[00:00:00] Speaker 03:
Appellant's counsel should be here.

[00:00:04] Speaker 05:
Thank you very much, your honor.

[00:00:06] Speaker 05:
May it please the court, Mike Shi for the government.

[00:00:09] Speaker 05:
I'd like to reserve five minutes of my time for rebuttal.

[00:00:16] Speaker 05:
This past June and July, DHS officers were confronted with widespread and multiplying protests in the Los Angeles region.

[00:00:27] Speaker 05:
As the district court recognized,

[00:00:47] Speaker 05:
is extraordinary restrictions on officers' ability to disperse violent or disruptive crowds with crowd control devices.

[00:00:55] Speaker 05:
So we urge this court to stay the injunction pending appeal.

[00:01:04] Speaker 05:
The government's likely to prevail on appeal because plaintiffs are not entitled

[00:01:17] Speaker 05:
But even if plaintiffs were entitled to some form of injunctive relief, this injunction should at a minimum be stayed because it sweeps far beyond anything necessary to remedy their alleged injuries, and because it imposes all manner of unworkable restrictions on federal law enforcement officers.

[00:01:39] Speaker 02:
I'm happy to- Council, let me ask you this.

[00:01:41] Speaker 02:
Setting aside the question of standing

[00:01:44] Speaker 02:
To the extent that the District Court's injunction is commensurate with DHS or CBB's own policies, do you have an objection to that?

[00:01:57] Speaker 05:
We do, Your Honor.

[00:02:10] Speaker 02:
Let me slow you down there because I recognize that you're arguing over breath.

[00:02:18] Speaker 02:
So I think on some provisions, your argument are better than the other.

[00:02:23] Speaker 02:
So what I'm trying to do is I'm trying to figure out what the government's position is with regard to provisions that are consistent with your own policies.

[00:02:33] Speaker 05:
So, Your Honor, we believe that even those provisions that are modeled on

[00:02:46] Speaker 05:
something like a follow the law type injunction, which is disfavored.

[00:02:51] Speaker 05:
And the second reason is because what the injunction does is it converts those policies which ordinarily would be enforced by DHS against its officers on the basis of violations that come to DHS's attention into components of a judicially enforceable injunction that would be subject to contempt

[00:03:19] Speaker 05:
That makes the district court into exactly the sort of roving commission on exercising supervision over the executive branch that the Supreme Court has cautioned courts against adopting in cases such as the TransUnion against Ramirez.

[00:03:47] Speaker 05:
are unworkable because officers will now have to guess whether the district court in the cold light of day after non-lethal devices have been used will agree.

[00:04:00] Speaker 02:
I think that's where the safe harbor provision really comes in.

[00:04:05] Speaker 02:
But if we accept the district court's factual findings, for example, that DHS threatened and assaulted journalists,

[00:04:14] Speaker 02:
then those disfavored provisions follow your own policies would be warranted, I would think.

[00:04:21] Speaker 05:
So Your Honor, the safe harbor provisions aren't a safe harbor at all for a number of reasons.

[00:04:29] Speaker 05:
And I think the most persuasive is that they're framed in highly legalistic terms.

[00:04:36] Speaker 05:
And moreover, the officers will need

[00:04:43] Speaker 05:
amount to compliance with the injunction.

[00:04:46] Speaker 05:
If I could give Your Honor an example, one of the provisions that was modeled after DHS policies is the provision requiring two warnings before the use of crowd control devices.

[00:05:01] Speaker 05:
At the outset, that's a very wooden prescription.

[00:05:03] Speaker 05:
Your Honor, in some circumstances, as DHS policies recognize, giving those warnings may not be feasible, and that's left to the judgment of the officers.

[00:05:13] Speaker 05:
Moreover, that provision has a subjective component too, because it requires officers to make sure that everybody in a very loud, disruptive or even violent crowd can be sure that they've heard the warnings.

[00:05:30] Speaker 05:
Because after all, the provision requires officers to give two warnings audible to the crowd as the crowd proceeds.

[00:05:38] Speaker 05:
And so officers on the fly are going to have to determine

[00:05:42] Speaker 05:
whether their warnings were loud enough to be heard, whether the crowd will think that the warnings are loud enough to be heard, and make all of those choices.

[00:05:56] Speaker 05:
difficult, intense, potentially violent situation.

[00:06:00] Speaker 01:
Let me turn to a different point for a minute, and I'm going to ask this question to your friends on the other side as well.

[00:06:15] Speaker 01:
I understand your arguments on standing.

[00:06:19] Speaker 01:
The way I read the injunction, in addition to providing relief for what the district court describes as journalists and legal observers, unless I'm misreading the injunction, it also seems to provide very significant relief for what the district court characterizes as protesters.

[00:06:44] Speaker 01:
Does the government, what's the government's position putting aside?

[00:06:49] Speaker 01:
I understand your standing arguments and the first amendment arguments, but if we weren't, for example, to accept those in whole, does the government have a separate argument about why any relief directed to quote unquote protesters, which is the term the district court used would be inappropriate?

[00:07:11] Speaker 05:
Yes, your honor.

[00:07:13] Speaker 05:
So one, we agree that

[00:07:14] Speaker 05:
that may of the provisions of the injunction cover this undefined term protester, which the court has never really been quite clear about who falls within that definition, but it could conceivably include everybody in the entire central district of California, which is almost 20 million people, so long as they show up to a protest.

[00:08:06] Speaker 05:
Number one, basically none of those 20 million people are plaintiffs in this lawsuit.

