1 2 3 4 IN THE CIRCUIT COURT FOR THE STATE OF OREGON 5 FOR THE COUNTY OF MULTNOMAH 6 7 8 AMERICAN CIVIL LIBERTIES UNION OF OREGON, INC., an Oregon non-profit public benefit corporation, and PROTESTER #1, an individual, Plaintiffs, 9 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF NOT SUBJECT TO MANDATORY ARBITRATION 10 v. 11 CITY OF PORTLAND, an Oregon municipal corporation, 12 Case No. ORS 21.135(2)(a), (f): $281 Defendant. 13 14 15 INTRODUCTION 1. Oregon is not a surveillance state. With this action, Plaintiffs American Civil 16 Liberties Union of Oregon, Inc. and Protester #11 seek to eliminate a practice by the City of 17 Portland — and, specifically, the Portland Police Bureau — that threatens to turn it into one. 18 19 20 PARTIES AND VENUE 2. Plaintiff American Civil Liberties Union of Oregon, Inc. (“ACLU”) is an Oregon non-profit public benefit corporation. 21 3. Plaintiff Protester #1 is an individual who resides in Portland, Oregon. 22 4. Defendant City of Portland (the “City”) is a municipality incorporated in Oregon. 23 24 25 The Portland Police Bureau (“PPB”) is a department or division of the City. 1 Protester #1 intends to proceed under a fictitious name. Pursuant to Multnomah County SLR 2.035, Protester #1 will seek permission from the Court to do so at the earliest available opportunity. PAGE 1 – COMPLAINT ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, Oregon 97204 Telephone (503) 954-2232 Fax (503) 227-0880 5. 1 2 Venue is proper in this Court because Plaintiffs’ causes of action arose, at least in part, in Multnomah County. FACTS 3 6. 4 Over the past several weeks, thousands of Oregonians have exercised their 5 constitutional rights by protesting in streets, parks, and other public spaces in and around 6 Portland. The protesters seek fundamental changes in the way American police departments 7 interact with the communities they serve. In particular, they seek to eradicate the senseless and 8 recurring police brutality and murders of Black people like George Floyd, Breonna Taylor, 9 Michael Brown, Quanice Hayes, Terrell Johnson, Keaton Otis, Aaron Campbell, Patrick 10 Kimmons, Darris Johnson, Kendra James, and so many others. 7. 11 PPB has surveilled participants in the protests, and will continue to do so, with 12 livestreamed internet videos. The videos regularly depict individual protesters who are 13 demonstrating peacefully and engaging in no criminal activity at all. Nevertheless, the videos 14 have focused and will continue to focus on specific protesters, apparently for the purpose of 15 identifying them. 16 8. Protester #1 is one such protester. On the evening of July 13, 2020, Protester #1 17 attended a protest that took place at the headquarters of the Portland Police Association (the 18 “PPA”) in North Portland. Protester #1 did so in order to express solidarity with other protesters, 19 and because Protester #1 had been sickened and devastated by acts of violence committed by 20 PPB against other protesters over the past several weeks. At all times, Protester #1 demonstrated 21 peacefully and engaged in no criminal conduct whatsoever. Protester #1 spent much of Protester 22 #1’s time at the protest standing in front of the line of PPB officers that had encircled PPA’s 23 building, holding up photos of Protester #1’s child and pleading with the officers not to harm the 24 crowd. 25 PAGE 2 – COMPLAINT ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, Oregon 97204 Telephone (503) 954-2232 Fax (503) 227-0880 9. 1 During the protest, a PPB camera captured Protester #1’s image, which it 2 livestreamed publicly on the internet. At the time, Protester #1 was not aware that PPB was 3 filming the crowd. Had Protester #1 known of PPB’s filming, Protester #1 would not have 4 consented to it. Protester #1 plans to continue attending protests, but is deeply disturbed by 5 PPB’s practice of using livestreamed internet videos to monitor protesters’ exercise of their 6 constitutional rights. 10. 7 Many of the other protesters whose likenesses and voices have appeared on PPB’s 8 videos also want not to be recorded. Several have shouted as much at PPB’s cameraperson; 9 others have shone bright lights at its camera in attempts to obscure the camera’s view of the 10 crowds; still others have used squeakers to obscure PPB’s audio recording. ACLU’s legal 11 observers2 and other members have been (and will continue to be) among those at the protests 12 who object to PPB’s recording. 11. 13 As a technological matter, the contents of each livestreamed video are within 14 PPB’s custody and control beginning at the moment when each livestream begins. For example, 15 YouTube — which PPB has used for some of its livestreams — requires a user to choose 16 whether to delete or retain a livestreamed video when the livestream ends. Until the user makes a 17 selection, the full contents of the video remain accessible to the user, which, in this case, is PPB 18 itself. 