[00:00:01] Speaker 01:
May it please the court, Mike Shee, for the government.

[00:00:03] Speaker 01:
I'd like to reserve five minutes of my time for rebuttal.

[00:00:06] Speaker 03:
All right.

[00:00:07] Speaker 03:
I'll try to help you out, but please keep your eye on the clock yourself as well.

[00:00:10] Speaker 03:
I will.

[00:00:10] Speaker 01:
Thank you.

[00:00:11] Speaker 01:
So during the stay argument a few weeks ago, the discussion focused principally on why the injunction exceeded the district court's equitable and Article III authority.

[00:00:22] Speaker 01:
Those arguments apply with full force in this context, too, and demonstrate that the entire injunction should be vacated.

[00:00:30] Speaker 01:
But I also want to emphasize today the District Court's flawed merits analysis, beginning with its discussion of retaliation, which underlies both the District Court's standing analysis and the District Court's discussion of the First Amendment retaliation merits.

[00:00:46] Speaker 01:
Under the Supreme Court's decision in Lyons, its black-letter law

[00:00:51] Speaker 01:
that plaintiffs don't have standing to get prospective injunctive relief simply by showing that they were subjected to some harm in the past.

[00:01:02] Speaker 01:
Plaintiffs need to demonstrate something more in order to get that kind of injunction.

[00:01:08] Speaker 01:
And here, where the past harm turns on allegations of retaliatory force, plaintiffs need to show not only that they would be subject to retaliatory force again in the future,

[00:01:21] Speaker 01:
But because this is a lawsuit not against individual officers, but DHS, that such retaliation would be attributable not only to individual officers, but to the agency as a whole.

[00:01:34] Speaker 01:
The problem for plaintiffs is that as the district court recognized and as we set forth on pages 17 and 18 of the opening brief in particular, DHS not only does not have a policy of engaging in retaliatory force,

[00:01:50] Speaker 01:
It has expressed policies forbidding officers from engaging in the kind of force that formed the basis of plaintiff's allegations of harm.

[00:02:00] Speaker 03:
On your theory, counsel, what would it take for the plaintiffs to establish standing under these circumstances?

[00:02:08] Speaker 03:
You're saying it has to apply

[00:02:11] Speaker 03:
The district court basically made factual findings of consistent violations.

[00:02:15] Speaker 03:
Under that circumstance, give me some examples of the types of allegations that the plaintiffs would have to allege in order to establish standing for the retaliation claims.

[00:02:26] Speaker 01:
That's a difficult question to answer, Your Honor, because

[00:02:29] Speaker 01:
At the theoretical level, it's hard to say.

[00:02:32] Speaker 03:
But assuming that on this record, that the district court's findings of consistent ongoing violations are not clearly erroneous.

[00:02:41] Speaker 03:
So on that record, what more does it take?

[00:02:44] Speaker 01:
So assuming, and as Your Honor is aware, we disagree, that the district court's findings are not clearly erroneous, but spotting the district court every single one of its factual findings, then the district court would need to demonstrate

[00:02:57] Speaker 01:
that those actions of individual officers could give rise to an inference that DHS as an agency had a policy of retaliation.

[00:03:07] Speaker 01:
And that's an inferential leap that's very difficult for plaintiffs for several reasons.

[00:03:12] Speaker 01:
The first is, as the district court itself recognized, there were widespread protests in the Los Angeles area from June to July.

[00:03:21] Speaker 01:
And so it's not clear from this record

[00:03:24] Speaker 01:
whether the protests discussed in plaintiff's declarations on which the district court relied are representative of all interactions between DHS officers and protesters and journalists during that time.

[00:03:38] Speaker 03:
Can the inferential leak be made by a pattern of conduct that violates DHS's own policies?

[00:03:45] Speaker 01:
At a very high level of generality, Your Honor, this Court has looked to allegations of a pattern.

[00:03:52] Speaker 01:
So at that very high level of generality, the answer is yes.

[00:03:56] Speaker 01:
But the District Court's findings here are insufficient not only because we don't know the denominator, so we just don't know how representative these allegations are of DHS officers' interactions with protesters in the region, but also

[00:04:10] Speaker 01:
and this is critical, even with respect to the protests that are described in the declarations, there's no dispute that at least at two of them, no crowd control devices were used at all.

[00:04:22] Speaker 01:
So there could not have been any retaliatory force used there.

[00:04:26] Speaker 00:
So Council, if we were, for the sake of argument, assume that we were to find index newspapers as binding on our panel,

[00:04:40] Speaker 00:
In index newspapers, the court said, a plaintiff threatened with future injury has standing to sue if the threatened injury is certainly impending or there is a substantial risk the harm will occur.

[00:04:54] Speaker 00:
So if that, if we were to decide that were the test and that we were bound by this notwithstanding lions which came before index newspapers and notwithstanding the Supreme Court's stay in 2025,

[00:05:10] Speaker 00:
Why wouldn't the plaintiffs have shown a substantial risk the harm will occur?

[00:05:20] Speaker 01:
I will answer the merits of that, but I do want to flag, again, we disagree that index newspapers is presidential.

[00:05:26] Speaker 01:
But assuming that index newspapers is presidential, that determination was based on the factual record in that case.

[00:05:34] Speaker 01:
And so that fact-specific application of that version of the Lyons test to the index newspapers facts wouldn't control this panel's resolution of the index newspapers test to the unique facts here.

[00:05:50] Speaker 00:
Can we take anything, and I'll be asking your friend this too, can we take anything at all from the Supreme Court's order in Nome v Vasquez Perdomo or is that just there's nothing there that there's a one judge concurrence but basically there's nothing there that we can take as precedential for the purposes of this case or do you think there is something there?

[00:06:15] Speaker 01:
My understanding is that the

[00:06:19] Speaker 01:
order is controlling with respect to the issues that were addressed by the order.

[00:06:23] Speaker 01:
But we do think that Your Honor should pay close attention to the concurring opinions discussion of lines, which we think is consistent with how the Supreme Court has applied lines.

