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Case Name Don't Shoot Portland v. Wolf PN-DC-0016
Docket / Court 1:20-cv-02040 ( D.D.C. )
State/Territory District of Columbia
Case Type(s) Policing
Special Collection Litigation Against Federal Police (2020)
Police Violence Protests (Spring/Summer 2020)
Case Summary
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 ... read more >
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 broke 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, 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 sought after relief 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 case is ongoing as of January 5, 2021.

Jack Hibbard - 08/06/2020
Emily Kempa - 01/05/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process: Procedural Due Process
Freedom of speech/association
Petitions clause
Unreasonable search and seizure
Defendant-type
Jurisdiction-wide
Law-enforcement
General
Excessive force
False arrest
Over/Unlawful Detention
Pepper/OC spray
Plaintiff Type
Non-profit NON-religious organization
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Defendant(s) Acting Secretary of DHS Chad Wolf
Department of Homeland Security
Department of Justice
Federal Protective Service
U.S. Customs and Border Protection
U.S. Immigration and Customs Enforcement
U.S. Marshals Service
Plaintiff Description Don't Shoot Portland, Wall of Moms, many individual plaintiffs
Class action status sought No
Class action status granted Not sought
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief None yet
Source of Relief None yet
Filed 07/27/2020
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
D.D.C.
01/04/2021
1:20−cv−02040
PN-DC-0016-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D.D.C.
07/27/2020
Complaint [ECF# 1]
PN-DC-0016-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
10/15/2020
Defendants' Motion to Dismiss [ECF# 24]
PN-DC-0016-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
10/29/2020
Brief of Amici Curie Current and Former Elected Prosecutors, Attorneys General and Law Enforcement Leaders, Former United States Attorneys and Department of Justice Officials in Support of Plaintiff Don't Shoot Portland [ECF# 25-2]
PN-DC-0016-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
10/29/2020
Plaintiffs' Brief in Opposition to Defendants' Motion to Dismiss [ECF# 26]
PN-DC-0016-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
11/05/2020
Brief of Constitutional Accountability Center as Amicus Curiae in Opposition to Defendants' Motion to Dismiss [ECF# 30]
PN-DC-0016-0007.pdf | Detail
D.D.C.
11/19/2020
Defendants' Reply Memorandum in Support of Their Motion to Dismiss [ECF# 33]
PN-DC-0016-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
12/17/2020
Amended Complaint [ECF# 35-1]
PN-DC-0016-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Cooper, Christopher Reid (D.D.C.) show/hide docs
PN-DC-0016-9000
Plaintiff's Lawyers Berwick, Benjamin Leon (Massachusetts) show/hide docs
PN-DC-0016-0001 | PN-DC-0016-0004 | PN-DC-0016-0006 | PN-DC-0016-9000
Born, Natascha (New York) show/hide docs
PN-DC-0016-0001
Davis, Morgan (New York) show/hide docs
PN-DC-0016-0001
El-Mallawany, Deana K. (Massachusetts) show/hide docs
PN-DC-0016-0001 | PN-DC-0016-0004 | PN-DC-0016-0006 | PN-DC-0016-9000
Florence, Justin G (Massachusetts) show/hide docs
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Forbes, Matthew D. (New York) show/hide docs
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Hahn, Ashley V (New York) show/hide docs
PN-DC-0016-0001 | PN-DC-0016-0006
Homer, Rachel F (District of Columbia) show/hide docs
PN-DC-0016-0001 | PN-DC-0016-0004 | PN-DC-0016-0006 | PN-DC-0016-9000
Johnson, Thomas R. (Oregon) show/hide docs
PN-DC-0016-0001
Kwon, Christine (California) show/hide docs
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MacAneney, Marissa (New York) show/hide docs
PN-DC-0016-0001
Marsden, Jessica Ann (North Carolina) show/hide docs
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Martinez, Holly (Oregon) show/hide docs
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Mattessich, William (New York) show/hide docs
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O'Neil, David A. (District of Columbia) show/hide docs
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Peck, Rian C (Oregon) show/hide docs
PN-DC-0016-0001
Peterson, Derek (Arizona) show/hide docs
PN-DC-0016-0001
Pickar, Joshua B (New York) show/hide docs
PN-DC-0016-0001
Schock, Kevin (Oregon) show/hide docs
PN-DC-0016-0001
Defendant's Lawyers Bowen, Brigham J. (District of Columbia) show/hide docs
PN-DC-0016-0002 | PN-DC-0016-0005
Clark, Jeffrey Bossert (District of Columbia) show/hide docs
PN-DC-0016-0002 | PN-DC-0016-0005
Clendenen, Michael Patrick (District of Columbia) show/hide docs
PN-DC-0016-0002 | PN-DC-0016-0005
Gardner, Joshua Edward (District of Columbia) show/hide docs
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Hall, Jeffrey A (District of Columbia) show/hide docs
PN-DC-0016-0002 | PN-DC-0016-0005
Lynch, Jason C. (District of Columbia) show/hide docs
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Von Bokern, Jordan L (District of Columbia) show/hide docs
PN-DC-0016-0002 | PN-DC-0016-0005 | PN-DC-0016-9000
Other Lawyers Frazelle, Brian Rene (District of Columbia) show/hide docs
PN-DC-0016-0007
Gorod, Brianne J. (District of Columbia) show/hide docs
PN-DC-0016-0007 | PN-DC-0016-9000
Kieve, Loren (California) show/hide docs
PN-DC-0016-0003
Wydra, Elizabeth B. (District of Columbia) show/hide docs
PN-DC-0016-0007

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