[00:08:13] Speaker 01:
And so the court, the court in casa as part of the quote that you were talking about specifically talked about injunctions are appropriate only to the extent that or inappropriate if they're broader than necessary to provide complete relief.

[00:08:29] Speaker 01:
to each plaintiff withstanding to sue.

[00:08:33] Speaker 01:
With regard to the complaint that was in existence at the time the district court entered its preliminary injunction, correct me if I'm wrong, but the only plaintiff that I see here that would potentially qualify as a plaintiff is Miss Olmeda, is that right?

[00:08:50] Speaker 05:
I believe there is only one plaintiff who is a protester, but the other side can correct me if there are more than

[00:08:59] Speaker 05:
One, but there certainly will not be more than a handful of named plaintiffs who would qualify as protesters, as that term might ordinarily be understood, and yet the injunction grants relief to anybody.

[00:09:16] Speaker 02:
Let's say that we agree with you that the injunction is overbroad as to any potential protesters who may show up.

[00:09:26] Speaker 02:
Given that the named plaintiffs are likely to show up at future protests, assuming that we think some form of injunction relief is appropriate, how do you think we can further narrow or how the district court can further narrow or tailor

[00:09:42] Speaker 02:
injunctive relief to give complete relief to the named violence.

[00:09:47] Speaker 05:
So, your honor, if I could offer a theoretical answer to that question and then a practical answer to that question, as a matter of law, I would

[00:10:02] Speaker 05:
likely to prevail on the barracks, then they are automatically entitled to complete relief in my colloquy with Judge Bennett.

[00:10:09] Speaker 05:
And the quote that we've been reading from Trump against Casa,

[00:10:23] Speaker 05:
for preliminary injunction factors.

[00:10:25] Speaker 05:
So I just want to take that and set it to one side before answering your question practically.

[00:10:30] Speaker 05:
We think if the court thinks that this injunction is over broad, but that some other injunction might not be, we urge the court to stay this injunction and ultimately to vacate it with instructions to the district court to consider the party submissions to the extent that the plaintiffs think that they can come up with a narrower injunction.

[00:10:58] Speaker 05:
I would be hesitant to hypothesize about the workability and the potential breadth of any hypothetical injunction that's different from the terms of this one because any injunctive relief needs to be addressed against the backdrop of the equitable factors.

[00:11:27] Speaker 05:
court if it believes this injunction is overbroad, simply to stay and vacate it and then return it to district court and let the district court decide in the first instance if some other injunctive relief would be appropriate.

[00:11:48] Speaker 03:
I wanted to ask a question of Mr. Xi.

[00:11:53] Speaker 03:
Does the government concede that the use of non-lethal force can be excessive?

[00:12:07] Speaker 05:
So I want to make sure I understand.

[00:12:14] Speaker 05:
non-lethal devices can be excessive under the rubric of the Fourth Amendment?

[00:12:20] Speaker 03:
Yes.

[00:12:22] Speaker 05:
Yes, Your Honor.

[00:12:23] Speaker 05:
My understanding is that, you know, the use of force would naturally be governed by, you know, Fourth Amendment principles and principles like that.

[00:12:34] Speaker 05:
And that's the most natural rubric to assess claims that law enforcement

[00:12:45] Speaker 05:
particular threat that law enforcement was trying to disperse.

[00:12:49] Speaker 05:
I would note, though, that this case doesn't involve Fourth Amendment claims.

[00:12:54] Speaker 05:
Although plaintiff did raise Fourth Amendment claims, the injunction wasn't premised on the Fourth Amendment and the district court made no finding.

[00:13:21] Speaker 05:
on another fundamental point about the merits of plaintiffs' First Amendment arguments, which is that the First Amendment is at bottom kind of an awkward rubric to assess these claims that the force used was disproportionate.

[00:13:38] Speaker 05:
The upshot of the view is that any sort of claim for excessive force that occurs at a protest would automatically be converted into a First Amendment

[00:13:54] Speaker 05:
that the other side has invoked.

[00:13:57] Speaker 05:
The retaliation claims in particular, I think, illustrate this point most powerfully, as this court discussed in the Puente against C of Phoenix case, which was decided quite recently.

[00:14:11] Speaker 05:
The First Amendment retaliation doctrines are just an unnatural fit for the use of crowd control devices in a crowd

[00:14:25] Speaker 05:
That doctrine turns on the subjective intent of individual officers, and yet the District Court was quite comfortable generalizing in sweeping terms about every single use of force that was described in plaintiff's declarations as somehow being retaliatory in intent

[00:14:56] Speaker 05:
the Fourth Amendment doctrines permit and would be much more naturally addressed with context of the Fourth Amendment.

[00:15:04] Speaker 03:
Thank you, Mr. Shi.

[00:15:08] Speaker 03:
I have one more question for you and then I'll probably just listen to what my colleagues are asking about and what you say to them.

[00:15:19] Speaker 03:
But this question is

[00:15:26] Speaker 03:
is whether you feel you have, in your briefing and your argument, given us all the changes you think would be needed in order to affirm an injunction.

[00:15:58] Speaker 05:
Your Honor, I'm not sure I understand the question.

[00:16:03] Speaker 03:
I had the impression from your arguments in the brief that you didn't feel any injunction could be valid.

[00:16:15] Speaker 03:
And putting aside standing, if there is standing, is there any way that the over-breath could be cured in your view?

[00:16:28] Speaker 05:
I see.