[00:06:36] Speaker 01:
And Justice Kavanaugh's concurrence makes very clear, again, these principles that merely alleging instances of past harm can't be sufficient, something more needs to be present.

[00:06:49] Speaker 01:
And there's something more here, Your Honor, is this inference that because allegedly a lot of retaliation happened, that retaliation is representative and thus overrides the clear and undisputed evidence in this record that DHS has no policy of retaliation.

[00:07:08] Speaker 01:
And that's just not an inferential leap that is supported by the evidence.

[00:07:12] Speaker 01:
Because as I was discussing with you, Judge Nguyen,

[00:07:17] Speaker 01:
record here demonstrates that even at some protests discussed where there was a substantial amount of violence, like for example at the July 4th MDC protest where officers were attacked, no crowd control devices were used.

[00:07:33] Speaker 01:
And that's a very odd thing to have occurred if DHS does have what plaintiffs allege is this policy of official retaliation.

[00:07:42] Speaker 01:
But I also want to go to the district court's factual findings.

[00:07:47] Speaker 05:
Council, if I could interrupt you for a second, to ask you a question on my mind.

[00:07:56] Speaker 05:
That is, how should we reconcile our circuit's precedent in the Easy Rider's case with the CASA decision, which,

[00:08:14] Speaker 05:
which limits relief to the parties.

[00:08:19] Speaker 05:
The amazing writers they gave, we gave relief to non-parties on the theory that there's no way the court could distinguish who was a party and who's not.

[00:08:39] Speaker 01:
So Your Honor, I confess I'm not familiar with that case from this court that you've cited, but what I can say is CASA sets forth general principles applicable to all grants of injunctive relief.

[00:08:53] Speaker 01:
making clear that complete relief is a ceiling and not a floor, and to the extent that there are questions of how to apply injunctive relief that would be appropriate under the circumstances to plaintiffs, given the difficulty of identifying plaintiffs, that is not grounds

[00:09:17] Speaker 01:
for expanding an injunction beyond what Article 3 and general principles of equity would support.

[00:09:24] Speaker 01:
That is, instead, an instruction that the court enter the injunction that is appropriate.

[00:09:31] Speaker 01:
And then the government will, in the first instance, determine how to comply with that injunction.

[00:09:37] Speaker 01:
And that's a critical point, Your Honor, because in this case, the district court transgressed CASA's limitations

[00:09:47] Speaker 01:
on equitable relief in two ways.

[00:09:51] Speaker 01:
The first is that like plaintiffs on appeal, the district court assumed that if plaintiffs are likely to succeed on the merits, then courts must grant them complete relief.

[00:10:05] Speaker 01:
And that's in stark disagreement with what the Supreme Court articulated in CASA about how complete relief is not an equitable entitlement.

[00:10:15] Speaker 01:
And the second piece of it is that even the terms of the injunction itself, so setting aside the reach of the injunction, which this court has already limited to the named plaintiffs in the stay posture, but the terms of this injunction go far beyond what is necessary even to provide complete relief to plaintiffs.

[00:10:41] Speaker 01:
And the audible warnings component of the injunction, I think, is most illustrative.

[00:10:46] Speaker 01:
The injunction requires at least two audible warnings before the use of crowd control devices.

[00:10:55] Speaker 01:
But as this Court held in the Puente against City of Phoenix case, the First Amendment contains no such requirement, and so it's very odd

[00:11:05] Speaker 01:
for the district court to impose as a remedy prospectively for First Amendment violations a requirement on DHS that the First Amendment does not contain as this court previously held.

[00:11:19] Speaker 01:
And so that is just one example of the many ways in which this injunction goes beyond the district court's

[00:11:28] Speaker 01:
Article 3, inequitable powers.

[00:11:30] Speaker 00:
And the warnings, the district court defined some of the content of the warnings, too.

[00:11:36] Speaker 01:
That's exactly right, Your Honor.

[00:11:38] Speaker 01:
The district court said, here are the magic words that officers must and can't.

[00:11:42] Speaker 01:
Every time.

[00:11:43] Speaker 01:
Every time.

[00:11:45] Speaker 01:
Without, you know, and furthermore,

[00:11:48] Speaker 01:
the district court said that those warnings need to be audible to the people to whom it applies, which is everybody, like protesters included.

[00:11:57] Speaker 01:
And so that makes the audibility determination subject to the whim of the people in the crowd.

[00:12:06] Speaker 01:
And it's not entirely within the control of the officers, whether in a very chaotic

[00:12:11] Speaker 01:
environment of a disruptive or violent protest, they can guarantee that everybody in the crowd who might be affected by crowd control devices, many of which have a broad area of effect by design, that's how they work, will have heard that warning or will say that they've heard that warning in court.

[00:12:29] Speaker 00:
So, counsel, this question may be kind of neither here nor there for this appeal, but since you all were last before us in the Zoom hearing, anything going on in

[00:12:41] Speaker 01:
So the information that I have, Your Honor, comes from the most recent information I have comes from still the papers at the state posture.

[00:12:55] Speaker 01:
So to the extent those papers make clear that there are still protests ongoing, but the character of those protests has changed.

[00:13:08] Speaker 01:
And so we no longer are seeing, according to those declarations,

[00:13:11] Speaker 01:
the same sort of organized massive protests at the static federal facilities.

[00:13:18] Speaker 01:
The protests there tend to be ongoing but smaller and more infrequent.

[00:13:25] Speaker 01:
And similarly in the public areas of operation, according to, for example,

[00:13:32] Speaker 01:
the supplemental Molina Declaration, which is document 58-4 in the record, there are still ad hoc protests targeting immigration enforcement missions in the field.

[00:13:43] Speaker 01:
And so that's the most recent information I have, Your Honor.

[00:13:46] Speaker 05:
Hey, Counsel, I have a further question based on your comments about what Judge Bennett asked you.

