orders.

They

So we'll change that to

Then we've got the switch from "press" to

"journalist."

comply."

So we'll keep it "journalist has time to

So, again, I think, Mr. Skedziewlewski, if I start

inserting things like "a reasonably adequate time" or "a

reasonable opportunity," that we're getting a bit more

complicated than we need to be; that we want to give the

journalist time to comply and an opportunity to report and

observe.

I'm happy to hear if anybody has anything they want to

add on that, unless the plaintiffs want to add that language,

the reasonably language.

MR. LOEVY:

Your Honor, I think we're fine with the

language as -- as you've proposed it.

THE COURT:

All right.

Mr. Skedziewlewski, do you

want to add anything like that?

MR. SKEDZIEWLEWSKI:

Would "objectively reasonable"

make it more appealing?

THE COURT:

All right.

Yes.

Because I don't -- I

just want to keep it out of -- what I don't want is fights

later on where an officer or an agent says, you know, I said

Appendix 023

this and the person didn't move.

you know, is two minutes enough time?

time?

And now we're fighting over,

Is 30 seconds enough

Is there an objection to qualifying this to

"objectively reasonable"?

MR. LOEVY:

Plaintiffs could live with that too,

Your Honor.

THE COURT:

Okay.

All right.

So then it will read:

"Defendants may order a

journalist to change location to avoid disrupting law

enforcement, as long as the journalist has objectively

reasonable time to comply and an objectively reasonable

opportunity to report and observe."

Okay.

And then the government suggests adding a

sentence -- or sentence, phrase, I suppose:

the journalist fails to promptly change location, federal

agents may use reasonable force, including less-lethal devices

to clear the area or effectuate an arrest."

"Nonetheless, if

That's redundant, I think, and so I'm not going to

include that.

All right.

Turning to B.

So B did not turn out the

way I had asked on either side.

So I'd like it to read

something along these lines:

dispersal order requiring any person to leave a public place

that they lawfully have a right to be, unless dispersal is

"Dispersal of others.

Issuing a

Appendix 024

justified by exigent circumstances as defined by the Department

of Homeland Security use of force policy, updated February 6,

2023."

And I guess it would be Section III.F and XII.E.

So I didn't -- I'm rejecting the "ranking officer

determination."

rejecting the "reasonable under the totality of the

circumstances."

under the specific requirements that I need to place in here

pursuant to Rule 65.

Okay.

I think that's too complicated.

And I'm

I think that's way too vague and does not fall

Moving along.

Paragraphs C and D.

So people

have -- some of these are overlapping and then some of them are

quite -- are different, right, in terms of what these --

what -- what's listed here.

I don't even know what some of these are.

Okay.

And I have to be honest with you,

So C, at least, will read:

"Using riot control

weapons, including" -- so you both have "kinetic impact

projectiles."

"compressed air launchers."

"for kinetic impactor marking"?

MS. WANG:

Then you've got

What's the difference between LS and FN 303 versus

So that can stay in.

there.

Judge -- Judge, so that's -- there's a typo

It should say PLS.

So these words, these terms, are from the Department's

own policies describing less-lethal weapons.

And so we had

originally listed -- you know, called them different things,

Appendix 025

more -- more layperson terms like flash-bang and stinger and

things like that.

defendants' version, which also used the words, it -- it's okay

with us to use the words that they describe their own weapons.

And so that's why these specific words are in here.

But -- and especially after we saw the

And just to -- to say in response to one of your

earlier comments, the reason why there's different paragraphs

addressing different things for different weapons is because

some weapons are not meant at all to be --

THE COURT:

Right.

MS. WANG:

-- shot at a person.

And so that's why

there's some things in some sections and some things in other

sections.

THE COURT:

Right.

But I guess my -- it seems like

there's some things that were stricken in yours that were not

stricken in the government's.

looking at the same universe of things in paragraph C, for

example, right?

So it doesn't seem like we're

So, Mr. Skedziewlewski, do you -- so I'm looking at

compressed air launchers.

example of -- for kinetic impactor marking versus, for example,

PLS and FN 303?

Would the department prefer the

MR. SKEDZIEWLEWSKI:

Your Honor, the reason for the

parenthetical in defendants' version is to try to capture a

concept that's in the CBP policy, which is that some of these

Appendix 026

same weapons systems are appropriate for use on subjects based

on different types of resistance.

different ways based on the type of resistance that the officer

is met with.

And they can be used in

So the two big categories are active resistance, which

tolerates -- or which enables some of these systems or devices

to be used in one way, and then assaultive resistance allows

them to be used in a different way.

were trying to capture here by having that parenthetical.

We don't have an objection to listing examples of

And so that was what we

specific types of compressed air launchers, but we would ask

that there's also the specification that, for example,

compressed air launchers can be used for kinetic impactor

marking.

demonstrating assaultive resistance."

that's what we have in paragraph C.

"On individuals

At -- at -- at least

And so that -- that's all just pulled right from the

And, you know, we go on to say:

CBP --

THE COURT:

Yeah.

MR. SKEDZIEWLEWSKI:

THE COURT:

Yeah.

-- policy.

And I'm looking at the CBP policy

now and that it defines active resistance as a type of

resistance where physical attributes are being used to resist

an officer/agent's control efforts.

directed toward the officer/agent, but rather appear intended

The efforts are not

Appendix 027

to thwart an officer/agent's control efforts.

And then assaultive resistance, there are two.

There's physical injury and then serious bodily injury or

death.

All right.

So what is the plaintiffs' position on

making the point clear so it's very specific that -- I guess

the question -- well, in thinking it -- you know, I'm kind of

thinking this through as we're going through this.

There are two ways of kind of structuring C in that --

this whole TRO really is meant to tell agents what they cannot

do for -- towards peaceful protesters or journalists.

that's the case, then it in some ways presumes, right, we're

presuming that people are peaceful.

providing either active resistance or either type of assaultive

resistance.

And if

Therefore, they are not

So the TRO is not intended to tell the officers or

agents that they cannot follow -- it's way too many

negatives -- but that they aren't to follow their own internal

agency policies regarding the use of force and what they can

do, right?

So if someone is resisting, if they are an active

resister, they are still allowed to do what they are permitted

to do under the policy and obviously under the circumstances.

But this TRO is not meant to tell them they can't do that,

right?

It's only meant to say, if someone is peaceful, you are

Appendix 028

not to use these tactics with respect to them.

So, I guess, you know, I'm a little concerned about

telling the agents what they can do when people resist,

depending on the level of resistance, when that's not the class

of people that we're talking about.

Does that make sense?

MS. WANG:

Yes, Judge.

Yes.

It does -- it doesn't

make sense to import these concepts about assaultive resistance

and active resistance, which are designed for a different

purpose, into this TRO.

the TRO presumes that we're dealing with members of the press

and religious, you know, exercisers and protesters who are

peaceful.

complicates it and doesn't really make sense.

And that's exactly right, it -- it --

And so doing this the way they've suggested overly

Furthermore, our language in 1.c. is modeled from the

injunction entered by Judge Vera in the L.A. Press Club case.

THE COURT:

Mr. Skedziewlewski, what's your -- do

you -- do you see where I'm going with that?

worried about saying -- importing the idea of active or

assaultive resisters when the TRO is not meant to cover them.

MR. SKEDZIEWLEWSKI:

I -- I'm -- I'm

Yes, Your Honor, I see where the

Court is going.

Our concern -- and maybe this could be addressed in

the sort of catchall paragraph that is -- the Court suggested

adding in 1.k.

We just want to make sure that when -- whatever

Appendix 029

the TRO says, that officers won't be sort of held in violation

of the TRO when they're following CB -- you know, following the

policy in the use of less-lethal devices.

standard, whether it's assaultive or -- or active resistance

or -- or -- or deadly force that they're facing, and so maybe

we could tweak that paragraph K to incorporate that concept

without going into all the details that we laid out in

paragraph C.

THE COURT:

So in terms of what the plaintiffs then laid out in C

with these examples, do you have any objection to that?

MR. SKEDZIEWLEWSKI:

So I will put a little placeholder

once we get to K, and we'll pick that up and deal with that.

Okay.

No, Your Honor, provided that the

Court agrees to -- to strike that 37 millimeter --

THE COURT:

MR. SKEDZIEWLEWSKI:

Yes.

-- launcher, because I've heard

from the client that that's just not used.

millimeter.

THE COURT:

Yeah.

They do use the 40

And it looks like they actually --

so they struck soft-nosed round.

in?

So should that be still back

You didn't strike it.

MR. SKEDZIEWLEWSKI:

THE COURT:

MR. SKEDZIEWLEWSKI:

Whatever the

I don't --

They did.

Yeah, I didn't -- I don't see

that in our policy manual, so I -- I think it should probably

Appendix 030

be stricken.

It may have been an oversight on our part that --

THE COURT:

MR. SKEDZIEWLEWSKI:

THE COURT:

rounds.

So we'll keep 40.

Okay.

-- that we didn't strike it.

So we'll strike the soft-nosed

We'll keep 40 millimeters.

All right.

They had struck 40 and 37.

And then the last part.

The question that

I had for the plaintiffs is, where it says:

"And members of

the press, protesters, or religious practitioners who are not

themselves posing a threat of immediate physical harm to a law

enforcement officer or another person," I am -- I'm wondering

what your thoughts are on instead of saying "posing a threat of

immediate physical harm to a law enforcement officer or another

person" to instead say "who are not themselves demonstrating

either active resistance or assaultive resistance as defined in

the CBP policy."

MR. ART:

Judge, I think our concern with that is

the -- the standard for using that level of force -- and -- and

this will apply in D and E and F as well -- is not fully

defined by that definition in the DHS policy.

So in other words, if you're complying with the DHS

policy, presumably you're complying with the Fourth Amendment.

THE COURT:

MR. ART:

Right.

But we think the direction from this Court

should be based on the Fourth Amendment on this particular

Appendix 031

point and not DHS policy.

So in other words, if they're following their policy

as co-counsel -- or our opposing counsel has said, they'll be

complying with this order.

plaintiffs is the one we have defined, they'll be -- you know,

they will not trigger that Fourth Amendment standard, right?

But I think that from this Court, the direction should be one

based on the Constitution.

THE COURT:

You know, if the class of

So I guess the issue brought up that I see

in the government's draft is that they split out the weapons,

right, and different things to be used, that certain of these

can be used only when the officer is experiencing assaultive

resistance and others would be limited or used for active

resistance.

And so if we've got everything kind of listed here, it

does make it a little bit messy.

concern with this, is if we don't refer them back that -- for

example, pepper spray.

active resister.

basically a Taser, the electronic control weapon.

That's the -- that is my only

So pepper spray would be used with an

You would -- I forget what it is, the --

What is it?

They're these compressed air launchers.

So the compressed air launchers can only be used for somebody

demonstrating assaultive resistance but couldn't be used if you

were demonstrating active resistance.

immediate physical harm to a law enforcement officer or other

And so to simply say

Appendix 032

person, their policy does break -- break it down where, you

know, assaultive resistance is serious bodily injury or death

or physical injury.

MR. ART:

I -- I think that assaultive resistance as

defined by the DHS encompasses all of the Fourth Amendment

standards, right?

force in the first place, the Fourth Amendment standard for

using deadly force.

