DLF MH BLM Cases

1
1 BEFORE THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
2
3 BLACK LIVES MATTER D.C., et al., .

. Case Number 20-cv-1469
4 Plaintiffs, .
.
5 vs. .
.
6 DONALD TRUMP, et al., .
.
7 Defendants. .
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8 RADIYA BUCHANAN, et al., . Case Number 20-cv-1542
.
9 Plaintiffs, .
.
10 vs. .
.
.
12 Defendants. .
- - - - - - - - - - - - - - - - -
13 RYAN ROTH, . Case Number 20-cv-1622
.
14 Plaintiff, .
.
15 vs. .
.
.
17 Defendants. .
- - - - - - - - - - - - - - - - -
18 ISABELLA KAVANAGH, . Case Number 20-cv-2163
.
19 Plaintiff, .
.
20 vs. .
.
. May 28, 2021
22 Defendants. . 10:28 a.m.
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23
24 TRANSCRIPT OF MOTIONS HEARING

BEFORE THE HONORABLE DABNEY L. FRIEDRICH
25 UNITED STATES DISTRICT JUDGE
2
1 APPEARANCES:
2 For Black Lives Matter

D.C. Plaintiffs: SCOTT MICHELMAN, ESQ.
3 ARTHUR SPITZER, ESQ.
MICHAEL PERLOFF, ESQ.
4 American Civil Liberties Union of
the District of Columbia
5
KAITLIN BANNER, ESQ.
6 Washington Lawyers' Committee for
Civil Rights & Urban Affairs
7
NOAH BARON, ESQ.
8 DAVID BRODY, ESQ.
Lawyers' Committee for Civil Rights
9 Under Law
10 JOHN FREEDMAN, ESQ.

Arnold & Porter Kaye Scholer LLP
11
For Buchanan Plaintiffs: ANNE CHAMPION, ESQ.
12 RANDY MASTRO, ESQ.
LEE CRAIN, ESQ.
13 MATTHEW AIKEN, ESQ.
NAIMA FARRELL, ESQ.
14 AMANDA LESAVAGE, ESQ.
Gibson, Dunn & Crutcher LLP
15
For Plaintiff Roth and
16 Plaintiff Kavanagh: EMILY LAGAN, ESQ.
PATRICK REGAN, ESQ.
17 Regan, Zambri & Long, PLLC
18 For Individual Capacity

Federal Defendants in Black
19 Lives Matter D.C.: DAVID CUTLER, ESQ.
JOHN MARTIN, ESQ.
20 U.S. Department of Justice

Federal Defendants in
22 Buchanan: SARAH WHITMAN, ESQ.
U.S. Department of Justice
23
24 -- continued --
25
3
1 APPEARANCES (CONTINUED):

Federal Defendants in
3 Roth and Kavanagh: KELLY HEIDRICH, ESQ.
U.S. Department of Justice
4
For Official Capacity
5 Federal Defendants: CHRISTOPHER HAIR, AUSA
SEAN MAHARD, AUSA
6 U.S. Attorney's Office for the
District of Columbia
7
For District of Columbia
8 Defendants: RICK SOBIECKI, ESQ.
DUANE BLACKMAN, ESQ.
9 BRENDAN HEATH, ESQ.
Office of the Attorney General for
10 the District of Columbia
11 For Arlington County

Defendants: RYAN SAMUEL, ESQ.
12 Office of the County Attorney for
Arlington County
13
For Defendant LoCasico in
14 Black Lives Matter D.C.: DANIEL CROWLEY, ESQ.
Hannon Law Group
15
For Defendant Kellenberger
16 in Black Lives Matter D.C.: CHRISTOPHER ZAMPOGNA, ESQ.
Zampogna, P.C.
17
18
19
20 Official Court Reporter: SARA A. WICK, RPR, CRR

United States District Court
21 for the District of Columbia
333 Constitution Avenue Northwest
22 Room 4704-B
Washington, D.C. 20001
23 202-354-3284
24
Proceedings recorded by stenotype shorthand.
25 Transcript produced by computer-aided transcription.
4
1 P R O C E E D I N G S
2 (All participants present via video conference.)
3 THE COURTROOM DEPUTY: Your Honor, we are in Civil
4 Actions 20-1469, Black Lives Matter D.C., et al., versus Trump,
5 et al.; Civil Action 20-1543, Radiya Buchanan versus Trump,
6 et al.; Civil Action 20-1622, Ryan Roth versus Trump, et al.;
7 and Civil Action 20-2163, Isabella Kavanagh versus Trump, et al.
8 Mr. Michelman, please introduce counsel for the plaintiffs.
9 MR. MICHELMAN: Thank you. And good morning, Your
10 Honor. My name is Scott Michelman of the ACLU of the District
11 of Columbia on behalf of the Black Lives Matter plaintiffs.
12 And with me are co-counsel from the ACLU, Arthur Spitzer
13 and Michael Perloff, as well as others on the phone; Kaitlin
14 Banner of the Washington Lawyers' Committee on the video, as
15 well as others by phone; Noah Baron and David Brody of the
16 Lawyers' Committee for Civil Rights Under Law, with others
17 appearing by phone; and John Freedman of Arnold & Porter, with
18 others appearing by phone.
19 For the Buchanan plaintiffs, we have Randy Mastro, Lee
20 Crain, Matthew Aiken, Naima Farrell, and Amanda LeSavage, with
21 others appearing by phone.
22 And then for the Roth and the Kavanagh plaintiffs, we have
23 Emily Lagan and Patrick Regan, with potentially others appearing
24 by phone.
25 But you will only hear from the people who are on video,
5
1 and among the plaintiffs, we have all agreed we will divide this
2 up by issue, and all of us -- each of us in our issue areas will
3 speak for all of the plaintiffs.
4 THE COURT: All right. Good morning, Mr. Michelman
5 and everyone else. Who do we have for the defense?
6 MR. CUTLER: Good morning, Your Honor. David Cutler
7 from the Department of Justice. I represent the individual
8 capacity defendants in Black Lives Matter, along with my
9 colleague, John Martin.
10 Also with me this morning from the Department of Justice,
11 Kelly Heidrich for the Roth and Kavanagh cases, individual
12 capacity defendants in Roth and Kavanagh, and then Sarah Whitman
13 for the federal individual capacity defendants in Buchanan.
14 Thank you.
15 THE COURT: All right. Good morning all.
16 MR. SOBIECKI: Your Honor, Rick Sobiecki of the Office
17 of Attorney General on behalf of the District of Columbia. With
18 me is Duane Blackman and Brendan Heath today. Good morning.
19 THE COURT: Good morning.
20 MR. SAMUEL: Ryan Samuel, Assistant County Attorney in
21 Arlington County for the Arlington County defendants.
22 THE COURT: Good morning. Is that everyone?
23 MR. HAIR: Good morning, Your Honor. This is
24 Christopher Hair of the United States Attorney's Office in the
25 District of Columbia for the official capacity federal

6
1 defendants, along with my co-counsel Special Assistant Sean
2 Mahard.
3 MR. MAHARD: Good morning.
4 THE COURT: Good morning.
5 MR. CROWLEY: Good morning, Your Honor. My name is
6 Daniel Crowley, and I represent Thomas LoCasico, a defendant in
7 the Black Lives Matter case.
8 THE COURT: All right. Do we have everyone?
9 MR. MICHELMAN: Your Honor, I think Mr. Zampogna may
10 be on mute.
11 MR. ZAMPOGNA: Christopher Zampogna for Officer
12 Kellenberger in the Black Lives Matter case. Thank you, Your
13 Honor. Sorry about that.
14 MR. MICHELMAN: Your Honor, I also apologize for
15 leaving out one of the Buchanan counsel, and an important
16 omission because she may be speaking, Anne Champion of Gibson,
17 Dunn.
18 THE COURT: All right. Thank you.
19 So this, I think, is a bit of a logistical challenge for
20 all of you, as well as for me. I can't see all of you on my
21 screen, and those of you I can see are tiny little thumbnails.
22 But I look forward to hearing from you all.
23 I appreciate -- I know the defense has set forth a proposal
24 in terms of time. I know that the courtroom deputy,
25 Mr. Hopkins, communicated to you all my general hope is that we

7
1 can keep this to roughly an hour a side. I know that's going to
2 be difficult. I will try hard not to interrupt the argument too
3 much to pull you off track, but I certainly do have some
4 questions. And I'm not going to hold you to strict time limits,
5 nor am I going to police the three minutes here, the five
6 minutes there. But do understand, it's going to be difficult
7 for me to continue much beyond 12:30, given some other matters
8 that I have this afternoon. So I'm really counting on you all
9 to watch the clock and you all to cut things off, and if I deter
10 you with my questions, again, I'm certainly willing to give you
11 some extra time, but I do have a pretty firm ending time. I'm
12 not going to say right at 12:30, but it would be difficult for
13 me to go past 1:00 for sure.
14 If for some reason -- I suspect that this is passing the
15 outer limits of the Zoom platform. If at some point this all
16 goes kaput and we have to resume, then we will do so by
17 telephone.
18 I will tell the plaintiffs, I have -- in addition to
19 reviewing the brief, I have reviewed the PowerPoint ahead of
20 time. I know that that was important to them, and for that
21 reason, they wanted to do this by Zoom, by video conference
22 rather than telephonically. But I have reviewed that. So in
23 the event we have a problem with people falling off and we have
24 to resume by telephone, I have reviewed that.
25 So with that, Mr. Hair, am I correct that you are going to

8
1 start the argument for the defendants?
2 Just for the record, we have before the Court 15 motions to
3 dismiss in four related cases. Again, I know it's a challenge
4 with all the different issues and the different parties here. I
5 appreciate you all's very thorough and helpful briefing, which I
6 have reviewed.
7 And if I'm correct, Mr. Hair, go ahead and you lead off
8 since it is the defendants' set of motions.
9 MR. HAIR: Thank you, Your Honor. And yes, I will do
10 my best to keep to our time limits.
11 So I represent the official capacity federal defendants in
12 this case. And these lawsuits, as it pertains to my clients,
13 seek to prevent a recurrence of the June 1st events from last
14 year in Lafayette Square.
15 We have put forth two primary arguments: First, that the
16 change in administration effectively moots plaintiffs'
17 injunctive relief and declaratory relief claims, and second,
18 that plaintiffs lack standing because they failed to plausibly
19 allege an injury in fact. And I will just note that although
20 these are distinct legal doctrines, of course, I think there's
21 significant overlap between the issues here.
22 So I will start with mootness. The allegations in all of
23 these cases share a common nucleus of deeply personal
24 allegations with respect to the retaliatory animus directed at
25 plaintiff by President Trump primarily via his Twitter account

9
1 and other statements. Indeed, plaintiff seeks permanent
2 injunctive relief based on their claims that they are subject to
3 retaliation based on their viewpoints and that the government
4 used excessive force because plaintiffs were demonstrating
5 against racial injustice.
6 Recently, as we noted in our supplemental brief, two
7 district courts for the District of Oregon have dismissed
8 similar claims by individuals engaged in demonstration
9 activities or providing support to those activities. Those
10 cases are Wise versus the City of Portland, which is now on
11 Westlaw at 2021 WL 1950016, and also the Western States Center
12 versus Department of Homeland Security case.
13 And as these cases recognize, there is no indication that
14 the new administration shares any of the alleged retaliatory
15 animus at issue in these cases. Moreover, there's no unlawful
16 law enforcement policy that's alleged in these cases. And as
17 those opinions make clear, the exceptions to mootness do not
18 apply. First, there's no voluntary cessation because an
19 election itself is not voluntary, and second, the capable of
20 repetition yet evading review exception is also inapplicable.
21 The events alleged in this case do not necessarily evade review,
22 and if they're too short to be reviewed in this action --
23 THE COURT: Mr. Hair, let me stop you. What about the
24 restrictions on Lafayette Square? Don't they still continue in
25 some fashion, although they're limited? Aren't there still

10
1 restrictions that apply to this day?
2 MR. HAIR: There are -- yes, Your Honor. So
3 Lafayette Square is now open to the public with anti-scale
4 fencing with four gates allowing ingress and digress to the
5 park.
6 I think it's important to note that while Lafayette Square
7 was indeed closed on June 1st in an effort to de-escalate the
8 interactions between the public and law enforcement at the time,
9 it subsequently reopened on or about June 10th. And then
10 intervening events to include, just to name a few, there was the
11 presidential inauguration. We had the January 6th attack on the
12 United States Capitol. And other individual threat assessments
13 by law enforcement have necessitated some modification to and
14 closures to the park since that time.
15 We would like to clarify that those are sort of independent
16 from the closure that occurred on June 1st. And as of today,
17 the park is open to the public with --
18 THE COURT: Didn't the June 1st closure, though,
19 trigger these enhanced restrictions that continue to apply, and
20 for that reason alone, why is the case not moot?
21 MR. HAIR: The events of June 1st did not necessarily
22 trigger the other modifications or closure. Like I said, there
23 have certainly been, you know, recent civil unrest with respect
24 to, like I said, the United States Capitol attack that has led
25 law enforcement to modify operations in the park. So there's no

11
1 denying that the park has been under modified operations since
2 then, but it's sort of been a series of intervening events that
3 have required those restrictions. And there's since been a
4 reopening. As of today, the public can apply for permits to
5 demonstrate in the park.
6 And the thing that does remain, of course, is the
7 anti-scale fencing with gates. And that is simply to allow law
8 enforcement, if they need to make a snap decision to close the
9 park, then they can do so with the assistance of the fence. The
10 fence, of course, did -- it first appeared in Lafayette Square
11 on June 1st, but that's really the only similarity there. The
12 other events have necessitated that the fence be used in some
13 part.
14 I know my five minutes is up, but I think even if the Court
15 were to disagree that the cases are necessarily moot, I think
16 the change in administration cuts against the likelihood of
17 future injury here. As we've argued in our briefs, there's only
18 past conduct that's alleged. The change in administration
19 rendered the alleged threat of future injury speculative, and
20 the alleged chilling effect that, I think, is really the
21 gravamen of a lot of the allegations of ongoing injury without
22 more is insufficient.
23 I don't want to go too past my time, Your Honor, but I'm
24 happy to answer any questions.
25 THE COURT: All right. That's fine. Thank you,

12
1 Mr. Hair. Who is following you?
2 MR. CUTLER: Good morning again, Your Honor. David
3 Cutler from the Department of Justice. I represent former
4 Attorney General William Barr, Major Mark Adamchik, and eight
5 line-level U.S. Park Police officials in their personal
6 capacities in Black Lives Matter versus Biden.
7 I will briefly explain why plaintiffs' proposed extension
8 of Bivens liability in the presidential security context pled in
9 this case is contrary to law. My colleague, Mr. Martin, will
10 then discuss why our clients are otherwise entitled to qualified
11 immunity.
12 Your Honor, three points should lead the Court to reject
13 extending Bivens to the novel context pled in this case. First,
14 Bivens is an extraordinary nonstatutory damages remedy that
15 should (distorted audio) new context. Second, the new context
16 right here, a crowded park of unscreened persons minutes before
17 a presidential appearance raise important separation of power
18 concerns that easily counsels against plaintiffs' proposed
19 extension of liability in this case.
20 And third, this court has found by Supreme Court precedent
21 precluding broad extensions of liability, and therefore, it
22 should reject plaintiffs' unsupported and lead argument that an
23 expansive application of Bivens liability is or should be the
24 norm.
25 The first point, Your Honor, a Bivens remedy is not an

13
1 automatic entitlement. To the contrary, the Supreme Court
2 recently stated it is a favored remedy. In fact, the court
3 hasn't extended a new remedy into a new context in more than 40
4 years. The default is that proposed extensions of Bivens should
5 be rejected. Most often, as the court said just a year ago in
6 Hernandez, it is supposed to weigh costs and benefits before
7 imposing liability in a new context.
8 Second, notwithstanding these limits, plaintiffs ask to
9 extend the disfavored remedy into a unique context and in the
10 face of strong reasons for deferring to Congress instead.
11 What the plaintiffs allege, they claim that the attorney
12 general ordered the dispersal of thousands of unscreened
13 demonstrators located across from the White House minutes before
14 a presidential appearance in accordance with a Secret Service
15 request and all on the heels of an emergency order placing the
16 entire District under a nighttime curfew.
17 In other words, plaintiffs seek to hold the attorney
18 general and those who allegedly followed his orders personally
19 liable for damages for acts taken to secure a safety perimeter
20 for the President of the United States.
21 THE COURT: Mr. Cutler, sorry to interrupt you, but on
22 the curfew order, I think the Buchanan plaintiffs, I think that
23 they allege that in the complaint, but I'm not sure the rest do.
24 Is that something I can consider?
25 I know that you say that I can. I think the (distorted

14
1 audio) advises not only that I consider the order but that I can
2 consider the factual findings in the order and that the
3 plaintiffs don't dispute that. But I don't read their briefs
4 that way. I think that they vigorously dispute that I can look
5 at the underlying facts of that order, even if I can consider
6 the fact of the order itself.
7 Can you address that?
8 MR. CUTLER: Yes, Your Honor. In the Black Lives
9 Matter case, the plaintiffs do refer to the curfew order. And
10 we've cited cases in our briefing discussing why it would be
11 appropriate for the Court to take judicial notice of that
12 fact-finding.
13 I want to be clear about something. I don't think our
14 argument rests on the curfew order. There are a number of other
15 factors that are explicitly alleged in the complaint, notably
16 the president's appearance and the attorney general's order to
17 clear the area in advance of the presidential appearance, the
18 Secret Service request.
19 But again, I believe the allegations regarding curfew can
20 be taken into account by this Court, and the actual findings of
21 that, I believe, are akin to judicial fact-finding -- I'm sorry,
22 to government fact-finding. And I don't believe the BLM
23 plaintiffs oppose our use of that order in this case. I can't
24 speak to the Buchanan plaintiffs, but perhaps my colleagues
25 after me can address that.

