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Judge Rejects State Of Oregon’s Request For Temporary Restraining Order On Federal Agents
Two examples of the protective vests with identifying markings worn by Border Patrol and Homeland Security agents during a press conference with Secretary of Homeland Security Chad Wolf on the recent events involving the agents during continued protests in Portland at the US Customs and Border Patrol headquarters on July 21, 2020 in Washington, DC.
Samuel Corum/Getty Images

On Friday, a United States District Judge rejected the state of Oregon’s request for a temporary restraining order to clamp down on federal agents in Portland, Oregon.

Judge Michael W. Mosman wrote, “Through its motion, Oregon seeks a temporary restraining order that would require Defendants to identify themselves and their agency before detaining or arresting any person off the streets in Oregon; explain to any person being arrested or detained that she is subject to arrest or detention and explain the basis for the seizure; and to refrain from arresting protesters without probable cause or a warrant.”

Mosman explained, “One of the most difficult tasks for law enforcement in a free country like ours is to support robust protests while still maintaining order through lawful methods. This is even more challenging when the subject of the protests concerns police tactics. It is not unusual, following major protests, for some of the people involved to allege that the police crossed a line—a constitutional line—in the course of their interactions. It is also common for these interactions to result in lawsuits, with protesters contending the police violated their First and Fourth Amendment rights and seeking redress by money damages and injunctive relief. There is a well- established body of law paving the way for such lawsuits to move forward in federal court.”

Then he stated simply, “This is not such a lawsuit.”

Mosman elucidated exactly why; that “although it involves allegations of harm done to protesters by law enforcement, no protester is a plaintiff here” and “it is not seeking redress for any harm that has been done to protesters. Instead, it seeks an injunction against future conduct, which is also an extraordinary form of relief.” He noted that the second issue required a “very particularized showing in order to have standing” but the state had not presented one.

He continued, “First, while the complaint paints a picture of numerous protesters being seized from the streets of Portland by unidentified agents, the State’s evidence in its brief hearing consists of just two examples … the State has presented just one example of an arrest without probable cause and one example of an unreasonable seizure. That is the sum total of the evidence before me that underpins the legal injuries the State asserts in its brief.”

Mosman stated, “Two features of this case make the standing analysis unusual. First is the fact that, in a typical case alleging these types of constitutional harms, the aggrieved individual would sue on his own behalf. Here, however, the State of Oregon—by way of Attorney General Ellen Rosenblum—has brought a suit alleging these same kinds of constitutional claims on a theory that they harm the state’s citizenry writ large. Second, Oregon does not seek to redress past harms, as would be the norm in an individual claim of this type, but rather seeks to enjoin future conduct. Both of these features—the identity of the plaintiff and the nature of the requested remedy—render the standing inquiry an unusually high bar to clear.”

Mosman concluded, “The State has not met its burden to show that it has standing to seek injunctive relief, and I find that it does not have that standing. The State’s motion is therefore denied, as a temporary restraining order is unavailable on the record presented here.”

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