The Fourth Amendment standard for using

What we've tried to do in C and D is take those

mechanisms that are the use of force, as this Court has found

in its ruling so far, and say, those can't be used unless the

Fourth Amendment has been satisfied that they can be used,

right?

differently than the Fourth Amendment, then those policies

can't be enforced consistent with the Constitution in this --

And so if DHS is defining standards for using force

THE COURT:

MR. ART:

THE COURT:

Right.

-- case.

But I -- I -- we might be talking past

each other, is that where we're delineating specific weapons,

because some of those weapons can be used in one instance and

other weapons cannot be used, I am -- what I don't want to do

is kind of go contrary to either CBP's or DHS's use of force

policies that are consistent with the Fourth Amendment.

You see what I'm saying?

MR. ART:

I think that if their policies are

Appendix 033

consistent with the Fourth Amendment and this Court's order in

this case says, you have to satisfy that standard, then they

will be able to use the mechanisms in the situations defined by

their policy consistent with the Fourth Amendment.

And all we have done is we have taken those mechanisms

that are use of force in C and D and that are deadly force in

E and F and we have said, to use those things, you have to

satisfy the applicable Fourth Amendment standard.

It -- it -- if what they are saying is no, our

policies provide that in some circumstances when there is

active resistance, as defined by our policy, we can use

particular devices against people, and the Fourth Amendment

isn't satisfied, then we would have a conflict and this Court

should order the Fourth Amendment relief.

If what counsel for the government is saying is, no,

we can only those weapons in circumstances that satisfy the

Fourth Amendment, then I don't think that we would need to

change the language we've proposed.

here's the Fourth Amendment standard.

when the Fourth Amendment is satisfied, and there is no need to

discuss DHS policies in this circumstance.

THE COURT:

MR. ART:

is that the government --

The Court could say,

You can only use force

So --

In other words, Judge, I think our concern

THE COURT:

I guess -- I guess, would it -- so I

Appendix 034

think -- so can we think about it this way?

Can we break

out -- because we're using -- we're talking about specific

weapons.

can we break them out, like C could cover whatever they are

allowed to use with active resisters, right, and then whatever

they could use with regard to assaultive resisters?

Can we break out -- and maybe we already have -- but

Does that make sense?

MR. ART:

I think that that's what we have done,

Your Honor, is we've included all of the weapons in C, because

they are all uses of force.

THE COURT:

MR. ART:

Right.

And I think that the problem, Judge, is that

if the definition of active resistance that the government is

using is less than the standard required to use any force under

the Fourth Amendment, then we are displacing the Fourth

Amendment with a DHS defined policy.

So I think we sort of, like, stand on our proposal in these

sections that that last clause explaining the Fourth Amendment

law to the government is important.

We don't want to do that.

In terms of what weapons are included, they're all in

C, because they're all uses of force --

THE COURT:

MR. ART:

And then in E, you know, we are using a subset that

Right.

-- when they are used against class members.

are deadly force.

Appendix 035

THE COURT:

MR. ART:

Okay.

And then in F, we are simply saying that

when you use particular weapons in a particular -- if you shoot

them at a person, as they have in a particular place --

THE COURT:

MR. ART:

Mm-hmm.

-- that is also deadly force, right?

And

thus, you know, a -- a greater showing is required under the

Fourth Amendment.

So I think that the -- the clearest command possible

is to say, here's what the Fourth Amendment requires for any

use of force, that's C and D; and here's what it requires for

deadly force, that's E and F.

written are implemented the way they should be and haven't

been, as the Court has found --

THE COURT:

MR. ART:

And if the DHS policies as

Mm-hmm.

-- then they're going to comply with the

language that the Court orders if the Court adopts plaintiffs'

proposal.

MS. WANG:

And -- and just to -- to mention that the

definition 1.c. that we proposed was adopted a month ago in

LA --

THE COURT:

Mm-hmm.

MS. WANG:

-- and they have not come to the court

saying, you know, that the -- the officers don't know how to

apply that.

Appendix 036

THE COURT:

Okay.

MR. SKEDZIEWLEWSKI:

But we -- we actually have come

to the court and asked for a stay for exactly that reason, that

officers don't know how to apply the order.

But, Your Honor, if -- I think I could shed a little

bit of light on this.

THE COURT:

MR. SKEDZIEWLEWSKI:

Yep, go ahead.

Defendants aren't saying -- well,

allow me to rephrase that.

This -- this last clause in C -- in paragraph C does

not actually lay out the -- the correct Fourth Amendment

standard.

listing all the devices but not specifying how they're used

will lead to confusion.

And the -- the ambiguity in the first sentence

Just to give one example, the compressed air launchers

are allowed to be used when responding to active resistance for

what they call in the policy saturation.

firing small balls containing a pepper chemical at the -- at

the sort of ground near individuals, you know, showing active

resistance.

that's -- that nuance is not captured, and it's just a blanket

prohibition against using compressed air launchers against

people posing a threat of immediate harm.

That's where you're

That's -- and as written in plaintiffs' version,

But, of course, by policy and consistent with the

Fourth Amendment, those launchers can be used against

Appendix 037

individuals who are not posing a threat of immediate physical

harm when used to saturate an area, rather than as a kinetic

impact projectile.

MR. ART:

MR. SKEDZIEWLEWSKI:

Your Honor -So -- so it's -- it's that nuance

that we're trying to capture and to avoid a blanket prohibition

against using these devices, in -- in fact, in ways that are

less -- and, in fact, can be, you know, no force at all.

So plaintiffs' version would actually sort of channel

agent's actions into a higher level of force by prohibiting a

lower level.

counter to what they're actually trying to accomplish here.

And -- and so I think that's just counter -- runs

MR. ART:

Your Honor, that explanation is exactly why

the Court should enter an order that says, here's the Fourth

Amendment standard that you have to meet to use force.

counsel is saying is, no, we actually use this kind of force

against protesters who aren't posing any imminent threat of

harm to an officer or another person, so we want to be able to

do that.

What

And the point here is that that's unconstitutional.

The Court has found that that use of force on the scene ongoing

is unconstitutional.

order saying you can't use that kind of force.

THE COURT:

And obviously, the government needs an

Okay.

All right.

So anybody want to add

anything else on, I guess it would be C, D, E, and F?

No?

Appendix 038

MR. ART:

Not from the plaintiffs.

THE COURT:

Anything?

Okay.

All right.

So as you know, as I

have ruled, I am entering -- going to be entering a TRO.

It's not going to be today.

It will be tomorrow

morning.

I need a little time to just figure out these

sections, because I do think that it is extremely important if

what we are telling these officers and agents that they are not

to do.

envision some circumstances where consistent with the Fourth

Amendment, right, what is a reasonable use of force might be

the use of a pepper spray where there is not an imminent threat

of harm to the officer and they're not -- and it's not even

necessarily becoming violent.

If we're listing out specific weapons, and I can

But, you know, I'm thinking if there's a medical

emergency in the crowd and the crowd refuses to move, for

example, the crowd's not causing a medical emergency, they're

not threatening the person suffering the medical emergency, but

it's so chaotic that the agents want to get into the crowd to

get that person assistance, that, you know, they could

potentially -- and I don't -- I'm just kind of thinking out

loud, right -- that there may be a use of force that is

consistent with the Fourth Amendment in order to get the crowd

to comply.

I just -- I think we're close, and I -- and I

Appendix 039

understand the plaintiffs' position.

to include standards that are -- that don't meet or are

contrary to the Fourth Amendment requirement or less than the

Fourth Amendment requires.

we're telling them they can or cannot do, and it's laying out

specific types of weapons, I just think I need a little longer

to figure out how to adjust this.

MR. ART:

I'm not obviously going

But because this is -- this is what

Understood, Judge.

Could I make one more

point?

THE COURT:

MR. ART:

Yep.

In the example that the Court just offered,

I think that that is completely consistent with what we've

proposed because in that situation, the class of plaintiffs

here is posing a risk of imminent harm to another person,

right?

So I think the Court's quite right that there are

situations like that, but I think they are going to be

consistent with this order.

enforcement, you won't see us coming in and saying, you know,

they cleared the way when no one would move to get the guy who

had a heart attack, right?

And I think that when it comes to

And so I think that that's consistent with our order.

And I also think that K, which we're going to get to --

THE COURT:

MR. ART:

Mm-hmm.

-- covers that sort of incidental exposure

Appendix 040

scenario.

So with that --

THE COURT:

MR. ART:

THE COURT:

a little bit more.

All right.

MR. SKEDZIEWLEWSKI:

Yeah.

-- we understand.

Okay.

So I just need to think about this

able to just quickly --

THE COURT:

MR. SKEDZIEWLEWSKI:

Your Honor, would -- would I be

Yeah.

-- provide another

counterexample?

THE COURT:

Absolutely.

MR. SKEDZIEWLEWSKI:

So I -- I think -- I think

your -- the Court's example is -- is a good one, but we

actually have one in our brief that is -- is apropos here.

In -- in LA, you know, an officer was trying to detain

an individual, and a bystander who was sort of not presenting a

threat to the officer but was interfering with the arrest.

the officer wasn't in any danger of physical harm but was

unable to, you know, complete the arrest.

And so in that case, you know, a -- an area of

saturation or pepper spray is sort of the -- you know, it's the

lowest level of force the officer could use without, you know,

sort of going hands-on or -- or using some elevated level of

force.

Appendix 041

So this -- that -- so just another example of why this

language of immediate physical harm is just -- is a little too

restrictive because there are going to be scenarios where these

devices are appropriate at that lower level of, you know,

active resistance.

MR. ART:

That person's not in the class, and that

person satisfies the Fourth Amendment standard as well.

THE COURT:

Yeah.

So I just need to think it through

a little -- just a little longer, because we all know that this

is not the only time that a judge is going to look at this

order.

need to cover.

So I just want to make sure that we've covered what we

And then for -- oh, the -- so we're going to jump over

these, but -MR. SKEDZIEWLEWSKI:

Your Honor, I have one point

on -- on F, if -- if we're sort of moving past that now.

THE COURT:

Yes.

Just give me one second.

to go back to D for a second.

I wanted

Do the plaintiffs have an objection to the -- to

having it be "reasonably foreseeable" as opposed to simply

"foreseeable"?

MR. ART:

No, Your Honor.

THE COURT:

Okay.

And what are your thoughts on

"objectively reasonable under the totality of the

circumstances," as opposed to "necessary to stop an immediate

Appendix 042

and serious threat of physical harm to a person"?

MS. WANG:

So --

MR. ART:

I think -- oh, go ahead.

MS. WANG:

No.

I mean, I -- I -- we would object to

that because, again, the, you know, presumption of, you know,

who -- our plaintiffs and the -- the class is that they're not

engaged in activity that is assaultive or interfering or

obstructing or any of those things.

back to a very -- a -- it's -- it's not as specific as what we

need in a specific circumstance, which is, you know --

And this just takes it

THE COURT:

Right.

MS. WANG:

-- ordering officers to do something

specific or not do something specific.

THE COURT:

Okay.

You know, it seemed a little vague

to me, but I just wanted to get your -- okay.

So then you wanted to go to F.

Go ahead.

MR. SKEDZIEWLEWSKI:

And just going back to -- to D for a moment, it's been

Yes, Your Honor.

mentioned a few times now that the -- that the TRO will only

apply to -- I think it's been said a few -- a couple of

different ways, but to peaceful, you know, protesters --

THE COURT:

Right.

MR. SKEDZIEWLEWSKI:

THE COURT:

-- or to class members.

