[00:00:00] Speaker 04:
Next case we will hear is Dickinson v. Trump.

[00:00:06] Speaker 04:
And Mr. Xi, whenever you're ready, and again, watch the clock if you want to reserve time for rebuttal.

[00:00:14] Speaker 02:
I'm Xi, government, and I hope to reserve five minutes.

[00:00:21] Speaker 02:
The district board entered an extraordinary limited injunction that effectively bans DHS officers from deploying common crowd control devices in many circumstances where their use would be appropriate. The scope and the substance of that injunction are completely untethered from plaintiff's claims, which are limited in this posture to First Amendment retaliation. And so the injunction should be stayed pending.

[00:00:51] Speaker 02:
The district court's error is probably best illustrated by one key injunction term. You can find that I think subsection 1A of the injunction says that DHS officers aren't allowed to use tear gas, pepper balls, UNLESS THE SPECIFIC TARGET OF SUCH A WEAPON OR DEVICE POSES AN IMMINENT THREAT OF PHYSICAL HARM. NOW, THAT REQUIREMENT, PHRASED IN THAT WAY, HAS NO BASIS WHATSOEVER IN THE FIRST AMENDMENT AND IS FORECLOSED BY THIS COURT'S DECISION IN THE FIRST AMENDMENT.

[00:01:30] Speaker 02:
THAT THE FIRST AMENDMENT POSES NO OBSTACLE TO LAW ENFORCEMENT OFFICERS USE OF THESE EXACT SAME DEVICES TO DISBURSE A CROWD SO LONG AS THERE'S NOT ONLY AN IMMINENT THREAT OF VIOLENCE BUT ALSO IN RESPONSE TO IMMINENT LAWLESSNESS INCLUDING A THREAT OF QUOTE RIOT DISORDER OR INTERFERENCE WITH TRAFFIC QUOTING AN OLD SUPREME COURT CASE STATING ALL THE WAY BACK TO 1940. SO THE DISTRICT COURT'S MISUNDERSTANDING OF THE devices may be used infects every aspect of its analysis from standing to the merits of the First Amendment, a retaliation claim all the way to the scope The stand plaintiff's theory instead.

[00:02:18] Speaker 02:
Is that in the past they were subjected to a handful of incidents where they were exposed to crowd control devices in a manner that they think was retaliate. The district court in its findings, not citing any part of the record.

[00:02:34] Speaker 02:
Just agreed with plaintiffs and said, yep, that's retaliatory. If I can interrupt here.

[00:02:40] Speaker 05:
So does standing in some ways collapse with the merits?

[00:02:44] Speaker 05:
Because it seems like standing, the court's standing analysis was predicated on the view that they were being intentionally targeted, which seems to kind of go into the merits. I mean, is there really a, is there some daylight between the two or are they essentially one and the same?

[00:03:00] Speaker 02:
For purposes of this case, Your Honor, the same reason plaintiffs don't have standing is the same reason they don't prevail on the merits. So there is some degree of overlap, Your Honor. And maybe it's helpful for me to spell out exactly why. For plaintiffs to show standing, of course, they've sued not the individual officers who did the particular uses of force that they said were retaliatory in the past. They've sued DHS has an entire agency. So to do that, they need to demonstrate not that the individual officers had retaliatory intent, but that the agency as a whole had the requisite retaliatory intent.

[00:03:34] Speaker 02:
And so the way they've tried to do that is to they've been exposed to crowd control devices in a way that they think was retaliatory. The problem with that theory is the Supreme Court's decision in Lyons v. City of Los Angeles, which says, as a matter of black-letter law, you can't get prospective injunctive relief based on mere allegations that something bad has happened to you in the past.

[00:04:00] Speaker 03:
The council, isn't Lyons distinguishable here? We are...

[00:04:04] Speaker 03:
talking about the First Amendment and one can allege injury based on First Amendment chill. And so, you know, you've got past incidences of purported targeting that have created this chill and Dickinson, among other plaintiffs, have testified as to that injury.

[00:04:23] Speaker 03:
And so it's a continuing and present injury that they're alleging. Why doesn't this take this out of the lion's category of cases.

[00:04:33] Speaker 02:
With the subjective chill allegations, there's a different Supreme Court decision clever which Klepper relied upon. And what Klepper made clear is that it's not enough for plaintiffs simply to say, well, I allege that I've been chilled because I'm afraid that something bad might happen to me if I exercise my First Amendment rights. Then plaintiffs still need to point to something that makes that fear objectively reasonable and plaintiffs need to demonstrate that kind of objectively reasonable harm.

[00:05:07] Speaker 02:
And again, What they've fallen back to, and this is the reason why the allegation of subjective chill doesn't add very much to the analysis. What they fall back to are, well, in the past they were exposed to these allegedly retaliatory uses of force, and they've attempted to infer the existence of a DHS-wide policy embracing First Amendment retaliation.