15
2 MR. CUTLER: So Abbasi and Meshal, the D.C. Circuit
3 decision, they all point to Bivens cases implicating a
4 high-level policy for elements of national security or both, as
5 we have here, a separation of power concerns that are best left
6 to Congress and the executive branch.
7 Cases like Watson and White House Vigil recognize that the
8 basic interest of the president's protection is overwhelming and
9 (distorted audio) the executive branch functioning and ability
10 of the government to respond to threat crises all around the
11 world. Any large, unscreened crowd in close range of the
12 president poses an inherent safety threat.
13 And plaintiffs concede as a general matter, Your Honor,
14 that the Bivens case implicating the president's safety and
15 security are an element of high-level policy and counsel
16 hesitation, which explains why plaintiffs repeatedly shift their
17 focus to the alleged excessiveness of the conduct here. But
18 it's not the excessiveness or the egregiousness or the merits of
19 the conduct. It's the context in which the conduct arose that
20 informs the threshold separation of powers analysis.
21 I will be brief with my final point, Your Honor, which is
22 really a point of rebuttal and, I think, illustrates just how
23 far plaintiffs go to try to escape the weight of all that
24 finding authority. The lead argument by plaintiffs in their
25 briefing is an intent to invert the basic principles that are

16
1 broad extensions of Bivens. The plaintiffs repeatedly suggest
2 that this Court would be, quote, abdicating its judicial
3 responsibility unless it extended a remedy here. I believe
4 (distorted audio) cross the bridge in a variety of ways, for
5 example, by arguing that damages against federal officials have
6 deep historical roots in the prerevolutionary area. And indeed,
7 the federal remedies statute has a similar argument that Bivens
8 should be routinely available.
9 The D.C. Circuit previously rejected these arguments, and
10 none of those points should distract this Court from what the
11 Supreme Court has repeatedly said with respect to the remedy
12 that it created, that the court did just a year ago in Hernandez
13 in rejecting an excessive force Bivens claim. If the Court has
14 any reason to pause before extending a remedy into a new
15 context, it should reject the remedy. All it takes is a pause.
16 Before ceding my remaining time to Mr. Martin for qualified
17 immunity, I would be happy to answer any additional questions on
18 this threshold separation of powers inquiry.
19 THE COURT: Thank you, Mr. Cutler. I don't have any
20 questions.
21 Mr. Martin?
22 MR. CUTLER: Thank you.
23 MR. MARTIN: Good morning, Your Honor. John Martin
24 from the Department of Justice representing the individual
25 capacity federal defendants.

17
1 Now, although the Bivens issue may make immunity largely
2 academic in this case, I will nonetheless explain our clients'
3 entitlement to qualified immunity from all claims. I will first
4 discuss personal participation and then, time allowing, get to
5 early established law.
6 In that regard, aside from the alleged lawful order by the
7 attorney general here, our clients are not alleged to have
8 participated in a violation of the named plaintiffs' clearly
9 established statutory or constitutional rights.
10 Significantly, both the Bivens claims and the statutory
11 claims require the defendants' personal participation in the
12 violations of the plaintiffs' rights. The Bivens claims require
13 it, because Bivens liability is personal, not vicarious, and as
14 a practical matter, the statutory claims require it, because one
15 cannot enter into a Section 1985 conspiracy without first
16 personally engaging in conduct reflecting agreements with the
17 conspiracy's core objectives.
18 Here, aside from the allegations about the supervisory
19 defendants' lawful neutral orders, plaintiffs fail to allege the
20 individual capacity federal defendants' personal participation
21 in the violation of their rights. Specifically under Iqbal, the
22 plaintiffs must plead that each government official defendant by
23 the individual action violated the Constitution.
24 And plaintiffs break this basic pleading rule here in their
25 briefing. Plaintiffs improperly rely on generic allegations

18
1 about law enforcement officers generally to try to hold our
2 clients responsible for the actions of others. In their
3 demonstrative exhibits, plaintiffs make much the same error,
4 making assertions about the government as a whole or about other
5 officers and mixing together multiple separate complaints to try
6 to disguise their failure to plead our clients' personal
7 participation in a violation of these plaintiffs' clearly
8 established rights.
9 None of our clients is alleged to have interacted with
10 these plaintiffs or entered into an agreement to violate their
11 rights. To the extent the complaint alleges facts about the
12 supervisory defendants' conduct, it alleges that the attorney
13 general and Major Adamchik issued neutral, peaceable clearing
14 orders which did not specify any particular tactic for violence.
15 Neither the line officers nor the higher-ranking officials is
16 alleged to have used force against the named plaintiffs in this
17 suit.
18 Regarding the Section 1985 or 1986 claim, those require the
19 plaintiffs to plead specific facts establishing the existence of
20 a conspiratorial agreement and each defendant's class-based
21 animus. Plaintiffs failed to allege facts showing that the
22 individual federal defendants had a meeting of the minds on
23 conspiracy to deprive them of their rights. The complaint does
24 not allege that the individual federal defendants spoke to each
25 other about or otherwise signalled an agreement to the objective

19
1 of such a conspiracy. And to the extent the complaint implies
2 parallel action or parallel use of force, that cannot establish
3 a conspiracy under Twombly.
4 Plaintiffs' claims also run afoul of the intracorporate
5 conspiracy doctrine, because the complaint does not allege that
6 the individual federal defendants had any interaction with or
7 spoke to or agreed with state officers as opposed to federal
8 officers.
9 Moreover, the complaint fails to allege that our clients
10 did anything to reflect class-based animus. Plaintiffs assert
11 that President Trump disapproved of the protestors. But even if
12 that were true, it would not satisfy the individual intent
13 requirement as to our clients.
14 THE COURT: Sorry to interrupt. But why can't the
15 former president's statements, public statements be imputed to
16 the rest of the defendants?
17 Presumably, they knew about those. They were public
18 statements. They were acting, presumably, at his direction to
19 clear the park. Why can't those statements be considered
20 against them as well?
21 MR. MARTIN: There are no facts alleged in the
22 complaint that the attorney general agreed with any of those
23 sentiments. There's no clearly established law that finds that
24 there's a reverse vicarious liability in which a member of a
25 particular entity can have the intent of other members, even

20
1 senior members above them in the entity. There's just no
2 clearly established law in fact. In cases like Burns or the
3 State Troopers Association from the First Circuit, it was found
4 that despite the fact that an alleged police association had
5 many members who expressed racial animus and opposition to the
6 plaintiffs' minority police association, the vice president of
7 that very defendant association did not have the sort of intent
8 of the other members of the organization imputed to him.
9 It's much the same from this court in which despite the
10 fact that one defendant had class-based animus, that was not
11 imputed to someone who was found in fact to be a co-conspirator
12 of that defendant. And the same result should follow here.
13 Regarding the constitutional claims, the individual
14 capacity federal defendants did not violate plaintiffs' clearly
15 established First Amendment rights. As Moss makes clear,
16 federal officers do not violate such rights by moving a large,
17 unscreened crowd of protestors a couple blocks away in advance
18 of an imminent presidential appearance. And under Moss, that is
19 true even if the protestors are allegedly peaceful.
20 This is the type of clearing that allegedly occurred here,
21 only in a more volatile situation with a much larger crowd near
22 the White House perimeter.
23 THE COURT: Sorry. Can I consider the alleged acts of
24 violence in assessing the First Amendment claim, or is that just
25 restricted to the Fourth and Fifth Amendments?

21
1 MR. MARTIN: Well, I think that -- our arguments
2 factually don't rely on either the First or the Fourth. They
3 don't depend on them. Now, the Court can consider them, as we
4 said in our brief.
5 On the subject of the order, the mayor's order, we pointed
6 to cases in our brief, like taking judicial notice of COVID
7 orders and the like, and I think that applies equally here.
8 These are government fact-findings, as my colleague said.
9 I would say that as to the media reports, those are
10 likewise incorporated into the complaint. They form a core part
11 of the plaintiffs' narrative about the events and about the
12 attorney general's conduct.
13 I would also say that, again, the Court doesn't really have
14 to reach that issue, because our arguments don't turn on that.
15 Especially in the First Amendment context, it's really, as Moss
16 makes clear, whether the crowd is peaceful or unruly. It's not
17 determinative of immunity.
18 And I think Your Honor alluded to the Fourth Amendment
19 claim as well, and in that regard, I don't think that the
20 complaint has alleged that our clients committed a violation of
21 these plaintiffs' clearly established Fourth Amendment rights.
22 Presidential security is a paramount government interest
23 that weighs heavily in the Fourth Amendment balance. No officer
24 has ever been denied qualified immunity for his efforts to clear
25 a public area in advance of an imminent presidential appearance.

22
1 In fact, Abbasi granted qualified immunity for use of force
2 against a protestor to protect the vice president, and Berg did
3 the same for the use of large-scale detention of protestors to
4 protect the president.
5 THE COURT: But here, isn't this case different,
6 though, as alleged at least, that these protestors were just
7 sitting there peacefully, that there was no warning whatsoever,
8 and that the defendants or some of the defendants then assaulted
9 them with batons and rubber bullets and chemical irritants and
10 the like? Doesn't that make this case different than those?
11 MR. MARTIN: None of our clients is alleged to have
12 used chemical irritants, rubber bullets, or the like. So none
13 of our clients had participation in that.
14 And as to the issue of unruliness, the protestors in Berg
15 were also allegedly peaceful but were still confined.
16 And I will also add, there's no clearly established law
17 here that says that in this context these kinds of modest uses
18 of force by our clients as opposed to other unnamed officers
19 would violate the Constitution. And it is plaintiffs' burden,
20 of course, to point to clearly established law, not just a
21 high-level generality, but tailored to the specific facts of the
22 case. And they have not done that here. Our clients are
23 alleged to have simply done things like moving forward with
24 their shields out or riding a horse, which pale in comparison to
25 the compelling government interest in presidential security.

23
1 And for that reason, our clients are entitled to qualified
2 immunity.
3 I certainly welcome further questions, Your Honor.
4 THE COURT: That's fine. Thank you.
5 Who is next?
6 MR. CROWLEY: Good morning, Your Honor. My name is
7 Daniel Crowley, and I represent Thomas LoCasico, who is a
8 defendant in the Black Lives Matter case.
9 There are four claims against Officer LoCasico. There are
10 two constitutional claims for violations of the First and Fourth
11 Amendment and the two statutory claims in 1985 and 1986.
12 Mr. LoCasico is a sergeant of the United States Park
13 Police. He was on duty on June 3rd, along with thousands of
14 other law enforcement officers. He was not a commander. He had
15 no role in planning the response to the demonstrations.
16 The plaintiffs don't allege any specific actions of
17 Sergeant LoCasico. In the entirety of their 295-paragraph
18 complaint, there are only two factual allegations about Sergeant
19 LoCasico. In paragraph 25, they say that "A702" -- that's how
20 they refer to him, by the number on his helmet -- "is a Park
21 Police officer who participated in dispersement of the
22 demonstration." And then in paragraph 83 they say, A702
23 followed an order to, quote, rush forward and attack. That's
24 all they say about Sergeant LoCasico. They don't claim to have
25 had any interaction with him. They don't claim to have

24
1 witnessed anything he did. They don't describe any conduct by
2 Sergeant LoCasico that he potentially had with some other
3 unidentified class members. They have no reason to believe that
4 Sergeant LoCasico did anything wrong. He was simply one of the
5 officers that was there.
6 And all of those arguments that Mr. Martin and Mr. Cutler
7 just made about the individual defendants that the Department of
8 Justice represents, I want to focus on a couple, because I only
9 have a few minutes, that I think are most important to him.
10 And one, as we note in our brief, is that for standing, of
11 course, the plaintiffs have to show that their client was
12 (distorted audio) by Sergeant LoCascio's conduct. And they
13 certainly failed that with respect to Bivens. They can't show
14 that Sergeant LoCasico unlawfully seized them, for example, if
15 they don't allege that they ever interacted with him. And in
16 their opposition, they argue that he is responsible for the harm
17 caused by his (distorted audio). But (distorted audio)
18 liability has never been applied to a Bivens case, and there's
19 no allegation here that he was (distorted audio).
20 Along the same lines, the plaintiffs failed to state a
21 claim. As the Department of Justice has eloquently explained,
22 Bivens isn't available in these kinds of constitutional claims.
23 But even if it was, plaintiffs don't allege that Sergeant
24 LoCasico retaliated against them because of their viewpoints.
25 And following an order to disperse protestors does not enter

25
1 into a conspiracy to violate someone's civil rights. There's
2 not an agreement at all. He was to do it, had to do it.
3 And in the plaintiffs' opposition, they sort of take that
4 as a Nuremberg defense, but that's not what this is. We don't
5 argue that Sergeant LoCasico did something wrong and it's okay
6 because he was just following orders. We dispute the notion
7 that following an order is tantamount to joining some widespread
8 government conspiracy.
9 They don't allege that Sergeant LoCasico met with President
10 Trump, and they cite no authority to allow the Court to find
11 civil conspiracy by a police officer following the supervisor's
12 instruction.
13 And the last point that I would like to talk about briefly
14 is the qualified immunity, which Mr. Martin talked about, but I
15 want to focus on that clearly established prong, because I think
16 that's really important.
17 Essentially, the plaintiffs have to identify factually
18 similar precedent where an officer was found liable, and they
19 can't because there isn't any. There's no case relying on
20 Bivens for a First Amendment claim, and the Fourth Amendment
21 claims are clearly different.
22 That's why the plaintiffs ask the Court to expand Bivens
23 into a new context. But in making that request, they implicitly
24 acknowledge that there is no current, clearly defined rights at
25 issue here. And as counsel mentioned, there are -- they respond

26
1 to that by saying they don't need to cite a case where the
2 violation is obvious, the use of chemical weapons and rubber
3 bullets and pepper spray.
4 But they don't allege that Sergeant LoCasico did anything,
5 nor do they identify any case that put Sergeant LoCasico on
6 notice that by obeying an order he would be subjecting himself
7 to civil liability. So I don't think the plaintiffs here can
8 overcome the qualified immunity defense either.
9 And for those reasons and the reasons in our brief and the
10 reasons explained by the other individual defendants, we would
11 ask the Court to dismiss all the claims against Sergeant
12 LoCasico.
13 THE COURT: Thank you, Mr. Crowley.
14 Who is next?
15 MR. ZAMPOGNA: Christopher Zampogna for Officer
16 Kellenberger.
17 I don't want to rehash all that's been said as well so
18 eloquently regarding many of the claims, the Bivens claims, the
19 statutory claims, the First and Fourth Amendment claims. I'm
20 going to go more specifically into what somewhat separates my
21 client in the complaint from the other clients, which there has
22 been a specific allegation that said that arm patch SK10, which
23 is my client, Officer Kellenberger, allegedly beat an Australian
24 news correspondent, Amelia Brace, in the back, which was in
25 paragraph 97 of the third amended complaint. That's all that's

27
1 been alleged specifically upon him.
2 And as I just said, we do support the other claims --
3 reasons for dismissing the other claims. However, specifically
4 related to my client, we believe, I believe that there is no
5 standing to bring the case against him directly because there
6 wasn't a naming of Ms. Brace in the complaint itself. If you
7 look at the four corners of the complaint, it's obviously
8 brought by Black Lives Matter and other plaintiffs, but she was
9 never brought into this case as a party. And Article III of the
10 Constitution imposes a minimal constitutional standing
11 requirement for all litigants attempting to bring suit in
12 federal court with irreducible minimum that they suffered
13 distinct, palpable injury as a result of punitive, illegal
14 conduct and the injury is fairly traceable to the challenged
15 conduct and is likely to be redressed if requested relief is
16 granted. Valley Forge Christian College v. Americans United.
17 In my case, as I said, my client could be and would be and
18 is specifically prejudiced by not having this particular
19 plaintiff mentioned or a party in the case. He is on
20 administrative leave, for instance, now, and if she were to
21 bring a case later, that could continue that process, and if
22 this case isn't dismissed specifically against her, that would
23 impact him very negatively in the matter. He can't respond
24 directly to something she might bring.
25 And in addition, there has been allegations of the class

28
1 itself. Her standing to be in that class or be a part of that
2 class is somewhat tenuous, I would suggest, as well, because she
3 is from Australia, a reporter, and I guess was there for
4 reporting and not for protesting, I assume.
5 There is some argument that the plaintiffs brought in their
6 reply saying there should be some reasonable inference with
7 regard to joint tortfeasors to the participation of my client
8 with relation to all of the parties. But we're supposed to look
9 just at the four corners of the complaint, and I don't believe
10 that would be enough to hold my client in.
11 So not to keep going too far, as I said, I would support
12 the other arguments that have been brought forward related to
13 presidential safety issues, the Bivens issues, but rely on those
14 arguments and pass on the remainder of my time to those that are
15 after me.
16 Thank you, Your Honor.
17 THE COURT: All right. Thank you, sir.
18 MS. HEIDRICH: Good morning, Your Honor. Kelly
19 Heidrich from the Department of Justice, and I represent former
20 Attorney General William Barr in his personal capacity in Roth
21 and Kavanagh.
22 As Your Honor is aware, the complaints in these cases are
23 very similar to the complaints filed in Black Lives Matter, a
24 distinction being that the former attorney general is the only
25 individually named government defendant in these cases.