19 12. PPB has offered varying rationales for livestreaming videos of protesters. Its 20 policies say that it does so to provide “situational awareness” and to record possible criminal 21 activity. According to section 4.3 of PPB Directive No. 0635.10, “[d]emonstrations may be 22 broadcast to Bureau facilities by live video feed to provide situational awareness to the [PPB 23 24 25 2 ACLU legal observers are trained volunteers who attend protests at the invitation of the events’ organizer(s). Legal observers are asked to document interactions between protesters and law enforcement. They do not intervene in the event of a violation of law; instead, they document the violation for later review. PAGE 3 – COMPLAINT ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, Oregon 97204 Telephone (503) 954-2232 Fax (503) 227-0880 1 Incident Commander]. * * * If a possible crime is captured on the recording, that recording will 2 be forwarded to [the] Bureau’s Detective Division for investigation and the District Attorney’s 3 Office, if requested.” However, in a separate email, a Senior Deputy City Attorney wrote that 4 PPB had livestreamed one video not to provide “situational awareness,” but rather “so the 5 community could understand what was occurring at the protest.” 13. 6 In August of 1988, ACLU and PPB reached a civil settlement agreement (the 7 “Agreement”) regarding the latter’s collection of information about participants in public 8 demonstrations. A copy of an August 3, 1988 letter from Portland’s City Attorney memorializing 9 the Agreement is attached as Exhibit A. Among other things, the Agreement obligated PPB to 10 adopt the following formal policy: 11 “Portland Police Officers shall not collect or maintain information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership unless such information relates directly to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct.” 12 13 14 15 In exchange for that and other promises by PPB, ACLU promised that it would “not litigate over 16 the collection of information by [PPB] at demonstrations which have occurred prior to July 27, 17 1988.” 14. 18 The nature of the Agreement was and remains clear: PPB promised ACLU that it 19 would comply at all times with ORS 181A.250 (whose language the Agreement tracks verbatim) 20 when its officers are present at or otherwise involved in demonstrations by members of the 21 public. 22 15. PPB’s practice of livestreaming videos of protesters amounts to a violation of 23 ORS 181A.250, and to a breach of the Agreement. By livestreaming videos of protesters, PPB 24 collects and maintains information about their political and social views, associations, and 25 activities in violation of ORS 181A.250. PAGE 4 – COMPLAINT ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, Oregon 97204 Telephone (503) 954-2232 Fax (503) 227-0880 1 16. Plaintiffs have no adequate remedy at law for PPB’s violations, which pose a 2 serious and imminent threat of irreparable harm to them and other protesters alike. Specifically, 3 PPB cannot “undo” a video through which its officers identify or otherwise collect information 4 about a protester. Nor can it force a third party to “un-learn” information about a protester that 5 the third party obtains by watching PPB’s livestream. Moreover, any damages associated with 6 such conduct by PPB would be, by their very nature, extremely difficult or impossible to 7 quantify. 8 9 17. An order prohibiting PPB from livestreaming or otherwise recording video or audio of protesters except as permitted by ORS 181A.250 would subject it to no meaningful 10 burden. As the contents of the videos themselves make clear, there is no reason to believe that 11 such an order would interfere at all with PPB’s legitimate operations or responsibilities at the 12 protests. 13 18. Additionally, an order prohibiting PPB from livestreaming or otherwise recording 14 video or audio of protesters except as permitted by ORS 181A.250 would serve the public 15 interest, in that it would facilitate and promote Plaintiffs’ and other protesters’ exercise of their 16 constitutional rights. 17 CLAIMS FOR RELIEF 18 FIRST CLAIM FOR RELIEF (Declaratory Judgment; ORS 181A.250 and ORS 28.010 et seq.) (ACLU and Protester #1) 19 20 21 22 19. Plaintiffs reallege and incorporate by reference each of the preceding paragraphs as if fully set forth herein. 20. By livestreaming the videos described above, the City has collected and 23 maintained, and will continue to collect and maintain, information about the political and social 24 views, associations, and activities of Protester #1, ACLU, and others who have attended or will 25 attend the protests. Its videos do not relate to an investigation of any criminal activities, nor are PAGE 5 – COMPLAINT ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, Oregon 97204 Telephone (503) 954-2232 Fax (503) 227-0880 1 there any reasonable grounds to suspect that the specific subjects of the videos are or may be 2 involved in any criminal conduct. Thus, by livestreaming the videos, the City has violated and 3 will continue to violate ORS 181A.250. 4 21. Plaintiffs’ rights, statuses, and other legal relations are affected by the City’s 5 practice of livestreaming the videos described above. The City’s livestreaming of the videos has 6 caused a specific injury to Plaintiffs’ rights under ORS 181A.250, which entitles them to be free 7 of such conduct. Their injury is real, and not hypothetical or speculative, because the City 8 already has engaged in conduct prohibited by ORS 181A.250 and will continue to do so unless 9 this Court orders otherwise. Moreover, a decision declaring that ORS 181A.250 prohibits the 10 City from livestreaming or otherwise recording video or audio of protesters except in the 11 circumstances permitted by the statute, and enjoining it from doing so in the future, will have a 12 practical effect on the rights that Plaintiffs are seeking to vindicate because it will cause the 13 City’s unlawful conduct to cease. 