[00:00:00] Speaker 02:
Whenever you're ready, and again, watch the clock if you want to reserve time.

[00:00:04] Speaker 00:
Good morning, Your Honor, and yes, I'd like to reserve five minutes for rebuttal. May it please the Court, Douglas Stryer on behalf of the federal government. Your Honors, this Court's order, staying the injunction, persuasively explains why the government is likely to succeed and why this injunction is improper. Plaintiffs offer nothing new since April to alter the Court's holding, and we'd ask the Court to vacate the injunction. The district court applied the wrong legal framework to conclude that protected activity was a substantial or motivating factor for law enforcement's response to chaotic protests outside the Portland ICE facility.

[00:00:42] Speaker 00:
The court relied on inapposite Fourth Amendment law, Nelson v. City of Davis, regarding when law enforcement may use a non-trivial amount of force. But Puente confirms that the First Amendment does not prohibit law enforcement from dispersing a protest when protesters act illegally or pose a clear and present danger of imminent lawlessness. The court noted that protesters and press were targeted without posing a threat, but Puente confirms that even if particular individuals were not acting unlawfully, law enforcement may act to control the protest as a unit if it is substantially infected with violence or obstruction.

[00:01:23] Speaker 01:
So I'm going to interrupt you. I want to ask you the same questions I asked in the earlier case about the influencers being at these protests, but being kind of with the ICE agents.

[00:01:36] Speaker 01:
I guess my big question is I'm having a hard time understanding this as a chaotic scene and clear and present danger if you're having people come take a look at it and videotape.

[00:01:46] Speaker 01:
So talk to me about that.

[00:01:47] Speaker 00:
Sure. So much like my colleague said in the prior case, I don't have additional information on that beyond what's in the record. What I would point out is that is referring only to specific instances and is not referring to each of the days that we're here. And I think there, even if we were to spot that, I don't think that would suggest that the other days were not chaotic.

[00:02:10] Speaker 00:
I think that what we were dealing with is a difference of opinion in how law enforcement should respond when individuals are trespassing, when they are impeding traffic.

[00:02:22] Speaker 00:
but at the end of the day, this is a First Amendment retaliation case.

[00:02:25] Speaker 01:
Where those individuals, though, I guess this is where my concern is, right? You have protesters and journalists and whatnot walking onto ICE property, right? They got on the driveway, whatever. And so ICE is saying, we want to keep you away. We're trying to protect the building, protect ourselves. But then yet you have these influencers who are on the building with the agents. So it's a very clear difference in the treatment. It's kind of like, hey, if you agree with us, you can come hang out.

[00:02:57] Speaker 01:
But if you don't, you need to be careful because we may end up throwing projectiles at you.

[00:03:03] Speaker 00:
I mean, I do think there is a difference in the facts and the circumstances between the protesters trespassing and the influencers Your Honor is referencing.

[00:03:12] Speaker 01:
Were the influencers welcomed? Is that the difference?

[00:03:15] Speaker 00:
I think the difference is whether there is a security threat. And there is a security threat when individuals are, as part of the tactics of certain, certainly not all, but certain protesters to block traffic, because this is a processing facility.

[00:03:33] Speaker 00:
And I understand that many people have very strong opinions on immigration policy.

[00:03:40] Speaker 00:
But one of the tactics we really cannot permit is for law enforcement to be impeded entering and exiting a building. And the evidence we have in the record here is that one individual would be dressed as a sloth to emphasize the point that they were only going to meander out of the way. You have testimony from lead plaintiff, Mr. Dickinson, that some protesters would refuse to leave even when asked and would impede traffic.

[00:04:09] Speaker 00:
And so this is not a situation of merely peaceful protests. That just wasn't the situation on the ground. But it also shows that i i want to underscore that according to the lead plaintiff's testimony at least two-thirds of the protests the protests were allowed to go on not nothing untoward nothing uh no chemical or projectile munitions were used uh and that just shows if there was some sort of unwritten policy to violate people's first amendment rights plaintiff's theory just is not plausible that all these other protests, a straight-up majority, would be allowed to occur with no chemical or projectile munitions.

[00:04:54] Speaker 00:
And I think the videos that I know the court has reviewed in connection with the stay decision, I think, as the majority said, the best way to view those videos is law enforcement responding to chaotic protests on the ground.

[00:05:10] Speaker 00:
And I recognize that can be chaotic, and it can look...