[00:05:32] Speaker 00:
Well, counsel didn't, I apologize, but didn't we say, we the Ninth Circuit and Twitter versus Paxton, That self-censorship, which is basically when a claimant is chilled from exercising their right of free expression, isn't that enough for an injury in fact for the standing element?

[00:05:48] Speaker 02:
So, the court has many cases recognizing subjective chill as an injury. In fact, we're not arguing that a subjective chill or that a First Amendment chill rather. This is a critical distinction. We're not arguing that a First Amendment chill in itself is not a cognizable injury under Article 3. That's not the argument. Our argument, though, is that the Supreme Court has made quite clear in cases like Clapper. And as this court has said, in cases such as Phillips against CDP, allegations of subjective chill still need to be based on an objectively reasonable likelihood that the theme that plaintiffs objectively fear is going to happen.

[00:06:30] Speaker 02:
And that's the problem with the district court's analysis. If I can shift to the merits, this could also explain why, you know, on the merits, the district court's analysis of retaliation just doesn't hold water. The court's analysis basically went as follows.

[00:06:46] Speaker 02:
Certain DHS officers used force that in the court's view was excessive. Because the force used was excessive, there is no other explanation for the officer's use of that force except subjective retaliatory animus against the speech that the officers were witnessing. And then from there, the court inferred a policy, an unwritten policy contrary to DHS's express prohibition on retaliation, the existence of an unwritten policy embracing retaliation.

[00:07:20] Speaker 02:
So those were the steps that the district court followed. And each of those steps was erroneous.

[00:07:27] Speaker 02:
Just start with the premise that the force used was excessive. The district court never actually specified what test for excessive force was being used.

[00:07:36] Speaker 02:
At one point, the district court cites the Nelson case, but Nelson against City of Davis was a Fourth Amendment case. And of course, there is no Fourth Amendment claim presented in the motion for preliminary injunction, which just underscores the extent of the district court's confusion. And if one looks to the terms of the preliminary injunction, limiting the use of crowd control devices only to circumstances where there's an imminent threat of physical injury, well, again, that's inconsistent with Puente, which recognizes that these devices may be used in a far broader range of circumstances than the district court acknowledged.

[00:08:12] Speaker 02:
And so the district court's very premise that the force used was excessive. was predicated on what appears to be just a gravely erroneous understanding of the restrictions that the constitution places on the use of crowd control devices but even if we spot the district court that and agree that some of the isolated incidents that plaintiffs have described to do amount to retaliation um the the court would or rather do amount to the excessive use of force whatsoever to do with subjective intent to retaliate so for example an officer might simply have been scared of a crowd and that fear had it turns out no basis objectively speaking on the threat the crowd actually posed an officer might counsel if i may interrupt but aren't instances of excessive force i mean assuming they are in such instances at least suggestive

[00:09:16] Speaker 03:
of retaliatory intent.

[00:09:18] Speaker 03:
It's very difficult for plaintiffs to prove directly the state of mind of any particular officer. So they rely on circumstantial evidence. And if you have repeated instances of excessive force, isn't that at least suggestive?

[00:09:33] Speaker 02:
It's certainly relevant to the inquiry, Your Honor. We're not suggesting that it's not. But there are other factors that are relevant to the inquiry, too. So if you look at, for example, the Cantu Declaration, which is, I think, document number 116-1 of this record, Cantu's declaration describes The protest activity that DHS officers witnessed where, you know, hundreds, if not thousands of protesters repeatedly tried to storm the facility. Blocked federal vehicles from entering or exiting built barricades in the street, including in 1 instance, by erecting a prop team, attacked DHS officers with improvised projectiles showed up with bats, shields, ballistic vests through fireworks at the facility.

[00:10:17] Speaker 02:
None of that appears in the district court's decision. And those are also relevant facts that would go to whether the force used was excessive, much less subjectively retaliatory in nature. I see that cutting into my rebuttal.

[00:10:33] Speaker 00:
I want to ask you a few questions, counsel. I'm sure my colleagues will give you a little more time or will agree to give you more time.

[00:10:42] Speaker 00:
But let's talk about the circumstantial evidence of ICE's intent here. Hitting people on the head without warning, being shot at while standing apart from others. Those are some of the things that the courts, the district court cited to to show circumstantial evidence of intent. And this is what Judge Tong was talking about, about basically like, yeah, we you know, it's difficult for someone to know what the motivation was in the officer's head as they were doing something. But we can look at circumstantial evidence. Is that not a correct understanding of the law?

[00:11:17] Speaker 02:
Our point with respect to that is the court's depiction of what the circumstances show is incomplete. The court didn't even cite the Cantu Declaration's description of what went on.

[00:11:35] Speaker 02:
Clearly erroneous for the court simply to ignore potentially relevant facts that are developed in the record through declarations. But even assuming that plaintiffs would be entitled to some form of injunctive relief, Under the First Amendment retaliation theory, it's clear that they're not entitled to this injunction because, again, the scope of the injunction applies basically to anybody in the world who decides that they want to show up at the Portland ICE facility to protest.

