Case: Don't Shoot Portland v. Wolf

This complaint was filed on July 27, 2020 in the U.S. District Court for the District of Columbia. The plaintiffs were a group of women and women-founded organizations that were protesting in solidarity with the Black Lives Matter movement in Portland, Oregon. They were represented by private counsel. After the police killing of George Floyd in May of 2020, the country saw large-scale civil unrest and demands for racial justice and police accountability. In Portland, the protests continued longer than in most other cities. In response, President Trump sent federal law enforcement agencies into the city to quell the protests in mid-July. Local PPB officers had already been accused of using excessive force against peaceful protesters, and the dispersal of federal law enforcement, who allegedly were not in uniform and arrested residents by throwing them into unmarked vehicles, only added fuel to the fire. The plaintiffs sued several federal agencies and their heads including: 1) the Department of Homeland Security, Acting Secretary of DHS Chad Wolf, and Acting Deputy Secretary Ken Cuccinelli; 2) U.S. Customs and Border Protection and CPB Commissioner Mark Morgan; 3) U.S. Immigration and Customs Enforcement and Deputy Director of ICE Matthew Albence; 4) the Federal Protective Services and Director of FPS L. Eric Patterson; 5) the U.S. Marshals Service and USMS Director Donald Washington; and 6) the Department of Justice and Attorney General William Barr.

This complaint alleged that such tactics were in violation of numerous federal laws. Plaintiffs argued that the federal agents violated the First, Fourth, and Fifth Amendments of the U.S. Constitution by infringing on protesters' right to free speech, by using excessive force, and by detaining people without due process of law. They also argued that the actions represented violations of the Administrative Procedure Act, because the federal agents went beyond their authorization to use force to protect federal buildings. Furthermore, the violations of the Constitution made the defendants liable under the Administrative Procedure Act, because that Act does not allow agency actions contrary to constitutional rights. Finally, with regard to Defendant Chad Wolf, the plaintiffs argued that he was never Senate-confirmed, making his actions illegal under the Appointments Clause and contrary to the Administrative Procedure Act. The plaintiffs sought declaratory and injunctive relief in the form of a preliminary and permanent injunction. The case was assigned to Judge Christopher R. Cooper.

On October 15, the defendants filed a motion to dismiss due to lack of standing and for failure to state a claim. They argued that the plaintiffs lacked standing because the complaint's focus on past experiences failed to suggest that harm was certainly impending. Regarding the plaintiffs' APA claims, the defendants argued that the plaintiffs failed to point to any final agency action as required for review under the APA. With respect to the plaintiffs' constitutional claims, the defendants claimed that the plaintiffs failed to identify a pattern or practice of unlawful use of force that would stifle speech or a policy of unlawful arrests in violation of the Fourth or Fifth Amendment. Finally, they argued that defendant Wolf was lawfully serving as Acting Secretary and regardless had ratified his previous actions to remove any question as to their legality.

Shortly after, current and former prosecutors, Attorneys General, law enforcement leaders, and former United States Attorneys and Department of Justice Officials sought leave from the court to file an amicus brief to share their concerns about how the deployment of federal law enforcement in Portland and elsewhere undermined vital law enforcement objectives by damaging fragile bonds between peaceful protestors and law enforcement. The court granted leave and the group filed an amicus brief on October 30.

The Constitutional Accountability Center also sought and the court granted leave to file an amicus brief in support of the plaintiffs in the case. Their brief discussed the history, structure, and purpose of the Federal Vacancies Reform Act and how it interacted with the Homeland Securities Act and the APA. They argued that defendant Wolf was not lawfully serving as Acting Secretary of Homeland Security when he adopted the actions in this case and explained why the conduct could not be ratified after the fact.

Throughout October and November, the parties continued to brief the motion to dismiss. Then, on December 17, 2020, the plaintiffs filed a motion for leave to file an amended complaint. The amended complaint dropped one plaintiff (Wall of Moms), but the factual allegations, causes of action, and relief sought remained largely the same. A few days later the court granted the motion to file an amended complaint and denied the motion to dismiss as moot. The court also noted the possibility for expedited briefing on any motion to dismiss the amended complaint because the parties had already briefed many issues in the case.

The parties stipulated to a six month extension of all deadlines following the 2020 Presidential election. With a change in leadership at the Department of Homeland Security, the parties agreed that an out-of-court settlement may be possible. A joint status report filed with the court on November 15, 2021 confirmed that the challenged policy was eliminated. And on the same day, the parties entered a stipulated dismissal with prejudice.