[00:05:16] Speaker 00:
it's not always reflecting the best of America, I think. But that's on – we cannot live in a society where people are allowed to act unlawfully, where people are allowed to trespass on federal property. And I just don't think that regardless of the opinion of whether particular acts were excessive uses of force, We're asking, was this First Amendment retaliation? And there's just no plausible evidence in this record to suggest an unwritten policy of First Amendment retaliation or to suggest subjective motivation to retaliate by law enforcement officers.

[00:05:54] Speaker 02:
In Puente, we hope that we apply the imminent lawless standard of when law enforcement can use nonlethal force. I mean, what are the limits, if any, of using nonlethal force? I mean, how should we define or characterize imminent lawlessness?

[00:06:10] Speaker 00:
Sure.

[00:06:11] Speaker 00:
So I think that analysis needs to be joined with the discussion in Puente about how law enforcement can act as a unit only when a protest is substantially infected with violence or obstruction. And so if a protest is not substantially infected with violence or obstruction, it can be – the First Amendment may not suggest that. perhaps may not suggest in that situation that it would be appropriate to control the protest as a unit.

[00:06:41] Speaker 00:
And I think that analysis helps deal with a lot of these edge cases as to when it would be appropriate for law enforcement officers to respond.

[00:06:52] Speaker 01:
Isn't Puente, though, factually different? I mean, in Puente, the officers, they worked together. They said, hey, we're going to have this protest. It's going to be peaceful. This is what we're doing. And then when it got out of control is when it became more chaotic outside of what the parties had anticipated it would be, is when the officers used more force.

[00:07:12] Speaker 01:
Isn't that different than here? There was no discussion ahead of time of, you know, we're going to have this protest, let's work together to make it peaceful.

[00:07:22] Speaker 00:
Well, I do think, as the stay order explains, Puente is different in one factual regard, which is Puente is dealing with a single protest, whereas we were dealing here with a sustained series of protests that were really at their peak from June through early of February.

[00:07:43] Speaker 00:
But as this court said in the stay order, we think that factual difference cuts the other way because we are dealing with Really, the Portland ICE facility facing sustained protests, facing sustained incidents of unlawful activity, which is different than Puente, but it's certainly not different in a way that suggests that a First Amendment claim is more likely to succeed.

[00:08:10] Speaker 00:
Your Honor, there really is, though, and I do want to emphasize, since we were – I did just mention that the protests were really at their peak from June through February – we're really here re-litigating the stay decision at this point. There's no new, unlike in the prior case, there's no new legal argument here. There's no new factual developments. And we'd suggest that the court's order staying the injunction persuasively explains why the court should vacate the injunction here.

[00:08:37] Speaker 03:
Counsel, in our stay order, we suggested that there likely is standing due to this chill.

[00:08:45] Speaker 03:
And your argument on appeal here of the PI is that there is no standing. So did we get it wrong the first time?

[00:08:54] Speaker 00:
Your Honor, I'd say, look, the government's position is that Murthy does suggest that there's no standing here, that you can't just have an objective chilling at some point and allow that to be open the gates to prospective injunctive relief forever. However, if the court is not persuaded...

[00:09:10] Speaker 00:
As was discussed during the REACH argument just now, Mullen v. Doe, Part 3A, clearly says in this posture, and again, that was a plurality decision, but it seems obviously right if we're dealing with a likelihood of success, that if the court were to find that plaintiffs have failed to demonstrate a likelihood of success on the merits, that the court could assume standing and address the merits.

[00:09:37] Speaker 02:
Your friend on the other side in their briefs suggests that a policing directive that applies to FPS also applies to DHS. Can you address that?

[00:09:49] Speaker 00:
So there are – I'm not – there is a DHS use of force policy that applies to DHS writ large. There are also differences of – That's separate from the FPS policy? So FPS as a component within DHS has certain restrictions on the use of force that are in addition and separate from restrictions that ICE or CPP have.

[00:10:18] Speaker 00:
I do think that regardless of any sort of differences on that, nothing about this suggests First Amendment retaliation, which is really, this is not a case asking whether The use of force policy has been violated. This is a case asking whether officers had a subjective retaliatory intent and whether DHS has an unwritten contrary policy to violate the First Amendment.

[00:10:44] Speaker 01:
Counsel, the district court made a ton of factual findings here that dealt with basically finding the ICE agents acted beyond the scope. Are there any in particular that you disagree with or that you would think we need to find as clearly erroneous?

[00:11:05] Speaker 00:
We certainly think the district court's factual findings in general on this were clearly erroneous because they are.