[00:12:05] Speaker 05:
If I can ask you a question, the district court said, To us, it says to the appellate court, please look at the videos. And I did look at them. I think probably the vast majority of them do show unrest or trespassing. But there are a few videos, and I don't think they're of the plaintiffs. Maybe Ms. Hutchinson will shed more light. But there are a couple of videos where it seems like a couple of people are not necessarily trespassing or causing trouble and you know one person is sprayed in the face another person is knocked down i think it's albee's video and hazleton video um admittedly i don't think they're the plaintiffs but what do we do with those uh videos when we see those so you know i can't speak to whether any given use of force depicted in the videos was retaliatory

[00:12:51] Speaker 02:
But the point is the district court can't simply assert with a broad brush, well, I've looked at all the videos and I believe they show evidence of retaliation. The court made clear in Puente, subjective retaliatory intent is an incredibly rigorous inquiry that goes to the mind state of the officers in question. And if the court just looks at videos without even acknowledging declarations indicating what else might have been occurring, including at the very same protest wasn't captured in videos, that's the sort of thing that one would expect the district court to have engaged with in order to provide an accurate understanding of the motivations of the officers in question.

[00:13:32] Speaker 03:
Counsel, whose subjective intent do we look at? The claims I understand are claims about DHS having an unwritten general policy, right? So do we look at the intent of the policymakers? Do we look at the intent of the officers on the ground? Do we have a collective aggregate intent test? What's the test?

[00:13:52] Speaker 02:
So the way plaintiffs have The way the district court thought about retaliatory intent was as follows. The officers had retaliatory intent. That can be attributed to the agency because there was a lot of retaliation. And so the agency had retaliatory intent. So that's the theory that the district court entered injunctive relief on. And our point is that every step of that theory requires a legal.

[00:14:24] Speaker 02:
Or depends on legal assertions that just aren't accurate. So, when the district court said, for example, the individual officers had retaliatory intent, there were 2 legal errors. The 1st has to do with.

[00:14:39] Speaker 02:
second legal error had to do with the conflation of force that is objectively excessive with the presence of subjective retaliatory intent. So that's just step one. And step two is even if those particular instances, some or all of them were retaliatory, there would still need to be a basis for inferring, contrary to the written policy, an unwritten policy of retaliation. And we know that although there were many protests that occurred at the Portland ICE facility involving First Amendment activity, not every one of those protests involved the deployment of crowd control devices.

[00:15:16] Speaker 02:
And that's pretty strong evidence against the idea that DHS has this general policy encouraging officers to retaliate against First Amendment speech that they don't like. And then, you know, the critical piece of all of this, though, is even if, again, the First Amendment retaliation claims might support some injunctive relief, The particular terms of this injunction bear no resemblance to any sort of restriction on the use of crowd control devices that the First Amendment for the reasons discussed, the terms restricting the use of, for example, tear gas and pepper balls only to circumstances where there's an imminent threat of physical harm, that just can't be reconciled with Puente.

[00:16:02] Speaker 02:
And if permitted to carry out into force, would amount to much more substantial restrictions

[00:16:10] Speaker 00:
on the use of these devices, then... Counsel, you keep citing to Puente, but wasn't Puente different? I mean, factually different? That was a single protest, presented clear and present danger to President Trump. Here we're talking about a systemic pattern. You had plaintiffs submitted 62 declarations from recipient witnesses. This is not just one event or a one-off. This is over months. Isn't that make it different and distinguishable from Puente?

[00:16:39] Speaker 02:
No, Your Honor. The key is that Puente said, just as a matter of First Amendment law, when officers are confronted with a clear and present danger, not only of physical violence, but also of riot, obstruction of traffic, imminent lawlessness, spoke far more broadly, then it is lawful. The First Amendment does not impose a barrier. to the use of these devices and so nothing in puente turns on well if they're confronted with only one protest then that's the test but if there are many many many different protests then somehow there's a different first amendment test um puente doesn't say that and that certainly doesn't you know you know make much of a basis for distinguishing puente sorry we're talking about patterns here Right.

[00:17:29] Speaker 02:
So the theory is that notwithstanding the fact that, you know, Quente says these devices will be used in a far broader range of circumstances. What I understand, Your Honor, to be asking is maybe there are lots and lots of circumstances where even Quente's test was not met and yet the devices were used anyway. And isn't that evidence of retaliatory intent?

[00:17:51] Speaker 02:
As to that, I would just direct this court to just the district court's findings.