29
1 So because Mr. Cutler has already addressed the question of
2 whether a Bivens remedy should be extended and because
3 Mr. Martin has discussed personal participation and qualified
4 immunity, those arguments all equally apply to the former
5 attorney general in Roth and Kavanagh.
6 Because of that, rather than retreading ground, I would
7 like to focus my time on the former attorney general's qualified
8 immunity from the First Amendment claim, particularly on the
9 presidential security question and whether a clearly established
10 First Amendment right was violated.
11 So on that question, there is no debate that the government
12 can impose a reasonable, time-based restriction on protected
13 speech, provided that the restriction is content neutral and is
14 narrowly tailored.
15 In this case, as in Moss, the government's interest in the
16 president's protection is paramount and justifies substantial
17 limitations. The government's interests certainly justifies
18 moving a crowd of unscreened demonstrators a relatively short
19 distance from a limited and unplanned presidential appearance.
20 The order at issue here did not (distorted audio) on protected
21 speech more than was necessary as the duration of the order was
22 limited and, therefore, less restrictive than orders upheld in
23 other cases. And while the complaint alleges that protestors
24 were cleared from Lafayette Square, it is not alleged that
25 (distorted audio) were not available for their use.

30
1 The plaintiffs in Roth and Kavanagh focus their briefing on
2 this issue on the notion that the government's interest in the
3 presidential security is somehow less significant because of the
4 type of activity that the former president was engaged in, in
5 this case giving an impromptu speech.
6 That argument just misses the mark. The government's
7 interest in the president's security does not rise and fall
8 depending on what the president is doing at any particular
9 moment. The potential impact of an attack on the president is
10 the same regardless of whether or when it occurs.
11 THE COURT: Ms. Heidrich, let me ask you this: What
12 about the plaintiffs' argument -- and I can't remember whether
13 it's in the Roth and the other case, but it's certainly in some
14 of the briefs -- that this approach was not the least
15 restrictive means, and that by using the degree of force they
16 used unprovoked against peaceful protestors, that, you know, it
17 can't fall under Moss and other cases like that? What is your
18 response to that?
19 MS. HEIDRICH: As far as the Roth and Kavanagh cases
20 go, Your Honor, the attorney general is the only named defendant
21 here, and the only thing he is alleged to have done is to give a
22 general order to clear the square shortly before the president
23 moved through. There's no allegations regarding the tactics
24 used. There's no allegations regarding viewpoint discrimination
25 as far as giving that order.

31
1 So as far as these complaints are concerned, the only
2 restriction placed was moving a crowd a short distance in order
3 to allow the president to take his path. It's unclear how
4 anything less restrictive could in this instance ensure the
5 president's security.
6 Again, whether or not there was any specific threat or
7 whether or not the crowd was alleged to be peaceful or not is
8 not necessarily relevant. As Moss makes clear, any large,
9 unscreened crowd presents an inherent safety threat, and that
10 risk is independent of whether or not there's a specific threat
11 with a specific individual.
12 THE COURT: Under that theory, is there any limitation
13 to what can be done in the name of presidential security?
14 MS. HEIDRICH: Your Honor, that's a difficult question
15 to answer. Typically when we're talking about a large-scale
16 demonstration in a public forum when the president is making an
17 unplanned appearance, certainly there is no limitation as far as
18 whether or not a crowd can be dispersed, and there's never been
19 a case that's declared that moving a crowd or dispersing a crowd
20 from an area in order to physically protect the president is a
21 violation of clearly established law.
22 And Lafayette Square, in particular, Your Honor, this is an
23 area that is routinely managed by Park Police and law
24 enforcement. It's routinely closed off in order to allow
25 government officials or dignitaries to move through it safely.

32
1 There is nothing in the complaint as alleged to indicate that
2 the attorney general's order in dispersing this crowd would
3 violate any person's First Amendment rights, much less rights
4 that haven't been clearly established.
5 The question of what tactics were used by the officers or
6 law enforcement in carrying that out goes to a Fourth Amendment
7 question (distorted audio) alleged as a clearly established
8 question.
9 Your Honor, another thing that is also controlling in this
10 case is the facts here go further to justifying the attorney
11 general's order. In fact, the order as alleged here was
12 completely neutral. Everyone was moved one block away. It was
13 completely neutral, unlike Moss where it was alleged that
14 hostile protestors were moved further away than demonstrators.
15 To generally claim this order was motivated by animus, there is
16 no allegation that the order was aimed at any particular group
17 of individuals or that it exempted any group of individuals. It
18 simply applied to the physical area.
19 And moreover, the demonstration had been going on for hours
20 that day. The order was only given shortly before the president
21 was actually due to move through the area.
22 So in light of Moss and the absence of any sort of case law
23 to the contrary, it is clear that the attorney general is
24 entitled to qualified immunity because of no violation of First
25 Amendment rights and certainly no violation of clearly

33
1 established rights.
2 Your Honor, if you have any further questions, I am happy
3 to address them.
4 THE COURT: Thank you, Ms. Heidrich.
5 Who is next?
6 MR. HAIR: Sorry, Your Honor. I believe that's me. I
7 apologize. I had to look at the schedule.
8 So Your Honor, we are pivoting to talk about the Buchanan
9 cases a little bit here. My discussion earlier applies to, of
10 course, all of the cases, but I wanted to highlight a few
11 differences with respect to the Buchanan complaint.
12 And first, there's the issue with respect to the closure of
13 the square. As Your Honor and I just discussed a moment ago,
14 that has been a moving target, and I just wanted to clarify,
15 subsequent modifications to the park stand on their own two
16 feet.
17 And I would point out that injunctive relief, of course,
18 must be tailored to address the alleged harm. So a permanent
19 injunction that prohibits any future modifications to park
20 operations in the absence of any indication that those
21 modifications would be related to retaliatory animus between any
22 of the plaintiffs or current federal official, such an
23 injunction would be inappropriate. So that's the first primary
24 difference.
25 The second, of course, has to do with Posse Comitatus Act

34
1 claim here, and I believe my colleague, Sarah Whitman, who will
2 be addressing this maybe more fully in her presentation to
3 follow mine, I just wanted to point out, as we noted in our
4 briefs, the D.C. National Guard is uniquely situated in this
5 case. They were not acting under Title X, which is a
6 prerequisite for the Posse Comitatus Act to apply. And as I
7 said, I will defer to my colleague with respect to inferring a
8 private right of action here, which we think is unwarranted, but
9 the ultra vires claim that the National Guard was acting beyond
10 statutory authority, a conclusion to that effect would upend
11 National Guard operations in the District of Columbia for
12 decades, as our brief pointed out, and that's been long-held
13 policy by the Department of Justice and Department of Defense.
14 So for those reasons, we think it is inappropriate to find
15 any ultra vires violation or a -- or to find any ultra vires
16 claim for violation of the Posse Comitatus Act.
17 Unless there's any other questions about that, I will
18 simply rest on our papers.
19 THE COURT: All right. Thank you, Mr. Hair.
20 Ms. Whitman?
21 MS. WHITMAN: Good morning, Your Honor. Sarah
22 Whitman, and I represent the Former Attorney General William
23 Barr, Former Acting Chief of the Park Police Gregory Monahan,
24 and Park Police officials Major Mark Adamchik, Captain Russell
25 Fennelly, and Officer Seberling, all who are sued in their

35
1 personal capacities in the Buchanan complaint.
2 The claims in the Buchanan case against these individuals
3 suffer from the same key defects as in BLM, Roth, and Kavanagh.
4 The Buchanan plaintiffs, however, add two additional claims that
5 none of the other plaintiffs have asserted, one already alluded
6 to by Mr. Hair, and that's the damages claim under the Posse
7 Comitatus Act, and the second additional claim is the punitive
8 Bivens claim under the Fifth Amendment.
9 Before I address each new claim in turn, first I wanted to
10 stress that the Buchanan plaintiffs make the same mistake as the
11 plaintiffs in BLM. They start from the premise that they are
12 entitled to a damages remedy under the Constitution. Their
13 approach is made quite clear when they say that if this Court
14 does not imply a Bivens remedy for them this Court would be
15 sanctioning and suppressing other fundamental constitutional
16 rights. But as Mr. Cutler already explained, such an approach
17 inverts the applicable analysis, and he has already explained
18 why a Bivens remedy shouldn't be expanded to the novel context
19 pled here.
20 So I won't retread that ground for purposes of avoiding
21 repetition. I will instead explain why the addition of the
22 Fifth Amendment claim does not change the special factors
23 analysis in this case, and then I will explain why plaintiffs
24 cannot bring a claim for damages under the Posse Comitatus Act.
25 First, the Fifth Amendment claim does not alter the

36
1 conclusion that plaintiffs seek to expand Bivens into a new
2 context. Although plaintiffs rely on Davis v. Passman to argue
3 that their Fifth Amendment claim is not new, the only
4 commonality between Davis, a workplace sex discrimination claim,
5 and the Buchanan case, is the fact that they both involve a
6 claim under the Fifth Amendment. As both Abbasi and Hernandez
7 made clear, a case may arise in a new context even if the right
8 at issue is the same as the prior Bivens case. The test is
9 whether the case is meaningful in a different way from the trio
10 of prior Bivens Supreme Court cases.
11 Plaintiffs describe their Fifth Amendment claim here as an
12 arbitrary depravation of expressive liberty interests by the use
13 of excessive force. That description alone distinguishes the
14 claim from the equal protection claim and Davis. But much more
15 fundamentally, all of plaintiffs' claims arise from the attorney
16 general's order to extend the security perimeter around the
17 White House by dispersing a crowd of unscreened protestors
18 before the president's arrival there. This case finds no analog
19 in any of the prior Supreme Court Bivens cases. The context
20 here is new.
21 Plaintiffs' Fifth Amendment claim also does not change the
22 special factors analysis in this case. As the D.C. Circuit in
23 Meshal noted, the source of the hesitation in the special
24 factors analysis is the nature of plaintiffs' suit and the
25 consequences flowing from it.

37
1 Neither is altered in any way by the Fifth Amendment due
2 process claim here. As Mr. Cutler explains, plaintiffs'
3 proposed extension of Bivens liability into the presidential
4 security context pled in all of these cases raise a host of
5 separation of powers concern. Those concerns cut across all of
6 plaintiffs' claims, regardless of how they style those claims.
7 And all of those concerns lead to the same conclusion, that
8 Congress is in a better position to weigh the costs and benefits
9 of imposing personal liability on federal officers in this
10 context.
11 Plaintiffs' treatment of their punitive Bivens claim as an
12 automatic entitlement rather than the disfavored remedy that it
13 is extends to their treatment of their Posse Comitatus claim
14 act. Plaintiffs couldn't be more overt about it, making the
15 point in their brief that plaintiffs are, quote, entitled to
16 damages for violations of the Posse Comitatus Act.
17 But plaintiffs' assertion finds no support in the law. The
18 Posse Comitatus Act does not contain a private right of action
19 for damages. It's a bare criminal statute that doesn't display
20 an intent to create a private damages remedy. Courts of appeal
21 and district courts alike have confirmed this. Plaintiffs
22 identify not one case that has ruled otherwise. There's nothing
23 in the text of the act and nothing in the case law to support
24 them.
25 Plaintiffs argue that a civil remedy for damages is

38
1 necessary to carry out Congress's legislative intent or to
2 enforce the sentiment behind the law. But the Supreme Court
3 abandoned that approach and instructed courts not to do what
4 plaintiffs ask this Court to do. It has repeatedly said that
5 it's not a proper judicial function to provide for remedies as
6 are necessary to make effective a statute's purpose. Rather,
7 the Supreme Court has reiterated time and again that the
8 judicial path is limited to determining if Congress intended to
9 create a private right of action.
10 But the statute doesn't provide it. A cause of action does
11 not exist. A cause of action does not exist for damages under
12 the Posse Comitatus Act, and that claim should be dismissed.
13 Just to wrap up, Your Honor, contrary to plaintiffs'
14 argument, failure to find a damages remedy directly under the
15 Constitution or under a statute that doesn't authorize one, the
16 Court isn't sanctioning the suppression of plaintiffs' rights or
17 abdicating its judicial responsibility or making a judgment
18 about the importance of a right. Instead, declining to fashion
19 a remedy that Congress never saw fit to create pays heed to the
20 Supreme Court's instruction to respect the rule of Congress.
21 All claims against the individuals should be dismissed in
22 the Buchanan case. Your Honor, if you have any questions, I
23 would be happy to answer them.
24 THE COURT: Thank you, Ms. Whitman.
25 MS. WHITMAN: Thank you.

39
1 MR. SAMUEL: Good morning, Your Honor. Ryan Samuel on
2 behalf of the Arlington County defendants, Arlington County
3 Police Captain Wayne Vincent, Arlington County Police Officers
4 Ryan Allen and Ryan Black in both their individual and official
5 capacities in the Buchanan case, and solely Captain Vincent in
6 his individual capacity in the Black Lives Matter case.
7 Now, in both cases the county defendants have moved to
8 dismiss pursuant to Rule 12(b)(3) for improper venue and
9 12(b)(6) for failure to state a claim.
10 So first I'm going to jointly argue the 12(b)(3) motion as
11 to why this Court is an improper venue for both cases because
12 the rationale is the same, and then I will turn to why dismissal
13 as opposed to transfer of the cases is the appropriate remedy.
14 So as to venue, both cases concern the clearing of
15 Lafayette Square on June 1, and obviously, Lafayette Square is
16 in the District of Columbia. So ordinarily, venue would be
17 appropriate in this court.
18 However, Arlington County Police Department's presence in
19 Lafayette Square on June 1 was at the request of the U.S. Park
20 Police chief under interagency agreement or more commonly known
21 as a mutual aid agreement between the Park Police and county
22 police. And under this agreement, Captain Vincent and Officers
23 Allen and Black were on special assignment to assist the Park
24 Police. And the mutual aid agreement is authorized under
25 Section 7302, National Capital Region Mutual Aid of the

40
1 Intelligence Reform and Terrorism Prevention Act of 2004 as
2 amended, which I am just going to refer to as "the Act," and
3 it's located in the notes of 42 U.S.C. Section 5196.
4 And this Act encourages and authorizes mutual aid
5 agreements between law enforcement agencies in the national
6 capital region to respond to events ranging from presidential
7 inaugurations, demonstrations, and protests such as at issue
8 here and other emergencies that may arise.
9 And Congress, seeking to incentivize these agreements,
10 included a special venue provision in the Act in Subsection (d)
11 that states that any civil action against an officer or locality
12 rendering aid must be brought in the federal or state courts of
13 the jurisdiction rendering aid.
14 So accordingly, the special venue provision applies here,
15 and any suit against the county defendants should be brought in
16 the courts of the Commonwealth of Virginia or the U.S. District
17 Court for the Eastern District of Virginia.
18 And plaintiffs have advanced several arguments for why that
19 doesn't apply here. First, they argue the Act doesn't apply
20 when the Park Police is requesting aid from Arlington County,
21 and they cite to the mutual aid agreement's seventh whereas
22 clause, which does state that the Act applies when the county
23 requests aid from the U.S. Park Police. And the facts here are
24 the reverse of that, the Park Police requesting aid from the
25 county. But that is self-executing. It doesn't require any

41
1 specific language in a mutual aid agreement to apply, and if you
2 read the agreement as a whole, it clearly is a reciprocal
3 agreement, and the Act applies regardless of which party is
4 requesting aid.
5 And second, plaintiffs argue that the Park Police chief
6 didn't have authority to enter into this agreement binding the
7 federal government because the president didn't specifically
8 designate him as an authorized representative. But plaintiffs
9 concede that the Secretary of the Interior has been designated
10 authority to enter into these agreements. And so we assert that
11 the Park Police chief at least had implied actual authority to
12 bind the federal government under this Act because his assigned
13 duties, which are laid out in the Department of Interior's
14 departmental manual, specifically note that he is encouraged to
15 enter into mutual aid agreements with state and local law
16 enforcement and to reduce them to writing.
17 So even if the Park Police chief didn't have express
18 authority to enter into this agreement under the Act, he at
19 least had implied actual authority sufficient enough to bind the
20 federal government.
21 And the third reason, which is only argued in the Buchanan
22 case, plaintiffs argue special venue provisions really only
23 apply to suits between the governmental parties to the
24 interagency agreement, but if Congress had intended to limit the
25 special venue provision in this way, it would have done so by