[00:11:13] Speaker 00:
Basically, the district court was looking at instances of law enforcement responding to trespass and other unlawful conduct and saying, well, the protesters weren't actively resisting. And that's just the wrong analysis under Puente.

[00:11:27] Speaker 00:
I would say if we're talking about very specific factual pieces, I'd really refer the court to footnote three of the state decision here, which I think best encapsulates why even if even if certain of those videos were to appear to be excessive force, why it just doesn't suggest that there has been First Amendment retaliation here.

[00:11:52] Speaker 01:
I also just wanted to ask a generic kind of bigger question. So I read through the Mr. Kurlikowski's declaration. What are we to do with that?

[00:12:06] Speaker 00:
Sure.

[00:12:07] Speaker 00:
So I think...

[00:12:09] Speaker 00:
I think Mr. Kurlikowski's testimony is particularly interesting at the PI hearing.

[00:12:16] Speaker 00:
And so at one point he has, he's asked to draw his conclusions as to what's going on with law enforcement officers. And this is pages 15, 20 to 21 of the seventh volume of the supplemental ER.

[00:12:29] Speaker 00:
And he's asked what conclusions he draws. And he says, you know, I, I will, Before I say this, I will preface this with the government does not agree with Mr. Kerlikowsky's description. But what he said was, I draw conclusions that they are poorly trained, that they are in an environment that they are clearly not experienced or knowledgeable in, that they have incredibly poor leadership, and that they're using tactics far outside the standards and practices of professional policing in this country. But that seems like a negligence, that the officers are not being properly trained.

[00:13:00] Speaker 00:
That's not the correct inquiry under the First Amendment, which really asks for were these officers acting with a subjective intent to retaliate against their fellow Americans exercising their First Amendment rights?

[00:13:13] Speaker 03:
And that just does not... Last time the government was here, though, evidence of direct subjective intent is extremely hard to come by. So aren't instances of excessive force or negligence at least circumstantial evidentiary support?

[00:13:28] Speaker 00:
So certainly direct or circumstantial evidence is permissible. I would say when there are obvious alternative plausible explanations.

[00:13:36] Speaker 00:
To me, that is not circumstantial evidence whatsoever of First Amendment retaliation. To me, the evidence suggests that there is a difference of opinion in how to handle protests when there is a degree of unlawfulness. And I think this is best encapsulated in the closing arguments.

[00:13:57] Speaker 00:
And this is not plaintiff's closing argument, but the State of Oregon's Volume 8 of the Supplemental ER, page 1758, where the State of Oregon talks about how they hope that this case might lead DHS and its component agencies to update their approach and embrace the police practices of the future while stepping away from the old techniques of crowd management that date from the 19th century. And what that – to me, that's showing – we're dealing with the First Amendment, which is – not from the 21st century.

[00:14:30] Speaker 00:
It's not – we're not dealing with evolving standards of decency. This isn't a cruel and unusual punishment case. We're dealing with is this conduct prohibited by the First Amendment, and to the extent there is a factual disagreement as to how to handle protests, that just doesn't show that there is First Amendment retaliation here.

[00:14:49] Speaker 00:
If the court has no further questions, I'd ask the clerk to vacate the injunction.

[00:14:54] Speaker 02:
Thank you.

[00:15:19] Speaker 04:
Thank you, Your Honors. Please, the court, Matt Borden on behalf of the plaintiffs.

[00:15:26] Speaker 04:
Protest and the free press have been foundational in the formation of our nation, and whether it's through the civil rights movement or through abortion clinics, they've continued to inform our public debate. The district court properly protected those rights while at the same time preserved the safety of our community and of law enforcement. It made extensive findings that defendants had engaged in a pattern practice and policy of retaliating against people outside the ICE facility in Portland.

[00:15:58] Speaker 04:
Those findings were absolutely correct, and they certainly don't arise to the level of clear error.

[00:16:05] Speaker 04:
When you're reviewing the district court's findings, you're supposed to assume that he reviewed all of the evidence that was in front of him and rejected the evidence that doesn't support his opinion. Instead, what the government is asking here is that you credit the evidence that the district court found to be non-credible and to rewrite the factual record below. There is an extensive factual record in this case where it shows repeated misuse of crowd control weapons, firing off the roofs of buildings where they have no possibility of hitting their target, firing into big clouds of tear gas where they can't see what they're shooting at, hitting people in the head, attacking church groups, elderly people, children, infants.

[00:16:52] Speaker 04:
the police officers who were there.