[00:16:29] Speaker 05:
So if I understand your honor's question, and I also note that I think my time is expired because if that's permissible, I can answer your honor's question.

[00:16:41] Speaker 03:
You can give a full answer.

[00:16:44] Speaker 03:
And then I want to let Judge Winn finish her line of questioning.

[00:16:53] Speaker 05:
Of course, your honor.

[00:16:54] Speaker 05:
So assuming that the court

[00:16:59] Speaker 05:
The court agrees that plaintiffs are likely to prevail on the merits of their first amendment claim.

[00:17:05] Speaker 05:
It's conceivable that there might be some form of injunctive relief that a court could enter, but I don't want to commit to anything in particular because

[00:17:35] Speaker 05:
on what that says and how it interacts with the facts on the ground.

[00:17:38] Speaker 05:
And so it's impossible for me to give a high level answer saying, yes, there is an injunction that exists or no, there is

[00:18:13] Speaker 03:
I appreciate your full answer.

[00:18:16] Speaker 03:
And by the way, for all the advocates today, we have time to permit complete answers to questions.

[00:18:28] Speaker 03:
So, you know, please feel free to proceed.

[00:18:33] Speaker 03:
And we're also gonna make sure you have time to answer any questions from the judges.

[00:18:45] Speaker 02:
Thank you, Judge Gold.

[00:18:46] Speaker 02:
I appreciate that.

[00:18:47] Speaker 02:
Actually, my question is along the same lines.

[00:18:51] Speaker 02:
You seem to suggest that the only option for the court, if we think that some portion of the preliminary injunction is problematic, is to vacate and send it back to the district court.

[00:19:02] Speaker 02:
And I'm not sure I understand that.

[00:19:04] Speaker 02:
So, for example, and this is related to what I started talking to you about,

[00:19:09] Speaker 02:
to the extent that we think some portions of the preliminary injunction is warranted, that is supported by the factual findings of the district court, no more than is consistent with the department's own policies that the district court apparently believe is not being followed.

[00:19:27] Speaker 02:
I don't know why vacating the entire injunction is the relief that the government's entitled to rather than doing it in part.

[00:19:35] Speaker 05:
So, Your Honor, I understand your question.

[00:19:39] Speaker 05:
And if I could offer one caveat to that, we disagree that even those portions

[00:20:09] Speaker 05:
that the court believes are overbroad.

[00:20:12] Speaker 05:
And I certainly didn't mean to suggest otherwise.

[00:20:15] Speaker 05:
But our point is, however, at the threshold level, even those provisions that Your Honor has identified would not be consistent with the way the Supreme Court has described the... Right.

[00:20:30] Speaker 02:
No, I understand.

[00:20:30] Speaker 02:
And I have one additional question.

[00:20:32] Speaker 02:
I know I've used up a good chunk of your time.

[00:20:35] Speaker 02:
We're now just a few weeks from hearing on the preliminary injunction.

[00:20:40] Speaker 02:
Is there some irreparable harm to the government in denying the same motion that you haven't already discussed in your paper's file with the court?

[00:21:05] Speaker 05:
in those declarations make clear that although the character of the protests on the ground may have changed, there continue to be protests in the Los Angeles region.

[00:21:18] Speaker 05:
And so the injunction continues to impose a burden on DHS officers who must operate under its terms when confronting those protests.

[00:21:30] Speaker 02:
Right.

[00:21:30] Speaker 02:
Thank you, counsel.

[00:21:36] Speaker 03:
Judge Bennett, did you have further questions?

[00:21:41] Speaker 01:
Thank you for asking Judge Gould, not at this time.

[00:21:45] Speaker 03:
Okay, I think the panel's concluded its question.

[00:21:55] Speaker 03:
I suppose we should turn to Ms.

[00:21:59] Speaker 03:
Wong's argument.

[00:22:02] Speaker 04:
Thank you, Your Honor, and may it please the Court.

[00:22:06] Speaker 04:
This is Matt Borden.

[00:22:08] Speaker 04:
We intend to divide our argument, and we did it topically.

[00:22:13] Speaker 04:
So Ms.

[00:22:16] Speaker 04:
Wong will be focusing on

[00:22:19] Speaker 04:
the jurisdictional elements and the justiciability parts of the argument, and I'll be focusing more on the merits and workability.

[00:22:25] Speaker 03:
I'm having a little trouble.

[00:22:26] Speaker 04:
Oh, and I will be focusing more on the merits and workability, if that's okay with you.

[00:22:31] Speaker 03:
Okay, thank you.

[00:22:33] Speaker 03:
Please try to speak as directly as you can into the mic.

[00:22:39] Speaker 04:
Sure, and thank you, Your Honors.

[00:22:41] Speaker 04:
Our nation was born from protests and the free press, which have continued to inform

[00:22:47] Speaker 04:
public debate throughout our history to this very moment.

[00:22:51] Speaker 04:
The district court properly protected these important rights while preserving any legitimate government interest in maintaining order.

[00:22:59] Speaker 04:
The district court supported its injunction with extensive findings that defendants were retaliating against journalists and protesters.

[00:23:08] Speaker 04:
It found that defendants were repeatedly assaulting people who were not threatening law enforcement, including several of the plaintiffs on multiple occasions at different events.

[00:23:19] Speaker 04:
It found that defendants were repeatedly misusing crowd control weapons on peaceful individuals.

[00:23:25] Speaker 04:
They were shooting people in the back, shooting people in the head over and over,

[00:23:29] Speaker 04:
shooting people who were running away from them.