42
1 simply stating that the Act applies to the action brought by a
2 party to a mutual aid agreement instead of against a party to a
3 mutual aid agreement.
4 So for those reasons, we believe that the special venue
5 provision of the Act applies here, and this Court is an improper
6 venue.
7 So now I'm going to turn to why dismissal rather than
8 transfer is the appropriate remedy. I will first take up our
9 motion to dismiss in the Buchanan case.
10 In that case the allegations are for violations of the
11 First, Fourth, and Fifth Amendments in the county defendants'
12 official and individual capacities. And as to the official
13 capacity, this is just really another way of suing the county.
14 Under Section 1983, plaintiffs have to have factual allegations
15 that support a municipal policy or custom, and the complaint at
16 paragraph 109 does the opposite. It states that the county
17 defendants were caught by surprise with the events of that day.
18 In their papers, plaintiffs ask leave to amend and state
19 they're going to allege that complaints against county police
20 personnel rose by 55 percent between 2018 and 2019, and they
21 cite an online article to support that allegation.
22 But in actually reading the article, it states the increase
23 is attributable to the county expanding reporting requirements,
24 that the county does teach restraint when it comes to use of
25 force, and that only one use-of-force complaint against its

43
1 officers fell outside departmental policy in the year reviewed.
2 So this slightly contradicts the assertion that the county
3 tolerates a pattern of excessive force by its officers and
4 failed to sufficiently train them.
5 So plaintiffs' request for relief to amend should be denied
6 and the official capacity claims dismissed with prejudice.
7 And turning to the individual capacity claims, the same is
8 true there. As has been stated before, the Ashcroft case
9 requires that in Section 1983 suits that plaintiffs have to
10 plead what each specific governmental official defendant did
11 through their own individual actions to violate the Constitution
12 against these specific plaintiffs.
13 And out of 158 paragraphs in the amended complaint,
14 plaintiffs only rely on the fact allegations in two in their
15 papers, paragraphs 57 and 153, to argue the stated claim against
16 the county defendants. And paragraph 57 is approximately a half
17 a page in length. There's only a single sentence that
18 references the county defendants in that paragraph, and it
19 simply states that Officers Black and Allen wielded batons and
20 that Captain Vincent was in command of them while they wielded
21 the batons. And paragraph 153 states that the county defendants
22 in conjunction with upwards of a hundred other defendants in
23 this case just generally violated plaintiffs' rights.
24 This is just plainly insufficient to state a claim against
25 the county defendants under Section 1983 and the Twombly and
44
1 Iqbal standards.
2 I think just as a practical matter that highlights the
3 insufficiency. My clients come to me and they ask me, "Why are
4 these specific plaintiffs suing me?" I had to tell them I don't
5 know. They're lumped together with over a hundred other
6 defendants from different governmental agencies and just a
7 general collective allegation of wrongdoing. There's nothing
8 putting them specifically on notice of what the violation was
9 they committed against these specific claimants.
10 Now, the county defendants have also asserted qualified
11 immunity in that the Fifth Amendment due process clause doesn't
12 apply to state actors. But in the interest of time, I'm going
13 to rely on the arguments we made in the papers unless Your Honor
14 has questions about those arguments.
15 THE COURT: All right. Thank you, Mr. Samuel.
16 MR. SAMUEL: I just wanted to briefly address the
17 Black Lives Matter case, which is just against Captain Vincent.
18 It suffers from the same defects. There's only one allegation
19 against him specifically in the third amended complaint there,
20 and that's in paragraph 76, which just states that he arrived at
21 5:30 p.m. at the Joint Command Center and coordinated the
22 actions of Arlington County police officers, and that's plainly
23 insufficient to state a claim under Section 1985 or 1986.

45
1 MR. SOBIECKI: Good morning, Your Honor. Richard
2 Sobiecki for the Office of the Attorney General of the District
3 of Columbia on behalf of the District and the 10 named officers
4 of the Metropolitan Police Department.
5 I will be discussing two cases today, Your Honor. I will
6 start with the Black Lives Matter, or BLM, and then I will move
7 to Buchanan.
8 But first I want to make a more global point. These cases
9 are about federal officials ordering federal law enforcement
10 officers to take action on federal property. While we
11 appreciate the gravity of plaintiffs' allegations, they simply
12 have no credible allegation that the District was in any way
13 involved in the clearing of Lafayette Park.
14 Starting with BLM, the plaintiffs essentially make four
15 claims against --
16 THE COURT: Mr. Sobiecki, there does seem to be some
17 disagreement about the D.C. police officers' role, whether they
18 were in the square and dispersing or just a block away.
19 Can you explain your position?
20 MR. SOBIECKI: I am happy to start there. That is an
21 area where the two cases do diverge. In the BLM case, they do
22 not allege that the District defendants were in the park.
23 They're alleged to be at 17th and H. In contrast, the Buchanan
24 plaintiffs -- and this is something I will highlight right
25 now -- they have one specific allegation against the District

46
1 defendants in paragraph 57. However, Your Honor, that
2 allegation is made on information and belief. And while
3 information and belief can be an appropriate technique in a
4 complaint, it's used where the information is uniquely in the
5 hands of the defendants and you cannot expect the plaintiffs to
6 have that information.
7 This case cannot be farther from that. The Buchanan
8 plaintiffs allege that they were in the park themselves
9 personally that day. They allege that the events of the day
10 were caught on video. They cite -- I will come back to the news
11 articles, Your Honor, but there are countless news articles in
12 both of these cases, and not a single one of them puts any
13 district defendant in Lafayette Park.
14 So on that point, Your Honor, I think you should completely
15 disregard the allegation made in paragraph 57 in the Buchanan
16 case. And if we do put that aside, all we have left is an
17 allegation that they were at 17th and H, the District
18 defendants.
19 So based on that, I do think we can argue and I think we
20 have shown that there's no allegation that they participated in
21 the clearing of the park or were involved in the decision to
22 clear the park.
23 Starting with the BLM conspiracy claim, that fails for two
24 reasons, Your Honor. First, they fail to allege an agreement.
25 Knowledge is not enough. Awareness is not enough. A common

47
1 goal is not enough. Plaintiffs must do more. They have no
2 allegations of any communications between the District
3 defendants and the federal defendants.
4 That should almost stop right there. At most, they have
5 proximity. They say they're a few blocks away. But
6 importantly, and Your Honor brought up the curfew, plaintiffs
7 act like, well, why else could they have been there other than
8 to conspire with the federal defendants. And the answer to that
9 is the curfew. I don't think it can be reasonably disputed the
10 damage that happened to downtown D.C. on May 30 and May 31. The
11 officers were positioned. They knew that there was a group of
12 protestors right before a curfew when the entire point of the
13 curfew is to prevent protestors from heading into the downtown
14 area. So given that we have that fact, the complete lack of any
15 communications between the District defendants and the federal
16 defendants, they cannot get to agreement.
17 Their claim also fails, even if they could get in shouting
18 distance of an agreement, Your Honor, the agreement has to be
19 for the purpose of violating the plaintiffs' civil rights.
20 Plaintiffs attempt to interpret Section 1985 that they say,
21 well, President Trump had these motives and thoughts, and we can
22 impute those to the District defendants. Your Honor raised the
23 possibility of imputing it within the federal government. I
24 don't think there's case law to support that, and I'm certain
25 there's not case law to support the idea that the motives of one
48
1 sovereign entity could be imputed to a host of actors in another
2 sovereign entity when there's absolutely no allegation in here
3 that any of the District defendants or any District government
4 official was in any way sympathetic to President Trump's
5 statements.
6 So for that reason, I think the Section 1985 and 1986
7 claims should be dismissed against the District.
8 Moving to the First Amendment, the BLM plaintiffs' claims
9 fail for two principal reasons. First, they fail to allege that
10 the District prevented them from engaging in any protected
11 activity. Plaintiffs clearly allege that they were protesting
12 in Lafayette Park, federal property, when their protected
13 activity was curtailed.
14 Circling back, there's no allegation from the BLM
15 plaintiffs that the District defendants were involved in the
16 decision to clear the park or participated in the decision to
17 clear the park. What they allege is that after the federal
18 defendants took their alleged actions, a group of protestors
19 continued down to 17th and H where the District defendants
20 encouraged them to travel farther down 17th. Given that they
21 were not engaged and do not allege that they were engaged in
22 protest activity when they encountered the District defendants,
23 their claim fails for that reason.
24 Their claim fails again because they don't have the
25 required animus. The BLM plaintiffs in their opposition clarify

49
1 they're bringing a viewpoint discrimination claim against the
2 District defendants, but there's no allegations -- I don't want
3 to repeat myself too much, Your Honor, but as in the Section
4 1985 claim, there's no allegation in here that any District
5 defendant had any animus towards the protestors or the causes
6 that the protestors were advocating for.
7 For those reasons, the First Amendment claim should be
8 dismissed as well.
9 Moving to the Fourth Amendment claim, this is where there
10 is some divergence from the BLM and Buchanan. The BLM
11 plaintiffs' claims should be dismissed. They don't have a
12 seizure, and they don't have unreasonable force. A seizure, as
13 the Supreme Court has set forth, requires intentional actions
14 and an intent to terminate movement, to restrain movement.
15 Here, plaintiffs allege that the District defendants were
16 doing the opposite. They allege that they were attempting to
17 encourage movement away from the downtown area, down south on
18 17th street, and during that course of events, tear gas was
19 discharged and the BLM plaintiffs say within their direction and
20 that exposure impacted them. But they do not allege that it
21 terminated their movement or restrained their movement or that
22 the District defendants were in any way targeting them
23 specifically.
24 THE COURT: What about the cases the plaintiffs cite
25 in which officers use baton strikes or chemical irritants on

50
1 people who are not resisting?
2 MR. SOBIECKI: Your Honor, in general, and I think
3 this is almost every case, the plaintiffs are citing cases where
4 the plaintiffs were somehow hemmed in. So there were other
5 extenuating factors that would almost force, require them to be
6 exposed to the chemical irritants that the defendants were
7 discharging.
8 Whereas, I think the more analogous case is the Logan v.
9 City of Pullman case where the police officers were attempting
10 to break up a fight on the first floor of the bar, and then the
11 individuals on the second floor were exposed to the chemical
12 irritants, and the Court said that was not a seizure because
13 there was no intent to restrain their movement. And I think the
14 same analysis applies here.
15 THE COURT: So what do I have in the complaint that
16 suggests any kind of ruckus other than them trying to leave and
17 being pushed out? What sort of resisting -- it just can't be
18 that you can wale on someone with batons as long as they're
19 running away from you and there's no wall blocking them.
20 There's got to be some limit on that. The same with chemical
21 agents, I would think, if they're not resisting.
22 MR. SOBIECKI: Yes, I do, just as Your Honor noted.
23 None of the District defendants are alleged to have hit anyone
24 with a baton. The full allegation here for the seizure is --
25 and again, not that any chemical irritant was targeted toward
51
1 the plaintiffs. They allege that it was in the direction of it.
2 But coming back to Your Honor's questions, I would go to
3 plaintiffs' allegations. Plaintiffs allege that the federal
4 defendants created what amounted to a war-like atmosphere. It
5 was chaos. And in the minutes before the curfew -- I think
6 that's also relevant here -- we are in sort of a three-day one
7 event where the District defendants are aware that over the
8 prior two nights protestors had conducted and engaged in
9 significant damage in the District.
10 THE COURT: You're saying that I can consider that
11 because I can look at the mayor's order, in your view?
12 MR. SOBIECKI: Certainly, Your Honor. I think look at
13 the mayor's order and frankly just -- one of my colleagues
14 mentioned COVID. I think the extent of what happened on those
15 days rises to the level of COVID is highly contagious. I don't
16 understand plaintiffs to be disputing -- judicial notice, is
17 this a fact that can be reasonably disputed. Now, maybe
18 plaintiffs will dispute whether Your Honor can rely on the
19 order, but I just don't see how plaintiffs can reasonably
20 dispute that on the nights of May 30 and May 31 there were
21 significant destruction and vandalism to the downtown area. And
22 also in their news articles. I agree with another colleague
23 that said they've been incorporated into the complaint. I think
24 they have. I think it would be fundamentally unfair for the
25 plaintiffs to get to use those articles for one purpose, but

52
1 then when the District defendants -- and I will come back to
2 this point, Your Honor -- want to look at those same articles
3 for a different purpose.
4 THE COURT: Okay. The curfew, doesn't that cut both
5 ways? On the one hand, at 7:00, the officers certainly have
6 valid grounds to disperse the crowd and get them home, but
7 didn't this occur before then?
8 MR. SOBIECKI: Minutes before, though, Your Honor.
9 And I think -- and that's where we get to the reasonable aspect
10 of the Fourth Amendment analysis. As the Supreme Court noted,
11 the officers had to make split-second decisions. So I think all
12 of the factors that we've been talking about, the curfew, the
13 violence of the prior two nights, the chaotic situation created
14 by the federal defendants, within minutes of the curfew, when
15 confronted with those course of events as alleged, I think the
16 discharge of tear gas in the direction of these two particular
17 plaintiffs was not unreasonable, and it certainly was not
18 clearly established.
19 It's a highly unique situation here. As we've just
20 discussed, when have we had before federal defendants allegedly
21 creating chaos outside Lafayette Park? When has the mayor
22 imposed a curfew because of violence committed by protestors?
23 So those factors together, plaintiffs have certainly not
24 cited to me any clearly established case law from the Supreme
25 Court or the D.C. Circuit that would have put the District
53
1 defendants on notice of that.
2 THE COURT: Are the District defendants only alleged
3 to have used tear gas, not anything else, not rubber bullets or
4 smoke bombs or batons? Is that your position with the
5 complaints, at least as alleged?
6 MR. SOBIECKI: I will draw a distinction there.
7 BLM -- this is just brought by two plaintiffs, plaintiffs Foley
8 and E.X.F., and they're focused on the discharge of tear gas.
9 So to answer your question, that's BLM.
10 Buchanan, yes, they do allege more, but they do that
11 alleging, using the generic term "defendants" or "law
12 enforcement officers," which they define to include the District
13 defendants. So in that respect, yes, they do, but as we've
14 explained in our motion, under Rule 8, they cannot simply use
15 defendants generically and then expect us to answer all of these
16 questions. Are they alleging, the Buchanan plaintiffs, that we
17 fired rubber bullets, that we hit people with batons, it's hard
18 to tell. If you interpret "defendants" to include everyone,
19 yes, but again, that's not sufficient under Rule --
20 THE COURT: But isn't part of their problem their
21 inability to do discovery at this point?
22 MR. SOBIECKI: I don't -- no, I don't see why that
23 would be a problem, Your Honor. They were physically present in
24 the area. Why couldn't they have --
25 THE COURT: They know they're officers, but they don't

54
1 know -- they're not focused on their badge. They're not sure
2 whether it's Arlington or D.C. or a federal officer. It's
3 mayhem.
4 MR. SOBIECKI: Is it reasonable to make that
5 inference? And I will go to the news articles here, Your Honor.
6 Both of these sprawling complaints omits all of the news
7 articles. What is there that lends plausibility to the idea
8 that the District defendants were in the park and were engaging,
9 were using emissions, were firing the rubber bullets, were
10 hitting people with batons? There's nothing to corroborate
11 that. All we have is this generic allegation against
12 defendants.
13 So no, I don't think discovery is going to cure their
14 problem. I know discovery is not going to cure their problem.
15 But to answer your question, no, they need specific allegations,
16 which has been repeated many times today, specific allegations
17 against specific defendants. They've identified all of these
18 individuals by name. So no, I don't think that should be --
19 that should prevent dismissal of the Fourth Amendment claim.
20 THE COURT: I know I've taken your time with
21 questions. I will extend it a little bit here. I don't mean to
22 cut you off. I do want to hear what you have to say.
23 MR. SOBIECKI: I think I've covered -- municipal
24 liability, Your Honor, they need a custom and practice. They
25 need a persistent and widespread course of events. Similar to

55
1 these -- they cite a 20-year period and four or five examples.
2 As plaintiffs allege, Washington, D.C., and Lafayette Park are
3 the home to protests. How many large-scale protests have we had
4 over the last 20 years, and they only have four or five
5 examples. That does not get them there.
6 THE COURT: Didn't Judge Jackson find that was
7 sufficient in her case?
8 MR. SOBIECKI: Your Honor, each situation is going to
9 be unique. And I think here you do have to look -- we have to
10 both compare the circumstances -- sorry. My screen changed.
11 We have to look at the circumstances of the events. So
12 here, we have an event, as I mentioned, where the federal
13 defendants had created this situation. They were responding.
14 They were trying to enforce a curfew. They don't have any
15 examples that are similar to that. And even if four or five
16 could be, I think in this context given the time period we're
17 talking about and the lack of similar examples -- in particular,
18 the Buchanan plaintiffs focus only on excessive force against
19 protestors generally as opposed to the use of chemical
20 irritants. And I think that is an important distinction for
21 their municipal liability claim.
22 Just on Buchanan, my main point on that was the information
23 and belief allegation. Your Honor should not consider that.
24 I'm going to close with a word about the news articles and
25 judicial notice. Your Honor asked, well, can I consider the

56
1 truth of them. I think you can because they've been
2 incorporated in this complaint.
3 But even if Your Honor does not consider the truth, they're
4 still very relevant to the District defendants' arguments,
5 because Your Honor is free to look at those news articles and
6 note that, regardless of the truth, none of them put the
7 District defendants in the park. None of them put the District
8 defendants in the clearing of Lafayette Park.
9 So again, I think it's fundamentally unfair for the
10 plaintiffs to come to Your Honor and say look at these news
11 articles, they show the plausibility of our allegations against
12 the federal defendants, but then say stop, Your Honor, do not
13 consider them as to the implausibility of our allegations
14 against the District defendants.
15 For all of those reasons, the District defendants
16 respectfully request that the Court dismiss all claims in
17 Buchanan and BLM.
18 Thank you.
19 THE COURT: Thank you. Is that it for the defendants?
20 Yes?
21 Okay. Mr. Michelman, will you be arguing initially for the
22 plaintiffs?
23 MR. MICHELMAN: No, Your Honor. Randy Mastro will
24 start for the plaintiffs, please.
25 THE COURT: All right. Good morning, Mr. Mastro.

