Filed Date: June 5, 2020
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COVID-19 Summary: On June 5, 2020, a non-profit corporation advocating for social and racial justice and individual citizens filed this class action suit for violations of their First and Fourth Amendment rights. The plaintiffs sought injunctive relief enjoining Portland police from using tear gas. On June 9, 2020 the court granted the temporary restraining order (“TRO”) and enjoined the defendants from using tear gas. The TRO was expanded to include non-lethal weapons on June 26, 2020 . On June 30, 2020 the plaintiffs moved for a finding of contempt and for sanctions against the defendant for non-compliance, which was later amended. On November 27, 2020 the court granted this motion in part. The parties submitted a joint proposal of remedies for the contempt finding on December 18, 2020. On March 16, 2021, the court ordered sanctions that included training for Portland Police Bureau officers and circulating the TRO.
On June 5, 2020, Don't Shoot Portland, a non-profit corporation that advocates for social and racial justice in Portland, and individual Portland residents filed this class action suit in the United States District Court for the District of Oregon. The plaintiffs, represented by the Oregon Justice Resource Center and private counsel, sued the City of Portland under 42 U.S.C. § 1983, alleging that the City violated plaintiffs' rights under the First and Fourth Amendments. Specifically, plaintiffs asserted that defendant's indiscriminate use of tear gas against crowds of non-violent protestors participating in protected speech was unconstitutional. The plaintiffs further contended that the use of tear gas was particularly dangerous during the global COVID-19 pandemic. The plaintiffs, who simultaneously filed a motion for temporary restraining order (TRO), sought injunctive relief enjoining the City of Portland from using tear gas as a crowd control measure. They also sought attorney's fees. The case was assigned to Judge Marco A. Hernandez.
The plaintiffs asserted that beginning on May 29, 2020, and continuing every night for more than a week, Portland residents "demonstrated in the streets demanding justice for George Floyd and demanding an end to police violence." The plaintiffs alleged that defendant, in response to these protests, acted unlawfully by "tacitly and explicitly authoriz[ing] the use of indiscriminate crowd control munitions on crowds of protesters by justifying uses of similar tactics, including tear gas shot indiscriminately into crowds of protesters" that had committed no criminal acts and posed no threat of violence. The plaintiffs also asserted that they "were engaged in constitutionally protected acts of free speech" and that the defendant's "continued use of tear gas on protesters . . . would chill a reasonable person from continuing to engage in protected First Amendment Activity."
The plaintiffs also stated that the "use of tear gas is particularly dangerous at the present time because it is specifically designed to irritate the respiratory system and to cause people to expel mucus and aspirated saliva," which is the principal way in which COVID-19 spreads. The complaint included a statement from a local university president expressing concern that "the use of tear gas could significantly exacerbate the spread [of COVID-19]."
The plaintiffs defined the proposed class as "all individuals who currently or who will in the future engage in protest activities that follow the death of George Floyd opposing police violence and white supremacy."
On June 6, 2020 the defendants responded to the motion, arguing that during the thirty-five days of protests, there had also been violent riots, and such measures are necessary to ensure that "peaceful protestors have a full and free opportunity to exercise their constitutional rights, while preventing rioters from injuring people and doing significant damage to property." They argued that the plaintiffs did not meet their burden of demonstrating a likelihood of success on the merits, irreparable harm, that the balance of hardships weighs in their favor, or that an injunction would be in the public interest.
On June 9, 2020 the plaintiff's motion for a temporary restraining order was granted in part, and restricted the defendants from using tear gas or its equivalent for 14 days, limiting their usage to situations in which the lives or safety of the public or the police are at risk.
On June 18, 2020 the plaintiffs filed an amended complaint, claiming that the defendants had changed their methods since the TRO, using a variety of "less-lethal” weapons indiscriminately against plaintiffs instead.
The plaintiffs filed a second amended complaint on June 24 adding an additional plaintiff. They further sought declaratory relief in the form of a statement that the Portland Police Bureau’s Crowd Control Directive violated the Fourth Amendment.
On June 26, 2020 the parties stipulated to an additional TRO which additionally restricted the use of less lethal launchers, rubber ball distraction devices, aerosol restraints, and long-range acoustical devices. The district court approved the order the same day, and the order was in effect until July 24, 2020 .
On June 30, 2020 the plaintiffs filed a motion for a finding of contempt and for sanctions against the defendant. They claimed that Portland Police Bureau members used "less-lethal weapons” in violation of the June 26, 2020 order on June 27-28. Therefore, they sought the following:
The same day, they moved for a preliminary injunction prohibiting the defendants from using "less lethal" weapons against protesters who were only engaged in passive resistance. They requested that if such weapons must be used, the defendants must ensure that no one engaging in passive resistance was impacted.
A week later, defendants submitted their responses in opposition to plaintiffs' request for a TRO. The City of Portland and Multnomah County submitted separate but substantively similar responses to the plaintiffs' request for a TRO. They argued that the plaintiffs should be denied the TRO because they could not demonstrate a likelihood of success on the merits, they would not be irreparably harmed without the TRO, and the balance of equities did not weigh in plaintiffs' favor. They also argued that, were the judge to grant the TRO, the version proposed by plaintiffs was too restrictive.
By mid-July, the plaintiffs submitted a supplemental memorandum supporting their motion to hold the defendants in contempt. They argued that the PPB's use of "less-lethal" weapons and tear gas on several occasions in late June represented violations of the court's Less Lethal Weapons Order and the Tear Gas Order. The defendants did not deny that the PPB used these tactics, but that their use of tear gas and less-lethal weapons fell within the limitations of those orders (to protect public safety). The plaintiffs filed an amended motion for finding of contempt and for sanctions on August 12, 2020. The amended motion focused on alleged violations late in the night on June 30, 2020. The plaintiffs claimed that the PPB fired pepper balls, impact munitions, smoke grenades, and pepper spray into the crowds against people who were attempting to follow orders or engaged only in passive resistance.