[00:16:55] Speaker 04:
And these are percipient witnesses and they're also expert witnesses. Commander Dobson, Commander Shaining, Captain Bailey, they all testified that this response that we were getting from the federal government was disproportionate to the activities of a few isolated criminal actors. And when you have a repeated pattern like that, That is what index newspapers said. This is what LA Press Club said. The government's position appears to be to us that if somebody somewhere is doing something bad, that they can just go wholeheartedly and attack the crowd.

[00:17:32] Speaker 04:
But this court and LA Press Club rejected that argument. And it's the same thing. It said you don't have carte blanche to go at the crowd. You have to look at the actual evidence. You have to look at the timing and the proximity. And under...

[00:17:49] Speaker 04:
those circumstances, the district court made these findings. I know that your honors have seen the videos.

[00:17:56] Speaker 02:
But the problem with the district court's factual findings was it was premised on, I think, an erroneous legal presumption that law enforcement could use non-lethal force only if they were in danger, physically in danger. But our precedent says they actually have more latitude, that imminent lawlessness is a potential basis for using non-lethal force. I don't know if we can give credit to those factual findings that this was intended to silence First Amendment activity.

[00:18:28] Speaker 04:
I think there's lots of reasons why we can find intent, and I will address those separately. But just in terms of the legal standard, the district court found that there was there was not an imminent threat of lawlessness. For example, on January 19th, there was a trespass, but there's no, you know, the situation in Puente, they compared it to a prison riot. There's not a prison riot. Puente is dealing with situations where you have a dispersal.

[00:18:59] Speaker 04:
This case doesn't involve dispersals for the most part. I'll give you another example.

[00:19:04] Speaker 02:
I guess, you know, your friend on the other side said, well, just Trespass isn't – it would be one thing to trespass some private property, a shopping center, and prevent people from going in. But the government argues this is about law enforcement efforts, that ICE needs to be able to come in and come out.

[00:19:25] Speaker 02:
And whether you disagree with those policies or not, that's their legal duty to do so, and you're preventing them from enforcing the law.

[00:19:35] Speaker 04:
If somebody is trespassing, that's a minor infraction and you can arrest them. But the idea that you can use force on them is even inconsistent with the use of force analysis with respect to plaintiff Guillen and Puente.

[00:19:50] Speaker 02:
I know you're – yes, they could arrest them, but if there are several people, a lot of times – I mean we've We get so many Section 19-3 cases where it's law enforcement trying to arrest someone and things spin out of control and bad things happen. I mean, should we, you know, maybe law enforcement here is thinking, Crowd dispersal through tear gas would be better than going with law enforcement and trying to drag people. They resist and, you know, violence occurs. I mean, should we be second-guessing law enforcement tactics here?

[00:20:22] Speaker 04:
Well, we had undisputed expert testimony not only from Mr. Kurlikowski but from three other police officers. There is a very safe and effective way to clear the driveway. Remember, we're talking about defending federal property. We're talking about FPS under the unified command.

[00:20:40] Speaker 04:
They don't even get issued tear gas because tear gas is not necessary for that purpose of defending federal property. But if you need to clear the driveway, you ask people to move. And then if you and if there's any issue of them not moving, what you do is you form a skirmish line. And that is something. fairly intimidating, which is officers with shields and long batons, shoulder to shoulder with the grenadiers on the side, marching people off the driveway, pulling anyone who's resisting out.

[00:21:10] Speaker 03:
But it avoids...

[00:21:14] Speaker 03:
The officers are in direct face-to-face confrontation with hundreds of protesters who are trying to tie the gates shut, who are tearing down plywood of the guard shack, who are throwing canisters on the roof, setting on fire. Which is safer, the direct confrontation or the use of pepper balls and dispersal crowd munitions techniques to clear the area?

[00:21:41] Speaker 04:
Well, there's a combination, right? If someone is throwing something at you, you can use force against them to stop that from happening.

[00:21:50] Speaker 04:
But in terms of actually clearing the driveway, the undisputed expert testimony is that the safest way and the way that doesn't sort of get the crowd to be more hostile is that you treat them fairly. So you don't close the forum to Lori Ekman. You don't, you know, use force in such a way as to retaliate against a big group of people who are not even on federal property. I mean, a lot of this violence is that the district court found didn't occur on federal property.