[00:13:58] Speaker 05:
and that's this, if the injunction in terms of scope is overbroad in any way, then assuming that the protester and observer's position prevails in this court that they were entitled to an injunction, isn't our panel

[00:14:29] Speaker 05:
able to to like affirm in part but uh first in part or to the extent any particular provision is overbroad uh so your honor the panel

[00:14:49] Speaker 01:
is certainly entitled to, you know, modify the injunction on appeal and say that only some of it survives and some of it doesn't survive.

[00:14:59] Speaker 01:
So that's certainly within the judicial power of a reviewing court of appeals on appeal from a district court's injunction.

[00:15:08] Speaker 01:
But I see my time has expired.

[00:15:10] Speaker 01:
May I complete my answer?

[00:15:11] Speaker 03:
Go ahead, please.

[00:15:13] Speaker 01:
The critical point here

[00:15:16] Speaker 01:
is that this injunction is so overbroad and so unworkable in so many different ways that we submit that process is better left to the district court in the first instance and this injunction should ought to be vacated because

[00:15:31] Speaker 01:
It's not a simple matter just of saying that the injunction is overbroad because it applies to too many people, as this Court held at the State Posture.

[00:15:41] Speaker 01:
As I described, and as the reply brief in particular makes clear, the Supreme Court

[00:15:49] Speaker 01:
has traditionally not looked favorably on efforts to impose programmatic injunctions on law enforcement operators on the basis of individualized assertions of misconduct.

[00:16:01] Speaker 01:
And that principle sounds, as the Supreme Court has described it in Article 3.

[00:16:05] Speaker 01:
And so that's one significant problem with the District Court's injunction.

[00:16:09] Speaker 01:
Another problem, as I described, is that the specific prescriptions and proscriptions of the injunctions

[00:16:15] Speaker 01:
just bear no reasonable relation to any of the First Amendment claims that the other side has brought.

[00:16:22] Speaker 01:
There's nothing in the First Amendment law of retaliation, for example.

[00:16:25] Speaker 01:
or the First Amendment law of right of access that compels not one, but at least two warnings before crowd control devices can be deployed.

[00:16:34] Speaker 01:
And so that's another way in which this injunction is overbroad.

[00:16:40] Speaker 01:
And finally, because of the many workability concerns that the government has raised, we think that just to the extent that the court says that plaintiffs are likely to prevail on the merits of one or both,

[00:16:53] Speaker 01:
of their First Amendment claims, the right approach would be to give guidance to the district court that it needs to pay closer attention to the Article 3 and equitable guardrails on the use of injunctive authority, and then for the district court to fashion some new injunction that is within the scope of its authority.

[00:17:11] Speaker 01:
And then that injunction could be subject to further review by either side if warranted.

[00:17:18] Speaker 03:
Thank you, counsel.

[00:17:19] Speaker 03:
I know you wanted to save some time.

[00:17:20] Speaker 01:
Thank you, your honor.

[00:17:26] Speaker 03:
I know the questioning took you over time, so I'll give you your five minutes back.

[00:17:32] Speaker 04:
Thank you, Your Honors, and may it please the Court.

[00:17:36] Speaker 04:
We would still like to split time in the same way we did at the stay argument with Ms.

[00:17:40] Speaker 04:
Wong.

[00:17:41] Speaker 04:
addressing the standing and justiciability and CASA issues.

[00:17:45] Speaker 04:
So we have roughly 10 minutes, but if you need to talk to me more, need to talk to her more, please do that.

[00:17:55] Speaker 03:
All right.

[00:17:57] Speaker 03:
That's fine.

[00:17:58] Speaker 03:
To make it easier, let's put 10 minutes on the clock then.

[00:18:01] Speaker 04:
OK.

[00:18:01] Speaker 04:
Thank you, Roberts.

[00:18:03] Speaker 04:
The First Amendment protects the right to voice your disagreement with the government.

[00:18:09] Speaker 04:
and it protects the right of the press to report on these events.

[00:18:13] Speaker 04:
The district court found that defendants had been suppressing these rights with shocking savagery.

[00:18:19] Speaker 04:
There could not be a clearer case of retaliation than this one.

[00:18:23] Speaker 04:
They shot our plaintiff, Abigail Almeda, when she was holding up a sign that said, raids don't teach justice, they teach fear.

[00:18:32] Speaker 04:
They shot Charles Hsu when he was trying to film an arrest.

[00:18:40] Speaker 04:
Many people, our clients and many others, in the face, in the head, in the neck, in the back, over and over and over again.

[00:18:48] Speaker 04:
And the district court issued relief that was narrowly tailored to address these kind of harms.

[00:18:56] Speaker 04:
And what the harm is, is our clients have a right to attend these events, no matter in what capacity, whether they're a legal observer or a reporter,

[00:19:07] Speaker 04:
or a protester without fear that they're going to suffer serious injuries.

[00:19:13] Speaker 03:
Counsel, let me ask you this, because I think the district court's factual findings are compelling, but as I'm sure you've gleaned from the argument on the stay motion, I think the panel may have serious concerns about the tailoring.

[00:19:27] Speaker 03:
Can you address

[00:19:28] Speaker 03:
The question that Judge Gold asked of your opposing counsel on what to do if we are concerned with over-breadth, is it your view that the best course of action is to vacate the preliminary instruction and remand with some appropriate guidance and instructions to the district court, or we're usually not in the business of excising certain words and provisions.

[00:19:51] Speaker 03:
That's a tougher task.

[00:19:53] Speaker 03:
What is your view on that?

[00:19:55] Speaker 04:
Well, I think there's two parts to my answer.

[00:19:58] Speaker 04:
The first part is I think that the court, if it has concerns about overbreath, it can do what it did in the stay order and address those itself.

[00:20:09] Speaker 04:
And I think it's much more efficient than going back down to district court, having the judge make a different injunction, coming back up here.

[00:20:17] Speaker 04:
So, I think if there's specific concerns that this court has, that would be appropriate.