Right.

Appendix 043

MR. SKEDZIEWLEWSKI:

If we could just have that in the

order somewhere that it's -- it's limited to peaceful

protesters and, you know, plaintiffs -- individual plaintiffs

and class -- putative class members, that would just give

defendants a little bit of comfort on this issue that when

we're dealing with, you know, violent offenders, that -- that

we can use the type of force the policy allows.

MR. ART:

There's nothing about the proposed order

that prevents the defendants in this case from using all of

their law enforcement power when they have probable cause, when

the Fourth Amendment is satisfied.

in some artificial way, right, whether it's geography, as the

government argued earlier, or the particular people to which

they're going to apply it.

We don't need to narrow it

The Court has to fashion relief that can be

administered on the scene with all kinds of people present.

Our plaintiffs are peaceful, and they are the ones entitled to

relief.

going to have to necessarily be broadly stated to make sure

that all of the plaintiffs get the relief they are seeking.

But as the Court said in the LA case, the relief is

And it shouldn't be that the government's, you know,

saying, there's Reverend Black, I'm not going to shoot him, but

I'm going to shoot someone else, right?

THE COURT:

MR. ART:

Right.

It doesn't work.

Appendix 044

THE COURT:

No, I mean, it's just unworkable to do

that.

Okay.

MR. SKEDZIEWLEWSKI:

THE COURT:

MR. SKEDZIEWLEWSKI:

So G --

Yeah.

I can raise that point about F --

Go ahead.

-- F, Your Honor, if you don't

mind.

THE COURT:

Yep.

Go ahead.

MR. SKEDZIEWLEWSKI:

So I believe -- I'm sorry.

I'm

looking at our version, but let me take a look at plaintiffs'

version here.

these systems on the torso.

plaintiffs have there in that sentence, the head, neck, groin,

other sensitive areas, that's all consistent with policy, but

torso is not.

sensitive area, excepting what the policy does add is sort of

the -- the female breast area.

They have this -- this prohibition about use of

That's -- all the rest of what

The torso is the only place that is not a

So I would just request that that particular clause

line up with policy, which should say head, neck, groin, spine,

a -- a female breast.

kind of swallows the delimitation, so that should be stricken.

And then other -- other sensitive area

MR. ART:

We have no objection to that proposal.

THE COURT:

Did you guys get that?

All right.

Okay.

So we will make that change.

Okay.

And then turning to G, then we've got this

Appendix 045

extra section that the government's added about objectively

reasonable and factors to determine what's objectively

reasonable.

MR. ART:

Yeah, Judge, we -- we discussed this one a

bunch last time and concluded that kettling wasn't a use of

force --

THE COURT:

MR. ART:

Right.

-- and that this is setting out the use of

force standard under the Fourth Amendment.

government added would be sort of like if we were having an

argument about how you or a jury would determine if excessive

force had been used.

THE COURT:

MR. ART:

Right.

I don't think it needs to be something that

boots on the ground are told about what to do and not to do.

THE COURT:

Everything the

So I'm not sure why the government added

this piece in here for G.

MR. SKEDZIEWLEWSKI:

I think -- I think the client

liked that being in there, Your Honor, just to make sure that

we were agreed as to what the standard is.

through the proposal, you know, it -- the -- the exceptions

to -- you know, where -- where agents can use force aren't

repeatedly stated in a way that's too restrictive, right?

So immediate threat of physical harm is just not the

Because as we go

standard.

The standard is objectively reasonable under the

Appendix 046

facts and circumstances.

be -- immediate threat of physical harm is exactly the kind of

mechanical application that the -- you know, that the case law

says we shouldn't impose on officer conduct.

MR. ART:

So we just want to -- there can't

It -- it -- the Court has to order some

relief that defendants can follow.

And what the Court is

saying is you can't use force unless something --

THE COURT:

MR. ART: -- that I define is happening.

The Court is not saying you can use force if --

THE COURT REPORTER:

Mm-hmm.

Make sure you stay closer to the

microphone.

MR. ART:

You can use force, if, for example, you know, I would

judge you from the perspective of a reasonable officer on the

scene rather than 20/20 vision hindsight could use force.

That's not something that the Court can tell an officer and get

a result.

I'm so sorry.

THE COURT:

Well, and it seems to me this is something

that looks a lot more like a jury instruction that I would

give, Mr. Skedziewlewski, as opposed to something in a TRO

order where an officer/agent can look at it and say, yes, I can

do X, or no, I can't -- you know, I can't do Y.

And I'm -- you know, my overarching goal with this TRO

is to make it as clean and plain and directed as possible so

Appendix 047

that when the agents -- it really needs to be from the

perspective of the officer or agent who looks at this and says,

in this particular situation, I can do X; I can't do Y.

this I think just makes it a bit more cumbersome than it needs

to be, and I don't know that it adds to anything.

Okay.

And

Turning to H about the warnings, so I did want

to track the -- kind of the language of -- of the policies.

So I actually do prefer what the government had

proposed in -- but I do want that it is two warnings.

You can

give the two warnings, you know, kind of back-to-back, but I do

think that that second warning is a backstop so that if you

missed it the first time, you're going to hear it the second

time.

And it does describe or let them know how to determine

when something's feasible in that it lets -- you know, they're

to give these two warnings, explain what they're going to do,

and then give people time to comply before they do it.

MR. ART:

in principle, Your Honor.

I don't think we have any objection to that

I think that the -- in addition to the two warnings

that at a sound level where it can be heard --

THE COURT:

MR. ART:

Mm-hmm.

-- is important, and we would ask that the

Court include that in a version of -THE COURT:

Sure.

Appendix 048

MR. ART:

THE COURT:

Mr. Skedziewlewski?

-- the government's proposal.

Do you have an objection to that,

MR. SKEDZIEWLEWSKI:

Yes, Your Honor.

Just -- yes,

just to the extent that it's subjective and officers, you know,

can't know, especially in, you know, more chaotic situations

whether an announcement, even when it's been given over a

professional-grade PA system, is heard.

LA case that individuals said they didn't hear warnings when

our officers issued warnings over an industrial-grade PA system

for every five minutes for 45 minutes straight and still people

said they didn't hear.

THE COURT:

MR. SKEDZIEWLEWSKI:

THE COURT:

MR. SKEDZIEWLEWSKI:

I mean, we saw in the

Well, so -So I just -- I could just see --

-- I can --- officers doing everything that

they can to -- sorry.

THE COURT:

No, that's okay.

I didn't mean to

interrupt you.

But, you know, I can put in at a sound level

where it can be reasonably heard, right, in that we're going

back to the objective reasonable person standard and if it's on

a -- you know, blasted on a sound system and you're not

listening, well, that's on you.

to be, which I don't think would happen, but meant to be where

the officer whispers a warning and nobody can hear it and then

But, you know, this is meant

Appendix 049

employs force.

So, you know, we've got two warnings which will ensure

that if somebody -- if it's chaotic and somebody happens to

miss it the first time, that it's the second, you know, you

have this opportunity to comply because there have been two

warnings and that it's a sound level where it can be reasonably

heard.

it's broadcasted over a sound system, then yes, you know, a

reasonable person would be able to hear that.

Reasonable certainly seems to cover an example where if

All right.

And then I, why did the plaintiffs take

out "who is not resisting a lawful dispersal order"?

MR. ART:

We thought that the --

COURT REPORTER:

MR. ART:

Microphone, please.

We thought that the Court's instruction last

time, that your prohibit -- the -- the sort of double negative

made it confusing, and so we -- that's -- that's why we took

that out.

THE COURT:

MR. ART:

Okay.

We don't think that the government's

alternative proposal, though, should be accepted.

You -- you

know, this is -- this -- the standard procedure is that you

have probable cause to believe that the person you are seizing

has committed a crime, not that you have some belief yourself

that maybe a lawful dispersal order was given and not followed.

So we think it needs -- that -- that -- the government's

Appendix 050

language there does not fly given the Fourth Amendment

violations the Court has already found.

THE COURT:

All right.

So in -- just on further

thought -- I'm just trying to think of the class members and

how this TRO is going to cover them.

I think maybe it does make more sense to put it back

in, "who is not resisting a lawful dispersal order."

MR. ART:

We're fine with that, Judge.

I mean, our --

our concern is the very, very common practice that we are

seeing on the ground of a demonstrator being dealt with by

being seized for no reason, taken out of the protest, and then

rarely ever charged and released back onto the street the next

day.

THE COURT:

MR. ART:

Mm-hmm.

And that's blatantly unconstitutional.

And

so, you know, we took that out to make it more readable; but if

the Court wants to put it back in, we are fine with that.

THE COURT:

Okay.

So we'll put that back in.

And I don't -- I don't think that the government's

addition to paragraph I is needed.

I think that is covered.

And, again, you know, we've got the catchall at the end.

where the officer believes that they're following the TRO, I --

I just don't know that we're going to get a bunch of people

coming back in and complaining about I.

clear.

I think it's pretty

Appendix 051

All right.

J, the --

(Counsel conferring.)

THE COURT:

So I'm going to go with the plaintiffs'

change, which is instead of "shall be considered," it will be

"are examples of indicia of being a journalist."

change from "it shall also be" to "other."

So it will read:

And their

"Other indicia include that the

person is standing off to the side of a protest."

substantial distance away from a protest, I don't even know

what that means.

know, you can kind of look and see if somebody is standing off

to the side and that they're not engaging in the protest

activities.

I think that just is confusing, whereas, you

Is -- do you have an objection to "the government

You know, a

breaks down protest activities"?

MS. WANG:

I -- I mean, there's many -- that's some

ways that somebody could be protesting, but I -- I would think

that the word -- the phrase "protest activities" is just

sufficiently clear to an officer.

THE COURT:

Well, I mean, if we want to make it clear,

MS. WANG:

Because otherwise --

THE COURT:

-- because they've got "otherwise

right --

protesting" -MS. WANG:

"Otherwise protesting."

Appendix 052

THE COURT:

-- right?

MS. WANG:

Okay.

THE COURT:

And if what we're trying to do is say we

Yeah.

want to make this clear that these activities -- you know, if

you see a journalist chanting or holding up a sign that they're

engaging in a protest activity and not acting as a journalist.

MR. ART:

I guess we would advocate for removing

"shouting," you know, if they're shouting, "Don't fire that

bullet at me."

THE COURT:

Yeah.

And, Mr. Skedziewlewski, what -- I

mean, do you -- you have an objection to removing "shouting"?

MR. SKEDZIEWLEWSKI:

I understand the point.

Maybe

there's a way we could modify it to keep something like that in

there, because just the concern is, at least from -- from our

point of view, being at a protest is sort of -- it could be

construed as a protest activity, right?

point is showing strength in numbers, showing support for a

cause by your presence, but of course journalists are also

present at protests.

line -- as clear a line as we can get, between journalists and

protesters so that this definition is actually workable.

"Shouting slogans," maybe, or something like that.

THE COURT:

"shouting slogans."

MR. ART:

I mean, sort of the

So we're just trying to get a clear

I don't necessarily have an issue with

I don't --

Neither do we.

Appendix 053

THE COURT:

-- think that any journalist is going to

be saying --

MS. WANG:

Shouting slogans.

THE COURT:

Right?

MS. WANG:

Right.

THE COURT:

You're not going to be saying -- you know,

as a journalist, you're not going to be yelling "down with

ICE," right?

MS. WANG:

Right.