14 15 16 22. As explained above, Plaintiffs have no adequate remedy at law for the City’s violations of ORS 181A.250. 23. Accordingly, Plaintiffs are entitled to (i) a declaration that ORS 181A.250 17 prohibits the City (including, but not limited to, PPB) from livestreaming or otherwise recording 18 video or audio of protesters demonstrating in public spaces, except where the video or audio 19 relates to an investigation of criminal activities and there exist reasonable grounds to suspect the 20 subjects of the videos are or may be involved in criminal conduct; and (ii) temporary, 21 preliminary, and permanent injunctive relief prohibiting the City from doing so in the future. 22 23 24 25 SECOND CLAIM FOR RELIEF (Breach of Contract/Breach of the Duty of Good Faith and Fair Dealing) (ACLU) 24. ACLU realleges and incorporates by reference each of the preceding paragraphs as if fully set forth herein. PAGE 6 – COMPLAINT ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, Oregon 97204 Telephone (503) 954-2232 Fax (503) 227-0880 1 25. The Agreement is a binding and valid contract between ACLU and the City. 2 ACLU has fully performed all of its obligations under the Agreement, and has not breached any 3 obligation imposed on it by the Agreement. 4 26. The Agreement imposes a contractual obligation on the City to comply with ORS 5 181A.250, whose language the Agreement tracks verbatim. In particular, the Agreement 6 obligates the City as a matter of contract “not [to] collect or maintain information about the 7 political * * * or social views, associations or activities of any individual, group, association, [or] 8 organization,” except in the circumstances permitted by ORS 181A.250. 9 10 11 27. The City (and, specifically, PPB) has breached the Agreement by collecting information about protesters in the manner described above. 28. Alternatively, if the City did not breach the terms of the Agreement by collecting 12 information about protesters in the manner described above, it violated the duty of good faith and 13 fair dealing by doing so. 14 15 16 29. As explained above, ACLU has no adequate remedy at law for the City’s breaches of the Agreement or, alternatively, of the duty of good faith and fair dealing. 30. Accordingly, ACLU is entitled to (i) a declaration that the Agreement prohibits 17 the City (including, but not limited to, PPB) from livestreaming or otherwise recording video or 18 audio of protesters demonstrating in public spaces, except where the video or audio relates to an 19 investigation of criminal activities and there exist reasonable grounds to suspect the subjects of 20 the videos are or may be involved in criminal conduct; and (ii) temporary, preliminary, and 21 permanent injunctive relief prohibiting the City from doing so in the future. PRAYER 22 23 WHEREFORE Plaintiffs pray for a judgment awarding the following relief: 24 A. 25 A declaration that ORS 181A.250 and the Agreement each prohibit the City (including, but not limited to, PPB) from livestreaming or otherwise recording video or audio of PAGE 7 – COMPLAINT ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, Oregon 97204 Telephone (503) 954-2232 Fax (503) 227-0880 1 protesters demonstrating in public spaces, except where the video or audio relates to an 2 investigation of criminal activities and there exist reasonable grounds to suspect the subjects of 3 the videos are or may be involved in criminal conduct; B. 4 Temporary, preliminary, and permanent injunctive relief prohibiting the City, 5 including its employees, agents, and all others acting in concert with it or on its behalf, from 6 livestreaming or otherwise recording video or audio of protesters demonstrating in public spaces, 7 except where the video or audio relates to an investigation of criminal activities and there exist 8 reasonable grounds to suspect the subjects of the videos are or may be involved in criminal 9 conduct. C. 10 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// The costs and disbursements that Plaintiffs incur in bringing this action; and PAGE 8 – COMPLAINT ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, Oregon 97204 Telephone (503) 954-2232 Fax (503) 227-0880 1 2 3 4 5 6 7 8 9 10 11 12 13 D. Such other relief as the Court may deem just and proper. Dated: July 29, 2020. s/Edward A. Piper ANGELI LAW GROUP LLC EDWARD A. PIPER, OSB No. 141609 ed@angelilaw.com JOANNA T. PERINI-ABBOTT, OSB No. 141394 joanna@angelilaw.com URSULA M. LALOVIĆ, OSB No. 176289 ursula@angelilaw.com 121 SW Morrison Street, Suite 400 Portland, Oregon 97204 Tel. 503.954.2232 Fax 503.227.0880 ALAN LLOYD KESSLER ALAN LLOYD KESSLER, OSB No. 150209 ak@alankesslerlaw.com 1001 SE Sandy Blvd # 210 Portland, Oregon 97214 Telephone: (503) 860-1020 16 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON KELLY K. SIMON, OSB No. 154213 ksimon@aclu-or.org P.O. Box 40585 Portland, Oregon 97240 Telephone: (503) 227-6928 17 Counsel for Plaintiffs 14 15 18 19 20 21 22 23 24 25 PAGE 9 – COMPLAINT ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, Oregon 97204 Telephone (503) 954-2232 Fax (503) 227-0880