[00:20:23] Speaker 04:
I also note that this court also has the ability to affirm the injunction and order the district court to modify it to address its concerns.

[00:20:34] Speaker 04:
And and so that would be a separate solution I don't think vacating the injunction and the important protections that it provides would be an appropriate remedy I Think that's probably the least the least wise course here for this court counsel It's not clear to me exactly what issues you're dividing with your friend.

[00:20:57] Speaker 00:
So should I address a

[00:20:58] Speaker 00:
a question or two about Nome v. Vasquez-Perdomo and Lyons to you or to your colleague?

[00:21:06] Speaker 00:
I think I think better defer it to my colleague.

[00:21:08] Speaker 00:
Okay, thank you.

[00:21:12] Speaker 04:
I think the part where we were discussing last time about the safety and efficacy of this injunction, I think the record now with the amicus briefs that have come in has more detail and more information from the court.

[00:21:32] Speaker 04:
I think it's particularly compelling that other law enforcement agencies have come out in favor of this injunction.

[00:21:39] Speaker 04:
And in specific, all the parts about use of force, the parts about warnings, these are ways that you can

[00:21:50] Speaker 04:
prevent people from being terrorized at these events, which is ultimately the harm that we're looking at.

[00:21:56] Speaker 04:
So many states have come out in favor of it.

[00:21:59] Speaker 04:
The district court in its order in footnote 32 actually indicated that other courts have issued similar injunctions without any harm or difficulty.

[00:22:11] Speaker 04:
And then we have the track record in index newspapers.

[00:22:17] Speaker 04:
I would say just in terms of the safety and efficacy of this injunction, it's well established.

[00:22:25] Speaker 04:
And certainly the parts where they have to execute on their own policies,

[00:22:31] Speaker 04:
Those parts are parts where the police have trained over and over and over again for just these purposes.

[00:22:37] Speaker 04:
And we were a little bit concerned in index newspapers when we imposed sort of a new requirement that the Portland police and DHS had not been following until that time.

[00:22:49] Speaker 03:
Well, since index newspapers, we've received additional guidance from the Supreme Court

[00:22:54] Speaker 03:
And we've got to deal with that.

[00:22:57] Speaker 03:
For example, Trump v. Casa's discussion of what it means to provide complete relief.

[00:23:02] Speaker 03:
And what I'd like to hear more is your view on how we reconcile the directions from the Supreme Court in Trump v. Casa with the scope of relief that the district court granted in this case.

[00:23:15] Speaker 04:
Well, it's very difficult, and Ms.

[00:23:19] Speaker 04:
Wong may have more to say about this, but from a perspective of a protester, if you shoot the person next to me, that's going to cause the same kind of chilling.

[00:23:31] Speaker 04:
If our plaintiffs are safe, or if they're not shot, it doesn't mean that they're safe if you have these sort of indiscriminate acts of violence that the court found that they were engaging in over and over and over again.

[00:23:47] Speaker 04:
That's kind of the one part of it.

[00:23:52] Speaker 04:
I think the other part of it is easy riders and the fact that you can't distinguish among the plaintiffs.

[00:24:00] Speaker 00:
But going to follow up on Judge Nguyen's

[00:24:05] Speaker 00:
question and also Judge Gould's question to your friend, didn't the Supreme Court in CASA essentially tell us that what you've advocated for isn't on the table anymore?

[00:24:22] Speaker 00:
the government's applications to partially stay are granted to the extent that the applications are broader than necessary to provide complete relief to each plaintiff withstanding to sue.

[00:24:34] Speaker 00:
If we accepted what you just said in response to Judge Nguyen's question, that seems to me to be directly contrary to what the Supreme Court told us in CASA.

[00:24:46] Speaker 04:
Well, if our plaintiff has standing to sue and their injury is that I'm afraid to go to these protests because they're indiscriminately shooting into crowds, you need an injunction to stop them from indiscriminately shooting into crowds to provide complete relief to that plaintiff.

[00:25:06] Speaker 04:
And that's our point is it's very difficult.

[00:25:09] Speaker 03:
I think one of the issues is sometimes completely relief isn't possible.

[00:25:14] Speaker 03:
I mean, it's very difficult and it's a case by case basis, which circles back to the question of what do we do with the over breath issue in this case, right?

[00:25:22] Speaker 03:
Sometimes it's not possible to provide complete relief because the injunction goes too far.

[00:25:27] Speaker 03:
It even applies to situations where there may not be any plaintiff withstanding at protest.

[00:25:35] Speaker 04:
Well, I think that if you have concerns like that, you can do the same thing that you did in the stay order.

[00:25:46] Speaker 04:
But I think that it is possible to provide complete relief by just by doing exactly what the district court did, which is don't fire indiscriminately into crowds.

[00:25:59] Speaker 04:
Don't engage in this behavior that is going to endanger our plaintiffs and chill our plaintiffs from having to not want to go to these protests or to curb their First Amendment rights in any way.

[00:26:12] Speaker 04:
And it's a lot different than

[00:26:17] Speaker 04:
It's a First Amendment type of injury, as opposed to what my friend was saying in Lyons.

[00:26:22] Speaker 04:
But I'll really let Ms.

[00:26:23] Speaker 04:
Wong speak to this.

[00:26:26] Speaker 05:
Council, Judge Gould, I have another question.

[00:26:31] Speaker 05:
And it's basically this.

[00:26:35] Speaker 05:
Am I correct that a lot of the Supreme Court's First Amendment jurisprudence arose out of protest cases?

[00:26:48] Speaker 04:
Indeed, and that's one of our main points here is that these are very fundamental and important rights to our democracy.

[00:27:00] Speaker 04:
This is the foundation of our country and the Civil Rights Act in 1964 was an important piece of legislation, but

[00:27:12] Speaker 04:
You know, John Lewis walking across the Edmund Pettus Bridge in 1965 was a cataclysmic event, because you had the press, and you had the protesters, and you had these First Amendment rights to express their ideas.

[00:27:26] Speaker 04:
And these are peaceful people that we're protecting at these events.

[00:27:30] Speaker 04:
And our clients are peaceful.

[00:27:33] Speaker 04:
They're not doing anything wrongful.

[00:27:35] Speaker 04:
And they have a right to do what everybody else

[00:27:39] Speaker 04:
has been doing since the beginning of our nation, which is voice their disagreement with the government and report on it.

[00:27:47] Speaker 03:
I know this question is going to take you a little bit over your time.

[00:27:50] Speaker 03:
So with the indulgence of my colleagues, let me ask you a practical question.

[00:27:54] Speaker 03:
So let's say there's a protest and a crowd of protesters block an entrance or an exit.

[00:28:01] Speaker 03:
and they're not posing a threat of imminent harm, which is a part of these provisions, what crowd control measures are available to law enforcement at that point?

[00:28:11] Speaker 03:
They're peaceful in the sense that nobody's posing any immediate threat.

[00:28:17] Speaker 04:
That's right.

[00:28:17] Speaker 04:
This is Nelson.

[00:28:18] Speaker 04:
You're not obeying a law floor.

[00:28:21] Speaker 04:
It doesn't even go to that.

[00:28:23] Speaker 04:
First, you have to ask them.

[00:28:24] Speaker 04:
You say, please clear the way so that our car can get through.

[00:28:28] Speaker 03:
Right.

[00:28:28] Speaker 03:
Please disperse.

[00:28:30] Speaker 03:
Nobody's dispersing.

[00:28:31] Speaker 03:
Nobody's dispersing.

[00:28:31] Speaker 04:
They've set up a barricade.

[00:28:32] Speaker 04:
So then the next move would be to start arresting people.

[00:28:37] Speaker 04:
And this is what Gil Kerlikowski says in his reply declaration.

[00:28:41] Speaker 04:
But arresting people is what people expect if they break the law.

[00:28:45] Speaker 03:
I don't want to belabor the point, but I want to focus on crowd control measures because sometimes officers, depending on the size of the crowd and numerous other factors, don't want to put themselves in a position of engaging directly one-on-one with protesters.

[00:29:00] Speaker 03:
So there are crowd control measures that's available to law enforcement, legitimate use of those measures under certain circumstances.

[00:29:09] Speaker 03:
What's available if this injunction stands in that circumstance?

[00:29:14] Speaker 04:
In that circumstance, the appropriate thing to do would be to arrest somebody.

[00:29:19] Speaker 04:
You start arresting people once, and if people are peacefully there, then... But no crowd dispersal tools can be utilized under that circumstance?

[00:29:28] Speaker 04:
That is the best crowd dispersal tool that is available to law enforcement.

[00:29:33] Speaker 04:
No crowd control weapons can be utilized?

[00:29:36] Speaker 04:
I would not use weapons on a crowd that is peaceful, and a crowd that's just merely disobeying

[00:29:42] Speaker 04:
A dispersal order is exactly what you had in Nelson.

[00:29:45] Speaker 04:
You had somebody who was not obeying a dispersal order.

[00:29:48] Speaker 03:
Even if consistent with agency policy?

[00:29:53] Speaker 04:
It's not consistent with agency policy.

[00:29:55] Speaker 04:
What agency policy says, and this is in paragraph five of the Harvey Declaration at ER 113, is that if you're not supposed to use crowd control weapons or chemical irritants unless there's at least active resistance.

[00:30:14] Speaker 04:
Passive resistance is disobeying an order to disperse.

[00:30:19] Speaker 04:
So this is their own policy.

[00:30:20] Speaker 04:
I'm not telling you anything that's drastic or different.

[00:30:23] Speaker 04:
And it's in the same things that the state of California and the amici have said.

[00:30:29] Speaker 04:
It's in the policies that are cited in the NPPA brief.

[00:30:32] Speaker 04:
And it's what Mr. Krulikowski said in his unrebutted effort testimony.

[00:30:37] Speaker 04:
When you break a law, when you disobey an officer, there's an expectation that you would get arrested.

[00:30:44] Speaker 04:
And if you're, you know, if you go to the, you know, the all-white lunch counter and sit there and you're trespassing, then you get arrested for it.

[00:30:53] Speaker 04:
And that is a sense of justice that prevents these kind of events from escalating.

[00:30:58] Speaker 03:
If you start attacking people.

[00:30:59] Speaker 03:
Thank you.

[00:30:59] Speaker 03:
Thank you, counsel.

[00:31:00] Speaker 03:
Let me see if my colleagues have any additional questions for you before your colleague comes up to the lectern.

[00:31:06] Speaker 05:
I have none.

[00:31:07] Speaker 03:
Thank you.

[00:31:08] Speaker 05:
Thank you, Your Honor.

[00:31:16] Speaker 02:
Thank you, Your Honors.

[00:31:16] Speaker 02:
May it please the court, Adriana Wong with the ACLU for plaintiffs.

[00:31:20] Speaker 02:
First of all, thank you to the panel for your indulgence and patience with the split of the argument.

[00:31:25] Speaker 02:
With that in mind, I would like to expand a bit on my colleagues' comments about CASA and EasyRiders and answer Judge Bennett's question about Vasquez-Perdomo.

[00:31:37] Speaker 02:
To start with CASA and EasyRiders, CASA affirmed, it didn't unsettle the established equitable principle that courts have authority to grant complete relief to each plaintiff withstanding to sue.

[00:31:49] Speaker 02:
In CASA, the parties actually presented argument about whether a universal injunction was necessary to provide complete relief to the state plaintiffs and the Supreme Court

[00:32:02] Speaker 02:
deferred that question to the lower courts, indicating that there could be a world in which a universal injunction, which is much broader than the injunction at issue here, would be appropriate if necessary to provide complete relief to the plaintiffs.

[00:32:16] Speaker 02:
So Easy Riders is still binding circuit authority concerning what is encompassed in the court's authority to grant complete relief.

[00:32:27] Speaker 02:
Judge Noyne, I think, brought up the possibility that

[00:32:31] Speaker 02:
It may be impossible for courts to grant complete relief that only benefits the named plaintiffs, and CASA recognizes this.

[00:32:38] Speaker 02:
At 606 U.S.

[00:32:40] Speaker 02:
at 852, the court states there may be injuries for which it is all but impossible for courts to craft relief that is complete and benefits only the named plaintiffs.

[00:32:48] Speaker 02:
And then it cites to a case where the court affirmed relief that extended beyond the named plaintiffs, indicating that if it's necessary, the court has the authority to grant that sort of relief.

[00:33:00] Speaker 05:
Council, I have a question for you, if I may please.

[00:33:04] Speaker 05:
So in this appeal of the preliminary injunction, as contrasted with the prior state appeal, am I correct that the injunction

[00:33:20] Speaker 05:
should be sustained or should be rejected based on the four factor test of the Supreme Court in winter, I think it is.

[00:33:33] Speaker 02:
That's correct.

[00:33:34] Speaker 02:
It's a different standard than the Ken standard.

[00:33:36] Speaker 05:
And the, the amounts, well, let me just, I guess it's the abilities to have the burden of proof on that, correct?

[00:33:49] Speaker 02:
I believe so.

[00:33:51] Speaker 02:
It's an abusive discretion standard and I think this court has recognized repeatedly that the district court has considerable discretion to craft the relief that it feels is appropriate within its authority.

[00:34:03] Speaker 05:
We should not.

[00:34:06] Speaker 05:
reverse the relief unless the relief was an abuse of discretion by the district court.

[00:34:17] Speaker 05:
But in getting to what the district court did, did the protesters have their burden of proof on the

[00:34:35] Speaker 05:
on the winter factors.

[00:34:38] Speaker 02:
Before the district court, plaintiffs did have the burden on all of the factors.

[00:34:43] Speaker 02:
And the district court found that plaintiffs had satisfied their evidentiary burden, that there was an avalanche of evidence that supported their burden as to all of the factors.

[00:34:53] Speaker 05:
Thank you.

[00:34:53] Speaker 00:
So, counsel, let me ask you a question, a hypothetical question about Nome.

[00:35:01] Speaker 00:
If in fact the interpretation of Lyons that is in Justice Kavanaugh's concurring opinion were the law, that this were the binding determination of the Supreme Court.

[00:35:19] Speaker 00:
And obviously, it's a concurring opinion.

[00:35:22] Speaker 05:
Judge Bennett, I'm having trouble hearing you, sir.

[00:35:26] Speaker 00:
I'll try to speak louder, Judge Gould.

[00:35:28] Speaker 00:
I'm sorry.

[00:35:29] Speaker 00:
Or just speak into the mic.

[00:35:31] Speaker 00:
OK.

[00:35:32] Speaker 00:
So if Justice Kavanaugh's concurring opinion were the binding law, what would your argument be that you would still win?

[00:35:41] Speaker 02:
Absolutely, Your Honor.

[00:35:42] Speaker 02:
So we agree with our friend on the other side that there needs to be something more than past injury to establish standing.

[00:35:51] Speaker 02:
the concurring opinion in Vasquez-Perdomo recognized that if there is that something more, there could be standing.

[00:36:00] Speaker 02:
And here we have something more in two ways.

[00:36:03] Speaker 02:
So we both have a realistic likelihood of repeated injury, and we have continuing present adverse effects of the past injury, which were not at issue in Vasquez-Perdomo, and which the Supreme Court in Lyons acknowledged was sufficient to establish standing.

[00:36:19] Speaker 02:
That's the chilling effect.

[00:36:21] Speaker 02:
the ongoing chilling effect on plaintiffs that derives directly from the injuries that defendants inflicted on them.

[00:36:27] Speaker 02:
On the realistic likelihood of repeated injury, there are also many distinguishing factors there.

[00:36:37] Speaker 02:
We have evidence of official sanctioning and ratification.

[00:36:42] Speaker 02:
The district court made a specific finding of that.

[00:36:44] Speaker 02:
And in Leduc and Armstrong, this court has held that that's sufficient to establish standing.

[00:36:50] Speaker 02:
to distinguish lions and also that that's the sort of finding that the Court of Appeals will defer to unless it was clearly erroneous and because there is ample evidence in the record.

[00:37:01] Speaker 00:
With regard to every protest?

[00:37:04] Speaker 02:
Yes, we are.

[00:37:05] Speaker 00:
Because this injunction deals with every protest, right?

[00:37:09] Speaker 02:
Every protest in the Central District of California concerning the ongoing immigration operations there, the immigration rates there.

[00:37:19] Speaker 02:
If I might continue, there are also a number of other distinguishing factors.

[00:37:25] Speaker 02:
In both Lyons and Masques Perdomo, plaintiff's injuries depended on officers, the government's officers, encountering them somewhere in the field, somewhere, and making an individualized determination of suspicion.

[00:37:41] Speaker 02:
That is not at all the case here.

[00:37:43] Speaker 02:
Here, as the district court noted,

[00:37:45] Speaker 02:
Our plaintiffs are going to the government.

[00:37:47] Speaker 02:
They are going to the sites where the government already is and where they have the sustained pattern of using force.

[00:37:54] Speaker 02:
And also, there is no individualized determination of suspicion, much less an arrest or conviction, as there are in the other cases that the government relies on, because the injury that's being inflicted on them is being inflicted in an indiscriminate and sweeping way.

[00:38:14] Speaker 02:
In addition, the government has not disavowed any of this conduct.

[00:38:21] Speaker 02:
And this court stated in LSO v. Stroh and in other cases that that weighs strongly in favor of a finding of standing.

[00:38:30] Speaker 02:
The district court, like the court in index, walked through the furgash factors to determine that there was a strong likelihood that the government would continue its conduct, the fact that nobody's been

[00:38:45] Speaker 02:
investigated or disciplined for this conduct, the fact that it went on for a number of weeks and there seemed to be no correction in addition to the evidence of official sanctioning.

[00:38:54] Speaker 02:
And I'll just quote briefly from the Lyons decision itself.

[00:38:58] Speaker 02:
in lions the court stated lions would have had standing if he alleged that the city authorized officers to act in the manner that injured him and here that's exactly what we are alleging and the district were found we showed is that that the agency that that the defendants have

[00:39:16] Speaker 00:
Authorized officers to act in the manner of the injured plaintiffs, so we're in the district court's order Is it is the injunction limited to a particular type of protest?

[00:39:31] Speaker 02:
I don't believe your honor that there is a description of the subject matter of the protests in the injunction because you said a few minutes ago it's limited to only immigration protests and

[00:39:43] Speaker 02:
Yes, Your Honor, I believe that's implicit in the court's order.

[00:39:46] Speaker 02:
That's the sort of thing that I think this court could consider addressing in the manner that my colleague addressed.

[00:39:54] Speaker 02:
But to be frank, there is no evidence of other ongoing protests and all the evidence

[00:40:01] Speaker 02:
of the protests that are responded to by federal officers are the protests of the immigration operation that's ongoing in the district.

[00:40:07] Speaker 00:
Does the order provide fair notice to those subject to the order that the order only applies to a particular type of protest?

[00:40:18] Speaker 02:
I'm not sure about that, Your Honor, but I will say that most protests are policed, are handled by regular police, state and local law enforcement.

[00:40:34] Speaker 02:
Really, the protests where DHS agents in particular are responding, where they have

[00:40:40] Speaker 02:
a specific pattern in practice that's incorporated into their operations, this crowd control policy, where they have that practice and where they're actively doing protest policing is with respect to these specific protests, at least in the central district of California right now.

[00:41:01] Speaker 03:
I discussed with your

[00:41:03] Speaker 03:
co-counsel, the question of whether the complete relief principle as clarified by Trump v. Casa applies to this situation and what to do if we think that

[00:41:18] Speaker 03:
it's overbroad.

[00:41:19] Speaker 03:
I'm going to read you a quote from the majority opinion in that case.

[00:41:23] Speaker 03:
We agree that the complete relief principle has deep roots in equity, but to the extent respondents argue that it justifies the award of relief to non-parties, they are mistaken.

[00:41:33] Speaker 03:
I think that's a pretty clear indication of what the Supreme Court thinks about how to apply the complete relief principle.

[00:41:43] Speaker 03:
as we've talked about in the last argument today as well.

[00:41:46] Speaker 03:
I think there are serious concern about the over breath applying to protest at which the protesters who have standing may not even appear.

[00:41:56] Speaker 03:
What do you think we should do with that?

[00:41:59] Speaker 02:
Certainly the Supreme Court is dubious about injunctions that extend beyond

[00:42:04] Speaker 02:
the parties, but again, as I mentioned, it allowed for the lower courts to develop and consider the arguments concerning whether even a universal injunction that applied to anyone anywhere could go forward if it was necessary to provide complete relief to the plaintiffs.

[00:42:18] Speaker 02:
And again, here, the conjunction is much narrower than that.

[00:42:23] Speaker 02:
I'd also submit that CASA is just distinguished.

[00:42:27] Speaker 03:
But the Supreme Court goes on to explain that complete relief is not synonymous with universal relief.

[00:42:32] Speaker 03:
And a lot of these provisions seem to grant universal relief.

[00:42:36] Speaker 03:
And its application to any protest within CDCAL applies that any protesters

[00:42:43] Speaker 03:
That sweeps very broadly and I don't know how it can be reconciled with this Supreme Court's guidance.

[00:42:50] Speaker 02:
Let me offer one way that I think it can be reconciled with the Supreme Court's guidance.

[00:42:53] Speaker 02:
So the Supreme Court said that universal relief or relief that extended beyond the named plaintiffs in CASA setting aside the state plaintiffs was not appropriate because prohibiting enforcement of the executive order at issue against the child of the individual plaintiff

[00:43:14] Speaker 02:
would give that plaintiff complete relief, her child would not be denied citizenship, extending the injunction to cover all other similarly situated individuals would not render her relief more complete.

[00:43:26] Speaker 02:
And that, I think, is the crux of why relief that extended beyond the name plaintiffs in CASA was inappropriate and why the court made its decision based on that.

[00:43:38] Speaker 02:
Here, in contrast, there is no way for the government to identify the individual plaintiffs within the crowd of protesters in the same way they could identify the individual plaintiff here to grant her child citizenship.

[00:43:52] Speaker 02:
But more importantly, extending the injunction to cover other protesters, journalists, and legal observers

[00:44:01] Speaker 02:
would render their relief more complete and was necessary to render their relief complete.

[00:44:18] Speaker 02:
I think in considering this, we have to take into account that the district court was following this court's precedence, that you have to tailor an injunction to the nature .

[00:44:27] Speaker 02:
.

[00:44:27] Speaker 02:
.

[00:44:27] Speaker 03:
No, I understand your argument.

[00:44:29] Speaker 03:
I think the district court attempted to do that.

[00:44:32] Speaker 03:
Our questioning took you over time, but it's a significant case, so we've been very generous with timing today.

[00:44:37] Speaker 03:
Let me see if my colleagues have any questions for you before you conclude your arguments.

[00:44:42] Speaker 03:
Judge Bennett?

[00:44:42] Speaker 03:
Judge Gould?

[00:44:43] Speaker 05:
And my only question is this, to what extent in considering the injunction under the winter test, can we consider the public's interest in having a society where peaceful protest is not that chilled?

[00:45:12] Speaker 02:
It's absolutely part of the the analysis under the winners factors the court balanced the equities and the public interest the the possible harm to the parties and found that all of them tilted sharply in favor of a preliminary injunction so when the government says that

[00:45:28] Speaker 02:
You know, just because the court can issue an injunction that provides complete relief, it doesn't necessarily mean it has to.