MR. LOEVY:

That's right.

THE COURT:

If you're going to be yelling something,

it's, you know, "Take your hands off that guy" or "Don't shoot

at me."

So -- okay.

I bet the people in this courtroom observing never

So we'll include "shouting slogans."

imagined that law would be so exciting.

Okay.

And then I don't know that we need to say that

a sufficient number of indicia must be present.

Basically what

we're trying to tell the officers is if you see somebody that

is acting -- you know, if it -- what is it, walks like a duck,

talks like a duck, quacks like a duck, it's probably a duck.

If they're acting like a journalist, they're probably a

journalist.

believe -- have a reasonable belief that they are.

because -- because we've got this last sentence that states,

They don't have to tick every box, but you need to

And

Appendix 054

"so the defendants will not be liable for unintentional

violations of the order in the case of an individual who does

not carry or wear a press pass, badge, or other official press

credentials, professional gear, or distinctive clothing that

identifies a person as a member of the press."

So it's, you know, this clause at the end that

basically says, if you did your best, right, and this person --

you didn't have a reason to believe essentially that this

person is a journalist, you're not liable.

MR. SKEDZIEWLEWSKI:

Your Honor, could I make or

suggest one small tweak to that sentence?

THE COURT:

Sure.

MR. SKEDZIEWLEWSKI:

We've seen it where a journalist

was carrying their press pass, but it's tucked away in their

pocket and then they, you know, joined in the -- in a lawsuit

against DHS.

make -- it has to be that they're wearing it?

So could we just strike the word "carry" and

THE COURT:

Any objection to that?

MR. LOEVY:

If we can have one moment, Your Honor.

THE COURT:

Mm-hmm.

(Counsel conferring.)

MR. LOEVY:

We're okay with that, Your Honor.

THE COURT:

Okay.

So then we'll strike "carry."

And then I don't know about that last sentence

about -- the defendants proposed:

"Participating in any form

Appendix 055

of violence or threat of violence immediately disqualifies a

person from being considered a journalist for purposes of the

order."

I mean, the order is supposed to protect people

behaving in a nonviolent way.

is behaving in a way that is violent or threatening violence,

then the order doesn't apply by its terms.

MR. LOEVY:

And it doesn't apply if somebody

We agree, Your Honor.

If it's -- so to

the extent it's redundant or confusing or could be

misconstrued, it's not necessary.

MR. ART:

And I guess the other point we'd add, Judge,

is that that doesn't make someone not a journalist, and all

we're trying to do here is define journalist.

journalist that they can take law -- law enforcement action

against.

THE COURT:

Mr. Skedziewlewski?

It makes it a

What are your thoughts on that,

MR. SKEDZIEWLEWSKI:

Maybe I'm just missing something,

but could the Court point me to the -- the terms that limit the

order only to peaceful journalists, protesters, or other

individuals?

THE COURT:

MR. ART:

Let's see.

I think what we're talking about, Judge, is

each of the clauses in C, D, E, F, G that state when law

enforcement action can be used to effect a seizure.

Appendix 056

MR. LOEVY:

And A and B.

MR. ART:

You want to read A?

MS. WANG:

It's covered by A too.

THE COURT:

So, you know, the defendants have to have

probable cause to believe that the journalist committed a crime

before they could use force.

using violence would fall under committing a crime.

they wouldn't be prevented from dispersing, arresting,

threatening to arrest, threatening or using physical force

against that person even --

MR. SKEDZIEWLEWSKI:

I'm -- oh, excuse me.

And so threatening violence or

Therefore,

Maybe the issue, Your Honor, is

I didn't mean to interrupt.

THE COURT:

No, that's fine.

MR. SKEDZIEWLEWSKI:

Maybe my -- my mistake is that

there's some equivocation on the -- the -- the term

"dispersing" in paragraph 1.a.

term here to mean, you know, issuing a lawful dispersal order

and then directing people to disperse.

Court understands "dispersing" to mean some use of force,

you know, physically causing someone to be dispersed, that --

that seems to make a difference.

MR. ART:

I -- I understand this -- that

But if -- if -- if the

So paragraph A, first, covers dispersing,

arrest, use of force, explicitly as separate concepts.

So I --

I don't think the objection applies to what we're talking about

here.

Appendix 057

But I think it -- to the extent the Court wants to

define "dispersal order" in some way, because it's not a crowd

control entity, that DHS has no policy like that, but the

Chicago Police Department does, and -- and a dispersal order is

a lawful command given by a department member to all persons to

leave a designated area.

"dispersal order" in its order that way because it prevents

confusion or equivocation, we have no objection to that.

And if the Court wants to define

THE COURT:

Okay.

MS. WANG:

We have a copy of the order.

THE COURT:

Okay.

MS. WANG:

The general order.

THE COURT:

Great.

MR. ART:

We're -- you know what we will do?

We can

submit that language to the Court --

THE COURT:

MR. ART:

THE COURT:

MR. ART:

THE COURT:

MR. ART:

So can you give us a copy of that?

Perfect.

-- right after this hearing.

Yep.

That would be great.

Okay.

All right.

Then K.

K is the language from Los Angeles that the

Court wanted added --

THE COURT:

MR. ART:

THE COURT:

Yeah.

-- at the last hearing.

And I wanted to add -- so it only has

Appendix 058

"crowd control devices."

"chemical dispersal agents or physical force."

that covers everything that we were talking about anyway.

MR. LOEVY:

And the government has added

We agree, Your Honor.

And I think

We don't -- we

understand why it would need to be in there.

THE COURT:

Okay.

So we'll include those.

And then I think the "otherwise warranted" language,

though, is redundant because we are covering that in other

sections.

So as long as, you know, you are using force in a

manner that complies with the injunction, if other people are

caught up in that, then you're not liable.

Okay.

Then 2 -- and this is a question that I've got

for you, Mr. Skedziewlewski, is what is the policy for ICE

agents and CPB -- or CBP, sorry -- agents with the use of body

cams?

MR. SKEDZIEWLEWSKI:

Your Honor?

THE COURT:

With the use of body cams,

Mm-hmm.

Are they required to wear body

cams?

MR. SKEDZIEWLEWSKI:

Oh, I don't know.

I would have

to ask the client about whether there are requirements.

that they sometimes use them.

requirement.

THE COURT:

I know

I don't know that there's a

Okay.

Appendix 059

And I guess one of the things I would be interested in

knowing -- and we will unfortunately be back tomorrow morning

just to tie up all our loose ends so I can get this entered --

this order entered.

But the one thing that I'd like to know is are these

agents -- so we're talking about ICE agents and Border Patrol

agents under DHS.

operating?

Are there any other agents that are

MR. SKEDZIEWLEWSKI:

The claims in this case,

Your Honor, are -- seem largely limited to ICE and CBP.

FPS, HSI, ERO, there are a number of other component agencies

that could -- could be involved that they -- that were

involved, say, in the L.A. Press Club case.

But

But, for example, FPS's role is, you know, typically

limited to protecting federal property.

at issue here where most of the claims stem from is a detention

facility, so it's sort of being handled -- I think is handled

by ICE with assistance from CBP.

THE COURT:

Okay.

The Broadview facility

So I just kind of wanted to know

the lay of the land of the different agencies involved and

whether they have a consistent policy on the use of body

cameras and what that would be.

Yes, go ahead.

MS. WANG:

I mean, I -- I don't know the answer about

the body cameras, but I understand where Your Honor is going,

Appendix 060

which is I presume if there's body cameras, that would be a way

of identifying them.

THE COURT:

Or no?

If there's body cameras and there's a

consistent policy that they need to be turned on, then I want

them on.

MS. WANG:

Yes.

And the -- the -- in the Denver

protest case from 2020, the Court did exactly that thing, and

then the Colorado legislature passed a law requiring officers

policing protests to turn on their body cameras.

THE COURT:

So I don't know as I sit here right now

what the policy is regarding body-worn cameras, but I would

like to know what that is and how feasible it is to order that

they be used.

So 2, the -- I've got the statute.

So the 10 U.S.C.

§ 723, which is requirements for use of members of the Armed

Forces and federal law enforcement personnel, supportive

federal authorities in response to civil disturbances.

talks about when law -- federal law enforcement personnel need

to visibly display identifying information.

And it

The exceptions -- so the default is that they need to

provide some sort of identifier that's unique to that person

and the agency under which they're employed.

is essentially if they're not wearing a uniform or other

distinguishing clothing or equipment in the regular performance

of their official duties or they're engaged in undercover

And the exception

Appendix 061

operations.

So I think that I have a problem with plainclothes in

the government's version, in that draft.

excepting those assigned by a superior officer to undercover

duties.

That covers kind of the exception here that's in the

statute.

But otherwise, everybody else needs to be wearing

something that identifies them numerically and by agency.

MR. ART:

So I'm okay with

I guess our concern with undercover,

particularly -- so we don't have a lot of experience with DHS

doing crowd control and protest control obviously.

police agencies don't use undercover police officers to do that

work ever.

suddenly a bunch of undercover officers are doing this work.

Other

And we will be concerned by the situation where

No.

Well, it's that they are assigned to

undercover duties, right?

So, like, if you're in the middle of

the crowd, right, as an undercover officer, it defeats the

purpose that you've got your badge on --

THE COURT:

MR. ART:

I think --

THE COURT:

-- but, right, one would presume that the

people doing crowd control are not acting in an undercover

capacity at that moment, and it would blow your cover if all of

a sudden you whip out a rocket launcher and blast it at people.

Then you're not undercover anymore.

So I think "undercover" tracks the language of the

statute with the exception.

But it presumes that in -- whoever

Appendix 062

is doing crowd control is not acting in an undercover capacity

because it doesn't make sense.

MR. ART:

Very good, Judge.

MS. WANG:

One moment, Judge.

(Counsel conferring.)

MR. SKEDZIEWLEWSKI:

Your Honor, I -- I understand

maybe they're concerned about the plainclothes phrasing, but

that term is just meant to capture the exception in paragraph

(b)(1) of the federal law, those officers who are not -- who

are designated to not wear uniforms for specific functions.

You know, if the -- if the Court prefers to have the language

match the Section 1720 -- 723, that's -- that would be fine and

it would -- it would capture what defendants are looking for

there with the plainclothes language.

THE COURT:

Okay.

I mean, I think the understanding

is that those -- as to 1 and 2, that it covers undercover

operations.

And then my reading of 1 is that it's, you know,

not -- it's not meant to cover Secretary Noem, right?

meant to cover the person working in HR, right?

MR. SKEDZIEWLEWSKI:

It's not

I think that's right, Your Honor.

But I think it also is meant to encompass sort of

nonpublic-facing duties.

officers are engaged in sort of their public-facing law

enforcement role like has been at issue -- or is at issue in

So, you know, when CBP or ICE

Appendix 063

this case with, you know, crowd control, you know, in those

circumstances they're wearing, you know, the alphanumeric

identifier.

investigation, they might not be undercover.

so undercover typically means they're not carrying a badge at

all because they're trying -- they need to conceal their

identity for the purposes of their investigation.

But if they're engaged in some kind of

They might be --

Plainclothes or what -- or paragraph (b)(1) covers

officers who will be carrying their badge, it's in their

pocket, they will display it if it's necessary, but they're --

they're not engaging in a public-facing role, and so they

wouldn't just have it on display all the time, though they may

be engaged in duties in the field, not -- not just, you know,

at -- at the desk, at an office.