[00:17:59] Speaker 02:
For example, the testimony of the lead plaintiff, Mr. Dickinson, who said that he attended at least 150 protests. And yet, if one looks at the number of instances of force used against Mr. Dickinson that the district court thought was retaliatory, that number is four, I think, or something in that vein. and so um the the way that the district were characterized dhs officers engagement with protesters uh doesn't appear to be borne out even by the allegations that plaintiffs have put in i also watched the videos and i found them to be quite disturbing not all of them of course but a big majority of it um you know hawkins declaration yet a protester shot in the eye i i

[00:18:45] Speaker 00:
I just don't know how we're justifying this.

[00:18:51] Speaker 02:
So, Your Honor, again, I can't speak to any particular use of force by any given DHS officer. I will note that the record indicates that DHS has a few pending investigations into activities at the Portland ICE facility that are currently pending, so I'm afraid I don't have any more information about that. DHS does take First Amendment retaliation allegations seriously as evinced by DHS's policy, express policy forbidding it but the point is even if your honor thought that the record supported plaintiff's first amendment retaliation claims um again uh that wouldn't justify the scope of the injunction here which again the terms of the injunction aren't limited to the circumstances that your honor have just as described but extend even to circumstances where under puente their use would be totally lawful and yet the district court has prohibited them and furthermore the scope of the injunction applies not merely to the named plaintiffs but to, again, anybody in the world who wants to go to the Portland ICE facility and protest.

[00:19:55] Speaker 02:
And that's in defiance of the Supreme Court's decision in Trump against Casa. So there's many different ways in which the relief that the district court entered is overbroad, even granting incorrectly that plaintiffs are likely to prevail on their First Amendment retaliation theory. And the court need look no further than the LA Press Club decision, which accepted an analogous theory of First Amendment retaliation, but held that the injunction ought to be vacated in its entirety. And so at a minimum, then the court ought to stay.

[00:20:27] Speaker 02:
This similarly overbroad injunction pending appeal.

[00:20:30] Speaker 03:
Counsel, you brought up LA Press Club. The first half of that opinion did find retaliatory. intent and said that the court district court there properly issued the pi are we bound by that

[00:20:43] Speaker 02:
If not, Your Honor, if you look at pages 14 and 15 of the slip opinion, all the court concluded with respect to the retaliation merits was that, quote, there was no clear error in that district court's retaliatory intent finding. But here, by contrast, the district court's intent analysis was infected by legal errors. The first is that the very premise of the retaliation analysis was that the force used by individual DHS officers was constitutionally excessive. at pages 20 and 21 of the district court decision, but the court didn't cite the First Amendment standard governing when non-lethal force can be used, didn't cite Puente, except to try to distinguish it fruitlessly, and relied on a Fourth Amendment theory of excessive force, even though there wasn't any Fourth Amendment.

[00:21:29] Speaker 03:
But why doesn't that go to over-breath?

[00:21:32] Speaker 03:
That was the rationale that this court adopted in L.A. Press Club, that that question about whether the injunction should be limited to enjoining retaliatory conduct as opposed to enjoining also non-retaliatory conduct, that that is a question of overbreath, but not as to kind of the merits of issuing the P.I. in the first place.

[00:21:55] Speaker 02:
Your Honor, because of the district court's theory, where the premise of the retaliation finding at the very beginning was that the force used by officers was excessive.

[00:22:06] Speaker 02:
But it certainly is relevant, Your Honor, and indeed controls the question of the fact that this preliminary injunction is overbroke, because at a minimum, even if the court thinks that plaintiff ARE LIKELY TO PREVAIL ON THE FIRST AMENDMENT RETALIATION THEORY THIS INJUNCTION PROHIBITS THE USE OF CROWD CONTROL DEVICES IN CIRCUMSTANCES WHERE THE FIRST AMENDMENT WOULD PERMIT IT AND SO THE RELIEF GRANTED WAS IMPROPER COUNCIL I KNOW WE TOOK YOU WAY OVER TIME BECAUSE WE HAD A LOT OF QUESTIONS SO WE'LL GIVE YOU AN EXTRA TWO MINUTES FOR REBUTTAL SUCHINSON WHENEVER YOU'RE READY

[00:22:40] Speaker 01:
Thank you, honors. May it please the court, Kimberly Hutchison on behalf of the plaintiffs. The district court found that under unified FPS command, defendants have an unwritten policy of using excessive force against nonviolent peaceful protesters at the Portland Ice Building for the purpose of chilling the constitutional rights to free speech and the free press. That factual finding was not clear error. It establishes the plaintiffs are likely to succeed on the merits of their First Amendment retaliation claim and that the equities and public interest weigh in favor of the injunction.

[00:23:12] Speaker 01:
The district court's finding of irreparable harm in the form of First Amendment chill was also not clear error. So it did not abuse its discretion in granting this injunction. Because the government has failed to show irreparable harm absent a stay, and in fact, plaintiffs will suffer irreparable harm if the injunction is lifted, the government's motion must be denied in its entirety. At minimum, there's no lawful basis for staying to other district court proceedings pending this appeal. Your honors have properly focused on the district court's finding of this unwritten policy.