[00:22:23] Speaker 04:
It's occurring blocks away. Sometimes they clear the driveway, like on October 4th, for example, at nine o'clock at night. The testimony and the video from Von Kriegen, declaration exhibit B, it shows that they violently cleared the driveway, and then the agent marches across the clear driveway over to municipal property to take down a banner that says abolish ICE. And then he comes back into the facility. That's not a necessary clearing of the driveway, and it's excessive, and it's targeted at the message.

[00:22:58] Speaker 04:
And that is why I'm saying that there's more evidence of intent that we didn't get into in our last argument.

[00:23:06] Speaker 04:
So for starters, there's no discipline. There's – one of the things that Mr. Kurlikowski talked about in his declaration, which my friend didn't mention, and in his direct testimony, is the fact that if you keep doing this over and over again, you would expect to see – Discipline. Not one person was talked to even for any of the violent acts that occurred.

[00:23:35] Speaker 04:
Every single use of force report got reviewed up the chain and approved. So that's very strong evidence of intent. And this is index newspapers. This is L.A. Press Club. If you keep having it happen over and over, maybe in Puente one time it looks like an officer may have gotten carried away or was scared or had some other kind of issues. It's a mistake. It's not a mistake if it's happening over and over and over again.

[00:24:03] Speaker 04:
So that's one point on intent.

[00:24:05] Speaker 04:
They're engaged in techniques that have no law enforcement purpose. That's another testimony that Mr. Kurlikowski gave. He did not, as my friend pointed out, try to provide expert testimony about why they were engaged in any of these activities. He just said they had no point in policing. So on January 31st, when there's people doing some things in front of the building, they come out and they're lobbing tear gas over the crowd out into, you know, all over the neighborhood everywhere.

[00:24:39] Speaker 04:
And what they've done instead of, you know, dispersing people as the – police were doing in Puente, they were trapping them between massive clouds of tear gas and federal law enforcement. And that's not a dispersal. It doesn't have any police purpose. The judge asked Mr. Kerlikowsky about that, and that's what he said.

[00:25:01] Speaker 04:
um firing at people who are complying we have testimony like that from ms yonnelly and others so no no purpose in that even firing at people altogether is not a dispersal It is more, you know, when you use a projectile, and this is another point in the court made in Puente, the projectile is making them stop. It's a seizure, and it's not a dispersal. So shooting people that are in their backs or shooting Mr. Ekman...

[00:25:35] Speaker 04:
Like under his walker, this was Exhibit 4. It's a video. You can see an agent following him. He's 83 years old and can't run away. That's intentional targeting.

[00:25:48] Speaker 04:
Shooting their signs, taking down their signs, shooting signs when people aren't, you know, even holding them, putting information into their Form 10 reports that's inaccurate. So, for example...

[00:26:03] Speaker 04:
On January 19th, the supervisor writes that things turned violent. But you've seen the videos, and there's just no evidence of violence on that day.

[00:26:12] Speaker 04:
The only violence is using pepper spray on the protesters who are just sitting in the driveway. They're not even blocking ingress or egress.

[00:26:23] Speaker 04:
these people are trained marksmen.

[00:26:26] Speaker 04:
Take Ms. Ekman was shot in the head. The government suggests that, well, maybe she was like collateral damage. This is like a collateral harm.

[00:26:39] Speaker 04:
But you look at what they cite in footnote two of their reply brief, and this is their excerpts of record at 126. And it's the declaration of Roberto Cantu. And what he says is, On the day that she was shot, at the time she was shot, there was a person who was confronting law enforcement. He threw something that hit an officer in the chest. He was pepper sprayed, subdued, and arrested. And that's it. There's no connection between that isolated incident of activity, which the police handled appropriately, and shooting Ms.

[00:27:17] Speaker 04:
Ekman in the head. There's no other explanation. And that's why I'm saying this is the same argument that was rejected in L.A. Press Club. You don't have carte blanche to go at the crowd if they are, you know, there are isolated, wrongful acts. And I think, you know, you've seen L.A. Press Club and some of the things that was happening. You've seen the burning Waymos. On the freeway, people dropping chunks of concrete down onto law enforcement. It was anarchic at points and chaotic.

[00:27:50] Speaker 04:
And, you know, the police are still under an obligation not to open up on the crowds like that.

[00:27:56] Speaker 03:
So you rely on L.A. Press Club, but didn't L.A. Press Club find the district court's injunction in that case overbroad? And why doesn't that logic apply here?

[00:28:06] Speaker 04:
Well, two points. Yes, you are correct that the court, the Ninth Circuit here and LA Press Club found the injunction to be overbroad and it remanded. But it did find that there was likelihood of success on the merits. If there's any problems in terms of breadth with this injunction, I would say the court should do the same thing. But it's not a situation where we haven't established under a very robust record of success on the merits. The second fact in L.A. Press Club was that that case was filed before Casa came down.