MR. ART:

Judge, I think that ex- -- that definition

swallows the whole requirement of identification.

statutory language that the Court has quoted, "excepting those

who are engaged in undercover operations or do not wear a

uniform or other distinguishing clothing or equipment in the

regular performance of their official duties," we would have no

objection to.

THE COURT:

Yeah.

The

So that's -- it -- I wanted to

track the language of the statute.

MR. SKEDZIEWLEWSKI:

That -- that works for

defendants, Your Honor.

Appendix 064

THE COURT:

Okay.

All right.

And I'm not going to

add the request that "unless such visible identification

creates an imminent risk of harm based on specifically

identifiable threat."

the compromised position here where it's we don't have

anybody's name and it is a number that is unique to that

individual that I think provides sufficient cover and safety

for -- for those officers.

I think that's too vague.

I think that

And again, you know, if there's something where you

believe this is not workable or there are specific risks

inherent in this, then obviously you can always come back to

me.

thought that there was some risk and then, you know, put tape

over whatever the number is so that they can't be identified

because I just -- I -- I just feel like then we're getting into

where, you know, there's always a risk.

MR. SKEDZIEWLEWSKI:

But what I don't want is to hear that the officers somehow

Yes, Your Honor.

The -- the

thing that defendants have in mind with that additional

exception is -- is very narrow, and maybe it wasn't worded as

narrowly as it should have been.

But we're just worried about the scenario where

there's a specific threat tied to the alphanumeric.

So, you

know, there's a gang, for example, has singled out Officer

XYZ123 and they've put out a bounty on that officer.

seen bounties placed on officers by name.

And we've

But --

Appendix 065

THE COURT:

MR. SKEDZIEWLEWSKI:

So -- so --- it could easily be done by

alphanumeric.

THE COURT:

Right.

But if that were to happen and you

were to hear that, then come back in, and I will exempt that

person, right, and --

MR. SKEDZIEWLEWSKI:

We could add a supervisor -- that

only a supervisor at DHS could make that determination?

the -- the --

THE COURT:

MR. SKEDZIEWLEWSKI:

But

No.

-- in other words, the officer

can't just make that determination themselves.

get supervisory authority.

THE COURT:

Yeah.

They'd have to

But, no, I mean, the point is that

you come back to me, right, and I will hear you out.

find that the threat is credible as to this specific person,

then we'll deal with this specific person.

want to leave it up to either that person or the supervisor.

Because what I don't want is, you know, this pervasive belief

that there are these threats and then that gets around the

whole point of this Section 2.

All right.

last page.

And if I

But I just don't

Oh my gosh, we are -- we are at the

Hallelujah.

Okay.

So I could split the baby and make it 48 hours.

I -- I think some of -- the reality is that this is going to

Appendix 066

get entered tomorrow morning.

for this to go out.

people, but -- so I'm willing to give you 48 hours, but I -- I

want this disseminated.

these protests are ongoing every day.

out and is disseminated, the better it is.

MR. ART:

I don't want to wait till Sunday

I understand that, you know, it's a lot of

Because the reality is, you know,

So the sooner it gets

Can -- can we make one proposal on that

point given that if the Court enters the order on Friday, we

are --

THE COURT:

No, I'm --

MR. LOEVY:

Thursday.

THE COURT:

-- entering it tomorrow.

MS. WANG:

We lost track of the days.

(Unreportable crosstalk.)

MR. ART:

I just forgot what day it was today.

Sorry,

Judge.

THE COURT:

MR. ART:

That's okay.

That the Court say something like it should

be distributed immediately on a rolling basis but no later than

48 hours after the entry of the order so that we have some hope

of making sure that by the weekend this is in place?

THE COURT:

Any objection to that?

MR. SKEDZIEWLEWSKI:

No, Your Honor.

And I can, you

know, say to the Court that DHS is going to do its level best

to get it out by the end of the day Friday because they're not

Appendix 067

going to want to do it Saturday morning.

THE COURT:

Right.

All right.

And I'm not limiting it to the Broadview

That's fine.

So...

Okay.

ICE facility.

And we'll keep it as, you know, Operation Midway

Blitz, or whatever we want to call this operation, if it

changes names.

And then any objection to the addition under B for

"first line" as opposed to "any"?

MR. ART:

Only that we don't completely understand the

distinction.

If the notion here is it's going just to the

immediate supervisors of on the ground first-line personnel, we

have an objection to it.

supervisory chain of command in the defendant organization so

that it is clear to all of those folks, including the Secretary

of the Department of Homeland Security, what the order is.

if it means something different that we're not understanding,

we -- we would be open to that.

We think it should go to all of the

THE COURT:

Okay.

closer to the microphone --

MR. ART:

THE COURT:

MR. ART:

THE COURT:

MR. ART:

But

And I'd only ask that you stand

I'm so sorry, Judge.

-- so that you don't --

I apologize.

-- torture my court reporter.

I'm sorry.

Appendix 068

THE COURT:

I like her a lot, and I can't have her

leave.

So what is the difference between "any supervisor"

versus "first-line supervisory or command authority"?

MR. SKEDZIEWLEWSKI:

Your Honor, going from memory

here, I -- I would rather consult notes, but I -- I can't get

them at this very second.

My understanding is that's designed to -- to get this

to the people that it's relevant for; in other words, the

supervisors who have a role in crowd control, not the

supervisors who were far away from the scene in an office not

having anything to do with -- with crowd control.

And it's the same reason that we tried to add in

paragraph A "law enforcement personnel" rather than "employees"

because that -- "employees" will cover our -- you know, our IT

professionals who are working on computers and fixing up Wi-Fi

and things like that.

THE COURT:

Okay.

So I'm okay with law enforcement

personnel, officers, and agents.

MR. ART:

We are too, your -- Your Honor.

THE COURT:

MR. ART:

Okay.

I think the concern with "first line,"

though, is that you've got the Secretary on the roof of the

facility directing troops.

THE COURT:

Yeah.

So...

Let's think about -- so if folks

Appendix 069

can send me, either later tonight or tomorrow morning, a way to

capture both concerns.

So this, you know, doesn't need to go to somebody who

has no operational responsibilities in the Northern District of

Illinois.

kind of executive, top-line folks who should know that this was

the order that we entered, right, who are ultimately

responsible for the operations in Chicago.

But I think if there's a way to also include the

Does that make sense?

MR. ART:

MR. SKEDZIEWLEWSKI:

THE COURT:

So then 4, what is the government's objection to the

Yes, Judge, from plaintiffs.

Yes, Your Honor.

Okay.

plaintiffs' proposal?

So I do want to order the defendants to tell their

employees, so the officers and agents, that they need to

implement the order, right?

language out.

not simply disseminate the order but that they need to follow

it.

Like I don't want to take that

I want to be able to order essentially DHS to

MR. SKEDZIEWLEWSKI:

No objection to that, Your Honor.

All we are trying to address with our edits to paragraph 4 is

just withholding attorney-client privilege.

thought it would be most sort of expeditious to just have the

relevant individuals at DHS submit a -- a very brief

So we -- we

Appendix 070

declaration just saying yes, we've sub- -- we've disseminated

the order; yes, we've instructed -- and if -- and we'll add

this language.

we've instructed all relevant, you know, officers to comply.

It sounds like Your Honor wants in there, yes,

THE COURT:

And that I would want to know if those

instructions change over time.

would, because that would be crazy, right?

way that that would ever happen.

that doesn't.

So have --

I don't anticipate that they

There would be no

But I want to make sure that

So I would want to know, is it changing, right?

MR. SKEDZIEWLEWSKI:

THE COURT:

MR. SKEDZIEWLEWSKI:

We'll --

-- the instructions changed.

Your Honor, I can envision the

instructions changing in response to, you know, an enforcement

motion in this Court or something to that effect.

fine with that language, you know, being included in there.

THE COURT:

And then I --

MR. ART:

But we're

Okay.

Judge, could I speak on that -- that

point --

THE COURT:

Uh-huh.

MR. ART:

I think it -- it is important for the reasons that the

-- if the Court's moving on?

Court has identified that not only is there a sworn statement

that the order has been distributed and the instructions given

Appendix 071

but that the actual instructions get filed with this Court.

struggle to imagine how they could be privileged if -- if

agency personnel are telling line-level personnel here's what

you've got to do.

And -- and --

THE COURT:

MR. ART:

THE COURT:

trying to kind of --

And I guess --

-- I would --

MR. ART:

THE COURT:

Sorry to interrupt you, and I'm just

Yes, Judge.

-- move us along a little, is that -- so

what I am looking for here, I'm not looking for anything that's

attorney-client privileged, right?

these use of force policies, are not attorney-client

privileged.

right, between counsel for -- either in-house DHS counsel or

between Main Justice counsel in DHS.

of that.

And these policies, like

And so I'm not looking for e-mail correspondence,

I'm not interested in any

What I'm interested in is if there is a directive

that's issued that essentially says the Court issued this TRO

and you are supposed to follow the TRO -- I mean, if I were

DHS, that's what I would do because it would keep it real clean

and real simple and real easy and not be trying to explain what

I want them to do or not do.

So I don't run DHS, nor do I want to.

But I think

Appendix 072

that when you are talking to the client that that is the

cleanest, simplest, easiest way to comply, right, is just to

say, the Court entered this order; here is the order; follow

the order, and not try to rewrite or explain what is said in

there.

possible and direct as possible.

That's why I'm trying to keep this as simple as

MR. SKEDZIEWLEWSKI:

Understood, Your Honor.

Just,

you know, the -- the in-house attorneys at DHS know better than

I do how to communicate with field officers so they -- they may

feel the need in their expertise to provide a further

explanation.

case.

that and found it necessary.

THE COURT:

I don't -- I'm not saying that they will in this

I don't know.

But in the past they've certainly done

Yeah.

I just, you know, in my experience

in representing the Chicago Police Department in instances like

this, it is a lot easier and simpler to just simply say this is

the order, you are directed to follow the order, and not

attempt to rewrite the order or do anything or explain the

order.

because those DHS attorneys weren't here and they didn't sit

through all of this, and they don't know what was discussed and

let go or pushed to the side, and they don't know why.

I just think it makes life a lot easier if they kind of go down

that path; but, again, that's just some friendly advice.

Because I think that is where folks get into trouble

All right.

And so

And then 5, I think what we had discussed

Appendix 073

before was rather than "any time," it's just simply "as ordered

by the Court."

MR. LOEVY:

That's our memory too, Your Honor.

THE COURT:

Right?

So I think you actually do better, on both sides,

frankly, if there's no time limit in there but instead that I

will -- you know, plaintiffs will come in and seek relief for

any alleged violation, and then I'll let you know when you need

to respond in consultation with you.

Does that make sense?

MR. SKEDZIEWLEWSKI:

The other piece we were trying to get in there was

That makes sense, Your Honor.

just a meet-and-confer requirement before the plaintiffs come

to the Court so that we -- we might be able to address the

concern and obviate any need for further, you know, motions

before the Court.

THE COURT:

I've got --

MR. LOEVY:

I -- go ahead.

THE COURT:

I mean, I've got no objection to that.

I see that too.

think 72 hours might be too long, because if something is

happening immediately, I would want to hear about it and deal

with it.

plaintiffs believe that there is a violation, that you would

meet and confer before filing anything.