[00:23:31] Speaker 04:
A highly trained marksman shot a reporter plaintiff in the face with a flaming hot tear gas canister.

[00:23:39] Speaker 04:
People have died that way and you're never supposed to use these weapons like that.

[00:23:44] Speaker 01:
Council, am I correct?

[00:23:46] Speaker 01:
that I think the question I asked your friend wasn't accurate, but am I correct that the two plaintiffs who could be characterized as protesters are Mr. Clymer and Ms.

[00:23:59] Speaker 01:
Almeda?

[00:24:00] Speaker 04:
That's correct, Your Honor.

[00:24:01] Speaker 01:
So, why don't you explain to me how, in light of the Supreme Court's direction to us in CASA, it would be appropriate for us to affirm an injunction which appears to run in favor of every protester.

[00:24:18] Speaker 01:
I don't know that that's a defined term anywhere, but the district court is granting relief and constraining the actions of the government officials with regard to every protester.

[00:24:31] Speaker 01:
How does that, even if we were to agree with you that some injunctive relief were appropriate, how would that type of relief survive the Supreme Court statement in CASA?

[00:24:44] Speaker 04:
Two parts to the answer, Your Honor.

[00:24:46] Speaker 04:
First, in Easy Riders, the court, the Ninth Circuit made this point, which is that, you know, you can't differentiate Ms.

[00:24:56] Speaker 04:
Almeida or Mr. Clymer from the other protesters.

[00:24:59] Speaker 04:
In order to grant them relief, you would have to give their pictures to law enforcement.

[00:25:05] Speaker 04:
It would have to be circulated among law enforcement.

[00:25:07] Speaker 04:
They would have to say, okay, well, we can't retaliate against these two individuals.

[00:25:12] Speaker 04:
but we can retaliate against everybody else.

[00:25:16] Speaker 01:
But counsel, the Supreme Court very recently said in granting the partial stay in CASA that the injunctive relief can't be broader than necessary to provide complete relief to each plaintiff withstanding to sue.

[00:25:37] Speaker 01:
Do you disagree with me?

[00:25:39] Speaker 01:
that this injunction appears to grant relief to everyone who could be classified as a protester?

[00:25:47] Speaker 04:
It incidentally benefits other protesters, but it's the same example that Justice Barrett gave in her opinion with the nuisance in CASA.

[00:25:58] Speaker 04:
There can be loud noises and you can get an injunction against the noise or the nuisance.

[00:26:04] Speaker 04:
and it might benefit the other neighbors or the other people in the vicinity, that doesn't make the injunction over broad.

[00:26:11] Speaker 04:
The only way that you can get relief from Almeda, for example, is to have DHS stop using excessive force or retaliating against protesters.

[00:26:23] Speaker 01:
But this injunction covers any possible protest, right?

[00:26:27] Speaker 01:
It does cover, it covers protests and it protects every possible protester.

[00:26:34] Speaker 04:
I think it would, otherwise it wouldn't benefit Ms.

[00:26:39] Speaker 04:
Almeida.

[00:26:39] Speaker 04:
It would not provide complete relief to her because she could show up to a protest and if police were allowed to use excessive force against protesters, she could be among them and they wouldn't know.

[00:26:50] Speaker 04:
The only way that you're going to cure the chilling and the possibility of recurrent injury that this injunction is designed to address is if you prevent them from using force on everybody.

[00:27:05] Speaker 02:
So, Mr. Borden, under that argument, there's just no further narrowing that you think can be appropriate.

[00:27:13] Speaker 02:
So it applies to protests at which these two protesters don't even show up at?

[00:27:18] Speaker 04:
Well, they've expressed intent to show up at protests, and the actual evidence in the record is that

[00:27:25] Speaker 04:
These protesters, as long as the ICE raids continue, which Mr. Xi indicated was going to happen, as long as the federal officers were going to be policing them, they were going to come out and protest because they disagree with it.

[00:27:42] Speaker 04:
The reporters are going to come out and do their job because that's part of their job.

[00:27:46] Speaker 04:
And so, yes, she is going to be at other protests.

[00:27:50] Speaker 04:
She wants to be at other protests.

[00:27:51] Speaker 04:
She's put in evidence that she will be at other protests.

[00:27:54] Speaker 04:
That's the ongoing nature of the injury.

[00:27:58] Speaker 04:
And in terms of the idea of narrowing the injunction, I don't think it would be appropriate to narrow this injunction for the reasons that I just gave, but I would point out that in the colloquy you had with my friend on the other side, he was incapable of talking about any way that you could

[00:28:18] Speaker 04:
narrow this injunction while providing complete relief to people like Ms.

[00:28:23] Speaker 04:
Almeida or Mr. Clymer and the groups of reporters and legal observers that have also submitted.

[00:28:31] Speaker 04:
There are also plaintiffs in this case.

[00:28:34] Speaker 01:
I guess my view, Mr. Borden, perhaps I'm misinterpreting your friend's answer.

[00:28:40] Speaker 01:
But I think there's also a difference between if the injunction needs to be narrowed, whether the appropriate body to go into the details of narrowing it should be the court of appeals or the district court.

[00:28:57] Speaker 04:
I believe my friend said to the panel that he understands that this court has the power to narrow the injunction if you felt

[00:29:07] Speaker 04:
or to stay parts of the injunction if you could identify parts that were overbroad.

[00:29:14] Speaker 04:
But this is an injunction that has been proven workable time and time again.