[00:28:40] Speaker 04:
So there was no class allegations in the complaint that went up on appeal.

[00:28:45] Speaker 04:
In this case, the district court certified a class. And so, you know, you can have broader relief under those circumstances. The other aspect of.

[00:28:55] Speaker 04:
LA Press Club that this court didn't like or said was kind of too vague was there was an audible warning requirement before the DHS used force. The court said audible becomes hard to enforce. And so there's no audible warning requirement in this injunction here.

[00:29:18] Speaker 02:
But L.A. Prescott, again, those are different facts. There were incidents of violence, like the Waymo's being burned, but it wasn't the repeated frontal attack on law enforcement activities like you have in Portland here, where you had over 150 protests in front of the ICE facility, always in front of the ICE facility, blocking traffic.

[00:29:39] Speaker 02:
So, I mean, again, you know, we LA Price Club can inform certain things, but I think the facts are quite different from here and Portland and Los Angeles, which isn't surprising just given the differences in the cities and the culture.

[00:29:54] Speaker 04:
Well, I mean, there was evidence in both cases of some isolated wrongdoing. I think the district court here said that there was isolated wrongdoing, but this is not... Again, the district court's definition of wrongdoing was...

[00:30:10] Speaker 02:
threat to physical harm was his focus. And again, under the law, that's not the only basis for law enforcement to use non-lethal force. It's impeding law enforcement. Here, you've had repeated efforts to, even if it's peaceful, having 50 people blocking the driveway, that's impeding law enforcement.

[00:30:29] Speaker 04:
I don't think impeding law enforcement is the standard.

[00:30:31] Speaker 02:
And again, if imminent lawlessness and in fact, Puente mentions blocking traffic, citing a 1940 Supreme Court case.

[00:30:44] Speaker 04:
If you if you want to clear the driveway, there is a way to do it without causing First Amendment harms to all the rest of the people who are not blocking the driveway. So on January 31st, for example, if there's people blocking the driveway, you can move them off. As I said, there's a very effective way to move them off. I think at some point, like if you get a crowd that is super, super obstructive and really there's no other way to get the driveway clear and you're not trying to clear the driveway because you want to go take down a sign that has a message you don't like, You have some kind of legitimate purpose.

[00:31:25] Speaker 04:
There may be an argument for using tear gas under those circumstances, but that has nothing to do with the facts that were before this district court. And you heard my friend in the previous argument say they were discharging tear gas for no reason. That was happening sometimes.

[00:31:45] Speaker 04:
countless hundreds of incidents with literally no explanation other than the fact that uh you know there were somebody was doing something wrong somewhere uh again like a lot of the there's no explanation as to any of our planets other than someone doing something wrong somewhere

[00:32:04] Speaker 03:
I mean, isn't it undisputed in this record that there were protesters who were throwing bottles and other objects? One officer was grabbed in the private area in the groin, and his arm was bit.

[00:32:20] Speaker 03:
There were protesters trying to destroy cameras. I mean, is that expressive First Amendment activity?

[00:32:28] Speaker 04:
Well, none of those things are protected activity. The protester who was grabbing the officer's genitals was arrested and charged.

[00:32:38] Speaker 04:
That's an appropriate way to deal with someone who's doing that.

[00:32:42] Speaker 04:
It is not appropriate to shoot an 84-year-old person under their walker. It's not appropriate to shoot an 83-year-old person, neither of whom were on federal property, in the head.

[00:32:54] Speaker 03:
And the complication here, as Puente pointed out, is that you may have several bad actors intermingled with good actors. That's the nature of a crowd. And chaos might ensue. And it's sort of difficult to distinguish between innocent bystanders versus more violent agitators.

[00:33:24] Speaker 03:
responding to that sort of situation seems to me at least a stretch.

[00:33:30] Speaker 04:
I don't say it's not substantive.

[00:33:33] Speaker 04:
presumptively retaliatory. You have the district court, what it found, the situation it was confronted with. What the police officers who were there repeatedly were testifying to was that it was not one of those situations where it was, you know, someone was throwing rocks or bottles and then sort of dodging back into the crowd. And that was happening over and over again to the point where it had become a lawless riot. That's not what happened on January 19th.