[00:23:42] Speaker 01:
As the basis for finding this policy from the highest unified command of FPS, I would point your honors to the Minotti case decided by this court, which expressly found that a policy or custom of retaliation may be inferred from widespread practices of evidence of repeated constitutional violations and the absence of evidence that officers were discharged or reprimanded. While my friend on the other side points to supposed investigations and to wrongful use of force, no officer has ever been spoken to about any of these instances that even the deputy regional director and the regional director himself acknowledged were inappropriate or deserved higher scrutiny.

[00:24:25] Speaker 01:
And those are the examples of excessive force that the district judge examined through this video evidence and the review of the extensive record here. The government at most has indicated that when there is public scrutiny of an example of excessive force, they then open an investigation without ever notifying the particular officers involved that their use of force was questionable. That is indicative of a policy of allowing and in fact encouraging this type of excessive force.

[00:24:57] Speaker 01:
And that encouragement also came from the highest levels of DHS when the FPS regional director was directly praised for the tactics that were being used at the Portland Ice Building, including the whole purpose of Operation Script Chat was to address the protests at the Portland Ice Building. So the inference from this praise is that tactics used against protesters are exactly in line with what the highest officials at DHS wanted these individual officers.

[00:25:27] Speaker 03:
Counsel, how do you distinguish Puente, though? I mean, there, after the fact of the incidences, a challenge coin was made commemorating the use of tear gas there, and yet the Ninth Circuit held, this court held, that there was no evidence of retaliatory intent.

[00:25:45] Speaker 01:
Well, I think Judge DeAlba's point goes directly to that. That was a single incident. So actions taken after a single incident are not properly considered when determining whether there was retaliation. This is a pattern of near daily occurrences of protesters at the Portland ICE facility and the continued use of the same type of excessive force that is being praised and not reprimanded. So this isn't officers after the fact celebrating their own use of force. It's the highest parts of DHS praising individuals for the force that they're using against protesters.

[00:26:21] Speaker 05:
Can you address the government's point that the district court didn't address conflicting or maybe contextual evidence? That is, the district court never addressed what was alleged in the Cantu Declaration, that there was unrest, vandalism, trespass, etc., And from what I take from the government is they use these crowd control devices for legitimate purposes, and there may have been collateral harm as a result. And the district court really never addressed that part of the evidence.

[00:26:53] Speaker 01:
I don't think that's a fair reading of the district court's analysis. First, Mr. Cantu's declaration, he admitted, was based on reading reports written by other officers. It was not based on his own personal experiences at the Portland ICE facility. And so while the judge read that and, in fact, told the government he was looking forward to the opportunity to speak to Mr. Cantu himself, who the government chose not to bring himself, We got into a deeper conversation about those topics during his deposition and also during the depositions of the other officers who were present at the ICE facility during the dates that we were focused on for the purposes of the preliminary injunction.

[00:27:31] Speaker 01:
So it's not that the district judge didn't consider the declaration, it's that he considered it in context with all of the other evidence that he personally evaluated through live testimony, as well as the full deposition testimony from Mr. Cantu. and Mr. Cantu's supervisor, Mr. Johnson, as well as 11 other DHS officers who were involved in particular incidents. And those officers had very concerning explanations for what they were doing and why.

[00:28:01] Speaker 01:
It revealed that they understood they were using these chemical munitions against individuals who were essentially passively resisting, and that they never got any reprimanding for that. So whereas Mr. Cantu's declaration pulls from written reports, the district judge properly paced more of his reliance in the factual findings on the live testimony that gave context to each of those reports that were discussed.

[00:28:32] Speaker 05:
Good explanation of it, but it's incumbent on the district court to provide that explanation.

[00:28:38] Speaker 01:
And I do believe that the district court does provide that explanation because he's talking about the particular testimony that he heard. So he talks about the testimony that he heard from each of the plaintiffs and each of the witnesses who were class members who came and testified. And he found them all credible. So a finding that these witnesses were credible in their explanation of what happened is And not just those percipient witnesses, but also the three law enforcement officers who testified as experts, but also as percipient witnesses as to what was happening on the ground.

[00:29:16] Speaker 01:
And I'm referring to the commanders of the Portland Police Bureau. and the officer from the Oregon State Police, who themselves testified to their own experiences on the ground, where they personally witnessed the use of chemical munitions against peaceful and nonviolent protesters.

[00:29:33] Speaker 05:
Actually, on that point, so under the district court's injunction, the agents could only use these crowd control devices if they are in imminent physical harm.

[00:29:46] Speaker 05:
So under the district court's injunction, if there were thousands of people blocking the entrance to the ICE facilities so cars can't go in or out, ICE could not use these crowd control devices, right?

[00:30:02] Speaker 01:
Correct. Although I do want to clarify that it's not just imminent harm to the officers. It also allows the use of these munitions if there's imminent harm to any other individuals. So this restriction actually tracks very closely with FPS's own use of force policies and particularly their public order policing policy. And it's important to remember that all of the DHS agents that were coming to the Portland Ice Building for Operation Skipjack were coming to support FPS in their mission to protect the building.