But I also do appreciate the concept of that if

MR. ART:

I think --

Appendix 074

MS. WANG:

And -- I'm sorry.

On -- the only -- I mean, if the Court want -- the --

it -- if it -- there -- if there's going to be a

meet-and-confer, some language in there about that, it should

say -- made, you know, a good faith attempt to meet and confer

within some shorter period of time --

THE COURT:

Yeah.

MS. WANG:

-- because if we can't reach

Mr. Skedziewlewski or what have you, even though we tried, that

should not hold us up because we couldn't actually speak with

him.

MR. LOEVY:

I mean, we'd -- we'd be incentivized to

try to resolve it with the government and if -- if that was the

easiest way to do it.

different.

foreclosed.

And every situation is going to be

If it's a super emergency, then we don't want to be

MR. ART:

are talking.

I -- we're -- all the plaintiffs' attorneys

Sorry about that, Judge, but --

THE COURT:

MR. ART:

That's okay.

-- I think if the Court says, follow my

standing orders and the local rules and procedures and I'll

order briefing schedules on things, that we can do that because

we do in every case.

get the government, we can tell you that.

THE COURT:

And if there's an emergency and we can't

Yeah.

Appendix 075

So why don't -- why don't we do this.

I will say that

the parties need to make a good faith effort to meet and confer

at least 24 hours before plaintiffs file any request for

relief.

to reject it out of hand, but I would want to know from the

plaintiffs why a meet and confer wasn't appropriate or

possible.

And obviously if it's not practicable, I'm not going

MR. LOEVY:

Understood.

THE COURT:

I think -- does that satisfy everybody,

more or less?

MR. LOEVY:

It does, Your Honor.

THE COURT:

All right.

Mr. Skedziewlewski?

MR. SKEDZIEWLEWSKI:

THE COURT:

Okay.

Oh my gosh,

we're almost done.

MR. LOEVY:

And you've dealt with 6.

THE COURT:

I already dealt with because I said there

Yes, Your Honor, that's helpful.

All right.

won't be a bond or any security posted.

And 7, there were no changes.

MR. LOEVY:

Super.

THE COURT:

Woo-hoo.

All right.

I feel like I should

throw some confetti or something.

All right.

We did it.

So I just want to think about

Appendix 076

C, D, E, and F.

can kind of send it to me tonight.

So -- because I want to get it right, I don't want to

If the parties have a further proposal, you

just get it done, so how about 10:30 tomorrow morning?

MR. LOEVY:

MR. ART:

THE COURT:

Mr. Skedziewlewski, does that work for you?

Works for us, Your Honor.

Works for the plaintiffs.

All right.

would be 11:30 your time?

MR. SKEDZIEWLEWSKI:

THE COURT:

MR. SKEDZIEWLEWSKI:

THE COURT:

MR. SKEDZIEWLEWSKI:

Yes, Your Honor, provided that --

Always --- we wrap --

-- happy to see you --- we don't go quite as long as

we have been.

THE COURT:

No.

video so remote is fine.

tomorrow.

about use of force.

go from there.

Which

And I'm always happy to see you on a

And I think it will be very quick

It's just hammering out the -- these last sections

And then we'll get the order entered and

So then the last thing, and then we will call it a

day, is the preliminary injunction hearing.

So when do the

parties want to do that?

come in ten minutes from now and do it, but I guess I should

direct this to the government.

And I know from the plaintiffs you'll

Appendix 077

MR. SKEDZIEWLEWSKI:

back with the client on that question.

I'll do my best to have an answer by tomorrow if that -- if

that works, but --

THE COURT:

MR. SKEDZIEWLEWSKI:

Yeah.

Your Honor, I'll have to circle

And I'm not sure --

That's fine.

-- but hard to say.

There's a

lot going on at DHS right now so tough -- tough to do something

like this on a very short timeline, which we would prefer, but

we'll need time to develop the re- -- our own record.

THE COURT:

course, is 14 days.

and we could do that because -- let's see.

Okay.

Yeah.

And so, you know, the default, of

So if that's what DHS wants, that works,

So allegedly I am supposed to be on trial

starting October 20th on a gun case, but that presumes that the

government's actually open and we can pay jurors.

So what we could do -- so we could hold -- okay.

can hold October 23rd, which is a Thursday, which would be

14 days from when I enter the TRO tomorrow.

going, it will be done by then.

placeholder for people to kind of plan around things.

So I

If my trial is

And we can just use this as a

MR. LOEVY:

You'd envision a one-day proceeding?

THE COURT:

I'm thinking.

I mean, I can do, you know,

the 20 -- Thursday and Friday if we need it, but I don't know

that we do.

But we can see.

What do you think about that, Mr. Skedziewlewski?

Appendix 078

Just as a -- when you're talking to the client and just kind of

as a placeholder to plan?

tomorrow, but...

And you can then change your mind

MR. SKEDZIEWLEWSKI:

That's fine as a placeholder,

Your Honor.

the next two weeks expecting a -- a newborn so I'll have to --

to find some additional coverage.

more complicated for me to get an answer as to date.

we'll -- I'll endeavor to do that as quickly as possible.

I'll actually be out on parental leave sometime in

THE COURT:

Okay.

So it may be a little bit

All right.

But

We'll be sorry to miss

you, but hopefully you'll be doing something a lot more fun.

MR. LOEVY:

Mm-hmm.

THE COURT:

All right.

So we'll hold those two days

as a placeholder for now just so that everybody can kind of

plan ahead and then we can see where we are tomorrow.

And I think -- I think I said 10:30, right?

MR. LOEVY:

10:30 you said.

THE COURT:

Okay.

All right.

Anything that I've missed or we need to

keep talking about?

MR. LOEVY:

Okay.

Can juror -- can private parties pay the

juror pool?

THE COURT:

MR. ART:

THE COURT:

They cannot.

Nothing further from the plaintiffs.

They cannot, no.

No.

What we can all do

Appendix 079

is hope that the government reopens and we get back to regular

business.

All right.

MR. ART:

THE COURT:

We will see you tomorrow.

MS. WANG:

Thank you.

COURT SECURITY OFFICER:

THE COURT:

All right, everybody.

Thank you, Judge.

All rise.

Thank you.

(Concluded at 5:17 p.m.)

I certify that the foregoing is a correct transcript

from the record of proceedings in the above-entitled matter.

/s/Kelly M. Fitzgerald

Kelly M. Fitzgerald

Official Court Reporter

October 10, 2025

Appendix 080

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHICAGO HEADLINE CLUB, BLOCK

CLUB CHICAGO, CHICAGO NEWSPAPER

GUILD LOCAL 34071, NABET-CWA

LOCAL 54041, ILLINOIS PRESS

ASSOCIATION, RAVEN GEARY,

CHARLES THRUSH, STEPHEN HELD,

DAVID BLACK, WILLIAM PAULSON,

AUTUMN REIDY-HAMER, and LEIGH

KUNKEL,

Plaintiffs,

KRISTI NOEM, Secretary, U.S.

Department of Homeland Security

(DHS); TODD LYONS, Acting

Director, U.S. Immigration and

Customs Enforcement (ICE);

MARCOS CHARLES, Acting Executive

Associate Director, Enforcement

and Removal Operations, ICE;

RUSSELL HOTT, Chicago Field

Office Director, ICE; RODNEY S.

SCOTT, Commissioner, U.S.

Customs and Border Protection

(CBP); GREGORY BOVINO, Chief

Border Patrol Agent, CBP; DANIEL

DRISCOLL, Director of the Bureau

of Alcohol, Tobacco, Firearms

and Explosives (ATF); WILLIAM K.

MARSHALL III, Director of the

Federal Bureau of Prisons (BOP);

PAMELA BONDI, Attorney General

of the United States; U.S.

DEPARTMENT OF HOMELAND SECURITY;

U.S. DEPARTMENT OF JUSTICE;

UNIDENTIFIED FEDERAL OFFICER

DEFENDANTS; UNIDENTIFIED FEDERAL

AGENCY DEFENDANTS; and DONALD J.

TRUMP, President of the

United States,

Defendants.

)

Case No. 25 C 12173

Chicago, Illinois

October 6, 2025

2:49 p.m.

Appendix 081

TRANSCRIPT OF PROCEEDINGS EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

BEFORE THE HONORABLE SARA L. ELLIS

APPEARANCES:

For the Plaintiffs:

LOEVY & LOEVY

BY: MR. JONATHAN I. LOEVY

MR. LOCKE E. BOWMAN, III

311 N. Aberdeen Street, Third Floor

Chicago, Illinois 60607

For the Defendants:

U.S. DEPARTMENT OF JUSTICE

BY: MR. SEAN SKEDZIELEWSKI (via video)

950 Pennsylvania Avenue NW

Washington, D.C. 20530

Court Reporter:

KELLY M. FITZGERALD, RPR, RMR, CRR

Official Court Reporter

United States District Court

219 S. Dearborn Street, Room 1412

Chicago, Illinois 60604

312-818-6626

kmftranscripts@gmail.com

PROCEEDINGS REPORTED BY STENOTYPE

TRANSCRIPT PRODUCED USING COMPUTER-AIDED TRANSCRIPTION

Appendix 082

(Proceedings heard in open court:)

THE COURT:

All right.

THE CLERK:

We are here on case 25 CV 12173, Chicago

You can all be seated.

Headline Club, et al. v. Noem, et al.

THE COURT:

All right.

MR. LOEVY:

Good afternoon, Your Honor.

Jon Loevy on

behalf of the plaintiffs.

THE COURT:

of the government?

All right.

I...

MR. SKEDZIEWLEWSKI:

Do we have anybody on behalf

Your Honor, Sean Skedziewlewski,

counsel to the assistant attorney general, civil division, from

Washington, D.C. is here on behalf of the government.

THE COURT:

Rhonda, my screen's not working.

THE COURT:

correct?

And it's Mr. Skedziewlewski; is that

Am I pronouncing it correctly?

MR. SKEDZIEWLEWSKI:

it's Skedziewlewski.

THE COURT:

MR. SKEDZIEWLEWSKI:

THE COURT:

Mr. Skedziewlewski.

hold on one second.

Thanks.

(Off the record.)

All right.

Yeah, Mr. -- yes, Your Honor,

Skedziewlewski.

Thank you.

All right.

So hold on,

We are going to get my screen working.

(Pause.)

Appendix 083

THE COURT:

Mr. Skedziewlewski, can you hear us?

MR. SKEDZIEWLEWSKI:

THE COURT:

Okay.

Great.

All right.

Okay.

So we're here on the plaintiffs'

Yes, Your Honor.

Thank you.

motion for a TRO.

kind of get things out of the way, is we do, given the

shutdown, have amended General Order 25-24, which is the

general order holding in abeyance civil matters involving the

United States as a party.

order applies here because this would include an emergency

involving the safety of human life or the protection of

property, and further, that any litigant affected by the

general order may seek relief from the order by motion.

However, I don't find that the stay

So does either party believe that the stay order

And my understanding, just preliminarily to

applies?

MR. LOEVY:

MR. SKEDZIEWLEWSKI:

Not for federal defendants,

Your Honor.

THE COURT:

Not from the plaintiff, Your Honor.

Okay.

All right.

So getting that out of

the way.

Okay.

MR. LOEVY:

Thank you, Your Honor.

THE COURT:

-- go first then?

MR. LOEVY:

And I'm joined here by Locke Bowman, as

All right.