57
1 MR. MASTRO: Pleasure to see you, Your Honor. Thank
2 you for seeing us.
3 Your Honor, I'm going to briefly give an overview of the
4 case and then turn it over to Mr. Michelman to argue the Bivens
5 issues, my colleague Lee Crain to argue qualified immunity,
6 Emily Lagan of the Regan, Zambri & Long firm to briefly address
7 the Court, and then Mr. Michelman and my partner Anne Champion
8 to address any other issues in the case.
9 THE COURT: Okay. Before you get started, Mr. Mastro,
10 for the benefit of everyone who is coming after you, it would be
11 really helpful for me for you to focus in particular on the
12 constitutional claims, the qualified immunity argument with
13 respect to those, as well as the standing arguments with respect
14 to particularly the organizational defendant Black Lives Matter.
15 Those are two areas that to the extent you're trying to figure
16 out where to focus your time, that would be most helpful to me.
17 MR. MASTRO: Yes, Your Honor, and Mr. Michelman will
18 be addressing those issues immediately after I make a brief
19 overview of the factual background, five minutes or so, because
20 I think it helps frame the legal arguments, Your Honor.
21 THE COURT: Okay.
22 MR. MASTRO: Your Honor, it is particularly fitting
23 that we are having this argument today on the week that is the
24 one-year anniversary of the tragic death of George Floyd.
25 Because, Your Honor, this case concerns events that came out of
58
1 that tragic incident, and Your Honor, it's the case that what
2 emanated from that assault and untimely death of Mr. Floyd
3 tragically and ironically by local law enforcement there
4 resulted in this peaceful protest and this assault on peaceful
5 protestors, not only by local law enforcement but federal
6 authorities, and, Your Honor, all so, as we've heard earlier in
7 this argument, that the president could cross a cleared park to
8 do a photo op in front of a church.
9 Your Honor, the denunciations were swift and bipartisan
10 because the nation was watching. Former Defense Secretary --
11 THE COURT: Mr. Mastro, I've read all that. It's not
12 particularly helpful to my consideration of legal issues. I'm
13 concerned about time here, and I want you to have the time you
14 need to address --
15 MR. MASTRO: I understand, Your Honor. Let me go on
16 to what happened, you know, that day.
17 Peaceful protestors gathered in Lafayette Park, the
18 quintessential public forum in the shadow of the White House, to
19 protest about racial justice.
20 Your Honor, who are these peaceful protestors? They were
21 young school teachers, educators, community coordinators,
22 communications specialists. They were peaceful protestors who
23 were doing nothing illegal, posed no threat to anyone, no threat
24 to any property.
25 Your Honor, what happened next, if we can go to the next

59
1 slide, please, is that literally an army of law enforcement
2 gathered, formed a line along the protestors. They were in riot
3 gear. This is around 6:00 p.m. They had batons. They had
4 shields. They had masks. They lined the protestors around
5 6:00.
6 6:08, Attorney General Barr incredibly shows up himself to
7 survey the scene, looks at the assembled crowd, and then gives
8 the order, "Clear the park." And moments later, several minutes
9 later, around 6:35, law enforcement advanced on the peaceful
10 protestors, spraying them with tear gas, pelleting them with
11 rubber bullets, dropping smoke bombs and incendiary grenades,
12 and using their shields and batons like witnesses -- like
13 weapons to literally club those in their path.
14 Your Honor, what was it like for those protestors fleeing
15 that scene in horror, many of them injured, fearing for their
16 lives? Here's a brief glimpse of what it was like for those
17 protestors that day, Your Honor.
18 (Video played.)
19 MR. MASTRO: Your Honor, that is just a small glimpse
20 of what happened that day.
21 By 7:00, the park had been cleared. That's when the curfew
22 goes into effect that we were talking about earlier. And then
23 after the curfew, the president crosses with his attorney
24 general, his chair of the joint chiefs of staff, and others to
25 cross the park to go to a photo op across the street in front of

60
1 a church, something that the chair of the joint chiefs since
2 said was a mistake, and he has apologized publicly for his
3 participation.
4 Now, Your Honor, what injuries were suffered that day?
5 What happened to these protestors? Very serious injuries to a
6 number of them, Your Honor. Isabella Kavanagh was violently
7 struck with a riot shield, twice knocked to the ground, rubber
8 bullets aimed directly at her. A chemical grenade exploded
9 between her legs, causing severely second-degree burns. Many
10 other protestors, some of them hospitalized, many saw doctors.
11 They had serious burns, many of them, severe bruising, coughing,
12 throat pain, breathing problems, and, of course, psychological
13 trauma that lingers to this day.
14 And Your Honor, why did it happen? Why did it happen?
15 Next slide, please. Why did it happen? Your Honor, the excuses
16 at the time, there was a ever-ending -- changing story. Was it
17 the curfew? The park was cleared before the curfew. Was it to
18 stop violence? The attorney general himself has said there was
19 no violence there that day. These peaceful protestors weren't
20 breaking the law nor posed any threat to person or property.
21 The attorney general said, quote, this was not an operation to
22 respond to that particular crowd, end quote.
23 And Your Honor, the fact remains that we have some insights
24 into why this happened in this way and this kind of excessive
25 force was used that day. We know it from the president's own
61
1 personal account both before and after the incident. In the
2 immediate days before the clearing of the park, the president
3 issued tweets saying that these peaceful protestors gathering in
4 this park were, quote, domestic terrorists and enemies of the
5 United States and that they would be greeted with the most
6 ominous weapons and unlimited power of the military,
7 overwhelming force against the bad guys, his words.
8 And then in the immediate aftermath of the park clearing,
9 the president praised the great job done by all, overwhelming
10 force domination, again referring to the protestors as
11 terrorists, and saying he was sickened by the fact that George
12 Floyd has been held up as a martyr, the president's words.
13 In other words, it appears from the president's own words
14 that these protestors were targeted because of their viewpoint,
15 their message, their speech. And obviously, Your Honor, when
16 the president speaks, his cabinet members and his administration
17 hear what he is saying.
18 Now, Your Honor, that brings us to today. Now a different
19 post hoc justification is offered for what happened here. Now
20 we hear the defendant saying, oh, this was about security, this
21 was about security for the president. They've even used the
22 word in their papers with fascination. Yet no defendant ever
23 suggested at the time that the president was ever in any danger
24 from peaceful protestors in Lafayette Park or the generations of
25 protestors who had been in Lafayette Park on the issues of the

62
1 day. And to now suggest post hoc that this was all about the
2 president's security is, Your Honor, yet another post hoc
3 justification in all the changing reasons why this was done.
4 It's all the more reason why this case needs to continue,
5 so that we can get to the truth and make sure that something
6 like this, something that so many saw as shocking the
7 conscience, never happens again.
8 And Your Honor, I heard -- this is the last point I will
9 make for now. I heard some of the defendants say what a unique
10 and unusual situation this was. Well, Your Honor, I
11 respectfully suggest that the only thing unique and unusual
12 about this situation was the audacity of the force used, the
13 response to these peaceful protestors on that day, and how
14 obviously unconstitutional it was. It was admitted by my worthy
15 adversary as something Your Honor could consider, the excessive
16 force in the context of both the First and Fourth and Fifth
17 Amendment claims.
18 I am reminded, Your Honor, of the wisdom of Justice Gorsuch
19 who told us, "Some things are so obviously unlawful that they
20 don't require detailed explanation, and sometimes the most
21 obviously unlawful things happen so rarely that a case on point
22 is itself an unusual thing. Indeed, it would be remarkable if
23 the most obviously unconstitutional conduct should be the most
24 immune from liability only because it is so flagrantly unlawful
25 that few dare its attempt."

63
1 Your Honor, we respectfully submit that the conduct here
2 was so flagrantly unlawful and so obviously unconstitutional
3 that it requires a remedy, and we are here today, Your Honor, to
4 do everything we can to see that nothing like this ever happens
5 again in our country.
6 And I turn it over now to Mr. Michelman to address Your
7 Honor's questions on the qualified immunity issue.
9 THE COURT: Thank you, Mr. Mastro.
10 Mr. Michelman?
11 MR. MICHELMAN: Scott Michelman for the BLM D.C.
12 plaintiffs, although all of us will be addressing issues
13 relevant to all of the cases. And I will be starting with
14 Bivens and then passing it back to Lee Crain of the -- for the
15 Buchanan plaintiffs, and then, as Mr. Mastro said, Emily Lagan
16 for the Roth and Kavanagh plaintiffs, and then I will be taking
17 on justiciability and the statutory points.
18 So on the Bivens issue, Your Honor, the defendants say that
19 the Court is powerless to hear constitutional claims seeking
20 redress for the grievous constitutional violations we just saw.
21 In fact, this circuit has held precisely the opposite in an
22 unbroken line of cases for 40 years dating back to 1977. Ruling
23 otherwise would contravene circuit precedent.
24 THE COURT: Mr. Michelman, sorry to interrupt, but
25 hasn't the Supreme Court instructed courts to look at Supreme

64
1 Court precedent in deciding whether to extend Bivens?
2 MR. MICHELMAN: Only with regard to the new context
3 issue, Your Honor, and that was made very clear by the Loumiet
4 case, as we cited in our brief at page -- it's the Loumiet
5 case --
6 THE COURT: I've got that case.
7 MR. MICHELMAN: That was only about the new context
8 inquiries. With respect to --
9 THE COURT: Isn't this a new context, even in the
10 Fourth Amendment context? Isn't this entirely different than a
11 routine search of an apartment?
12 MR. MICHELMAN: Well, we think that -- as the Buchanan
13 plaintiffs have argued, there's a great deal of precedent
14 showing that this is not at all new in this circuit. But even
15 if it is, the special factors inquiry needs to be considered as
16 well. It's not an either/or. The defendants actually have to
17 win both. They must show that --
18 THE COURT: I know, but --
19 MR. MICHELMAN: And the special factors inquiry is
20 defeated by the unbroken line of cases in this circuit.
21 Now, what I think -- what I hear my opponent say is that
22 you can ignore circuit precedent because of the recent decisions
23 of the Supreme Court. This is not the first time the federal
24 government has come into this court in this district saying it
25 should do that. In fact, in the Bloem, Hartley, and Patterson

65
1 cases, all cited in our brief, the federal government did the
2 same thing and said ignore Dellums, ignore circuit precedent.
3 This court declined that invitation and was not reversed by
4 either the circuit or the Supreme Court.
5 Now, as to --
6 THE COURT: All right. Understood. But I certainly
7 have to look at Supreme Court precedent in determining whether
8 it's a new context. But once I get -- I still need to consider
9 the special factors even if I determine this is a new context.
10 But how do I get over the clear national security concerns
11 with the president's safety?
12 MR. MICHELMAN: Absolutely. First of all, I think
13 what Abbasi makes very clear is that the circumstances matter.
14 Abbasi said -- was a national security case and yet at the same
15 time said national security is not a tell. So that means that
16 national security, you can't just say the words "national
17 security" and automatically defeat the Bivens claim. The mere
18 invitation of national security doesn't make it true.
19 And in fact, Congress itself, which is what the Supreme
20 Court has recently focused on in terms of when a claim is
21 allowed, Congress itself would have wanted this claim and
22 endorsed Bivens as it stood in 1988. That is the lesson of
23 Hernandez and of Tanzin, the recent cases from 2020, in the
24 Supreme Court. The Court said that the Westfall Act passed in
25 1988 to make the FDCA an exclusive remedy, exclusive of state

66
1 tort against federal officials, nonetheless had a savings
2 clause, and that savings clause said that the exclusive remedy
3 provision, quote, does not extend or apply to a civil action
4 against an employee of the government which is brought for a
5 violation of the constitution of the United States. That's
6 Bivens.
7 And as we noted in our analysis in our most recent
8 opposition, ECF 150 in the BLM case, there are legions of cases
9 showing that the Supreme Court -- the Supreme Court and this
10 circuit presumed Congress knows what it's doing when it
11 incorporates a prior legal concept. So in 1988, when Congress
12 said, in the words of the Supreme Court, we leave Bivens where
13 it found it. That's what the Court said in Hernandez. And in
14 Tanzin, the Court characterized Congress as leaving up the
15 claims for constitutional violation. In 1988, the Court already
16 had Dellums. It already had the circuit precedent we rely on
17 showing that even in the District, even in the seat of the
18 branch of government, right in front of Congress, on the steps
19 of Congress, you can have First and Fourth Amendment violations
20 asserted by demonstrators against law enforcement. And that's
21 what this is.
22 So my opponents mentioned -- rely on holdings involving
23 terrorism, involving the border, involving extraordinary
24 rendition in Africa, and in Loumiet complex financial regulatory
25 scheme. But the cases about demonstrators, demonstrators'

67
1 rights specifically in the nation's Capitol, specifically before
2 a seat of the branch of government have been held over and over
3 by this court and the D.C. Circuit to be cognizable Bivens
4 claims and were clearly entrenched in the fabric of the law at a
5 time Congress endorsed Bivens in 1988.
6 So what this means is that Congress and this circuit's
7 precedent agree that whatever may be true of the edge cases --
8 and we're not asking here for the expansive type of Bivens that
9 my friends on the other side have suggested where we're talking
10 about the border and extraordinary rendition, but in the core,
11 in demonstrators' rights cases that have been recognized without
12 the sky falling, without presidential security crashing down for
13 40 years in this circuit, that is not a special factor just
14 because the defendant can waive the flag of national security.
15 It's also the case that when you look at that presidential
16 security justification it is compromised in this case by the
17 facts as pleaded, including the shifting -- understanding the
18 shifting justifications of the defendants themselves, by the
19 fact the president wasn't even outside of the White House
20 grounds for another 30 minutes while the attack was going on,
21 and the fact that even now the defendants can't get their
22 stories straight. You see in Major Adamchik's brief of the Park
23 Police, he said it was an on-the-spot clearing order, and he
24 also says that it was a high-level plan. Which is it? In the
25 Buchanan complaint, they note that Attorney General Barr

68
1 disclaimed both of those explanations, explaining on Face the
2 Nation this was not an operation to respond to that particular
3 crowd.
4 So this is a question properly addressed in discovery, in
5 summary judgment where the Court can balance whatever security
6 needs there may be shown to have been versus the First Amendment
7 rights of the demonstrators. That's also something that this
8 circuit has been doing for years, going all the way back to the
9 Quaker Action case where the Court said that we must assure
10 ourselves that the conclusions of national security officials
11 rest upon solid facts and realistic appraisal of the danger
12 rather than vague fears extrapolated beyond any foreseeable
13 threat.
14 THE COURT: Doesn't Wood v. Moss and just common sense
15 dictate that when a president is going to go somewhere, whether
16 it's in Oregon in that case or across the park next to the White
17 House, that because of the safety to the president, that the
18 park can be cleared in a circumstance -- you've got to wonder
19 why he went at that time, but for the park to be cleared? It is
20 certainly a security risk to have a president walk through any
21 crowd.
22 MR. MICHELMAN: So first of all, the claim in Moss
23 that the Supreme Court resolved is about viewpoint
24 discrimination as between two competing demonstrations. So
25 that's really not at all on point.