[00:34:04] Speaker 04:
It's not what happened on January 31st. It's not what happened on January 24th. It's not what happened on any of those days, October 18th, October 4th. There were police there who were saying what was going on. The district court was entitled to credit that testimony and to discredit the idea that they're putting forth, which is just this generic statement that some people were doing violent things. I don't deny that. So there were some people doing violent things. There were some people throwing bottles in Los Angeles.

[00:34:35] Speaker 04:
There were people throwing fireworks in Los Angeles. And some of it's on video there, too. But the thing is, you cannot just go whole hog against the crowd unless there's actual reason to do it.

[00:34:49] Speaker 04:
And that isn't present on this record. And that is what the district court found. To the extent that this panel thinks that district court's findings were improper in any way, I think the appropriate thing to do would be to send it back down. But the district court made a lot of findings. In her dissent on the stay order, Judge D'Alba cited 27 videos. The fact that reasonable jurists can disagree about this means that this is not clear error.

[00:35:20] Speaker 04:
And that's what the standard of review on these findings is. The district court was applying the correct standard, which is that you have to see whether the act that is being done by the government is done for a retaliatory purpose.

[00:35:35] Speaker 03:
Retaliatory intent... Just going back to Judge Lee's point here, it's not a pure, clear error situation because the district court's findings of fact were infected by an improper... legal view which was only eminent threats of physical harm if you if there is no such if that criteria isn't met then what the officers are doing in response to eminent lawlessness would be disproportionate or excessive and wrong i just don't see how that squares with puente

[00:36:11] Speaker 04:
Well, I think that Puente was dealing with dispersal situations, and the retaliation claim in that case was that the police had ordered a dispersal as a retaliatory event.

[00:36:27] Speaker 04:
As I was saying earlier, a lot of these events, like shooting at people, are not dispersals.

[00:36:33] Speaker 04:
The second point is the district court framed his injunction in terms of preventing certain acts from occurring.

[00:36:41] Speaker 04:
But that doesn't mean he was applying the wrong legal standard.

[00:36:43] Speaker 03:
It was prophylactic. It wasn't adhering to the Puente eminent lawlessness standard.

[00:36:50] Speaker 04:
That's correct. And the reason why it was prophylactic is the findings of intent that the district court made.

[00:36:58] Speaker 04:
When you have intent to retaliate, you have to frame your injunction in such a way that it protects against the retaliation. It's very difficult to have as an injunction, please don't retaliate, or you're enjoined from having wrongful intent. He had to define He had to draw some bright lines so that the injunction was capable of being followed by the government. And the bright lines that he drew, you know, may have been slightly different than, you know, what the Oregon police have in their policy, which allows for use of tear gas under some very limited circumstances.

[00:37:35] Speaker 03:
I guess my point is that the line that the district court drew was broader than the bright line rule that Puente drew.

[00:37:44] Speaker 03:
And so if you admit that, aren't you conceding that the injunction is necessarily broader than what the law requires?

[00:37:52] Speaker 04:
I don't think that Puente says that you can tear gas people for trespassing. I don't think Puente says that you can use anything other than non-trivial force against someone for trespassing. Puente says that if you have a properly ordered dispersal in a sort of riot situation, the police aren't violating the Fourth Amendment or the Fifth Amendment if they're using tear gas to disperse people.

[00:38:26] Speaker 04:
But it doesn't address the situation we have here where – I think my friend used the substantially infected test, which I don't think appears anywhere in the law – These protests were not substantially infected with violence, and that's the finding that the district court made.

[00:38:43] Speaker 04:
And and you know again if you think that there's some kind of deficiency in the findings I think the appropriate thing would be to send it back down for more findings on that But these protests were not substantially infected with violence there may have been I think in the police testimony One instance early on that where they felt like things were really out of control and substantially infected nothing else was substantially infected with this kind of violence and and Again, the disconnect between the events that they're describing and the violence that they've visited on people who were not on federal property, who were not trespassing, who were not near anybody who was doing anything wrongful.

[00:39:28] Speaker 04:
Some of these people are reporters standing off to the side.

[00:39:32] Speaker 04:
There's no explanation. They're lobbing tear gas off the roof into windows of cars that have protest signs. That's the explanation. That's the finding of intent. The finding of intent is reviewed for clear error as well. Can you – sorry to interrupt.

[00:39:47] Speaker 02:
Can you remind me the status of Fourth Amendment claims? I recall it was raised in the complaint, but it's not part of the supplement injunction. Can you explain why – What's the status of the claim and why it wasn't part of this preliminary injunction, at least based on Fourth Amendment?