[00:29:20] Speaker 01:
Let me just push back on that on one of what I would describe as a fairly minor part of the injunction, but strikes me as entirely unworkable.

[00:29:34] Speaker 01:
For example, paragraph 7 of the injunction,

[00:29:37] Speaker 01:
One of the indicia of being a journalist is the journalist carrying a professional press pass.

[00:29:45] Speaker 01:
How would a federal officer know who is or isn't carrying a press pass?

[00:29:55] Speaker 01:
It's not like displaying a press pass, it's carrying a press pass.

[00:30:00] Speaker 04:
So a few responses to your honor's question.

[00:30:05] Speaker 04:
And first of all, it's just the way this definition of journalists works in this injunction is that it's just one indicia.

[00:30:16] Speaker 04:
So the fact that they're carrying a press pass does not

[00:30:20] Speaker 04:
render them a journalist per se.

[00:30:23] Speaker 04:
And there's also a savings clause in there that says they're not liable for violating the injunction.

[00:30:30] Speaker 04:
This is in paragraph seven, if you don't have the trespass out there where people can see it.

[00:30:36] Speaker 01:
But where does it say that?

[00:30:39] Speaker 01:
I'm reading, it says, defendants shall not be liable.

[00:30:42] Speaker 01:
for unintentional violations of this order in the case of an individual who does not carry or wear, not carry and wear.

[00:30:55] Speaker 04:
It is just one indicia but to go back to

[00:31:00] Speaker 04:
index newspapers.

[00:31:02] Speaker 04:
This is the exact definition of journalists that was in index newspapers, which this court approved of, which not only did this court approve of it, but DHS followed this injunction

[00:31:16] Speaker 04:
for a period of several months in index newspapers.

[00:31:19] Speaker 04:
The city of Portland followed this injunction for three years and successfully worked it.

[00:31:24] Speaker 04:
It was so successful that the city of Portland embedded it into their police directives.

[00:31:31] Speaker 04:
Many other courts, including the Goyette Court in Minnesota, adopted similar terms.

[00:31:37] Speaker 04:
for journalists and even California has a law that says that you can't disperse journalists and journalists are in fact allowed to go past police lines under this California statute.

[00:31:53] Speaker 04:
This injunction has been stress tested many times and law enforcement is capable of following it.

[00:32:00] Speaker 04:
To go back to your point, Judge Nguyen, following their own policies is something that DHS is trained to do.

[00:32:11] Speaker 04:
They're trained up on that.

[00:32:12] Speaker 04:
In index newspapers, when we brought this new provision into being about reporters and legal observers, this was the way that our expert in that case, Gil Krulikowski, who's the same expert in this case, he is the former commissioner of Customs and Border

[00:32:30] Speaker 04:
protection.

[00:32:31] Speaker 04:
He was also the police chief in Seattle where they had protests of over 50,000 people that were way more chaotic and violent.

[00:32:40] Speaker 04:
than anything that we've seen.

[00:32:42] Speaker 04:
Some of these events in Los Angeles are 30 to 60 people.

[00:32:47] Speaker 04:
He never dispersed journalists or legal observers.

[00:32:49] Speaker 04:
It was all very workable.

[00:32:51] Speaker 04:
So the idea that they can't tell who's a journalist proved wrong.

[00:32:58] Speaker 04:
They were able to, not only are they trained on their own policies, they're trained on the force amendment,

[00:33:03] Speaker 04:
They're trained not to use excessive force.

[00:33:05] Speaker 04:
They're trained not to shoot people that are, you know, peacefully protesting.

[00:33:11] Speaker 04:
But they learned how to follow the injunction in index newspapers when it issued in the district court very quickly, because that's part of what police officers are trained to do, is that- How would a police officer, for example, be able to tell in a potentially violent situation whether somebody wearing a green hat

[00:33:32] Speaker 01:
Were a legal observer or somebody who's about to engage in violent activity.

[00:33:40] Speaker 04:
The energy legal observer hats are very distinctive, but.

[00:33:48] Speaker 04:
In the three years that this injunction was effective in Portland, the police had no problem as a factual matter making that distinction at all.

[00:33:57] Speaker 04:
And neither did DHS when they were under the same injunction in index newspapers.

[00:34:02] Speaker 04:
So this is what police officers do is they make a lot of, they're trained to make fast decisions.

[00:34:10] Speaker 04:
They're trained to assess risk.

[00:34:12] Speaker 04:
They're trained to assess threats.

[00:34:14] Speaker 04:
And they successfully followed this same injunction in index newspaper.

[00:34:19] Speaker 04:
And literally, it's become the law in multiple jurisdictions.

[00:34:23] Speaker 04:
Other police follow it as well.

[00:34:25] Speaker 04:
They can make these differentiations, and they do it safely.

[00:34:28] Speaker 04:
I will tell you that to go back to a question, I forget who asked it.

[00:34:34] Speaker 04:
But Judge Nguyen, what evidence of irreparable injury is there in this record?

[00:34:41] Speaker 04:
between the time the court issued the injunction and now, the answer is none.

[00:34:46] Speaker 04:
There is no incident of any officer, any federal agent, anybody suffering any harm as a result of this injunction in the last three months that it's been in effect.

[00:34:58] Speaker 04:
There's no evidence of any harm to anybody.

[00:35:02] Speaker 04:
to any federal officer or state officer or city officer, municipal officer, any type of law enforcement officer ever from this type of injunction, from the injunction in index newspapers.

[00:35:15] Speaker 04:
What we've seen is a long track record of this injunction being stress tested and being totally safe and followable for law enforcement.