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1 THE COURT: But did they not highlight the safety
2 risks to the president in that case?
3 MR. MICHELMAN: Absolutely. And we are not claiming
4 that presidential security can never be a special factor, and we
5 are not claiming that the president's route can never be
6 cleared. Rather, following the dictate of Abbasi that national
7 security is not a talisman, we cannot merely say at the outset
8 that in this case where the relationship to presidential
9 security is highly contested, there is significant evidence or
10 significant allegations in the pleadings coming out of
11 defendants' own mouth to call that justification into question,
12 we cannot shut down the inquiry. Your Honor must undertake the
13 constitutional balance on the merits with all of the deference
14 that the defendants will ultimately get under the First
15 Amendment and the Fourth Amendment and qualified immunity.
16 There are lots of protections for legitimate national security
17 actions, but what we are asking you to do is to not shut us out
18 of court.
19 THE COURT: Isn't it implausible to suggest that a
20 president -- there would not be safety concerns for the
21 president walking through a large crowd of any protestors?
22 MR. MICHELMAN: Certainly, I think we can agree on
23 that. But the notion that the safety concerns were present here
24 based on where the protestors were, where the president was
25 going to go, the fact that defendants have disclaimed a concern

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1 about that particular crowd, and the fact that they used a
2 blitzkrieg of force rather than an orderly clearing force, these
3 are questions that really go to the heart of the merits and not
4 whether this claim should be brought in -- to begin with.
5 As we said in our brief -- and we take strong issue with
6 the notion by defendants that this is a point for the media. If
7 it is true that this circumstance cannot present a Bivens claim,
8 that we are shut out of court at the outset, they could have
9 used live ammunition to clear the park, and nobody would have a
10 constitutional claim for that. That is astonishing, but that is
11 the implication of their position.
12 Rather, the balance should be undertaken at the merits
13 stage, applying well-established First and Fourth and, where
14 necessary, Fifth Amendment precedent on demonstrators' rights
15 where it conflicts with security. There have been lots of cases
16 on those points. This isn't an area where judicial guidance is
17 lacking, but it is an area in which, should this Court decline
18 to hear the Bivens case at the outset, it would contravene
19 circuit precedent. It would contravene what Congress wanted in
20 the Westfall Act and authorize brutality with impunity.
21 I want to make sure I invite other special factor questions
22 or --
23 THE COURT: Feel free to move on to your next issue.
24 MR. MICHELMAN: In that case I will turn it over to
25 Mr. Crain to address qualified immunity.

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1 MR. CRAIN: Thank you, Your Honor. Lee Crain from
2 Gibson, Dunn, and I will be addressing qualified immunity with
3 respect to the constitutional claims.
4 Defendants' attempt to invoke qualified immunity fails for
5 two reasons. First, any reasonable officials would have known
6 that attacking peaceful protestors without cause violates the
7 protestors' clearly established constitutional rights. Not only
8 was the egregious display of force against the protestors
9 obviously unconstitutional, but a body of case law across the
10 country, including decades of precedent in this circuit,
11 confirms that dispersing the June 1 peaceful protest as
12 defendants did was clearly and unequivocally unconstitutional.
13 Second, based on the allegations in the complaint, each of
14 the defendants was plausibly personally involved in the
15 depravation of the protestors' rights, and they can be held
16 liable. Defendants' only arguments improperly fight with the
17 allegations of the complaint rather than taking them as true and
18 draw inferences in their favor, not in ours, as the governing
19 standards require.
20 I want to go first, Your Honor, to the clearly established
21 law and discuss briefly our obviousness points. In assessing
22 whether these constitutional violations were clearly
23 established, this Court does not need to search case law
24 directly on point identical concerning that plaintiffs' rights
25 were violated, although such cases do certainly exist.

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1 The obviousness doctrine of qualified immunity is not only
2 alive and well, but the Supreme Court just applied it this very
3 term in Terry v. United States, confirming that where there is
4 no doubt about the obviousness of a constitutional right because
5 the facts of the case are particularly egregious, qualified
6 immunity is necessarily inappropriate because no reasonable
7 officer would have violated the plaintiff's rights in such an
8 obvious and egregious manner.
9 Lower courts have taken this to heart in claims that
10 require a prior decision with identical facts in order to find
11 rights clearly established if the violations were obvious. We
12 cite then Judge Gorsuch's language in Browder, as well as the
13 First Circuit's apt decision in Asociacion de Periodistas v.
14 Mueller, as well as many other cases in this circuit and
15 throughout.
16 This case, as Mr. Mastro said, is unique in its
17 egregiousness and its offensiveness. And as Mr. Michelman noted
18 as well -- excuse me. And you don't need to take our word for
19 it, Your Honor. You can take a look at the broad base of
20 bipartisan public -- disclaiming of public notion statements
21 from senators, from generals, from 1,250 members of the
22 Department of Justice, all confirming that these were
23 unconstitutional violations of the First and Fourth Amendment
24 based on the facts as we know them today.
25 Defendants' violations of the plaintiffs' First, Fourth,

73
1 and Fifth Amendment rights in this case are so glaringly obvious
2 that the Court need not search for identical fact patterns and
3 case law. Looking at the cases we have, not only do we allege
4 the defendants violated clearly established law, but the conduct
5 we allege is so far and above what other cases address in
6 offensiveness and outrageousness and disproportionality that the
7 constitutional violations fall seamlessly into the obviousness
8 doctrine.
9 THE COURT: Mr. Crain, if you can walk me through your
10 position in terms of how to consider the alleged violence, the
11 use of force here with respect to the First Amendment claims.
12 You say yes, I should consider them because this was not -- even
13 applying the defendants' standard, which I understand you
14 disagree with, but applying their standard, they did not use the
15 least restrictive means because they used force? Is that in
16 essence how I look at the use of force when assessing the First
17 Amendment claim?
18 MR. CRAIN: I think you take two tests, Your Honor,
19 that you can use to assess the force with. The first is a clear
20 and present danger test, which applies with respect to crowd
21 dispersal going back to South Carolina versus Edwards, applied
22 in the Second Circuit, applied in this circuit in certain
23 instances as well. And you can take a look at that standard and
24 assess based on the force that was applied and based on the
25 clear allegations that this crowd was full of children and pets
74
1 and singing and chanting, you can take a look and see there was
2 no clear and present danger, not only not justifying dispersal
3 but not justifying the use of force. So that's the first place
4 that the use of force is applicable to the First Amendment.
5 The second place is with respect to defendants' own public
6 forum analysis, which ultimately boils down to a narrow
7 tailoring test, is it narrowly tailored to a significant
8 government interest, neither alternative channels of
9 communication within that forum left over.
10 And in terms of assessing the means and relationship, the
11 force is directly applicable. Even if there were a compelling
12 government interest, does that compelling government interest
13 justify clearing the square with batons, with tear gas, with --
14 at one point one of the defendants is alleged to have launched a
15 grenade of tear gas. That's where it comes into play, Your
16 Honor, with respect to the narrow tailoring.
17 And we would submit that based on that lack of means to
18 end, that the sort of zero to 60 approach that the defendants
19 took here, the force is directly applicable.
20 And I would like to refer also to Barham, which is a Fourth
21 Amendment case but I think it's applicable and helpful even in
22 the First Amendment context on the narrow tailoring. What
23 Barham tells us is that to disperse crowds -- in that case it
24 was detaining protestors, but only after providing a lawful
25 order to disperse followed by a reasonable opportunity to comply

75
1 with that order.
2 So that's an example of a more potentially narrowly
3 tailored means of dispersing a crowd that doesn't necessarily
4 require force. If you look -- for example, we cite the Edrei
5 case in the Second Circuit.
6 (Distorted audio.)
7 THE COURT: Someone needs to mute.
8 MR. CRAIN: Can you hear me, Your Honor?
9 THE COURT: Yes. What was that case in the Second
10 Circuit?
11 MR. CRAIN: The Edrei case. It's a Fifth Amendment
12 case, but I also think it informs as well. The question there
13 is, was it narrowly tailored to the ultimate government interest
14 in this case.
15 They sort of boil down to a proportionality type of
16 reasonableness inquiry that simply is not teed up properly for
17 purposes -- it's a discovery question, and I think -- I'm sorry,
18 Your Honor.
19 THE COURT: No, go ahead.
20 MR. CRAIN: And I think particularly with respect to
21 the -- Mr. Michelman pointed to the sort of shifting sands
22 justification. It should draw the Court's immediate skepticism
23 over whether the approach to the protestors here, the zero to 60
24 immediate assault, attack on the protestors which is alleged in
25 the complaint, which must be taken as true, whether that is

76
1 narrowly tailored, whether that is proportional, whatever the
2 test we apply.
3 And so looking to paragraphs 80 and 95 of our complaint, we
4 lay out five different justifications that the defendants have
5 offered. They've all been contradicted by different government
6 officials. Some of them simply don't hold water. One of the
7 justifications is they were clearing to set up the perimeter,
8 but they didn't even have the materials for the fence for two
9 hours. You have in the briefing the specter of presidential
10 assassination. I join wholeheartedly Mr. Michelman's points on
11 that. And I also have paragraph 95 of the Buchanan complaint
12 says clearly Attorney General Barr completely disavowed the
13 correlation between the clearing of the square and the
14 president's approach. He said they weren't related. That's at
15 paragraph 95.
16 Mr. Michelman is exactly correct. It was about 30 minutes
17 between when the shooting started and when the president showed
18 up, and I believe on the video you can hear -- the clip that
19 Mr. Mastro played, you can actually hear the attack from the
20 Rose Garden, where the president is safe and secure and
21 completely far away from any unscreened protestors at all.
22 THE COURT: Tell me, Mr. Crain, what's the context for
23 the Barr allegation that he disavowed that the events of that
24 day had anything to do with the fact that the president was
25 coming?
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1 MR. CRAIN: I don't recall if we alleged specifically
2 what news station he was on, but he said -- this is -- let's
3 see. It was June 4, 2020. I don't have the context for you,
4 Your Honor, but I believe it was a public statement in an
5 interview or --
6 THE COURT: On that point just generally, to the
7 extent the plaintiffs rely on these articles, why can't I look
8 at the whole article for the full context? Why do you get to
9 cherry-pick certain things out of an article and say no, you
10 can't look at the rest of it?
11 MR. CRAIN: I think the BLM briefing deals with this
12 effectively in footnote 1. But in terms of why -- I just don't
13 think you can use -- you can use inconsistent facts that
14 contradict with the allegations in the complaint, Your Honor.
15 THE COURT: But I don't know -- if I look at all these
16 articles, maybe in the end they're not all inconsistent. It
17 seems to me that I have to do that in order to assess whether
18 what you're saying is true.
19 MR. CRAIN: Your Honor, I think in terms of your --
20 the standard governing this issue is whether the facts taken as
21 true state a plausible claim. If certain acts -- if certain
22 facts contradict each other in the articles, in the complaint,
23 the inference the Court can draw is the one that's stated as to
24 the plaintiffs. It's really a summary judgment question, not a
25 motion to dismiss question.

78
1 And we will note, in addition, Your Honor, most of the
2 articles are cited to simply underscore the plausibility of the
3 allegations, not integral to the complaint, not incorporated
4 entirely by reference. So whether there are other facts that
5 exist -- I will take, for example, the reasonableness inquiry,
6 Your Honor, for example.
7 THE COURT: Wait. Doesn't one of them rely
8 specifically on the attorney general giving the order? Isn't
9 that really essential to some of your claims?
10 MR. CRAIN: In terms of the facts or the articles?
11 THE COURT: I thought at least one of your key facts
12 was drawn from an article, and that was where the attorney
13 general took responsibility for issuing the order.
14 MR. CRAIN: The attorney general took responsibility
15 in many instances, including in testimony before Congress. The
16 White House issued a statement. We have it in footnote 10 of
17 our complaint where the White House issued a statement
18 confirming that the attorney general personally gave the order.
19 So it's not just his statements. He did make statements
20 publicly, I believe, on CBS, on Face the Nation. I'm not sure
21 if that's alleged -- if it's specifically there.
22 THE COURT: All right. So your position, though, on
23 all of that -- I read footnote 1, but basically, has it shifted
24 at all in this argument? You don't think that I can consider
25 the articles as a whole, nor do you think I can consider the

79
1 findings in the mayor's order? Is that correct?
2 MR. CRAIN: That is the plaintiffs' position.
3 THE COURT: Why is this different than the cases that
4 the government cites dealing with COVID and government official
5 announcements? Do you seriously dispute those?
6 MR. CRAIN: Your Honor, I don't know if Mr. Michelman
7 wants to address those cases in particular.
8 THE COURT: To the extent this is a better question
9 directed to you, Mr. Michelman --
10 MR. MICHELMAN: Or I can address it now, Your Honor,
11 while Your Honor's on the subject.
12 I think the -- the distinction is whether the documents
13 were cited as integral, and integral in this context takes its
14 standard from cases about contracts. So where we tender a
15 contract and we say you violated our contract, look, you can
16 read the contract, if something in the contract shows you didn't
17 violate the contract, that's the kind of case where the Court
18 says well, the case is all about this document.
19 But these articles are only in here to establish that as
20 unbelievable as these events are to most of us and as shocked as
21 we were to learn about them, they are corroborated not only by
22 the eyewitness accounts that we give in the complaint but also
23 by other news articles to show the Court that we're not making
24 these things up. But take out any one news article, and the
25 complaint doesn't fall apart. They're not integral in that way.

80
1 And I would also say, even if Your Honor took all of the
2 allegations all together, that would at most show a disputed
3 fact that is not appropriate for resolution at this time,
4 particularly when all of the facts need to be understood in the
5 plaintiffs' favor at a motion to dismiss.
6 THE COURT: But the fact that the mayor imposed a
7 curfew is something, because it's in the complaint, that I
8 can --
9 MR. MICHELMAN: Absolutely, Your Honor. We don't
10 dispute -- there's no question the mayor imposed a curfew.
11 There's no question it was at 7:00. The problem, of course, for
12 defendants is that all of their activities, all of their
13 violence was perpetrated, began well before 7:00.
14 THE COURT: Understood. But from the plaintiffs'
15 perspective, can I look at all at why the curfew was imposed?
16 MR. MICHELMAN: Well, we don't think that the facts
17 underlying that curfew were -- I don't think you can take
18 judicial notice about all of the mayor's characterizations of
19 everything that happened in the past.
20 But even if you could, again, even assuming that you could,
21 there is no way under the binding precedent of Barham in the
22 D.C. Circuit that the defendant in this case could attack people
23 on June 1st based on things that happened on May 30th, May 31st,
24 at other times, other people. That is simply not permitted.
25 That is guilt by association, and the circuit and Supreme Court

81
1 have ruled on that.
2 THE COURT: And while I have you, Mr. Michelman,
3 because I'm guessing you are the person to answer this, but to
4 what extent does the complaint sufficiently allege that the
5 state officials were involved in the clearing of the park?
6 MR. MICHELMAN: So the Arlington officials are placed
7 right at the scene.
8 THE COURT: D.C., sorry.
9 MR. MICHELMAN: D.C. specifically, the complaints do
10 admittedly take different views of that question. The BLM
11 complaint puts them a block away. But I think no matter which
12 complaint you're looking at, I think it is completely
13 implausible to imagine -- to take the defendants' suggestion,
14 you know -- Mr. Sobiecki makes a valiant effort, but it's
15 implausible to suggest that they were right there either in the
16 park or a block away doing the same thing with the same type of
17 force against the same people in one continuous action to drive
18 the protestors away and they just had nothing to do with each
19 other, even though they were all acting before the curfew and
20 with the same tear gas --
21 THE COURT: With D.C., I think he said it's just tear
22 gas.
23 MR. MICHELMAN: That's right, but they're all using
24 tear gas to drive the protestors away. The federal troops drove
25 the protestors into the arms of the D.C. onslaught, and the D.C.
82
1 onslaught continued -- I believe Mr. Sobiecki said that they
2 were encouraging them to travel further down 17th. They were
3 encouraging them by shooting giant balls of tear gas and filling
4 the street with smoke.
5 THE COURT: Can I find an intent to restrain in any
6 way under those allegations?
7 MR. MICHELMAN: Well, yes. First of all, yes, because
8 some of our plaintiffs, in fact, did stop. They shot at them,
9 and that brought them to a halt. So that brought them to a halt
10 by means of force intentionally applied. That is one of the
11 definitions of a seizure, as explained in our brief.
12 And we've also cited cases where limiting someone's freedom
13 of movement through force intentionally applied includes moving
14 them from a place. So there are protest cases cited in our
15 brief, ECF 98, in which we discuss how moving someone
16 involuntarily through force intentionally applied would limit
17 their freedom of movement as well.
18 So we don't think the District's arguments on this point
19 that our clients are not seized are at all well taken.
20 THE COURT: Thank you.
21 Mr. Crain, sorry to derail your argument.
22 MR. CRAIN: Not at all, Your Honor. Glad to answer
23 any more questions. If I could turn to the First Amendment a
24 bit more, if that's all right with you.
25 THE COURT: Of course.

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1 MR. CRAIN: I think the critical, undisputed principle
2 at the start, Lafayette Square is not just a traditional public
3 forum. It is the traditional public forum. We cite the Quaker
4 Action cases in both briefs. And the cases -- the D.C. Circuit
5 makes absolutely clear that the Lafayette Square has a
6 heightened First Amendment applicability based on the very text
7 of the First Amendment. The text of the First Amendment says
8 assembly and protesting at the seat of government. This is the
9 seat of government. This is the heart of the seat of
10 government, so unquestionably a traditional public forum.
11 Second, no one can dispute the protestors were exercising
12 clear First Amendment rights, protected activity. And third, no
13 one disputes that the defendants disrupted the protestors' First
14 Amendment activity and did so with violence and military-style
15 force.
16 So the question, Your Honor, is whether they meet the test,
17 whether they meet the clear and present danger test, whether
18 they meet the narrow -- which should apply to crowd dispersal
19 situations or they should meet the narrow tailoring test.
20 And Your Honor, again, given those shifting sands -- and
21 there was a seventh one we heard today. Mr. Sobiecki raised
22 COVID as a potential justification, which wasn't briefed, but
23 it's an additional justification for the violent, aggressive
24 dispersal of the protestors in the park. So given those
25 shifting justifications, I think that goes exactly into what the

84
1 First Amendment is about.
2 One of my favorite cases, City of Lakewood, Your Honor, it
3 says that we don't allow discretion of permitting regimes
4 because it allows officials to mask discrimination, it allows
5 officials to mask their justifications for their approach.
6 That's exactly what we see here, Your Honor. We see now
7 seven different justifications to cover up what we allege is
8 really happening here, and that turns to our viewpoint
9 discrimination, Your Honor.
10 THE COURT: At root, the plaintiffs don't dispute, do
11 they -- I mean, they allege that the president was coming to the
12 church to give his speech. That's undisputed. And doesn't an
13 area need to be cleared before a president does that?
14 We can argue about whether it was too early, perhaps, but
15 I'm having a hard time understanding how the shifting
16 justification -- it seems quite obvious you have to clear the
17 square that he is going to walk through before he reaches the
18 church.
19 And why is that not reasonable for the defendants to do?
20 Understood, your separate point about the level of violence and
21 the use of force. But in terms of the clearing and breaking up
22 the protest, why is that not reasonable under the Moss case?
23 MR. CRAIN: So again, I join Mr. Michelman's approach
24 on the Moss case, that it's distinguishable in dealing with
25 viewpoint discrimination between two sides. It doesn't

85
1 address -- the Supreme Court case doesn't address violence at
2 all.
3 THE COURT: It's as close as we have here, right,
4 to --
5 MR. CRAIN: I don't think it's the most on point case,
6 Your Honor.
7 THE COURT: What would you say is the most on point?
8 MR. CRAIN: We cite a host of clearly established --
9 THE COURT: More general, but do you have any dealing
10 with national security, presidential security, anything -- I get
11 that Moss is clearly distinguishable. But can you point to
12 another case, you know, on the qualified immunity context? I'm
13 trying to find not just general pronouncements. Can you point
14 me to a case that's more targeted to these circumstances where
15 it seems there is a legitimate security risk?
16 MR. CRAIN: I think in terms of a specific case where
17 the president was approaching the area, I'm not aware of another
18 case.
19 THE COURT: Not that, but anything else in the sort of
20 national security context?
21 MR. CRAIN: So we cite three cases in our brief, the
22 Quaker Action one that Mr. Michelman mentioned. There's United
23 States versus Doe. Each of those cases from the D.C. Circuit
24 say we don't simply take the government at its words. And
25 particularly on a motion to dismiss, we should not take the

86
1 government at its words when -- and we're not even alleging that
2 the government stated that that was the justification, because
3 multiple government officials expressly disavowed that
4 rationale, including Attorney General Barr, in paragraph 95 of
5 our complaint.
6 So the D.C. Circuit has said very clearly the Court has to
7 probe and think carefully and skeptically about whether this is
8 a raw invocation of security or whether this is something -- I
9 will take Quaker Action, Your Honor. I forget which number, I
10 think the 1971 case or the '69 case. There's actually an
11 affidavit from the Secret Service director himself attesting to
12 the security risk, and that wasn't enough, and that was on a
13 record -- it was during post-discovery, but it was certainly an
14 affidavit in the record, and it was about Lafayette Square
15 itself.
16 THE COURT: And the number of people who could be in
17 the square?
18 MR. CRAIN: I don't believe the case was expressly
19 about the number of people in the square. Oh, you're right.
20 I'm mixing my -- I think that's right, there were numerical
21 quantifications on the number of people in the square over
22 several different D.C. Circuit cases, and up and down it went.
23 But the Court made very clear -- and again, I believe the
24 language was we don't sacrifice First Amendment rights on the
25 altar of such an unsupported claim here.

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1 So Your Honor, I think in terms of the directly applicable
2 case law here, I don't think -- as I mentioned, you don't need a
3 specific, identical fact pattern to hold. I don't think Wood
4 versus Moss cuts the mustard on that one. But we do have clear
5 promulgation, clear requirements from the D.C. Circuit itself
6 saying this Court needs to look skeptically at raw invocation of
7 security.
8 And again, Your Honor, 30 minutes the president was in the
9 Rose Garden. There's no evidence that particularly any of the
10 officers on the ground had any clue that he was coming when they
11 decided to attack the protestors.
12 And I will point to the whistleblower we cite at paragraph
13 10 of our complaint who expressly notes that there was no
14 justification that it was -- I think he called it an unprovoked
15 escalation and extensive use of force and a clear violation of
16 the First Amendment rights. He saw no threat. He said the
17 crowd was peaceful and was protesting with children and pets.
18 And so when we're talking about -- we're talking about
19 looking for the line, Your Honor, when we're talking about what
20 can officially be done, and there's no allegation in the
21 complaint that most, if any, knew the president was on his way.
22 We don't know if it had even been decided at that point. This
23 is not the case to decide that line. They went from zero to 60
24 in a manner of minutes. They issued no warnings consistent with
25 Barham. Mr. Michelman is exactly right that the D.C. Circuit

88
1 could not be clearer with what is required before dispersal can
2 even commence. And not even dispersal with the violence that we
3 saw, dispersal at all. That's what Barham was talking about.
4 I think, Your Honor, the question that we're talking about
5 of reasonableness, about the justification is properly for the
6 summary judgment phase, not for the motion to dismiss phase
7 where we have alleged so many different justifications in terms
8 of why they did this.
9 Your Honor, I'm mindful of the time. I don't know if you
10 want to get into Fourth Amendment or Fifth Amendment standards.
11 THE COURT: Yes, please. Is that you, too, or is that
12 someone else?
13 MR. CRAIN: I'm covering the constitutional claims.
14 In terms of the Fourth Amendment standards, I think
15 Mr. Michelman is exactly right on the seizure point. There are
16 a slew of cases cited. Asociacion de Periodistas is a great
17 example from the First Circuit where the excessive force
18 analysis in the Fourth Amendment was applied in a dispersal-type
19 situation.
20 There's also the context, Your Honor, in terms of use of
21 force where there's not a seizure. So we have a Fifth Amendment
22 claim to the extent the Court does not find a seizure here, it
23 can only find based on the factors in Moore and Edrei that we
24 plausibly have a case of shocking the conscience as those
25 factors are articulated.

89
1 THE COURT: Do you have any cases dealing with either
2 tear gas or rubber bullets, anything along those lines?
3 MR. CRAIN: So we do have cases that establish that it
4 is clearly established excessive force to deploy certain types
5 of means. So in terms of pepper spay, we cite Asociacion de
6 Periodistas, Nelson. The Norris decision way back in 1984 with
7 then Judge Ginsberg addresses tear gas. It's been on the law
8 for literally decades that that can be excessive use of force.
9 There are two pages of cases cited in the BLM brief at pages --
10 ECF 98 at pages 24 to 26 and all applying the Fourth Amendment
11 excessive use of force analysis to clearly put officers on
12 notice that these type of tactics and these weapons can violate
13 the Constitution, they can subject officers to liability, and
14 establish that reasonable officers knew or should have known
15 that these types of aggressive calls for unprovoked escalation
16 clearly violate the Fourth Amendment.
17 THE COURT: But do those cases apply here where
18 they're trying to disperse and drive people away, not restrain
19 them in any way?
20 I know you made the point that some people fell down and
21 stopped. So is that the argument?
22 MR. CRAIN: Yes, Your Honor. Looking at the cases
23 where it's merely an intent to control the movements, you
24 restrain in any sense, and even if it's unsuccessful, it can
25 still be a seizure, so even if it's unsuccessful.

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1 So our position is there absolutely was a seizure here, and
2 again, we cite all those cases that apply Fourth Amendment
3 standards to types of crowd dispersal, the protestor-type
4 cases. Again, Asociacion de Periodistas is a good example and
5 the cases cited at page 24 to 26, two pages of cases in the BLM
6 brief, and we cite cases as well.
7 THE COURT: All right. What's your best case on the
8 Fifth Amendment point?
9 MR. CRAIN: I think Edrei is an excellent case.
10 That's the case about the sounds, the disproportionate sounds to
11 clear folks off the street. And I believe the justification for
12 that force is that the peaceful protestors, who were not like
13 these folks not violating any laws, were blocking traffic. The
14 police launched the sound machines that launched dangerously
15 loud decibels, causing some migraines, hospitalizations. And
16 the Court takes a -- took a four-factor assessment of the sort
17 of shocking the consciousness. I don't want to spend time, it's
18 not helpful for the Court, but goes through each of those
19 factors, which the Supreme Court says is not even necessary, and
20 concludes that that use of force was so disproportionate and so
21 excessive that it stated a Fifth Amendment violation. And a
22 similar analysis, I think, to excessive force in the Fourth
23 Amendment.
24 We're really talking here in each of these standards about
25 proportionality, about the justification. Many of these

91
1 questions, too, Your Honor, should be fact questions for summary
2 judgment. If the folks -- if the defendants want to raise
3 arguments about what they had in their mind at the time, what
4 they knew, that's not alleged in the complaint, and not because
5 we're hiding the ball but because we don't know. The only line
6 officer we allege in the complaint what he knows is the
7 whistleblower who testified before Congress and conceded
8 wholeheartedly that this was an unprovoked and excessive
9 escalation of force.
10 Your Honor, I'm mindful of the time, if you have any
11 further questions.
12 THE COURT: On the attorney general and the qualified
13 immunity, there's an allegation here that he directed or ordered
14 the tactical steps here. Do I look at his qualified immunity
15 differently than the line officers?
16 MR. CRAIN: He and Major Adamchik are a little
17 different because theirs are based on orders. But we know from
18 case law, including Barham and Keating in the Eleventh Circuit,
19 that issuing orders can be a basis of liability.
20 So the question with the attorney general is he issued an
21 order. We allege clearly he was there. He issued an order to
22 clear the square. In footnote 10 of our complaint, we know that
23 his order was to clear it quickly at that time. He sees -- it's
24 reasonably inferred that he sees the riot gear and the nature of
25 the massing of force. He's alleged to be the head of law

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1 enforcement for purposes of suppressing protests. So he knows.
2 Again, we state in our complaint, it's obvious that this
3 protest involves children and pets and singing and chanting. I
4 don't want to belabor the point, Your Honor. But given the
5 context and given the order and how quickly they cleared the
6 square in response, it is a plausible inference that he issued
7 an unconstitutional order. At the very least, it should be
8 something we are entitled to take discovery on and the Court
9 should consider on qualified immunity. In terms of -- I'm
10 sorry, on summary judgment.
11 And then in terms of Major Adamchik, we allege that he
12 changed the rules of engagement, the tactics right before the
13 assault. He was the incident commander. He issued the go order
14 at the time. And again, we don't know the details of exactly
15 what he said, but I think one can infer based on the allegations
16 that if you change the tactics of a particular approach and
17 immediately issue an order and law enforcement follows those --
18 certain types of tactics, you can infer, it's a plausible
19 inference to be drawn, reasonable inference in our favor that
20 that was the order given. It was clear the square, clear the
21 square now. Attorney General Barr, clear the square with these
22 tactics.
23 And all of those state a claim, and frankly, your Honor, it
24 is simply implausible, simply unbelievable that all of these
25 officers would act in the same way without these types of orders
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1 emanating from the very top, from the very top.
2 So we're asking Your Honor not to fact-find. We're asking
3 Your Honor not to resolve the effect. We are asking Your Honor
4 merely to draw the inference in our favor, even if there are
5 others that could be drawn in theirs.
6 And with that, Your Honor, unless there are more
7 questions --
8 THE COURT: Thank you, Mr. Crain. Who is next?
9 MS. LAGAN: That would be me, Your Honor. Thank you,
10 Mr. Crain, and good afternoon. Emily Lagan from Regan, Zambri,
11 & Long on behalf of plaintiffs Ryan Roth and Isabella Kavanagh.
12 At the outset, Your Honor, as is evident from our briefing,
13 our arguments with respect to the official capacity defendants'
14 motions to dismiss and Attorney General Barr's individual
15 capacity motion to dismiss are identical, and we join in the
16 points the Court just heard from Mr. Mastro, Mr. Crain, and
17 Mr. Michelman on behalf of Black Live Matters and Buchanan.
18 I won't retread the ground my colleagues just walked, but I
19 want to very briefly paint a picture of Mr. Roth and
20 Ms. Kavanagh's experiences at the protest.
21 Mr. Roth arrived at Lafayette Square around 4:30 p.m. He
22 joined demonstrators at the front of the crowd close to the
23 White House. At no time did he engage in or witness any violent
24 or threatening behavior from the demonstrators. And although he
25 was in the front of the crowd, he did not hear any warnings from
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1 law enforcement to disperse.
2 At approximately 6:30 p.m., law enforcement rushed Mr. Roth
3 and the other demonstrators. A law enforcement officer deployed
4 a tear gas canister near Mr. Roth, and he immediately felt pain
5 in his eyes. He began coughing and vomiting and collapsed near
6 the intersection of 17th and H Street. He remained on the
7 ground for several minutes. Law enforcement commanded that he
8 get up but offered him no assistance. Eventually, he was able
9 to gather himself and walk away from Lafayette Square.
10 I will briefly go into Ms. Kavanagh's experience as well.
11 Ms. Kavanagh arrived at Lafayette Square on the afternoon of
12 June 1, and she had participated in a peaceful protest in
13 Lafayette Square the day before as well. Like Mr. Roth, at no
14 time did Ms. Kavanagh witness or engage in any violent or
15 threatening behavior from the demonstrators, and she never heard
16 any warnings to disperse.
17 When law enforcement advanced on the demonstrators, an
18 officer struck Ms. Kavanagh with a riot shield and knocked her
19 to the ground. She tried to flee but encountered another law
20 enforcement officer who struck her with a riot stick on her left
21 leg. Two other law enforcement officers loaded rubber bullets
22 and aimed directly at Ms. Kavanagh. While she stood paralyzed
23 with fear, another law enforcement officer threw a chemical
24 grenade that exploded between her legs, causing the severe
25 second-degree burns that the Court sees in the photograph up

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1 here.
2 And Your Honor, I will pass at this time to my colleagues
3 for our remaining time. Thank you very much.
4 THE COURT: Thank you, Ms. Lagan.
5 MR. MICHELMAN: Your Honor, Scott Michelman once
6 again. I will now turn to the justiciability and statutory
7 issues, and I will take questions on municipal liability if Your
8 Honor has them, although I think Your Honor said it best, that
9 following Judge Jackson's opinion is exactly what we would
10 advise there.
11 On justiciability, I think it is important at the outset to
12 remember that the standard is that we must plausibly allege a
13 substantial risk of injury and that risk is assessed at the time
14 a case is filed. That was cited in the Buchanan brief, Wheaton
15 College versus Sebelius, D.C. Circuit.
16 The protestors were very afraid after this happened. They
17 weren't going back to protest, as detailed in all of the
18 complaints, and I can give you those paragraphs if you need
19 them.
20 Meanwhile, the President of the United States, who had
21 called them thugs and terrorists and the bad guys and urged
22 domination, was continuing to gloat about the overwhelming
23 force, having his press secretary, quote, stand by the action of
24 the federal law enforcement, and tweeting throughout the month
25 of June that there would be serious force and that protestors

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1 should not be expected to be treated peacefully. These are all
2 in the BLM and Buchanan complaints. I won't spend the time
3 citing them unless Your Honor would like me to.
4 THE COURT: That's all right. Thank you.
5 MR. MICHELMAN: So they faced a substantial risk at
6 that time. Meanwhile, the ongoing effects to the BLM D.C.
7 organization were serious. Many of their members were there,
8 and they were scared. And so beyond seeing participation in its
9 activities decreased, members were scared to go to
10 demonstrations. The clients who participated in demonstrations,
11 they had to divert their resources to a public education
12 campaign just to get people out to their events, because the
13 people were afraid they were going to be assaulted by federal
14 troops again.
15 And so that is exactly the kind of disruption to an
16 organization's core activity and diversion of resources to
17 counteract what the defendant did that the D.C. Circuit has
18 recognized constitutes an injury and admission.
19 THE COURT: Given the uniqueness of the June 1st
20 events, the defendants have laid out in their briefs there were
21 a number of contingencies that would need to happen for this to
22 happen again. And when you consider all of them together, isn't
23 it just too speculative to say there was a real substantial risk
24 that this would occur again, and I have to look at it from an
25 objective perspective, not someone who feels particularly

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1 chilled by this but objectively? Isn't it simply too
2 speculative?
3 MR. MICHELMAN: Objectively speaking, Your Honor, the
4 chain of events that needed to reoccur was actually very small,
5 because we have specific allegations from the plaintiffs that
6 they were going back to protest, and law enforcement were
7 frequently there, we know, and were closing and opening the
8 park, as we heard from my opponents earlier in this
9 presentation.
10 So the only question is whether that force would, in fact,
11 be used. This is unlike most of the cases the defendants cite
12 which rely on the plaintiffs taking some unlawful action to
13 precipitate the challenged conduct. Here, all they had to do
14 was be there, because that's all they did on June 1st. All they
15 were doing was being there and protesting, and in response, they
16 received overwhelming force from the federal and D.C. officials.
17 THE COURT: In addition to that, I would have to find
18 that law enforcement officers would be present. I agree that's
19 pretty reasonable. But the president would come again through
20 the crowd, and they clear the crowd, and there would be use of
21 force that was used here.
22 Aren't those latter two steps that would need to occur
23 simply too speculative?
24 MR. MICHELMAN: Well, Your Honor, we don't concede
25 that those two steps necessarily would have had to occur,