[00:40:05] Speaker 04:
Sure. This is a First Amendment case.

[00:40:08] Speaker 02:
Maybe I'm confusing it with another case. Was a Fourth Amendment claim raised in the complaint? I thought it was, but maybe I'm wrong.

[00:40:15] Speaker 04:
Yes, Your Honor.

[00:40:17] Speaker 04:
There was a Fourth Amendment claim raised in the complaint. It is currently stayed by virtue of this panel.

[00:40:25] Speaker 04:
But the claim that we moved for a preliminary injunction on where the – You just moved on the First Amendment, not the Fourth Amendment?

[00:40:32] Speaker 02:
That's correct. Okay, great. Thank you. You're out of time. I went over. Thank you.

[00:40:40] Speaker 04:
I saw five minutes there, and I was like, am I five minutes over? Anyway, thank you. I appreciate the opportunity to go over. Great. Thank you.

[00:40:57] Speaker 00:
Your Honors, I do think all the arguments my friend raised have been addressed already by the court's stay order. I'd refer to the stay order for the best responses for that.

[00:41:11] Speaker 00:
I think at the end of the day, what I was hearing a lot about is what is the best way to respond to protesters acting unlawfully. But that's just not the right question to be asking under the First Amendment, which is solely what we are here on.

[00:41:27] Speaker 03:
Counsel, what do you make of opposing counsel's argument that there's a disconnect in your argument between the purported violent acts, you know, the protesters throwing rocks and acting more violently, and the use of force complained of here? So can you do a little bit of sort of matching up the cause and effect?

[00:41:50] Speaker 00:
Let me try. So in Puente, it says...

[00:41:54] Speaker 00:
Law enforcement can act to disperse protests as a unit if it is substantially infected with violence or obstruction. It's not just violence. And so I think getting a tunnel vision to just violent acts, of which there are certainly fewer than there were instances of trespassing, blocking the driveway, that's just the wrong analysis because, again, this goes back to what we keep hearing plaintiffs focus on, which is, well, that law enforcement should act only to prevent acts of violence or should disperse protests only when there's violence infecting it.

[00:42:33] Speaker 00:
But that is not this court's analysis. That's not what Puente held.

[00:42:38] Speaker 00:
And so I just think that this sort of tunnel vision on violent acts is inappropriate and inconsistent with this court's case law.

[00:42:47] Speaker 03:
For example, on the day in which an officer shot pepper balls at the 83-year-old man with the walker, what justified that?

[00:42:57] Speaker 00:
Your Honor is referring to October 4th.

[00:43:03] Speaker 00:
For October 4th, there is a video exhibit to the Lucero Declaration that shows the incident. I'd refer to that. It's also described in the Cantu and or Sullivan declarations.

[00:43:17] Speaker 00:
But as is described there, law enforcement was responding on that day to acts of trespass, to trespassing on the property. And I know my friend focused a bit on what the other law enforcement officer, the state and local law enforcement testified to at the hearing. What they were testifying to at the hearing was that It was undisputed that there has been criminal activity surrounding the facility, that there was, although there was a lack of violent criminal conduct on the October 4th incident, and this is Commander Schoening, page 1124 to 25, volume 6 of the supplemental ER, he testified that there was unlawful conduct of trespassing on the driveway.

[00:44:04] Speaker 00:
So again, even if we are taking this, we can't just look at violent conduct because that is not the correct standard under Puente. And so there is evidence in the record on October 4th that there was trespassing on the driveway. There's evidence from lead plaintiff Dickinson's testimony that this was part of the tactics that certain, and again, not all, but certain protesters were using to impede immigration enforcement at the Portland ICE facility.

[00:44:35] Speaker 00:
If the court has no further questions, I'd ask the- Sorry, I do.

[00:44:39] Speaker 01:
I just need clarification on that. I'm not sure I quite understood your answer. So what was the justification for shooting the 80 plus year old person with the walker?

[00:44:48] Speaker 00:
So, and I want to be clear that my friend's own closing argument, page 1707 of volume eight of supplemental ER says that this case is not about the individual incidents. It's not a case about this particular physical injury, what I would say on October 4th is there was trespassing activity and there were efforts to disperse. And I'd refer further to the government's declarations to describe the October 4th incident in greater detail.

[00:45:23] Speaker 00:
Okay.

[00:45:26] Speaker 00:
Thank you, Your Honors.

[00:45:27] Speaker 02:
Great. Thank you. Thank you both for the very helpful arguments. Case is submitted and we're adjourned.