[00:30:33] Speaker 01:
And so it is indicative what tools are necessary to achieve that goal to look at FPS's own policies and what DHS is deemed to be necessary to protect.

[00:30:44] Speaker 05:
If...

[00:30:46] Speaker 05:
hundreds of people came and started vandalizing the gates with security cameras. I guess under the district court's injunction, the agents still couldn't use these crowd control devices.

[00:30:57] Speaker 05:
Correct. I don't see how that's covered under the First Amendment there. I mean, there's no First Amendment right to commit vandalism or impede law enforcement. It seems the injunction was just way too broad.

[00:31:11] Speaker 01:
I would agree that there's no First Amendment right to commit unlawful behavior, but the injunction directly allows the officers to use other tools when people are behaving unlawfully. And actually, the portion of the injunction that's A3 allows for any DHS officer to use proportional force, including less lethal weapons, on any individual who's imposing this real threat to the officer. So they can book arrest individuals use OC spray against specific individuals engaged in violent, unlawful conduct or actively resisting arrest or in a defensive capacity.

[00:31:50] Speaker 01:
And then if it becomes a physical risk to the officers, they can still use these chemical munitions.

[00:31:57] Speaker 01:
When thinking about whether this is something that is feasible and workable for law enforcement, in addition to recognizing that four law enforcement officers all testified as much, which is to include the three I just mentioned and Mr. Kulikowski, the former CPP commissioner, we should look at the actual tools that FPS has decided are necessary for this mission. Because that was something consistently testified to across all witnesses is that FPS is in charge of this and it's FPS's goal of protecting property and people that all of these agents are here to achieve.

[00:32:31] Speaker 01:
So whatever tools the DHS has determined FPS can use to accomplish that mission is may be necessary. That does not include tear gas. That does not include chemical munitions fired indiscriminately into crowds. In fact, that's directly prohibited by FPS's policy. And if you look at the FPS public order policing policy, the restrictions therein, which are specifically tailored to protecting First Amendment rights, are very consistent with this preliminary injunction. The problem here is that there was testimony undisputed in the district court that these officers are not being trained on public order policing.

[00:33:10] Speaker 03:
Council, can I offer you a couple of scenarios? Okay. Scenario A, the officers use chemical crowd dispersing munitions to clear the driveway that has been blocked by the thousands of protesters, right? In order for a vehicle to leave the building and for the officers to perform their duties.

[00:33:33] Speaker 03:
Scenario A. Scenario B is no use of chemical munitions, right? And the car, the van leaves the facility, is on the driveway, and the protesters are still there, right, and demonstrating. And the car is now surrounded by the thousands of protesters. Which scenario, counsel, do you think is the safer scenario? Okay.

[00:34:02] Speaker 01:
So it's a little hard in that kind of hypothetical without knowing specifics of what munitions you're trying to use. But in that scenario, if there was the problematic protesters surrounding the car, you have other supportive individuals and tools that the agents can use at that point. At that point, there may be a good argument that there is a imminent physical threat to officers.

[00:34:23] Speaker 03:
Your test counsel then appears to invite confrontation, does it not? It invites dangerous confrontation.

[00:34:30] Speaker 01:
No, and in fact, the court's finding, which is required to have deference from this court, was that the evidence showed that FPS's current behavior is what is inviting chaos and violence. And in fact, that's consistent with the evidence that was reviewed. On many occasions, protesters did not begin to engage in any of what the government characterizes as violent behavior until after chemical munitions were deployed. And that's consistent with the explanation by Mr. Kulikowski and the other law enforcement experts that that sort of behavior by law enforcement can trigger a reaction in a crowd.

[00:35:06] Speaker 01:
So the use of chemical munitions is what is causing chaos on the ground and causing everyone to be in a place of danger. In fact, those experts all testified that this is going to improve the safety of both law enforcement officers and the members of the public here.

[00:35:27] Speaker 01:
The FPS policies, the public order policing policies reflect that because there isn't, obviously, there needs to be law enforcement managing activities that involve large crowds, but that management cannot be at the sacrifice of First Amendment rights. There needs to be an equal goal of protecting First Amendment rights and protecting the safety of everyone. And the policy itself written by FPS, which is what this preliminary injunction follows, hits that balance appropriately.

[00:36:00] Speaker 01:
It allows for the use of force using chemical munitions against specific individuals who are imminent threats to the physical safety of others. It does not allow indiscriminate firing of chemical munitions into a crowd. And that's what you see in these videos. There's many, many instances where the chemical munitions are actually being fired deep into the crowd, far away from anyone who could be threatening the physical safety of officers or the safety of the building itself.