The defendants responded on September 4, 2020 arguing that the plaintiffs did not provide clear and convincing evidence that the defendants violated the orders, and that it would be difficult to identify the officers who engaged in the specific alleged misconduct with the limited information they provided.
On September 9, 2020 defendant City of Portland submitted a motion to dismiss the case for failure to state a claim. They argued that the plaintiffs' claims were conclusory and failed to plausibly support a claim for relief. The defendants also argued that the plaintiffs lack standing to assert Fourth and First Amendment violations as it is an organization suing on its own behalf.
In response to the motion to dismiss, the plaintiffs sought leave from the court to file an amended complaint that added factual allegations related to Don't Shoot Portland's mission and activities, the First Amendment claims, and the claims against the city as well as to broaden the dates of incidents to include those since the filing of the Second Amended Complaint. Defendant City of Portland did not object to the amendment. The court granted leave and denied the City of Portland's motion to dismiss as moot. On October 7, 2020 the plaintiffs filed the third amended complaint.
After holding oral argument on the motion for a finding of contempt in late October, the Court granted the motion in part on November 27, 2020. The court identified nine incidents that the plaintiffs argued violated the June 26, 2020 TRO through the PPB's use of less-lethal weapons. It found that in only three of the nine incidents did the plaintiffs show by clear and convincing evidence that the defendant City of Portland violated the TRO. In two of these incidents, officers fired numerous rounds from a less-lethal launcher at individuals carrying a banner. The court found that nothing suggested that the banner was a weapon or would be used by the protestors as a weapon and that the protesters were complying with PPB's directions at the time the officer fired his less-lethal weapon. In the third incident, the court similarly found that an officer's use of impact munitions against an individual approaching an item in the road was not in response to active aggression. Accordingly, in these cases, the officers should not have used less-lethal weapons and violated the TRO. However, in the other five incidents, the court found that the defendants complied with the TRO because the individuals against whom force was used had kicked smoke canisters towards police officers, attempted to throw items at the police, and attempted to start a fire.
The court then set out to determine remedies for the violations of the June 26 TRO. On December 4, 2020 the court held a hearing to determine how to proceed with the remedies for the contempt motion. The parties exchanged proposals and filed a joint remedy proposal on December 18. Oral argument on the remedies portion of the contempt motion was held on January 13, 2021.
On March 16, 2021, the court ordered coercive sanctions that included training for PPB Rapid Response Team grenadiers and supervisors, removal of a PPB officer from crowd control events pending an internal investigation, circulation of the TRO to all PPB officers, and training for all PPB officers by the end of the year. The court declined to order additional sanctions proposed by the plaintiffs because they lacked a way for the City of Portland to purge itself of the contempt and avoid the sanction (making it more punitive than coercive). The sanctions would remain in effect until the City of Portland demonstrates compliance with the TRO to the court.
With the agreement of both parties on April 8, 2021, the court converted the TRO on using tear gas, which was entered on June 9, 2020, into a preliminary injunction that would remain in effect until a final decision on the merits was issued.
On June 22, 2021, plaintiffs filed a fourth amended complaint against the defendants.
On July 12, 2022, the court denied the plaintiffs motion for class certification. The court argued that the proposed class would include thousands of protesters who had engaged in varying levels and types of protesting and were subject to both indiscriminate and targeted force by many different people over 100+ nights, and therefore there was a lack of sufficient commonality.
On November 8, 2022, the City of Portland filed a motion for a partial summary judgment. Their arguments were largely based on the potential for relief. First, they argued that all the plaintiff’s claims for prospective relief were moot given that nightly protesting had ended two years prior, Oregon laws had already made changes impacting their claims, and the PPB itself had undergone, and continued to undergo significant changes as a result of those laws and other legal proceedings. Additionally, the city argued that the court should grant a motion for summary judgment with regards to plaintiff Don’t Shoot Portland itself because it had no plausible First or Fourth Amendment claims, or the standing to assert such claims.
On November 28, 2022, plaintiffs accepted an offer of judgment from the City of Portland. That judgment was approved by Judge Marco A. Hernandez on January 20, 2023. The judgment was as follows
The court maintained jurisdiction over and enforcement of the injunction. On February 3, 2023 the plaintiffs filed a motion for attorney fees and costs. The defendants filed a response to the motion on March 10, 2023, and the case is ongoing.
Aaron Gurley (6/8/2020)
Jack Hibbard (8/6/2020)
Averyn Lee (9/24/2020)
Emily Kempa (1/4/2021)
Lauren Yu (4/1/2021)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/17228658/parties/dont-shoot-portland-v-city-of-portland/
Hernandez, Marco Antonio (Oregon)
Albies, Jessica Ashlee (Oregon)
Bruggemeier, Franz H. (Oregon)
Chavez, Juan C. (Oregon)
Byrne, Lindsay A. (Oregon)
Hernandez, Marco Antonio (Oregon)
Last updated July 21, 2023, 3:21 a.m.
State / Territory: Oregon
Filing Date: June 5, 2020
Case Ongoing: Yes
An organization advocating for social and racial justice and individual Portland residents. Proposed class: "all individuals who currently or who will in the future engage in protest activities that follow the death of George Floyd opposing police violence and white supremacy."
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Pending
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Form of Settlement:
Amount Defendant Pays: $250,006 and Attorney Fees
Content of Injunction: