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Matthew Borden, admitted pro hac vice
borden@braunhagey.com
J. Noah Hagey, admitted pro hac vice
hagey@braunhagey.com
Athul K. Acharya, OSB No. 152436
acharya@braunhagey.com
Gunnar K. Martz, admitted pro hac vice
martz@braunhagey.com
BRAUNHAGEY & BORDEN LLP
351 California Street, Tenth Floor
San Francisco, CA 94104
Telephone: (415) 599-0210
Kelly K. Simon, OSB No. 154213
ksimon@aclu-or.org
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON
P.O. Box 40585
Portland, OR 97240
Telephone: (503) 227-6928
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
INDEX NEWSPAPERS LLC, a Washington
limited-liability company, dba PORTLAND
MERCURY; DOUG BROWN; BRIAN
CONLEY; SAM GEHRKE; MATHIEU
LEWIS-ROLLAND; KAT MAHONEY;
SERGIO OLMOS; JOHN RUDOFF;
ALEX MILAN TRACY; TUCK
WOODSTOCK; JUSTIN YAU; and those
similarly situated,
Plaintiffs,

Case No. 3:20-cv-1035-SI
PLAINTIFFS’ MOTION FOR FINDING
OF CONTEMPT AND FOR SANCTIONS
AGAINST DEFENDANTS U.S.
DEPARTMENT OF HOMELAND
SECURITY AND U.S. MARSHALS
SERVICE
EXPEDITED HEARING REQUESTED

v.
CITY OF PORTLAND, a municipal
corporation; JOHN DOES 1-60, officers of
Portland Police Bureau and other agencies
working in concert; U.S. DEPARTMENT OF
HOMELAND SECURITY; and U.S.
MARSHALS SERVICE,
Defendants.
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TABLE OF CONTENTS
Table of Contents ............................................................................................................................ 2 
Table of Authorities......................................................................................................................... 4 
Local Rule 7-1 Certification ........................................................................................................... 5 
Motion ............................................................................................................................................. 5 
Memorandum of Law ..................................................................................................................... 7 
Introduction ..................................................................................................................................... 7 
Argument ........................................................................................................................................ 8 
I. 

II. 

The Federal Defendants Have Intentionally Violated This Court’s TRO ........................... 8 
A. 

July 23-24: Federal Agents Shoot Journalist Jonathan Levinson ........................... 9 

B. 

July 23-24: Federal Agents Shoot and Intimidate Journalist
Rebecca Ellis ......................................................................................................... 10 

C. 

July 23-24: Federal Agents Shoot Legal Observers Kat Mahoney
and Rachelle Collins ............................................................................................. 10 

D. 

July 23-25: Federal Agents Shoot and Throw Tear Gas Canister at
Plaintiff Brian Conley ........................................................................................... 11 

E. 

July 24-25: Federal Agents Shoot Photojournalist Kathryn Elsesser ................... 12 

F. 

July 24-25: Federal Agents Shoot Legal Observer Haley Nicholson ................... 12 

G. 

July 25-26: Federal Agents Mace Four Legal Observers at PointBlank Range .......................................................................................................... 14 

H. 

July 25-26: Federal Agents Shoot Videographer Daniel Hollis ............................ 15 

I. 

July 25-27: Federal Agents Disperse and Target Tear Gas Canisters
at Journalist Justin Grinnell .................................................................................. 15 

J. 

July 27-28: Federal Agents Again Shoot and Throw Tear-Gas
Canisters and Flashbangs at Plaintiff Brian Conley ............................................. 16 

The Court Should Grant Plaintiffs Relief ......................................................................... 16 
A. 

The Court Should Prohibit the Agents Involved from Participating
in Any Armed Operations Within the District of Oregon ..................................... 17 

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B. 

The Court Should Order the Federal Agents’ Supervisors to Appear
and Show Cause as to Why They Are Not in Contempt ....................................... 18 

C. 

The Court Should Issue Coercive Fines and Award Plaintiffs Their
Attorney’s Fees ..................................................................................................... 19 

Conclusion .................................................................................................................................... 19 

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TABLE OF AUTHORITIES
Page(s)
CASES 
Baez-Sanchez v. Barr,
947 F.3d 1033 (7th Cir. 2020) ................................................................................................... 18
Century Indem. Co. v. Marine Grp., LLC, No. 3:08-CV-1375-AC,
2013 WL 5838991 (D. Or. Oct. 29, 2013) .................................................................................. 9
Donovan v. Mazzola,
716 F.2d 1226 (9th Cir. 1983) ................................................................................................. 8, 9
Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y,
774 F.3d 935 (9th Cir. 2014) ....................................................................................................... 9
Int’l Union v. Bagwell,
512 U.S. 821 (1994) .................................................................................................................. 16
J.L. v. Cuccinelli,
2020 WL 2562895 (N.D. Cal. Feb. 20, 2020)..................................................................... 16, 18
Maness v. Meyers,
419 U.S. 449 (1975) .................................................................................................................... 8
Nat’l Comm’n for Certification of Crane Operators, Inc. v. California Crane Sch., Inc.,
470 F. App’x 698 (9th Cir. 2012) ........................................................................................ 16, 18
Stone v. City & Cty. of San Francisco,
968 F.2d 850 (9th Cir. 1992) .............................................................................................. passim
Welch v. Frederickson,
No. 07-CV-1185-AC, 2008 WL 2185213 (D. Or. May 22, 2008) ...................................... 16, 18

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LOCAL RULE 7-1 CERTIFICATION
Counsel for Plaintiffs hereby certify that they contacted counsel for U.S. Department of
Homeland Security (“DHS”) and U.S. Marshals Service (“USMS”) (together, the “federal
defendants”) and attempted to resolve this dispute but were unable to do so. Counsel for federal
defendants also objected to Plaintiffs’ request for an expedited hearing.
MOTION
Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley,
Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan
Tracy, Tuck Woodstock, and Justin Yau hereby move for a finding that the federal defendants are
in contempt of court and an order imposing sanctions. Plaintiffs support this motion with the
accompanying memorandum of law and the declarations of Haley Nicholson, Rebecca Ellis,
Jonathan Levinson, Kat Mahoney, Bruce Knivila, Brian Conley, Kathryn Elsesser, and Matthew
Borden.
Plaintiffs ask this Court to impose sanctions that are reasonably calculated to prevent
future contemptuous conduct by the City. This Court has wide discretion in determining the
appropriate sanction. Plaintiffs request at least the following relief:
1.

An order that each federal agent in the supporting declarations who violated the

Court’s temporary restraining order (Dkt. 84) be identified, personally appear, and be prohibited
from participating in any armed operations within the District of Oregon.
2.

An order that the federal agents’ commanders, including L. Eric Patterson,

Richard K. Cline, Mark Morgan, Robert Perez, Rodney Scott, Raul Ortiz, Matthew Albence,
Derek Benner, Donald W. Washington, Derrick Driscoll, Chad Wolf, and Ken Cuccinelli
personally appear and show cause why they should not be sanctioned for failure to comply with
paragraph 7 of the Court’s TRO.
3.

A complete ban on the federal defendants’ use of lethal or “less lethal” weapons in

the District of Oregon.

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Fines of sufficient size to coerce the federal defendants to comply with the Court’s

TRO, such as $500 for every day a journalist or legal observer is shot, beaten, arrested, or
intimidated by a federal agent.
5.

Plaintiffs’ attorney’s fees for bringing this motion.

6.

All further relief that the Court deems necessary to ensure compliance with its

TRO.

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MEMORANDUM OF LAW
Plaintiffs Index Newspapers LLC (“Portland Mercury”), Doug Brown, Brian Conley,
Sam Gehrke, Mathieu Lewis-Rolland, Kat Mahoney, Sergio Olmos, John Rudoff, Alex Milan
Tracy, Tuck Woodstock, and Justin Yau respectfully submit this memorandum in support of their
motion to hold Defendants U.S. Department of Homeland Security (“DHS”) and U.S. Marshals
Service (“USMS”) (together, the “federal defendants”) in contempt of court.
INTRODUCTION
On July 23, 2020, the Court issued a temporary restraining order prohibiting federal
agents from assaulting and dispersing journalists and legal observers. Within hours, federal
agents began violating the Court’s TRO and have continued to do so every night since. These
violations are not inadvertent. They are intentional acts by a lawless president, who has sent his
paramilitary forces to shoot up the streets of Portland, choke downtown in a haze of toxic
chemical fumes, and generate reelection soundbites—in blatant disdain of public safety, the rule
of law, and the most fundamental principles of our Constitution.
On July 23, a federal agent shot reporter Jonathan Levinson while he was trying to take a
photo. No protesters were near him. A federal agent also shot journalist Brian Conley, when he
was trying to video an arrest. Later that night, federal agents tear-gassed Mr. Conley. The same
night, federal agents shot reporter Rebecca Ellis and separately prevented her from documenting
their dispersal of protesters.
On July 24, federal agents shot legal observer Haley Nicholson in her chest, just above
her heart, from four feet away. Impact munitions should not be used at distances of less than 15
feet or above the waist.
On July 25, federal agents deliberately sprayed toxic chemicals into the faces of multiple
legal observers, including Bruce Knivlia and Kat Mahoney, at point blank range. They were all
clearly identified in blue ACLU vests and green NLG hats. They also shot photojournalist
Kathryn Elsesser, who was also clearly marked with “PRESS” on her helmet.

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On July 26, a federal agent temporarily left an advancing line of agents to kick a flaming
tear-gas canister directly at a group of clearly marked journalists.
On July 27, Plaintiffs contacted government counsel to raise these blatant violations.
(Declaration of Matthew Borden (“Borden Decl.”), Ex. 1.) Instead of investigating and providing
information as promised, the federal defendants claimed that they were unaware of what agents
and commanders were involved and offered nothing to extenuate their violations of the TRO.
That night, the federal agents heaped on more acts of contempt. (Declaration of Brian Conley
(“Conley Decl.”) ¶¶ 19, 20, 22, 25.)
Every day it has existed, federal agents have intentionally violated the Court’s TRO. As a
result of the federal agents’ defiance of the Court’s order, the free press remains unsafe while
trying to document and observe the cataclysmic violence that federal authorities are inflicting on
Portland. The federal agents—and their commanders, whom the Court ordered to be notified of
the TRO—are not above the law.
In light of the foregoing facts, and those detailed further below, the Court should find the
federal defendants in contempt and (1) prohibit the offending officers from engaging in armed
operations in Portland, (2) order the federal agents’ commanders L. Eric Patterson, Richard K.
Cline, Mark Morgan, Robert Perez, Rodney Scott, Raul Ortiz, Matthew Albence, Derek Benner,
Donald W. Washington, Derrick Driscoll, Chad Wolf, and Ken Cuccinelli to appear and show
cause as to why they should not be held in contempt, (3) order additional prophylactic
restrictions to ensure that no further violations of Plaintiffs’ rights occur, (4) order fines of
sufficient size to coerce the federal defendants’ compliance, and (5) order that the federal
defendants pay Plaintiffs’ attorney’s fees for bringing this motion.
ARGUMENT
I.

THE FEDERAL DEFENDANTS HAVE INTENTIONALLY VIOLATED
THIS COURT’S TRO
“Absent a stay,” parties subject to a court order must comply “promptly.” Donovan v.

Mazzola, 716 F.2d 1226, 1240 (9th Cir. 1983) (quoting Maness v. Meyers, 419 U.S. 449, 458
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(1975)). Parties that fail to take “all reasonable steps within [their] power” to comply with a
“specific and definite” court order are in contempt of court. Inst. of Cetacean Research v. Sea
Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir. 2014) (quotation marks omitted).
Initially, the moving party bears the burden of showing by clear and convincing evidence
that the contemnors violated a specific and definite order; the burden then shifts to the
contemnors to demonstrate either that they substantially complied based on a reasonable
interpretation of the court’s order, or that they took “all reasonable steps” but were unable to
comply. Stone v. City & Cty. of San Francisco, 968 F.2d 850, 856 n.9 (9th Cir. 1992), as
amended on denial of reh’g (Aug. 25, 1992); Century Indem. Co. v. Marine Grp., LLC, No. 3:08CV-1375-AC, 2013 WL 5838991, at *2 (D. Or. Oct. 29, 2013). The contemnors’ intent is
irrelevant and their good faith or lack thereof is no defense: “The sole question is whether [they]
complied with the district court’s order.” Stone, 968 F.2d at 856; Donovan, 716 F.2d at 1240.
District courts have “wide latitude” in answering that question. Stone, 968 F.2d at 856 (quotation
marks omitted).
A.

July 23-24: Federal Agents Shoot Journalist Jonathan Levinson

The very night the Court issued its TRO, federal agents intentionally violated it by
shooting OPB reporter Jonathan Levinson. (Declaration of Jonathan Levinson (“Levinson
Decl.”) ¶¶ 4-5.) Mr. Levinson was wearing an OPB press pass with his name, his photograph, the
OPB logo, and the word “MEDIA.” (Id. ¶ 3.) He was also wearing a helmet that said “PRESS”
in large letters on the front and back and carrying two professional cameras with large, bulky
lenses. (Id.)
Around 1:00 a.m., federal agents had cleared the area next to the courthouse and there
were few protesters in the immediate vicinity, so Mr. Levinson decided to take some pictures of
the agents inside the fence. (Id. ¶ 4.) One agent was standing on a platform near the north side of
SW 3rd Avenue. (Id. ¶ 5.) As Mr. Levinson looked back and forth between his camera and the
agent, trying to focus his lens, he saw the agent raise his weapon, deliberately point it at him, and

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fire several rounds. (Id.) Mr. Levinson’s camera and lens were splattered with paint. (Id.) Based
on Mr. Levinson’s position and the position of people around him, there is almost no chance the
agent was aiming at anyone other than Mr. Levinson. (Id. ¶ 6.) This was an intentional act of
contempt.
B.

July 23-24: Federal Agents Shoot and Intimidate Journalist Rebecca Ellis

Federal agents also intentionally violated the TRO by shooting OPB reporter Rebecca
Ellis and then preventing her and her colleagues from reporting on their enforcement of a
dispersal order. Like Mr. Levinson, Ms. Ellis attended the protests on the night the Court issued
the TRO. (Declaration of Rebecca Ellis (“Ellis Decl.”) ¶ 3.) She too was wearing her OPB press
pass. (Id. ¶ 2.) Around 1:30 a.m., she was standing with a group of journalists, away from
protesters, and filming federal agents as they exited the federal courthouse. (Id. ¶ 3.) Suddenly,
for no reason, a federal agent fired directly at her, hitting her in the hand and singeing her arm.
(Id. ¶ 4.)1
Around ten minutes later, she was on SW Salmon Street with several other journalists,
attempting to film federal agents’ enforcement of dispersal orders. (Id. ¶ 5.)2 Two agents
physically forced her to leave; one shouted “MOVE, MOVE,” and “WALK FASTER!” in her
face, forcing her and her colleagues to walk backward, while another agent kept pace menacingly
holding his gun. (Id.) These two agents together prevented her and her colleagues from reporting
on what was going on behind them. This, too, was an intentional act of contempt.
C.

July 23-24: Federal Agents Shoot Legal Observers Kat Mahoney and
Rachelle Collins

Federal agents also shot ACLU legal observers Kat Mahoney and Rachelle Collins, again
violating the TRO the night it was issued. At around 12:45 a.m. on July 24, Ms. Mahoney was on
SW 3rd Avenue facing the federal courthouse. (Declaration of Kat Mahoney (“Mahoney Decl.”)
1

@Rjaellis, Twitter (July 24, 2020, 1:27 A.M.),
https://twitter.com/Rjaellis/status/1286578718693978113.
2
@Rjaellis, Twitter (July 24, 2020, 1:39 A.M.),
https://twitter.com/Rjaellis/status/1286581690626748416.
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¶ 4.) Federal agents began aggressively firing through the fence at protesters on the other side.
(Id.) As they began approaching her position, Ms. Mahoney moved north on SW 3rd Avenue
away from them, and then slightly onto SW Salmon Street to continue filming and observing the
events taking place. (Id.)
Suddenly, for no reason, a federal agent shot a pink paint bullet directly at Ms.
Mahoney’s head. (Id. ¶ 5.) A paint bullet also hit Ms. Collins on her neck. (Id.) There was no
discernible reason to shoot in their direction. (Id. ¶ 8.) They were near members of the press, but
6 to 10 feet away from protesters. (Id.) Nor was there any reason to shoot the protesters, who
were not doing anything violent. (Id.) Based on their position and the position of people around
them, there can be little doubt that this, too, was an intentional act of contempt. (Id.)
D.

July 23-25: Federal Agents Shoot and Throw Tear Gas Canister at Plaintiff
Brian Conley

On the night the TRO issued, federal agents intentionally shot Plaintiff Brian Conley and
threw a tear-gas canister at his head. Mr. Conley was documenting events at 4:00 a.m., when
only a few protesters were remaining. (Conley Decl. ¶ 4.) He was using a large Micro Four
Thirds camera with a telephoto lens and external 20W LED light mounted on it. (Id. ¶ 3.) He was
wearing a photographer’s vest that said “PRESS” on it as well as a helmet that said “PRESS” in
big block letters across the front. (Id.) He was plainly a member of the press.
When a female protester holding flowers skipped towards federal agents, they grabbed
her. (Id. ¶¶ 5-6.) They also grabbed a protester who tried to free her. (Id.) Having neutralized this
threat, the federal agents inundated the street with tear gas. (Id. ¶¶ 6-7.) Mr. Conley yelled that he
was press, over and over. (Id.) Suddenly, without warning, federal agents shot him multiple times
with impact munitions, which were “incredibly painful.” (Id. ¶ 7.) They shot him in his chest and
his foot. (Id.) This can only have been intentional, for there was nobody else nearby except press
and a few medics. (Id. ¶¶ 7-8.) Further confirming that federal agents were targeting press
intentionally, an agent threw a tear-gas canister directly at Mr. Conley, where it exploded above
his head. (Id. ¶¶ 9-10.) Federal agents again threw canisters of tear gas at several members of the
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press, including Mr. Conley, the following night. (Id. ¶¶ 12-14.) These are repeated, intentional
violations of this Court’s TRO.
E.

July 24-25: Federal Agents Shoot Photojournalist Kathryn Elsesser

Federal agents also shot a photojournalist the following night. Freelance photographer
Kathryn Elsesser attended the protests on the night of July 24 on assignment for the world’s
oldest news agency, the Agence France-Presse (AFP). (Declaration of Kathryn Elsesser
(“Elsesser Decl.”) ¶¶ 1-2.) Her photos from that night were published around the world by
Bloomberg, CBS News, and Yahoo, among others, including many international publications.
(Id. ¶ 1.) She was wearing a press pass and a helmet with “PRESS” written on it in big letters
across the front. (Id. ¶ 2.)
At around 2:00 a.m., Ms. Elsesser was standing alone at the edge of the park, across the
street from the federal courthouse, when a federal agent shot her in the arm from across the
street. (Id. ¶¶ 4-6.) She also recounts four additional journalists who, despite being clearly
identified as press, federal agents shot—including one in the head—and teargassed. (Id. ¶¶ 7-11.)
F.

July 24-25: Federal Agents Shoot Legal Observer Haley Nicholson

Federal agents also shot an NLG legal observer the following night. Law student Haley
Nicholson attended the protests on the night of July 24. (Declaration of Haley Nicholson
(“Nicholson Decl.”) ¶¶ 1-2.) She was wearing a green NLG legal-observer hat, which she
believed would protecte her from federal violence under the Court’s TRO. (Id. ¶ 2.)
At around 11:50 p.m., she was recording and observing events on SW 3rd Avenue, near
the intersection with SW Salmon Street. (Id. ¶ 3.) A federal agent lined her up in his sights, but
she was facing away from him. (Id. ¶¶ 4, 7.) He waited for her to turn. (Id.) When she was fully
facing him, he shot her in the chest, directly above the heart, at nearly point-blank range. (Id.
¶ 5.) Videos of this event can be viewed at https://tinyurl.com/FedShootsLO and
https://tinyurl.com/FedShootsLO2, and they show that she was not threatening federal property,
interfering with law enforcement, or even talking to the agent who shot her. (Id. ¶¶ 3, 7.)

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The federal agent used a 40mm rubber bullet for which the minimum safe distance is 2
meters (approximately 6 feet) and the minimum recommended distance is 5 meters
(approximately 15 feet). (Id. ¶ 5; 40mm Direct Impact Round, Defense Technology,
https://www.defense-technology.com/wp-content/uploads/2020/06/40mm-Direct-ImpactRound.pdf.) He also fired it at Ms. Nicholson’s heart, even though the manufacturer recommends
that it be fired “at the large muscle groups of the buttocks, thigh, and knees” in order to “reduc[e]
serious or life-threatening injuries.” (Ibid.) Used in this thoroughly improper manner, it left a
massive contusion in Ms. Nicholson’s chest (Nicholson Decl. ¶ 6.):

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Ms. Nicholson returned to downtown to serve as a legal observer on the night of July 25.
Several times, federal agents pointed their guns at her and a group of legal observers. Recalling
her experience of the previous night, Ms. Nicholson left early. (Id. ¶ 10.) Federal agents
successfully deterred Ms. Nicholson from performing her vitally necessary role, in contempt of
this Court’s order.
G.

July 25-26: Federal Agents Mace Four Legal Observers at Point-Blank
Range

Federal agents again brazenly violated the TRO on the night of July 25. On this night,
two ACLU legal observers—Ms. Mahoney and Bruce Knivila—were standing with two NLG
legal observers and some press at the corner of SW Salmon Street and SW 3rd Avenue, facing
the federal courthouse. (Mahoney Decl. ¶¶ 9-10; Declaration of Bruce Knivila (“Knivila Decl.”)
¶¶ 3-4, 8.) All four were clearly marked as legal observers affiliated with their respective
organizations (Mahoney Decl. ¶ 10; Knivila Decl. ¶ 3.)
To the right of the group were some protesters. (Mahoney Decl. ¶ 11; Knivila Decl. ¶¶ 56.) Video evidence3 clearly shows that the four legal observers were distinguishable from
protesters because at least two federal agents actually distinguished them and declined to pepperspray them. (Mahoney Decl. ¶¶ 9, 11; Knivila Decl. ¶¶ 4-6.) Then, one agent chose to walk over,
pop open a can of tear gas, and casually drop it right at the feet of the legal observers, in an area
where only press and legal observers would suffer its effects. (Knivila Decl. ¶ 8.) A couple of
minutes later, another agent (or perhaps the same one) walked directly to the group—exactly to
where his collaborators had stopped their pepper-spraying—and maced or pepper-sprayed the
legal observers. (Mahoney Decl. ¶ 12; Knivila Decl. ¶ 9.) A minute after that, a federal agent
again maced or pepper-sprayed an NLG legal observer. (Knivila Decl. ¶ 10.) There were no
protesters behind the legal observers that the agents might have been aiming at. (Id. ¶ 9.) The

3

Available at https://tinyurl.com/FedsMaceLOs and https://tinyurl.com/FedsMaceLOs2.
(Mahoney Decl. ¶ 9; Knivila Decl. ¶ 4.)
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agents’ only possible reason was unlawful and contemptuous retaliation for documenting the
agents’ actions. (Id.)
H.

July 25-26: Federal Agents Shoot Videographer Daniel Hollis

In the early hours of July 26, federal agents violated the TRO yet again. Daniel Hollis, a
videographer for VICE News, was wearing a helmet with the word “PRESS” on it and operating
large, professional video-recording equipment. (Declaration of Daniel Hollis (“Hollis Decl.”)
¶ 2.) He went to the intersection of SW Salmon Street and SW 3rd Avenue specifically to get
away from protesters for a wide angle shot. (Id. ¶ 4.) There were very few people near him, and
nearly all of them were clearly marked as press. (Id. ¶ 7.) The few non-press in the area were not
doing anything threatening at all. (Id.) Federal agents were coming out of the side door to the
federal courthouse, and the mass of protesters were outside their line of sight and line of fire.
(Id.) Nevertheless, the agents launched a barrage of munitions at Mr. Hollis and the members of
the press around him, hitting Mr. Hollis near his groin and in his lower back. (Id.) Mr. Hollis was
forced to stop reporting for the night. (Id. ¶ 8.)
I.

July 25-27: Federal Agents Disperse and Target Tear Gas Canisters at
Journalist Justin Grinnell

Federal agents continued to violate the TRO over the weekend. Justin Grinnell, the
Managing Editor of the Portland State Vanguard, covered the protests outside the Hatfield
Courthouse on the nights of July 25 and 26, 2020. (Declaration of Justin Grinnell (“Grinnell
Decl.”) ¶¶ 1-2.) He was wearing a press pass and his hat and backpack were labeled “PRESS” in
large letters written on yellow tape. (Id. ¶ 2.)
Just before 2:30 a.m. on July 26, Mr. Grinnell documented a federal agent who
temporarily left the advancing line to kick a flaming tear-gas canister directly at a group of
journalists. (Id. ¶¶ 3-4.)4 The next night, in the early hours of July 27, federal agents dispersed
Mr. Grinnell and other journalists, forcing them in the opposite direction from where federal
4

@psuvanguard, Twitter (July 26, 2020, 2:23 A.M.),
https://twitter.com/psuvanguard/status/1287317488527486976.
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agents were advancing on protestors. (Id. ¶ 5.) But there was no reason to disperse Mr. Grinnell.
He was following federal agents’ orders. (Id.) All the press he was standing with appeared to be
properly identified and were clearly just documenting. (Id.) They were not posing any danger to
the federal agents or the federal courthouse. (Id.) A while later, a federal agent launched a tear
gas canister at a group of press with whom Mr. Grinnell was standing. (Id. ¶ 8.) There were no
protestors nearby, just clearly identified members of the press. (Id.)
J.

July 27-28: Federal Agents Again Shoot and Throw Tear-Gas Canisters and
Flashbangs at Plaintiff Brian Conley

Plaintiff Conley returned to cover the protests on the night of July 27. He was still using a
large Micro Four Thirds camera with a telephoto lens and external 20W LED light mounted on it
and wearing his photographer’s vest and his helmet that said “PRESS” across the front. (Conley
Decl. ¶¶ 2, 22) He was, again, plainly a member of the press.
Just before 1:00 a.m. on July 28, federal agents—again—intentionally shot Mr. Conley
and threw tear-gas canisters and flashbangs directly at him. (Id. ¶ 19.) Even once Mr. Conley
moved to the side, and there was nobody else near him, a federal agent threw another flashbang
directly at him. (Id. ¶ 20.) Mr. Conley was hit multiple times, rearranging the “PRESS” stickers
on his helmet, and he is having trouble walking today. (Id. ¶¶ 19, 22, 25.)
II.

THE COURT SHOULD GRANT PLAINTIFFS RELIEF
District courts have broad power to enforce their orders. They may issue penalties

“designed to compel compliance with [their orders] or to compensate the contemnor’s adversary
for any damages resulting from the contemptuous behavior.” Welch v. Frederickson, No. 07-CV1185-AC, 2008 WL 2185213, at *2 (D. Or. May 22, 2008); see also Int’l Union v. Bagwell, 512
U.S. 821, 827 (1994) (“The paradigmatic coercive, civil contempt sanction . . . involves
confining a contemnor indefinitely until he complies with an affirmative command”); J.L. v.
Cuccinelli, 2020 WL 2562895, at *3 (N.D. Cal. Feb. 20, 2020) (holding Defendant DHS, Acting
Deputy Secretary of Homeland Security Ken Cuccinelli, and Acting Secretary of Homeland
Security Chad Wolf in contempt), modified on reconsideration, 2020 WL 2562896 (N.D. Cal.
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Mar. 27, 2020) (observing that sanctions caused DHS and Cuccinelli to return three removed
class members). When less intrusive measures fail, courts may use “more intrusive measures” to
enforce the rights of parties before them. Stone, 968 F.2d at 861 (collecting cases). Courts also
have power to grant attorney’s fees as a sanction for civil contempt. Nat’l Comm’n for
Certification of Crane Operators, Inc. v. California Crane Sch., Inc., 470 F. App’x 698, 700 (9th
Cir. 2012).
A.

The Court Should Prohibit the Agents Involved from Participating in Any
Armed Operations Within the District of Oregon

If the agents who shot, pepper-sprayed, and intimidated journalists above have proven
one thing, it is that they cannot be trusted to carry firearms of any type. In the five nights since
this Court issued its TRO, they have managed to shoot at least eight clearly marked journalists
and legal observers, one on multiple occasions.5 (Levinson Decl. ¶ 5; Ellis Decl. ¶ 4; Mahoney
Decl. ¶ 5; Conley Decl. ¶ 7; Nicholson Decl. ¶ 5; Elsesser Decl. ¶¶ 4-6; Hollis Decl. ¶ 7.) Nor
can they be trusted with other crowd-control devices like pepper spray and tear gas. (Conley
Decl. ¶¶ 9-10, 12-14; Mahoney Decl. ¶ 12; Knivila Decl. ¶¶ 9-10; Grinnell Decl. ¶¶ 3-4, 8.) The
Court has tried the lesser remedy of simply ordering them to stop violating Plaintiffs’ First
Amendment rights; now it is time for stronger medicine. See Stone, 968 F.2d at 861. The only
remedy that will actually prevent further violations of the Court’s TRO is to take these federal
agents off the streets. Accordingly, the Court should order that each federal agent in the
supporting declarations who violated the Court’s TRO be identified, personally appear, and be
prohibited from participating in any armed operations within the District of Oregon.

5

They have, in fact, shot many more journalists and legal observers. The shootings discussed in
this brief are merely some of the ones that are clearly and convincingly intentional and not
supposedly “incidental” to the unnecessary violence perpetrated by the federal agents. Cf, e.g.,
@GriffinMalone6, Twitter (July 25, 2020, 3:15 A.M.),
https://twitter.com/GriffinMalone6/status/1286968297980755968 (showing a federal agent
shooting a journalist, apparently in response to a water bottle thrown from almost 180 degrees in
the opposite direction).
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Furthermore, the Court is entitled to order “more intrusive measures” to enforce
Plaintiffs’ rights if the federal defendants do not respond to less restrictive orders. Stone, 968
F.2d at 861 (collecting cases). Plaintiffs ask that the Court consider issuing a complete ban on the
federal defendants’ use of lethal or “less lethal” weapons in the District of Oregon if they remain
unwilling to comply with the Court’s orders.
B.

The Court Should Order the Federal Agents’ Supervisors to Appear and
Show Cause as to Why They Are Not in Contempt

The Court should order that the Federal Agents’ commanding officers personally appear
and show cause why they should not be held in contempt and sanctioned for willfully violating
the Court’s TRO. The Court specifically ordered that the TRO be distributed to “all employees,
officers, and agents of the Federal Defendants with any supervisory or command authority over
any” federal agent deployed to Portland, including Attorney General Bill Barr and Acting
Secretary of Homeland Security Chad Wolf, and that those supervisory officials could be liable
for a willful violation of the TRO. (Dkt. 84 ¶ 7.) As shown above, Plaintiffs have proffered clear
and convincing evidence that the federal agents committed acts of contempt—which are still
ongoing—after the Court ordered that all the federal agents’ supervisors be placed on notice of
the TRO. Accordingly, the federal agents’ supervisors L. Eric Patterson, Richard K. Cline, Mark
Morgan, Robert Perez, Rodney Scott, Raul Ortiz, Matthew Albence, Derek Benner, Donald W.
Washington, Derrick Driscoll, Chad Wolf, and Ken Cuccinelli should be ordered to appear and
show cause why they should not be sanctioned for contempt. See, e.g., J.L, 2020 WL 2562895, at
*3 (N.D. Cal. Feb. 20, 2020) (holding Wolf and Cuccinelli in contempt for DHS’s removal of
juvenile class members in violation of a preliminary injunction); see also Baez-Sanchez v. Barr,
947 F.3d 1033, 1035-36 (7th Cir. 2020) (observing that individual members of the Board of
Immigration and Appeals who “refused to implement” the Seventh Circuit’s decision “must
count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all
the consequences that possibility entails”).

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Furthermore, Plaintiffs ask that the Court consider the “more intrusive measure” of
holding Attorney General William Barr in contempt if they remain unwilling to comply with the
Court’s orders. (See Dkt. 84 ¶ 7 (providing that both Wolf and Barr are responsible for
compliance with the Court’s TRO).)
C.

The Court Should Issue Coercive Fines and Award Plaintiffs Their
Attorney’s Fees

Finally, coercive fines and attorney’s fees are standard remedies for contempt of court
and the Court should order the federal defendants to pay them in an amount to be determined.
Welch, 2008 WL 2185213, at *2; Nat’l Comm’n for Certification of Crane Operators, 470 F.
App’x at 700. For coercive sanctions, Plaintiffs suggest that the federal defendants be ordered to
pay $500 for every day a journalist or legal observer is shot, beaten arrested, or intimidated by a
federal agent. See J.L, 2020 WL 2562896, at *1-*2 (observing that that amount was “warranted
to ensure Defendants’ compliance posthaste, especially in light of the continuing harm suffered
by the class members”).
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court find the federal
defendants in contempt and issue sanctions against them.

Dated: July 28, 2020

Respectfully Submitted,
By: /s/ Matthew Borden
Matthew Borden, pro hac vice
J. Noah Hagey, pro hac vice
Athul K. Acharya, OSB No. 152436
Gunnar K. Martz, pro hac vice
BRAUNHAGEY & BORDEN LLP
Kelly K. Simon, OSB No. 154213
ACLU FOUNDATION OF OREGON
Attorneys for Plaintiffs

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