[00:35:29] Speaker 00:
If I could just jump in with a couple of other factors responsive to, I think it was Judge Bennett's question about who the protester plaintiffs are in the case.

[00:35:41] Speaker 00:
So, Miss Almeida and Mr. Klemer are our

[00:35:44] Speaker 00:
Journalists plaintiffs, or I'm sorry, our protester plaintiffs at the time the court issued its preliminary injunction order.

[00:35:50] Speaker 00:
We have since amended the complaint.

[00:35:52] Speaker 00:
There's an additional protester plaintiff, Ms.

[00:35:54] Speaker 00:
Poss, and we have also made class action claims.

[00:35:59] Speaker 01:
But that complaint was not in effect at the time the court issued the PI, right?

[00:36:03] Speaker 00:
That's correct.

[00:36:04] Speaker 00:
But given that the government is asking this court to vacate the injunction, which I'm not sure is appropriate for a motion to stay, I understand we have an appeal coming up in a few weeks.

[00:36:16] Speaker 00:
But given that the government is asking for this court to vacate it, ask the district court to essentially fashion a new injunction, those plaintiffs will be before the court when that happens.

[00:36:26] Speaker 00:
And so there's

[00:36:27] Speaker 00:
I guess a question also of judicial economy here to consider.

[00:36:33] Speaker 00:
Certainly, the class action claims affect the CASA analysis, as the Supreme Court sort of stated in its recent decision in the AARP case, the court's authority to protect its jurisdiction over classes.

[00:36:48] Speaker 00:
I'd also want to add an additional point

[00:36:54] Speaker 00:
issue about standing that also goes to the scope of the injunction.

[00:36:59] Speaker 00:
The provisions on restricting use of force by DHS at protests protect our journalist plaintiffs as well as the protester plaintiffs.

[00:37:11] Speaker 00:
They protect the members of the organizational plaintiffs, the injunctions specifically tailored geographically to those organizational plaintiffs.

[00:37:22] Speaker 00:
The use of force that is being enjoined and that the district court found

[00:37:26] Speaker 00:
DHS is systematically engaged in, it does not discriminate between press, legal observers and protesters at these events.

[00:37:36] Speaker 00:
They are so massive and sweeping and discriminant that everyone is getting caught up in them.

[00:37:40] Speaker 00:
And so under this court's reasoning and easy writers, in order to afford complete relief to all of our plaintiffs, including the journalist plaintiffs, it really does have to cover everyone who is present at these events, which are blanketed with the conduct at issue.

[00:37:54] Speaker 01:
So any, in your view, any protest in the counties of Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura, every protest where there could be federal officers there for everybody who could attend those protests is covered?

[00:38:16] Speaker 00:
Well, plaintiffs would be the only people who would be able to, I guess, invoke the protections of

[00:38:23] Speaker 00:
of the injunction.

[00:38:25] Speaker 00:
But in order for the injunction to afford them that protection, it does have to provide that scope of coverage given what we have put into the record, given what the district court found about

[00:38:38] Speaker 01:
the press coverage area and the membership of- So I'm not sure I understand your last statement.

[00:38:47] Speaker 01:
So are you saying that in plaintiff's view, if there were a violation of the injunction, but not with regard to a named plaintiff, that there could be no relief for that violation granted by the district court?

[00:39:08] Speaker 00:
Well, first, I'll clarify that I do think that if a member of one of the organizational plaintiffs was injured that they the organizational plaintiffs would have standing and would be protected by the preliminary injunction could enforce the preliminary injunction.

[00:39:23] Speaker 00:
But if it were some third party, not a member of one of the organizations, then.

[00:39:27] Speaker 00:
I think that in the normal course of things, we would expect someone like that to try and intervene in the case to enforce that on their own behalf.

[00:39:34] Speaker 01:
But to go back to my question, notwithstanding the language of this injunction, the plaintiff's position is that if John or Jane Doe, who is not a named plaintiff in this case,

[00:39:50] Speaker 01:
that if they were a protester and this injunction were violated with regard to them, but not with regard to a named plaintiff, that nobody could be held in contempt?

[00:40:04] Speaker 00:
That would be my answer from the position of standing.

[00:40:07] Speaker 00:
I don't know if Mr. Borden has anything to add from his analysis of CASA.

[00:40:14] Speaker 04:
I think that's correct as a matter of, I think the point is somebody could try to intervene.

[00:40:21] Speaker 04:
And I think we have class allegations now.

[00:40:25] Speaker 04:
So I think, you know, putative class members would have standing to enforce this.

[00:40:33] Speaker 04:
If I may turn to the retaliation point that

[00:40:38] Speaker 04:
my friend made, I would just go back to what I was saying about the record in this case, which is that there are over 40 declarations that we submitted by people who were present.

[00:40:51] Speaker 04:
There was extensive video evidence.

[00:40:54] Speaker 04:
There were photographs.

[00:40:55] Speaker 04:
There were maps.

[00:40:56] Speaker 04:
All of this was carefully analyzed by the district court.

[00:41:00] Speaker 04:
The government in response did not refute a single one of those declarations.

[00:41:05] Speaker 04:
Our expert put in a declaration stating that all of the uses of force that he saw in literally what were hundreds of incidents described in the declarations were excessive and unnecessary.

[00:41:20] Speaker 04:
That declaration was also not refuted.

[00:41:22] Speaker 04:
The government has video.

[00:41:26] Speaker 04:
from their cameras on the buildings of these events.