[00:36:34] Speaker 01:
The indiscriminate filing of chemical munitions into crowds is unjustified under the FPS policy, and that is what is causing this First Amendment chill because it's not appropriately tethered to any real threats. The preliminary injunction just requires that officer behavior be tethered to specific threats against them or the property, which is consistent with their own policies.

[00:37:00] Speaker 01:
Now, circling back to really the scope of this injunction, which I understand there's some concerns from the government about who it applies to, the argument that this is problematic under CASA is disingenuous because we have a certified class here. That class is specifically limited, and in fact, this is even more limited than other preliminary injunctions upheld by this court, including LA Press Club. LA Press Club is covering protests throughout the city of Los Angeles. This is talking about protests at a single location that have been occurring since June 2025.

[00:37:34] Speaker 01:
And so I do disagree with my friend as to how much deference this court needs to give to the LA Press Club holdings. First, with everything that was discussed about standing was discussed in LA Press Club and should be decided in the same way by this court. Judge Tong was completely accurate that the first amendment chill is a current injury that is ongoing and sufficient to give standing to the plaintiffs in this case to get prospective injunctive relief. The findings in LA Press Club about retaliatory intent are also controlling on this court in terms of what factors should be looked at.

[00:38:12] Speaker 01:
And LA Press Club specifically pointed to extensive evidence of federal officers repeatedly targeting journalists and others who were far away from bad actors, as well as evidence of deploying crowd-controlled weapons, even when crowds were already dispersing or attempting to disperse. Our record is replete with the same type of evidence. If you look at each of our named plaintiffs, all of their examples fall into either one of those categories.

[00:38:41] Speaker 03:
Counsel, can I just respond to that? I'm looking at L.A. Press Club and the court said the record contains extensive evidence that federal officers repeatedly targeted journalists and peaceful legal observers who stood far from any protesters or bad actors. I read the Dickinson declaration and he was standing, you know. really close to the people who were blocking the driveway. He himself may have been blocking the driveway, which is a trespass, which is unlawful behavior.

[00:39:12] Speaker 03:
So to me, that evidence, at least Dickinson's and others are like that, appear distinguishable from the evidence in LA Press Club. Can you respond to that?

[00:39:22] Speaker 01:
Certainly. So first, I would encourage you, Judge Tong, to watch the video of Mr. Dickinson. He's against the wall and not blocking anything. But more particularly with that quote, I would refer, Your Honor, to the declarations and testimony of Mr. Rios and Mr. Mason, who are both journalists. They were both documenting and away from protesters when they were targeted, particularly Mr. Rios was had pepper balls fired at him 20 times. And these are just the examples that are easily accessible from you, but you can see other such examples in other journalists.

[00:40:00] Speaker 01:
For example, Mr., I believe it's Andrew Wirth was another declarant cited by the district court who was a journalist who was targeted. And so that particular portion of LA Press Club I think is more pointed for our journalists who were standing away from protesters, documenting what was happening and was nonetheless personally targeted and told that by officers that they didn't care that they were just filming or members of the press. The other quote that I was reading was from the same page on page 14.

[00:40:31] Speaker 01:
There's also evidence that defendants deployed crowd control weapons, even when crowds were already dispersing or attempting to comply with orders to disperse. And that's where you can see the evidence of, for example, the Ekmans or Mr. Dickinson, um, even Mr. Dickinson's other explanation, not the one on the driveway, but his other incident, he was walking away, he got pushed, he got shot from behind as he was leaving the area. And so I'm not suggesting that every example fits into both of those quotes, but nearly every example fits into one or the other quote, that people were targeted away from protesters, or people were targeted when they were attempting to disperse, or even when people were not even in the federal property where they would need to leave because the warning is warning people to leave the property that is closed, that is supposedly a trespass.

[00:41:24] Speaker 01:
So firing chemical munitions across the street and up the street and on people who are standing on the street has nothing to do with the only thing that can be construed as a dispersal order, which is just saying to leave the federal property. And I know you mentioned a few other instances of excessive force that I would just reiterate. And I think it was Judge Lee who mentioned these. These were our videos of the individual standing on the street and getting sprayed or standing away from federal property and having this excessive force.

[00:41:56] Speaker 01:
The government wants to suggest that all of these individual instances of excessive force are being investigated. But both Mr. Johnson and Mr. Cantu have confirmed that only four instances of potentially wrongful force are being investigated. And nevertheless, more than four instances that we reviewed in our depositions were acknowledged to be potentially wrongful use of force. And so this is demonstrating, as I mentioned in Menotti, that there is a failure to reprimand on any of these wrongful uses of force or potentially wrongful uses of force.

[00:42:33] Speaker 01:
That is indicative of the unwritten policy that the district court found And that found finding was not clear error. Remembering that when your honors review these factual findings, if you can look at the record and two different conclusions are plausible, deference is in the district court is entitled to deference on his interpretation of that. And that is what is required here for the unwritten policy of retaliation against protesters.