So, Mr. Loevy, do you want to --

well as, it should be noted, a coalition of attorneys that --

Appendix 084

you got the Mandel clinic from University of Chicago, the

Northwestern Bluhm clinic, the first -- the Protect Democracy

Project, First Defense Legal Aid, and the ACLU all have come

together representing a group of very courageous protesters,

people of faith, religious people, and members of the press

that are here on this very important First Amendment issue.

And taking a step back, the reason we're here is, is

as many of us know, the president has essentially declared war

on the city of Chicago.

know, quoting.

come and use force and knock some heads and -- and get people's

attention.

And that's not hyperbole.

It started in LA.

I'm, you

And he said he's going to

The problem is when he got here, when the federal

troops got here, there was nobody to fight.

mobs.

There were no lawbreakers.

There were no

There were no rioters.

And our friends in D.C., you know, may not -- may

believe that there's blood in the streets, but we've amassed a

whole lot of evidence that there is nothing -- when they came

looking for a fight, all they found was small groups of

protesters, obeying the law, exercising their cherished First

Amendment rights to speak up, to say, I don't like what you're

doing.

community alone, don't take our -- our neighbors who are

immigrants.

there is no dispute that what they were doing was exercising

Groups of protesters who said, look, leave our

You can agree with them, disagree with them, but

Appendix 085

their right to free speech, to disagree.

They were doing it

peacefully and they were doing it within the law.

Because of that message, the federal agents attacked

them, used force, gassed them, shot them, pushed them.

Not

because they were standing peacefully, but because of their

message.

things like, you know, shut up.

words, they'd be leaving -- people would be saying, Get out of

here.

didn't like, saying, you're not welcome here; they're throwing

tear gas at them out the window.

the message.

Literally they said, as the declarations attest,

You're -- you know, in other

Maybe, you know, in tones that the federal employees

They are attacking because of

Secretary Noem made that clear.

She said, you know,

it's what -- what they're saying, what they're speaking.

She

said -- you know, and we're quoted in our -- in our papers, she

said that, you know, the more they protest, the high -- harder

ICE is going to come down on them.

So you have protesters, you have people of faith who

are holding signs, who are being attacked because of their

message.

be an interesting law school problem about success on the

merits, because there's no subtlety.

It's not a -- as Tess pointed out, it wouldn't even

Oftentimes, when you argue First Amendment, you say,

well, does the government's policy impinge on First Amendment

rights?

This is because of the message they're saying, we

Appendix 086

don't like you, ICE, go away, ICE is pushing people, shoving

people, shooting people, and gassing people.

And of course, the press.

The press is out covering

these peaceful demonstrations, wearing signs that's -- that

mark them as press, equipment that mark them as press, no --

there's not going to be a dispute they were clearly identified

as press.

And that is why they were targeted, because they are

being press, bearing witness and reporting on what's happened.

So you have agents on rooftops shooting PepperBall bullets at

people -- at the press, trying to hit the press.

in their world, if the press wasn't covering this, they could

control the message.

They are --

They don't want the press to cover it.

And there's members of the press that are present.

Very brave people that are doing their job, covering these

protests, covering what these federal agents are doing, and

being attacked because of that.

in some fact patterns maybe there's a riot and a press get hits

with a bullet.

buildings shooting at the press, hoping to deter the press,

hoping that the press will go away, hoping there's a --

Reverend Black submitted an affidavit.

who was -- was praying for ICE with his hands up.

the top of the building took a shot at him.

the message; they're shooting them.

That's not this.

It's not just, oh, you know,

There's guys on top of

He's a religious man

Somebody on

They don't like

Appendix 087

So this is not a complicated fact pattern.

It's --

it's unconstitutional.

What are we asking you to do?

We're

asking you to do what happened in LA.

similar case alleging similar harms, and a district court judge

there granted a preliminary injunction.

In LA, a group brought a

We have carefully modeled the TRO that we're asking

you to enter today after the LA order.

The LA order was

created in conjunction with an expert, a guy named

Gil Kerlikowske, who is a 50-year law enforcement guy; he's a

chief of police I believe in Seattle; and a very high-ranking

member of DHS.

he had run part of the border.

And he is saying as a -- a former.

He was --

And he is saying, look, this is not okay.

He has two

primary opinions.

He's saying the force being used against

peaceful protesters greatly out- -- exceeds any reasonable law

enforcement purpose.

they're using are not like -- they're not -- they're --

they're -- they're being used disproportionately.

using them indiscriminately.

Everything about this is wrong.

You know, these are -- the -- the weapons

They're

They're using them targetedly.

It's a -- it's a very persuasive affidavit.

you to take a look at it.

opinion is supplemented with all of the declarations in

evidence.

It's at the record 22-32.

We urge

And his

And I have a courtesy copy of printouts, if I could

Appendix 088

tender it to Your Honor?

THE COURT:

Sure.

MR. LOEVY:

Thank you, Your Honor.

We've amassed a considerable amount of evidence

attesting to what I am telling you what's happening today --

what I'm telling you today, is that peaceful protesters are

being targeted and -- for their message.

being told to shut up, stop criticizing ICE, and being met with

violence.

They're basically

And what we would ask you to do is enter the same

injunction essentially that was entered in LA, and then there

will be a preliminary injunction hearing to be scheduled

either -- you know, in the future.

preference and position is the government should be enjoined

until that hearing happens.

happen this week, we'll be here with witnesses this week.

Our -- our request and

If they want that hearing to

So their harm will be incrementally small.

They will

only be enjoined for a short while.

injunction in a month, we'll be here in a month.

We -- we --

we will be here when -- whenever they're ready.

But we are

asking you to hold the status quo and -- and to do what should

be noncontroversial.

If they want to do the

The order -- the preliminary injunction, it's at the

record at 27.

It was filed today.

THE COURT:

That's docket 27.

No, I've -- I've got it.

Appendix 089

MR. LOEVY:

Yep.

So --

THE COURT:

There are a few things that are in your

proposed order that were not in the order that Judge Vera

entered in LA, and so we would -- you know, I want to go

through some of those things, but -- and I guess some of the

questions I have are probably directed better towards the

government.

So anything further at this point, Mr. Loevy?

MR. LOEVY:

No.

THE COURT:

Okay.

Now I'll hear from the government.

MR. SKEDZIEWLEWSKI:

Thank you for listening.

All right.

Good afternoon, Your Honor.

Thank -- thank you for -- for having me remotely.

it's -- it's appreciated.

It --

So plaintiffs and organizational members are -- are

free to speak their minds however they -- they -- they -- they

prefer, but they cannot attack law enforcement officers, join

in groups that are engaging in riot, or in any other way

obstruct the law enforcement operations.

THE COURT:

And -- and Mr. Sked- --

MR. SKEDZIEWLEWSKI:

THE COURT:

Mr. Skedziewlewski.

believe that there's anything in terms of the affidavits that

I've read or anything in the complaint where anyone -- any of

The idea that DHS --

I'm sorry.

Whoops, I'm sorry,

I don't mean to interrupt you, but I don't

Appendix 090

these affected individuals were doing anything other than

peacefully showing up at various facilities or various areas

within the Northern District of Illinois, so not limited to the

Broadview facility, and were not engaged in violent protests

but were simply there and simply expressing their views; or

simply doing their jobs if they were journalists.

So I would agree with you --

MR. SKEDZIEWLEWSKI:

THE COURT:

Your Honor --

-- if any of these individuals were being

violent that DHS and these ICE officers under the law would be

able to engage in appropriate crowd control to protect the

safety of the other protesters who are there protesting

peacefully, as well as themselves and fellow officers.

that's not what's alleged here in this complaint.

MR. SKEDZIEWLEWSKI:

But

Your Honor, I would not expect

plaintiffs to submit evidence harmful to their case.

course the government has not yet had a chance, given that we

received these papers this morning, to submit our own rebuttal

evidence.

And of

But what -- what I can tell the Court, based on my

conversations with the client that were admittedly rushed, and

our -- I will stipulate those are, you know, preliminary.

what we know from -- on our end is that officers have been hit,

punched by -- punched by rioters at Broadview.

shot fireworks at them, thrown bottles, rocks, and gas

But

Rioters have

Appendix 091

canisters at officers.

An -- an individual drove his vehicle into an ICE

officer's vehicle intentionally trying to damage and injure

that officer, along with a litany of other attacks.

Now, I'm not alleging or -- or claiming, Your Honor,

that any named plaintiffs in this case are those perpetrators.

But just based on my, again, admittedly quick and cursory

review of plaintiffs' declarations this morning and some of the

video evidence submitted along with them, at -- at least one of

the named plaintiffs is in the middle of a -- of a crowd that

appears to be, you know, subject to an expansion of a secured

area by DHS.

And so that there's a very sort of obvious inference,

at least from my -- my point of view, that any injury or -- or

harm that may have come to -- to that individual, what is

incidental to DHS operations that are awful, that are directed

at securing the facility that many of these incidents occurred

at.

allow me to rephrase that.

And it can't be the case that officers have to be -- well,

It -- it can't be the case that there are exceptions

to the -- the rule.

facility -- and this facility from what I can tell, Your Honor,

has been under siege in these last few weeks.

we have not yet submitted evidence to that effect --

THE COURT:

When -- when DHS is -- has to secure a

So admittedly,

Well, but --

Appendix 092

MR. SKEDZIEWLEWSKI:

THE COURT:

MR. SKEDZIEWLEWSKI:

THE COURT:

-- but they have to be able to --

-- but Mr. --- secure the facility --

But, Mr. Skedziewlewski, what -- I mean,

using the words "under siege" is fairly powerful language,

correct?

MR. SKEDZIEWLEWSKI:

Correct, Your Honor.

And -- and

we look forward to submitting evidence as soon as we can to --

to support that -- that claim.

Again, I -- I -- based on just plaintiffs' own

evidence, there -- there seem to be phalanxes of protesters

opposing the attempts by federal law enforcement officers to

permit the egress and -- and ingress to the Broadview facility

and to protect officers from attack, as I've mentioned with --

THE COURT:

Which -- which they're --

MR. SKEDZIEWLEWSKI:

THE COURT:

Not attack officers, right?

standing in the driveway.

-- and what we saw --

-- but that's what they're allowed to do.

But they can peacefully protest by

They can peacefully --

MR. SKEDZIEWLEWSKI:

THE COURT:

perimeter of the building.

No, Your Honor.

-- protest by standing around the

MR. SKEDZIEWLEWSKI:

THE COURT:

MR. SKEDZIEWLEWSKI:

Your Honor, as we -- as we --

At -- at least -Oh, excuse me.

I thought you

Appendix 093

were finished.

THE COURT:

Sorry.

I mean, at least, as I understand democracy, which may

not be how everybody understands it, but as I understand it,

you know, they -- protesters could stand in front of the

federal building, the -- here, the courthouse.

on the sidewalks.

They could pray at the elevator banks if they want to.

They can stand

They could peacefully come into the lobby.

Now, can they, you know, wait to ambush me and knock

me down as I come out of the elevator?

you know, this courtroom is full of people today.

people are here praying or if they are protesting holding up

signs, under the First Amendment, they're allowed to do that.

They're allowed to express themselves.

No, they can't.

I had a sentencing this morning.

But,

And if

If people disagreed

with the sentence that I was going to impose, there's nothing

to stop them from sitting in the back and holding up a sign and

expressing their opinion.

They're not allowed to do that violently.

certainly allowed to do that peacefully under the First

Amendment.