[00:41:30] Speaker 04:
They have people taking video and posting things on social media.

[00:41:34] Speaker 04:
There is zero videos that the government submitted in response to all of these declarations, in response to the videos which show that federal officers are opening fire on crowds and discharging volleys of pepper balls and shooting tear gas indiscriminately

[00:41:54] Speaker 04:
at people who are not posing any threat to them.

[00:41:57] Speaker 04:
And I would just give you one example if you want to go back and look at the record carefully.

[00:42:03] Speaker 04:
Mr. Sharman, who's the government's witness in paragraph 15 of his declaration, talks about an event on June 7th where the government comes out of the building and the crowd is supposedly throwing Molotov cocktails at them and chunks of concrete and rocks and fireworks.

[00:42:23] Speaker 04:
But we actually have a video of that very moment in time in the declaration of Lettsis Olivier Ray, who's one of our plaintiffs.

[00:42:31] Speaker 04:
This is at paragraph 19 of his declaration, and you can see them exiting the building, and nobody is throwing anything at them.

[00:42:39] Speaker 04:
And in fact, you can just see that they're standing about 50 feet away from the federal agents so that they wouldn't even be a threat of throwing anything.

[00:42:49] Speaker 04:
And then at that point, you see a massive discharge of firepower at this crowd.

[00:42:55] Speaker 04:
And there's tear gas being shot in the air.

[00:42:59] Speaker 04:
You can hear the ratatat of the pepper balls.

[00:43:03] Speaker 04:
And then going on to that declaration and the incident report that the government submitted as exhibit two to Mr. Sharman's declaration, they say that they chased violent rioters up the street.

[00:43:15] Speaker 04:
But what you can see in the video in paragraph 27 of Mr. Ray's declaration is that the government is shooting at him and he's yelling out on press, on press, and

[00:43:30] Speaker 04:
there's a line there's a skirmish line of about 30 officers proceeding forward and you don't really see this whole violent crowd of protesters and in fact if you look at the the next video that he includes at paragraph 31 of his declaration you can see uh you know reporters with big

[00:43:49] Speaker 04:
tripods and clunky cameras trying to run from being shot at by federal officers who were just shooting at them.

[00:43:55] Speaker 04:
There's not a protester in the video and you can't even see a piece of federal property.

[00:44:01] Speaker 04:
So the district court carefully went through this evidence.

[00:44:06] Speaker 04:
There's not a single video from the government that would contradict any of this.

[00:44:10] Speaker 04:
And he found that their explanations for why they were attacking people were not credible.

[00:44:16] Speaker 04:
This is a situation where these findings are absolutely correct.

[00:44:21] Speaker 04:
They don't come to the level of clear error, which is what they would have to show to set them aside.

[00:44:27] Speaker 04:
And so you have a situation that is literally identical to index newspapers, where this court found exceptionally strong evidence.

[00:44:38] Speaker 04:
It was exceptionally strong evidence of retaliation

[00:44:41] Speaker 04:
where you had this kind of mountain of evidence that they called it in index newspapers, avalanche of evidence, which Judge Vera called it below.

[00:44:49] Speaker 04:
It is, you know, in a case where you have to prove intent circumstantially, this is the strongest evidence that there is.

[00:44:59] Speaker 04:
I would note that this court in Sanderland, where it was just a one-off shooting at a protest, said that if the government can't explain why they shot this person, that is strong evidence of intent.

[00:45:15] Speaker 04:
And in fact, we don't see any explanations.

[00:45:18] Speaker 04:
We don't see any investigations.

[00:45:21] Speaker 04:
We don't see any discipline.

[00:45:22] Speaker 04:
What you have is an agency that is adopting these policies and is basically owning the conduct of all of these agents at the forum in what is an incredible pattern of violence over a period of 12 different protests where the one through line

[00:45:41] Speaker 04:
where you have rural areas, you have urban areas, you have big protests, you have small protests.

[00:45:47] Speaker 04:
The through line is that they're shooting people and tear gassing people who are peaceful, who are not posing an imminent threat of harm to law enforcement.

[00:45:57] Speaker 04:
And that's what this injunction does, is it says if there's an imminent threat to law enforcement,

[00:46:02] Speaker 04:
You're allowed to use force.

[00:46:03] Speaker 04:
You're allowed to use less lethals.

[00:46:05] Speaker 04:
You're allowed to use the tools in your toolkit.

[00:46:07] Speaker 04:
But what you can't do is attack people who are peacefully there at the forum.

[00:46:15] Speaker 03:
Thank you, Mr. Borden.

[00:46:17] Speaker 03:
By the way, the time currently shown in the clock appears to be complete.

[00:46:26] Speaker 04:
Thank you, Your Honors.

[00:46:28] Speaker 03:
Mr. Xi, does the government have rebuttal?

[00:46:37] Speaker 05:
I would like five minutes of rebuttal, Your Honor, if that's permissible.

[00:46:43] Speaker 03:
Yeah.

[00:46:44] Speaker 03:
How much time did you say?

[00:46:46] Speaker 05:
Five minutes, Your Honor.

[00:46:48] Speaker 03:
Yeah, I think if the other judges vote agreeable.

[00:46:54] Speaker 03:
I'd like to hear the rebuttal.

[00:46:59] Speaker 01:
Yes, absolutely.

[00:47:01] Speaker 01:
Judge Gold, Judge Noyne.

[00:47:04] Speaker 03:
Please proceed.

[00:47:06] Speaker 05:
Thank you very much, Your Honor.

