PORTLAND, Ore. (CN) — Portland protesters who sued the federal government over the use of excessive force and unlawful detentions in 2020 hit a new obstacle Tuesday when a U.S. magistrate judge recommended dismissing their remaining claims as moot.
“The conditions related to protest activity in Portland, and the federal response to any such activity, have drastically changed since this case was filed, thus rendering plaintiffs’ claims for declaratory relief moot,” U.S. Magistrate Judge Youlee Yim You wrote in her findings and recommendations.
Judge You also recommended dropping a plaintiff's claim against federal officers seeking the expungement of records obtained after his unlawful arrest.
“Additionally, plaintiff Mark Pettibone lacks standing to seek expungement of records that the agency defendants retain related to his arrest because Pettibone has not shown that the agency defendants’ retention of those records creates a substantial risk of imminent harm,” You added.
The recommendations stem from a lawsuit filed by two organizations and eight people who protested the Minneapolis police killing of George Floyd on May 25, 2020. The lawsuit filed that August includes eight constitutional claims against the federal government and several unknown agents for using excessive force and illegal detention as a means to quell the protests under “Operation Diligent Valor.”
The controversial reaction to Portland’s protests arrived after former President Donald Trump issued an order in June 2020 directing cabinet officials and federal agencies to protect federal monuments, statues and property. From there, then-acting U.S. Department of Homeland Security director Chad Wolf deployed hundreds of federal law enforcement officers — including agents from the U.S. Marshall Service and Customs and Border Protection, Immigration and Customs Enforcement — to occupy Portland’s downtown area near the Mark O. Hatfield U.S. Courthouse.
Pettibone claims federal agents unlawfully detained him after snatching him from the street and putting him into a van. Two other plaintiffs, Christopher David and Duston Obermeyer, claim federal agents beat them with batons and sprayed them with a chemical irritant.
In April 2023, U.S. District Judge Michael Simon adopted a prior recommendation from Judge You to dismiss the demonstrators’ excessive force and illegal detention claims against several defendants, including Wolf, director of the Federal Protective Service Gabriel Russel and several law enforcement officers.
“Plaintiffs’ current objections rely on the contention that plaintiffs can state a claim under Bivens,” Simon wrote, citing the 1971 U.S. Supreme Court ruling that allows individuals to sue federal agents under the Fourth Amendment for excessive force during arrest. “The Ninth Circuit’s opinion in Pettibone, however, forecloses those objections.”
Simon was referring to a Ninth Circuit panel's ruling in February 2023 that the plaintiffs’ Bivens claims would expose sensitive communication between federal officers and that Congress already provides the plaintiffs with an alternative remedy that forecloses a Bivens action: the ability to report misconduct to the Inspector General for the Department of Homeland Security.
“Even if plaintiffs could persuade the court that the claims against the relevant individual defendants, who are federal law enforcement officers, do not represent a new context under Bivens, which would be a difficult task after Egbert and Pettibone, the special factors analysis described in Pettibone would still apply,” Simon wrote. “Thus, the availability of an alternative remedy, which Pettibone confirmed ‘independently foreclose[s] a Bivens action’ applies to these individual defendants as well.”
The five claims that remained against the U.S. Department of Homeland Security, U.S. Marshals Service and its officers involved the use of force from viewpoint discrimination and suppression of free speech, the overstep of statutory authority and Pettibone’s warrantless arrest. The defendants moved to dismiss these claims in March 2021 and since then, several Oregon judges have dismissed similar cases involving the 2020 protests as moot. Like those cases, Judge You reasoned the change in Portland’s protest activity and the federal government’s approach to protests after August 2020 has rendered the plaintiffs’ claims moot.
“The circumstances now are such that plaintiffs’ speculation about the potential for future protests and how the federal government may respond are not sufficient to satisfy the injury-in-fact or legally cognizable interest requirement,” You wrote.
As for Pettibone’s request for expungement, You leaned on the Ninth Circuit’s 2022 decision in United States v. Phillips — in which the court ruled in favor of the government regarding a multi-agency surveillance program to target facilitators of illegal immigration.
“In light of Phillips’s clarification and explanation of standing in the context of expungement of records held by a federal agency, Pettibone has failed to establish standing to seek expungement,” You wrote. As in Phillips, there is no indication that the continued existence of the records held by the agency defendants has caused or will imminently cause Pettibone harm.”
Simon must sign off on You's findings and recommendations. Attorneys for the plaintiffs and the federal government did not immediately respond to a request for comment.
Follow @alannamayhampdx
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Arguments begin in North Carolina voter ID trial May 6, 2024 -