[00:43:00] Speaker 01:
I see I'm way past my time unless you have additional questions.

[00:43:05] Speaker 05:
Great. Thank you.

[00:43:07] Speaker 05:
Mr. Shee, you have a couple minutes.

[00:43:11] Speaker 02:
Thank you, Your Honor. I want to make two points.

[00:43:15] Speaker 02:
The first is plaintiff's presentation lays bare the unworkability of the injunction and the extent to which it has no basis in any sort of recognizable First Amendment restriction on the use of force. You heard plaintiff's counsel very straightforwardly omit that even if hundreds, if not thousands of people are peacefully blocking the entrance and the surrounding streets of the ICE facility, there's no possibility under their theory that crowd control devices may be used.

[00:43:45] Speaker 02:
In their view, the only thing officers can do is to wade out into the crowd and start arresting people if they don't comply. And as the DHS declarations point out, that carries with it a significant risk of escalating the situation even further.

[00:44:02] Speaker 02:
More importantly, the theory doesn't even extend to people, hundreds if not thousands of people who are vandalizing the property, trespassing on government property, trying to destroy government cars, cameras, fences. In one case, the Cantu Declaration indicates that a protester threw what appeared to be a smoke bomb onto the top of the ICE facility, which then caught fire.

[00:44:27] Speaker 02:
These are damages to property, and it's not at all clear that plaintiffs think that crowd control devices may lawfully be used in those circumstances as well. And again, Puente makes quite clear that the First Amendment permits these devices to be used in a far broader range of circumstances than plaintiffs and the district court suggests. And that indicates at a minimum that the injunction substantive terms are overbroad. And the second thing I just wanted to note was that plaintiff's presentation again and again depended on the assumption that the force used was excessive.

[00:45:01] Speaker 02:
But again, plaintiffs never cited the relevant use of force test in the First Amendment, and neither did the district court, which relied on the Fourth Amendment. And although plaintiffs provided a post hoc explanation, none of that explanation was present in the district court's decision.

[00:45:15] Speaker 03:
Counsel, is the First Amendment test eminent lawlessness, the clear and present danger test under Cantwell?

[00:45:22] Speaker 02:
The test articulated in Puente citing a number of other cases. I think the Supreme Court's Cantwell decision, and I think also the Collins decision from this court. Puente has a section the force may be used to disperse a crowd without transgressing the First Amendment. And I would direct your honor to that passage.

[00:45:44] Speaker 03:
So even let's say we agree with you that there was eminent lawlessness that would have justified the use of the chemical munitions. Can't plaintiffs still show retaliatory intent?

[00:45:57] Speaker 03:
In other words, that's a separate question, right, of subjective intent? Or is your position that once there's eminent lawlessness, the First Amendment claim goes away? There's no First Amendment claim anymore?

[00:46:11] Speaker 02:
Your Honor is right that, and Puente makes this clear, by the way, Puente itself recognizes that in the context, the specific context of the use of crowd control devices, the First Amendment retaliation framework is a poor fit. We haven't argued that they can't bring the First Amendment retaliation claim because Puente addressed that claim and said, you know, even assuming that such a claim may be brought, notwithstanding the objective test for when first amendment prohibits these devices from being used you know plaintiffs still lose and so you know all we're asking is for the court to follow a similar path here and recognize that in the circumstances where the district court appears to have a grave misunderstanding of what sorts of uh non-lethal crowd control devices the government may use without transgressing the first amendment uh that undermines plaintiff's ability to to uh succeed on the merits of their first amendment retaliation

[00:47:11] Speaker 03:
And counsel, let's say we assume we agree with you that a stay is warranted with respect to the PI. What basis is there to stay the district court proceedings in their entirety?

[00:47:22] Speaker 02:
So all we're suggesting there, and as the 11th Circuit did in a different case that we cited in our brief, the district court has made quite clear that there's going to be extensive discovery on the horizon. My understanding is that there will be a discovery meet and confer at some point in the middle of April, I think. And after that, the discovery train is going to leave the station. And as our brief indicated, The district court appears ready to permit any party to get whatever discovery they want.

[00:47:56] Speaker 02:
That will impose a huge burden on DHS, given just the breadth of plaintiff's claims.

[00:48:03] Speaker 03:
And so would that discovery include class wide discovery?

[00:48:07] Speaker 02:
Yes, Your Honor. My understanding is the district court has suggested that there will be additional discovery relevant not only to the merits of plaintiffs' claims, but also to class certification. And so there will be just so much discovery on the horizon, and this court's decision will offer helpful guidance to the district court. And so in that circumstance, all we're saying is it may make sense for this court to stay proceedings in district court until the court can provide such guidance and potentially limit the scope of discovery that the district court embarks upon.

[00:48:44] Speaker 05:
Great. Thank you both for the very helpful arguments. The case is submitted and we are adjourned.

[00:48:51] Speaker 02:
This court for this session stands adjourned.