[00:47:08] Speaker 05:
I would like to make three points on rebuttal.

[00:47:11] Speaker 05:
The first two about the nature of equitable relief and the third about the factual findings that my friend on the other side has described.

[00:47:20] Speaker 05:
The first point I want to make is that the other side

[00:47:30] Speaker 05:
diverges from the Supreme Court's description of that power most recently in the Trump against Casa case.

[00:47:37] Speaker 05:
Over and over again, the other side began from the premise that plaintiffs are entitled to complete relief as long as they can show standing.

[00:47:47] Speaker 05:
And as the Supreme Court made clear in Casa, that's just not how equity works.

[00:47:54] Speaker 05:
The way injunctions work is that the complete relief principle operates as a ceiling, but other equitable factors need to play into the balance.

[00:48:06] Speaker 05:
And yet the other side's approach to equity takes that inquiry and turns it on its head, where they proceed from the premise that they're entitled to complete relief, and then assume that the provisions of the injunction must then be tailored in order to maximize their relief.

[00:48:23] Speaker 05:
And that's the reason why at the highest level of generality, the district court's injunction, which adopted their proposed approach, can't be reconciled with CASA and ordinary

[00:48:38] Speaker 05:
The second point I'd like to make, Your Honor, is even if one thinks that some injunctive relief is appropriate, that relief, as Judge Bennett has repeatedly pointed out, needs to be tied to the particular harm for which plaintiffs have asserted

[00:49:01] Speaker 05:
turned on its belief that the individual plaintiffs and then by extension the organizational plaintiffs had standing because of retaliatory uses of force against

[00:49:19] Speaker 05:
This injunction goes far beyond that standing finding by the district court.

[00:49:26] Speaker 05:
For example, the provision respecting warnings doesn't appear to have any relation to the use of retaliatory force.

[00:49:38] Speaker 05:
The court actually held that the First Amendment doesn't require the issuance of verbal warnings at all in the context of a violent or disruptive protest.

[00:49:47] Speaker 05:
And so the highly reticulated terms of this injunction, which read very much like a law enforcement manual, just go far beyond what is necessary to remedy even what plaintiffs have asserted standing over and what the district court found, which all turns on not

[00:50:07] Speaker 05:
merely the use of crowd control devices, but the use of crowd control devices in a retaliatory manner.

[00:50:14] Speaker 05:
And that leads to my third and final point, which I want to leave the court with.

[00:50:20] Speaker 05:
The other side has made many representations about the facts in this case.

[00:50:25] Speaker 05:
And I would urge the court to look closely at the district court's findings.

[00:50:30] Speaker 05:
One example that the other side relied upon, for example, is the allegation that Mr. Beckner Carmichael at the Paramount protest was struck in the face by a tear gas canister, and that had to be retaliatory in nature.

[00:50:52] Speaker 05:
14, there are plausible alternative explanations that are not retaliatory in nature.

[00:51:01] Speaker 05:
For example, at the time Mr. Beckner Carmichael was standing just 20 feet away from protesters, and the government officers there may have been attempting to fire up and over the crowd to avoid hitting Mr. Beckner Carmichael.

[00:51:17] Speaker 05:
And similarly,

[00:51:23] Speaker 05:
testers.

[00:51:42] Speaker 05:
retaliatory intent.

[00:51:44] Speaker 05:
And if you look at what the district court said on page 1, SCR 14, the court acknowledged the alternative explanations and then just moved on without providing any further analysis as to why it thought the government's alternative explanations were not plausible in the context of the record.

[00:52:05] Speaker 05:
And so the broad brush statements about retaliatory

[00:52:35] Speaker 05:
pending appeal.

[00:52:38] Speaker 03:
Thank you, Mr. Shee.

[00:52:41] Speaker 03:
Because we've divided up the issues a bit.

[00:52:48] Speaker 03:
I think we've covered all the points to be argued.

[00:52:56] Speaker 03:
But if it is

[00:53:01] Speaker 03:
If panel judges think there's someone else that we need to hear from, briefly, they can let me know now.

[00:53:13] Speaker 02:
I don't have any further questions.

[00:53:15] Speaker 02:
Thank you, Judge Gould.

[00:53:16] Speaker 01:
Thank you for asking, Judge Gould.

[00:53:18] Speaker 01:
I also do not have any further questions.

[00:53:20] Speaker 03:
And nor do I. So we will now submit this case.

[00:53:28] Speaker 03:
It's a very challenging case, posing a lot of difficult issues.

[00:53:34] Speaker 03:
So we'll try to get a decision out at the earliest possible time, keeping in mind that I think probably everyone would like to hear from us as soon as possible.

[00:53:58] Speaker 03:
So thank you all.

[00:54:02] Speaker 03:
And the clerk can show this case.

[00:54:07] Speaker 03:
Now I submit it.

[00:54:09] Speaker 03:
And I want to thank again all the advocates for their excellent arguments.

[00:54:19] Speaker 03:
And thank the panel judges for their excellent questions.

[00:54:28] Speaker 03:
the clerk's office staff for all their efforts to put this hearing together in a timely way.

[00:54:39] Speaker 03:
With all those things, thank you, Stan.

[00:54:42] Speaker 03:
I think we are now adjourned.

[00:54:45] Speaker 00:
Thank you, Judge Gold.

[00:54:46] Speaker 00:
Thank you, Your Honors.

[00:54:47] Speaker 04:
Thank you, Your Honors.

[00:54:49] Speaker 00:
This court for this session stands adjourned.