[00:45:36] Speaker 02:
It should consider other equitable factors.

[00:45:38] Speaker 02:
The district court did that very carefully in the order granting the preliminary injunction and then revisited the question in its order denying the stay.

[00:45:46] Speaker 02:
And we submit that the district court correctly concluded that the public interest in the balance of equities favored the injunction it issued.

[00:45:54] Speaker 03:
Thank you as well.

[00:45:57] Speaker 03:
Let's hear again from the government.

[00:46:04] Speaker 01:
Thank you, Your Honors.

[00:46:06] Speaker 01:
I want to focus my rebuttal on the scope of relief question.

[00:46:10] Speaker 01:
After CASA, the upshot of the Supreme Court's decision is

[00:46:15] Speaker 01:
If you think plaintiffs are entitled to some relief on the merits, then at most they're entitled to complete relief for any plaintiff that can demonstrate standing.

[00:46:26] Speaker 01:
This injunction is irreconcilable with that principle in so many different ways.

[00:46:32] Speaker 01:
The first is, for example, we heard a lot of discussion on the other side today about how the injunction is appropriate with respect to entirely peaceful protests.

[00:46:40] Speaker 01:
But, of course, the injunction doesn't contain that proviso.

[00:46:43] Speaker 01:
It applies to all interactions.

[00:46:45] Speaker 01:
between DHS officers at any kind of protest activity.

[00:46:49] Speaker 01:
And moreover, this injunction applies even to contexts like those described in this case where the protests were violent.

[00:46:56] Speaker 01:
At some protests, officers were attacked with Molotov cocktails, fireworks and other dangerous projectiles.

[00:47:03] Speaker 01:
Protesters tried to break into federal buildings, damage federal vehicles.

[00:47:07] Speaker 01:
And at one protest, it looks like somebody shot a gun in officer's direction.

[00:47:12] Speaker 01:
And so even in these circumstances, the restrictions in this injunction would apply.

[00:47:17] Speaker 01:
That's far beyond providing complete relief to the other side.

[00:47:20] Speaker 01:
Similarly, you don't effectively ban the use of crowd control devices or the use of crowd dispersal orders in every single context.

[00:47:31] Speaker 01:
And I was surprised to hear my colleague on the other side say that that was, in fact,

[00:47:37] Speaker 01:
what the First Amendment strongly supported, if not compelled.

[00:47:42] Speaker 01:
This court has squarely rejected that proposition in cases such as Puente and Monati.

[00:47:48] Speaker 01:
In the Puente case, this case held that it didn't violate the First Amendment under the retaliation rubric that the other side has articulated for crowd control devices to be used.

[00:48:00] Speaker 01:
And so a blanket prohibition on the use of crowd control devices goes far beyond

[00:48:06] Speaker 01:
any sort of restriction that would be, that plaintiffs would be entitled to in order to get them any form of complete relief at all.

[00:48:15] Speaker 03:
Similarly, in the Manati case, this- Well, in response to my question concerning the use of crowd control weapons, part of the response is that that would be inconsistent with policy to use crowd control measures unless there's active resistance.

[00:48:32] Speaker 01:
So the other side,

[00:48:35] Speaker 01:
has a different view of what DHS policies require.

[00:48:39] Speaker 01:
DHS policies place strict requirements and restrictions on the use of crowd control devices and in fact the district court said that those policies correctly reflect the restrictions on use of non-lethal force.

[00:48:58] Speaker 01:
That was something that the district court acknowledged and so

[00:49:01] Speaker 01:
Those policies, it is consistent with them if protesters are continuing to be disruptive, refusing to leave, and there may only be a few immigration enforcement officers at a scene.

[00:49:15] Speaker 01:
It may not be feasible in those circumstances for, you know, five or ten officers.

[00:49:20] Speaker 01:
I'm not sure how many.

[00:49:22] Speaker 01:
up to themselves arrest 200, 500, 1,000 protesters, preventing them from leaving.

[00:49:29] Speaker 01:
It may not be feasible for them to refrain from using crowd control devices if, for example, at some of these protests, people start erecting barricades in the road, lighting things on fire in order to prevent egress.

[00:49:43] Speaker 01:
And so my point here, Your Honor, is only that the injunction sweeps

[00:49:47] Speaker 01:
these broad proscriptions and prescriptions into the form of an injunction enforceable by contempt in all of these circumstances, even in circumstances where it wouldn't make sense for those provisions to apply to DHS, and critically, even in circumstances where no named plaintiff withstanding may even be in the crowd.

[00:50:09] Speaker 01:
This injunction applies even to protests where not a single plaintiff is there.

[00:50:16] Speaker 01:
It certainly, as I've repeatedly emphasized to Your Honor, within the Court's power to red line this injunction to make it consistent with CASA.

[00:50:27] Speaker 01:
And that's what the Court did in the stay posture in part with respect to the injunction's terms for protesters.

[00:50:34] Speaker 01:
But I submit that there are just so many flaws with the injunction in light of CASA that it doesn't make sense for the court to engage in that kind of close editing of the district court's decision in this posture, particularly where that editing would need to take into account the balancing of the equities.

[00:50:53] Speaker 01:
And for that, we think the appropriate remedy is to vacate the injunction, which

[00:50:58] Speaker 01:
your honors, on the basis that it is overbroad, and then for the district court to tailor some additional injunction to the extent that the court thinks some is appropriate.

[00:51:09] Speaker 03:
Any additional questions, Judge Bennett?

[00:51:10] Speaker 03:
No, thank you, Judge.

[00:51:11] Speaker 03:
Judge Gould?

[00:51:12] Speaker 03:
All right.

[00:51:13] Speaker 03:
Thank you very much, counsel, to all counsel, for your very helpful arguments today on this difficult case.

[00:51:19] Speaker 03:
The matter is submitted, and we'll issue a decision as soon as we can.