And they're allowed to do that.

But they're

And I am not allowed to do anything about it, right?

I can ignore the signs.

I can be bothered by the signs.

could bug me.

mean that -- unless they're being particularly disruptive such

I could disagree with that.

But that doesn't

Appendix 094

that I can identify a compelling government interest, I can't

even remove them from the courtroom.

MR. SKEDZIEWLEWSKI:

Well, Your Honor, respectfully, I

think the analogy doesn't hold or apply to the facts here.

this -- and it's not our personal views that matter, but the

law.

Adderley case from the sort of civil rights era that even when

peaceful protesters are not engaging in any violent conduct but

are trespassing on -- in that case it was property that, you

know, breaking -- detaining them and arresting them for

trespass was not a violation of their First Amendment rights.

And

And the Supreme Court was very clear in -- in the

And I would also say just building on Your Honor's own

analogy, that it's not that these protesters are just sitting

in your courtroom holding up signs, but that they're

interrupting the operation of the courtroom by making it

impossible for the Court to conduct its business.

THE COURT:

But --

MR. SKEDZIEWLEWSKI:

protected activity.

THE COURT:

MR. SKEDZIEWLEWSKI:

Right.

That's not First Amendment

But that's -And there's no case law to

suggest it is.

THE COURT:

Right.

But that's the burden, right, that

I would have to show before I did anything, is that they were

interrupting the proceedings to the extent that I have to order

Appendix 095

them removed and that I need to show a compelling government

interest in order to do that, to override their First Amendment

rights.

is not absolute.

compelling government interest in order to curtail those rights

and show that the means by which I do that are the least

restrictive means.

It's not absolute.

Right?

The First Amendment right

But I must, under strict scrutiny, show a

MR. SKEDZIEWLEWSKI:

But, Your Honor, a strict

scrutiny does not apply here because there's no viewpoint-based

discrimination in this -- in this case.

If these protesters were chanting --

THE COURT:

MR. SKEDZIEWLEWSKI:

-- the opposite of the --

THE COURT:

Hold on.

You can't possibly make that argument with a straight

No --

Hold on.

face, right?

If people were showing up and saying, I support ICE; if people

were showing up and saying, remove people who are not here

lawfully as fast as you possibly can, handing out sandwiches

and lemonade and whatever else to ICE officers, there is no way

on God's green earth that those officers would be using tear

gas, rubber bullets, or anything else.

live in reality.

Like there's no way, right, absolutely no way.

MR. SKEDZIEWLEWSKI:

is well within reality.

I mean, we've got to

Your Honor, this -- this argument

Our -- the officers of DHS do not

Appendix 096

target people because of their viewpoint.

What they do is they

enforce federal law.

ability to enforce federal law, whatever their signs might say,

those individuals will be subject to expansions of a secure

area or be detained if they're engaging in criminal conduct or

otherwise be exposed to proper and appropriate and reasonable

use of crowd control devices.

And when individuals obstruct their

But there's just simply no evidence in the record to

suggest that any officer at this Broadview site, or any other

site, took a special notice of a particular sign and was

offended by that particular language.

I mean, these officers, as I've mentioned,

Your Honor -- and we are -- look forward to getting this in the

record -- are being attacked.

physically attacked.

but if I was being attacked, I wouldn't really care whether the

person was on my side of the political aisle or the opposite

side of the political aisle.

They're responding to being

And I don't know about you, Your Honor,

And I think it's important for this Court, you know,

to not just assume because -- to say so, that each one of our

officers are motivated specifically to restrict plaintiffs'

First Amendment rights.

So -- so --

THE COURT:

MR. SKEDZIEWLEWSKI:

So --- because they had -- yes, Your

Appendix 097

Honor.

THE COURT:

Go ahead.

I'm sorry.

Did you want to say something?

MR. BOWMAN:

I wanted to respectfully object --

COURT REPORTER:

Can you go in front of the mic,

please?

MR. BOWMAN:

Yes, ma'am.

COURT REPORTER:

MR. BOWMAN:

Thank you.

I wanted -- Locke Bowman -- to

respectfully object to the government's characterization of

what is in the record at this time.

of evidence to the contrary of what was just said.

indeed evidence that individuals are being targeted

specifically and in response to their statements.

There is a massive volume

There is

For example, Reverend Black, one of the named

plaintiffs, is -- in -- in his affidavit says that he made

certain statements standing -- and there's a video of this.

think it's Exhibit 41 in the record -- standing at a remove

from any ICE individual.

that in response to the statements he made he was shot in the

head.

And it is clearly apparent in video

There is evidence in this record that ICE officers

have said to protesters who were saying words to the effect of,

We don't want you here; we want to protect our neighbors; and

statements to that effect that in response ICE officers gassed

Appendix 098

them, saying, That's enough, in -- and -- in -- in reference to

what they were saying.

So to characterize the record as the government has

done is false.

And I just wanted to respectfully object to the

characterization that was made.

THE COURT:

All right.

Thank you.

Go ahead, Mr. Skedziewlewski.

MR. SKEDZIEWLEWSKI:

Your Honor, it's -- the record is

obviously one-sided and contains only plaintiffs' side of the

story at this stage in litigation.

And as I said, I've reviewed the -- some of the same

evidence that plaintiffs are describing right now.

sure Your Honor, if -- if she hasn't already, will do so as

well, and there are at least some cases -- I don't have the

number in front of me -- where whatever force is being used is

clearly in a -- in a crowd and individuals are in a sort of

chaotic melee, and there's a very logical inference to say

that -- that force used against nonviolent individuals in a --

in a scenario like that that's chaotic and where it's

impossible to distinguish, you know, nonviolent from violent

protester could be incidental and not motivated by viewpoint.

And I'm

In fact, it's difficult to imagine how in some of

those sort of phalanx-like formations that anyone could take

note of the specific viewpoint of the individuals on the other

side who are, you know, engaged in a sort of melee.

Appendix 099

MR. BOWMAN:

And may I -- may I also add that

defendant --

THE COURT:

You need the microphone.

Sorry.

MR. BOWMAN:

May I also add that defendant Noem -- and

this is on video, which is attached as an exhibit to our moving

papers -- has said to her subordinates, the ICE officers on the

street committing the infractions of the First Amendment that

we allege, said to them, You have full authority to arrest

them, to -- to attack them because of what they are saying, how

they are talking, and who they are associating with.

There could not be a more straightforward, indeed a

more gobsmacking admission that the purpose of the violence

that is alleged in the complaint and is apparent in the record

is to suppress speech, association, the reporting activities of

journalism, full stop.

MR. SKEDZIEWLEWSKI:

Your Honor, plaintiffs' counsel,

respectfully, is not fully representing the Secretary's

statements.

In their brief, for example, they cite a passage from

a speech that the Secretary gave, and they clip out the middle

of the sentence.

the harder ICE is going to come after them.

conjunction that says:

enforcement officers.

They quote her saying, The more they protest,

They leave off the

and commit acts of violence against law

What the Secretary is talking about when she talks

Appendix 100

about words is incitement to violence.

We've seen an

unprecedented escalation of political assassinations.

the kind of thing that the Secretary has in mind.

That's

She -- we also know that ICE officers are being doxed,

followed to their homes, and their homes broken into, their --

their vehicles smashed and burglarized, because of this sort of

incendiary rhetoric painting them as fascists and -- and such

like as that.

That's the kind of thing that the Secretary has in

mind, not peaceful protests, not slogans, not telling the --

the federal government that the -- that people are unhappy with

their policies.

the First Amendment.

does not disagree with that.

That's all, of course, fine and protected by

The -- the federal government, of course,

What we -- what we disagree with is the idea that our

officers are engaging in some kind of a campaign to silence

these particular plaintiffs' speech.

So respect -- respectfully, Your Honor, while

plaintiffs may perceive that there's -- plaintiffs just

mentioned plaintiff Black, that he perceived that he was hit

because of his speech.

that way.

that the agent that hit him -- or may -- or is alleged to

have -- have fired upon him did so because of his speech.

That's a -- just an inference on their part.

I can understand why he might have felt

But there's no evidence in the record suggesting

That is just pure

Appendix 101

assertion.

And so the -- this -- this idea that strict scrutiny

should apply to law enforcement operations outside of the

detention facility to secure that facility just is not

supported by -- by case law or -- or by the facts in this case,

Your Honor.

MR. LOEVY:

If I could rebut, Your Honor?

THE COURT:

Well, let's --

MR. LOEVY:

Okay.

THE COURT:

-- see if Mr. Skedziewlewski has anything

further you want to add on this.

MR. SKEDZIEWLEWSKI:

Would you like me to limit my

remarks, Your Honor, to the -- the sort of viewpoint -- the

viewpoint-based discrimination?

you like me to sort of make my full argument now?

THE COURT:

Is that what you -- or would

Why don't you make your full argument now,

and then I'll allow the plaintiffs to respond.

MR. SKEDZIEWLEWSKI:

Thank you, Your Honor.

So plaintiffs also argue that -- well, I should -- I

should back up, Your Honor, because in my -- in my eagerness to

respond to your questions, I -- I may have skipped over a thing

or two.

So first, I would just like to say, since this

injunction would be forward looking, plaintiffs lack standing.

Whatever injuries may have occurred, what the plaintiffs would

Appendix 102

need to show now under the Supreme Court's precedent in Lyons

would be that all of DHS's officers going forward will always

engage in this kind of, as they allege, viewpoint

discrimination or excessive force each time they have an

encounter with these specific plaintiffs.

It's not enough for them to say that -- that there's,

you know, excessive force being used at the -- the Broadview

facility.

be the ones targeted in the future.

They would have to show that these plaintiffs will

THE COURT:

MR. SKEDZIEWLEWSKI:

Well -And what the Supreme Court

said -THE COURT:

-- no, that -- that's not exactly true,

right?

That these plaintiffs, in order to establish standing,

at least not the associational plaintiffs or organizational

standing -- or organizational plaintiffs, but the individual

ones simply need to show that because of what happened to them

in the past, right, is that they are not willing to go back and

protest in the future.

That gives them standing.

MR. SKEDZIEWLEWSKI:

(Unreportable crosstalk.)

THE COURT:

MR. SKEDZIEWLEWSKI:

And so --

Your Honor, respectfully --

Right?

Respectfully, Your Honor, I -- I

believe that's the -- the merits case for a retaliation claim.

For them to have standing to receive a prospective injunction,

Appendix 103

they have to show that the specific type of harm that they have

suffered will occur in the future.

evidence of that in the record.

we would know that Agent X specifically targeted, you know,

Plaintiff Y because of that individual's speech.

nothing like that in the record.

THE COURT:

And there's just not

Because what -- if there was,

But there's

Well, it -- the other thing is that

you're, you know, looking at -- were looking -- I think you're

asking too much, right?

and one of the things that plaintiffs are asking for are that

the ICE agents wear some sort of identification, right?

Because obviously, no, you can't say, like, that Agent Smith is

going -- the plaintiffs will never be in a position to say,

Agent Smith is going to be working, you know, on Tuesday when I

plan on going back, and that Agent Smith then is going to use

excessive force on me when I'm at the Broadview facility on

Tuesday.

not what standing asks of any plaintiff.

So first of all, one of the issues is

Like, that's not what standing requires, and that's

All that the plaintiff has to show is a continuing

present adverse effect of a defendant's past illegal conduct or

suffi

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