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1 because there are so many different justifications that we've
2 heard from defendants, some of which didn't have to do with the
3 president at all. Some of their justifications were that they
4 wanted to change the perimeter. Some of them had to do with the
5 curfew, but obviously, they acted before the curfew. So I don't
6 think we can say that it was a necessary component to a
7 repetition of this conduct that the president was going to do
8 that walk again.
9 And also, I think that doesn't answer the question of the
10 ongoing effects on BLM, who, without a repudiation of this
11 conduct by the government, without the kind of firm assurances
12 that the D.C. Circuit has demanded as recently as last week,
13 cannot be said to have their injuries have become moot because
14 of the change in administration.
15 And so really, I think sticking to the prescribed standards
16 as laid forth -- as laid out in the D.C. Circuit cases on both
17 standing, organization, individual, and mootness, we do have
18 justiciability here, and any factual question going to the
19 likelihood of certain events would have to be resolved on a
20 factual basis, not on the basis of pleadings alone.
21 THE COURT: Let me ask you, the diversion of
22 resources, I think there are two categories. One, I think that
23 there's a diversion of resources that Black Lives Matter alleges
24 that it had to expend money and time to encourage its members to
25 engage in future protests. So that diversion of resources, that

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1 class of resources would hinge on the likelihood that an event
2 like this is going to occur again in the future. Right?
3 But in addition to that, you allege another diversion of
4 resources, right, that doesn't hinge on getting people to come
5 protest in the future, but you say Black Lives Matter spent
6 money in various ways to -- help me understand that. To do
7 what? And did those expenditures relate to the past events that
8 occurred on June 1st, or are they ongoing?
9 MR. MICHELMAN: Well, to plan -- they went forward.
10 They were expenditures responsive to the events to provide
11 medical care, to train people what to do in the event of further
12 unprovoked law enforcement violence.
13 And I think it should be noted, Your Honor, with respect to
14 the first point about tying the fears to the repetition, the
15 Supreme Court has not ruled out the probabilistic injuries.
16 Instead, what they said is that those fears, if people take
17 action based on possibilities that may recur, those have to be
18 reasonable. So we saw it in the Friends of the Earth case about
19 environmental harm and in the Monsanto case, both cited in our
20 brief, about agricultural harm, that if the fears were
21 reasonable, the effects on plaintiffs and the steps the
22 plaintiffs could take concretely could provide standing even if
23 the challenged conduct did not, in fact, recur.
24 So that, I think, changes the frame a little bit in terms
25 of what is necessary to find that the BLM organization has

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1 standing.
2 THE COURT: Has BLM alleged that these expenditures
3 were made in order to counteract the drop in attendance?
4 MR. MICHELMAN: Yes, Your Honor. If you look at our
5 complaint, the BLM complaint, and I will refer you generally to
6 paragraphs 117 to 127, that contains all of our allegations
7 about BLM, and specifically, they were directly in response to
8 defendants' actions at our complaint, third amended complaint,
9 paragraph 126.
10 THE COURT: And how do you distinguish it between Food
11 and Water Watch?
12 MR. MICHELMAN: In Food and Water Watch, what happened
13 was that the plaintiffs' actual activities weren't chilled.
14 This is a case about chicken plant inspection rules. And they
15 said well, we have to do more education now because the chicken
16 plants are not safe, and so we have to educate, educate,
17 educate. Well, they were educating before. And so the Court
18 said well, you haven't stopped educating because of the changing
19 of the rules for chicken plant inspections; you just have to
20 teach people different things.
21 In this situation, however, BLM is saying that their core
22 activity is getting people to demonstrations. And they're not
23 able to do that anymore. They have to expend resources just to
24 maintain participation in their demonstrations because of the
25 wall of fear created by the unprovoked attack that we're

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1 challenging in this case.
2 So if the Court has no more questions, I would like to turn
3 to the statutory claims finally regarding conspiracy, and I
4 would like to make just a few points because I know we're almost
5 at your 1:00.
6 THE COURT: And I'm giving you all more time. I'm
7 going to push it back a half hour. So you have time.
8 MR. MICHELMAN: All right. I appreciate that, Your
9 Honor.
10 THE COURT: Address briefly the mootness argument.
11 MR. MICHELMAN: The mootness argument, it's all about
12 the standing, Your Honor. As we briefed to the Court in our
13 filing just a couple days ago, ECF 156 on the Black Lives Matter
14 docket, the burden is on the defendants to demonstrate that the
15 challenged conduct cannot possibly recur and that intervening
16 events have eradicated the effects of the violation.
17 And the D.C. Circuit has not taken -- has taken a dim view
18 of assertions in briefs and sort of what they call a wave of the
19 hand. And that's really all we have here. We don't have
20 defendants saying we have changed our policies so we can never
21 have this again, we know this was wrong, we will never do this
22 again, we disavow this conduct, we make firm representations,
23 nothing of that sort.
24 THE COURT: A change of administration is not enough?
25 MR. MICHELMAN: No, I don't think it is. I mean, they

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1 cite a couple of cases suggesting where there is a complete
2 repudiation of prior -- of the prior administration, that would
3 be enough, but by their own standard, we haven't heard that from
4 them. They just say, we're different people, you fill in the
5 rest, and that is not something that can carry their heavy
6 burden under the D.C. Circuit's and Supreme Court's case law.
7 If we saw the type of repudiation that they were talking about
8 and the D.C. Circuit has demanded, then we might be in a
9 different place. But that's not what we have seen. They just
10 said we're different people, so see you later, and that's not
11 enough under the mootness law.
12 THE COURT: All right. Moving to the statutory
13 claims, if there's an agreement to act in a cohesive way, how
14 can I, based on the complaint, determine that that's anything
15 more than clearing the square?
16 MR. MICHELMAN: Well, I think the key case here is the
17 Hopson versus Wilkinson case, Your Honor, cited in our briefs.
18 It's a D.C. Circuit case from 1984 and, therefore, is binding
19 and is clearly established law. The approach in that case to
20 the issue of intent is as follows: "The conspirators must share
21 the general conspiratorial objective, but they need not know all
22 the details of the plan," dot, dot, dot, "or possess the same
23 motive."
24 In other words, all they had to do was agree that the
25 object of the conspiracy, to do the object, which was clear the

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1 square. They did not have to share the unlawful motive of the
2 president, but because the president was the one who set in
3 motion the conspiracy, that was the general conspiratorial
4 objective. It was his reason --
5 THE COURT: They have to share in the purpose, do they
6 not? I have to find it imputed to them. I can't --
7 MR. MICHELMAN: The purpose -- they have to share in
8 the purpose to do the object of the conspiracy, not to have the
9 unlawful motive. And again, in Hobson, the conspiracy there was
10 alleged to be between the FBI and MPD regarding the co-intel
11 program and the surveillance and disruption of certain political
12 activity. The Court, at pages 21 to 24, engaged in an analysis
13 of the conspiracy, the agreement, the object, but they did not
14 ask the motive of each of the individual officers. That was not
15 a part of the analysis, and that's because -- and this quote is
16 from page 51 in the opinion, that the conspirators must share
17 the general objective, not possess the same motive.
18 And so I think the defendant is focused on individual --
19 what was in individual defendants' heads. Whether they have
20 hostility towards black people and their supporters as we've
21 alleged, I think, in spades that the president had, that is not
22 the proper focus of the analysis under D.C. Circuit case law.
23 THE COURT: All right. So for this type of
24 conspiracy, you don't think that you have to show that they had
25 a meeting of the minds about the purpose, which was to

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1 discriminate against the class of people? You don't think under
2 these statutes that's a part of the agreement that has to be
3 formed? Not just an agreement to move them out of the square
4 but, rather, agreement to discriminate against them as a class?
5 MR. MICHELMAN: That's right, Your Honor. And if that
6 seems sort of implausibly broad, think about the purpose behind
7 Section 1985. This was a reconstruction era law enacted during
8 a wave of terrorism throughout the south against black people
9 and their supporters.
10 Imagine, if you will, that in that period there was a new
11 regime or government of a southern state, and I won't impugn any
12 southern state in particular, but imagine that there was a new
13 government that was hostile to black people and their supporters
14 and they worked together with a local municipality to attack a
15 black political gathering. Now, imagine that the governor had a
16 strong intent to discriminate against black people and their
17 supporters, say the black Republicans of the time, but that all
18 of the other people involved in the conspiracy were just sort of
19 following orders.
20 That sort of massive government targeting of a black
21 political gathering was absolutely what the reconstruction
22 Congress was trying to do. So if the general conspiratorial
23 objective set by the governor was a --
24 THE COURT: It can't be the governor alone, though.
25 It has to be the governor with one other person.

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1 MR. MICHELMAN: Well, if the question is whether --
2 THE COURT: For a conspiracy.
3 MR. MICHELMAN: Well -- that's right, two or more
4 people --
5 THE COURT: Who is the other person with the former
6 president?
7 MR. MICHELMAN: I think we have statements from
8 Attorney General Barr and Defense Secretary Esper about how
9 these protestors must be dominated. And as we noted at the
10 final footnote of our complaint in ECF 98, if this is the
11 sticking point and Your Honor needs more allegation on the
12 conspiracy, we are prepared to amend the complaint and have
13 spoken with whistleblowers who are prepared to tell us -- and
14 this is specifically note 13 at ECF 98 -- that there was a
15 discussion within the White House of the need to, quote, mow
16 down the protestors, quote, to show them who was in charge and
17 the use of discriminatory remarks in relation to the death of
18 George Floyd and subsequent racial justice protests.
19 So this is not just one guy, but what we are saying is it
20 does not have to be every person. Rather, the general
21 conspiratorial objective as was suffice in --
22 THE COURT: And the class being? How would you define
23 the class?
24 MR. MICHELMAN: The class would be all who were
25 injured by the conspiracy. And I turn there to the text of

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1 Section 1985, which says -- let's see. "In any case of a
2 conspiracy set forth in this section, if one or more persons
3 engaged therein do or cause to be done any act in furtherance of
4 the object of such conspiracy, whereby another is injured." So
5 anybody, another, any person. Then later in the text, "The
6 party so injured or deprived may have an action for the recovery
7 of damages."
8 So we believe the entire group of people who were cleared
9 out, all the protestors that day, in addition to being attacked,
10 being deprived of their First Amendment rights, their Fourth
11 Amendment rights, et cetera, were also injured by this
12 conspiracy.
13 And now we are talking about the intent. This conspiracy
14 was aimed specifically at black people and their supporters.
15 The president said he would welcome MAGA demonstrators. He was
16 supportive of protestors at state houses throughout the country
17 against COVID restrictions. But he thought this group of people
18 were thugs and terrorists.
19 THE COURT: And in your proposed amendment that you
20 would proffer here is a statement to mow down black people and
21 their supporters?
22 MR. MICHELMAN: A statement to mow down the
23 protestors, combined with discriminatory remarks made by White
24 House officials about the death of George Floyd and the protest
25 that followed. And that is on page 84 of ECF 98 at footnote 13.

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1 There's an entire paragraph saying exactly what we would allege.
2 And so if Your Honor dismisses the conspiracy claims, we
3 would ask that that dismissal be without prejudice so that we
4 may add those allegations and so that the claim can be tested
5 fully on the merits.
6 So I don't want to interrupt the Court's ability to ask
7 other questions. There are other colleagues who are ready to
8 speak to questions about venue, questions about Posse Comitatus.
9 But if Your Honor is finished on municipal liability,
10 justiciability, and conspiracy, then I will turn it over.
11 THE COURT: Okay. Thank you, Mr. Michelman.
12 Whoever is going to speak on venue, I don't think I need to
13 hear on the Posse Comitatus, but the venue piece, if you could
14 briefly address that.
15 MS. CHAMPION: Sure, Your Honor.
16 So I think the main thing here is that Mr. Samuel's
17 argument really rests on a false premise that the MCRMA governs
18 all mutual aid agreements. It just simply doesn't. It's not
19 the exclusive source of authority for these types of agreements,
20 and the statute, in fact, specifically notes that this does not
21 diminish any other authorities to enter into such agreements.
22 That's at note (b)(3)(B).
23 And the statute is very specific about what mutual aid
24 agreement it does govern. This is not one of them. I'm sure
25 Your Honor has grasped the issue that we've raised in the
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1 briefing, which is that the Chief of the Park Police was not
2 designated to enter into these agreements. Designation requires
3 an affirmative act. They do not -- defendants do not even
4 contend that they have express authority here. Instead, they
5 rely on implied authority, and in doing so, they cite to a
6 Department of the Interior manual that predates the MCRMA and
7 nowhere mentions it. And even if it did, it doesn't support
8 their argument.
9 In fact, that manual says things like mutual aid assistance
10 is encouraged where authorized. It says that the use of outside
11 law enforcement agencies will only be considered when
12 appropriate management and law enforcement officials determine
13 that a need exists beyond the capability of the bureau, office,
14 law enforcement unit. It states department enforcement
15 capabilities will be utilized to their fullest before requesting
16 outside assistance.
17 Nothing in this manual indicates that the Chief of the Park
18 Police has some kind of implied authority that overrides a
19 statutory requirement that these agreements be entered into by
20 an authorized representative of the federal government, which
21 means an individual designated by the president with respect to
22 the executive branch or one of that designated person's
23 designees. Again, that's note (a)(1) of the statute, which is
24 42 U.S.C. 5196.
25 Indeed, the agreement that they proffer doesn't meet these

109
1 requirements on either side, because on the municipal side it
2 has to be entered into by the governor or the chief operating
3 officer of the locality or their designees. They've also
4 produced no evidence that the chief of police had authority to
5 enter into an agreement under the MCRMA.
6 So quite simply, this agreement just does not follow under
7 the MCRMA, and it creates no venue for them in Virginia.
8 THE COURT: Okay.
9 MS. CHAMPION: Did you want me to address the
10 contractual issue with the venue provision?
11 THE COURT: No, that's fine. Thank you, Ms. Champion.
12 MS. CHAMPION: No problem.
13 THE COURT: Mr. Michelman, is there anyone else?
14 MR. MICHELMAN: No. Your Honor, if you have no
15 further questions, I would just conclude on this note: This
16 attack on the demonstrators in Lafayette Square was a grievous
17 affront to our constitutional norms and our constitutional
18 rights. And although Your Honor has delved into a number of
19 thorny issues about the power of the courts to give redress, I
20 think at bottom this is the type of case that Congress and the
21 D.C. Circuit have indicated is appropriate for this Court to
22 hear and that, frankly, it is necessary for this Court to hear
23 to ensure that the type of grave abuses that we've seen do not
24 go unchecked and are not permitted to continue.
25 THE COURT: All right. Thank you, Mr. Michelman.

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1 Mr. Hair, I don't know if you're the appropriate person to
2 address some of these issues. I will give you a little bit of
3 time to respond to the plaintiffs' arguments.
4 MR. HAIR: Sure, Your Honor. Briefly with respect
5 to -- can you hear me, Your Honor? I'm sorry.
6 THE COURT: Yes. I know Mr. Cutler argued the Bivens
7 claims, but I can't remember who argued what now. I just
8 thought I would give you each a few minutes to make any
9 responses.
10 MR. HAIR: I argued the official capacity claim. So I
11 will just briefly touch on those.
12 What I've heard a lot today is that the use of law
13 enforcement was a pretext to mass discrimination against
14 demonstrators. I think it's impossible to ignore the impasse of
15 the change of the administration on that issue, either in terms
16 of standing or mootness.
17 Of course, I understand and I think I mentioned in my
18 initial presentation that there's a high burden for mootness,
19 and we're not claiming otherwise. That certainly was the
20 standard that applied in the Portland area cases, and it applies
21 here.
22 But as I said before, I think it really depends on the
23 context of the case, and here, while a complete repudiation
24 might give the Court some -- something more to go off of, I
25 think it would be inappropriate whether you know specific

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1 unlawful policy at issue to repudiate. This was simply past
2 events. So it would make very little sense for President Biden
3 or any member of his administration to repudiate an unlawful
4 policy that we haven't actually established.
5 And just a final point, Your Honor, on organizational
6 standing. I appreciate the colloquy between you and
7 Mr. Michelman about that issue.
8 I think our primary point there is that there's really
9 no -- while organizational standing is certainly different and
10 there's different precedent applied in interpreting whether or
11 not an organization plausibly reflects standing, the gravamen of
12 the standing argument with respect to the Black Lives Matter
13 D.C. organization has to do with this underlying chilling
14 effect. And whether it be medical supplies or hesitation to
15 demonstrate, I think that is sort of the subjective inquiry that
16 kind of takes us out of an area where we can find standing, say,
17 for Black Lives Matter D.C. as an organization and perhaps not
18 for the individual plaintiff. I don't see much daylight in
19 between those issues.
20 So unless there are any questions, Your Honor, I will rest.
21 THE COURT: Can you address Mr. Michelman's point
22 about even though there is perhaps no intent to restrain, the
23 fact that the bullets, the pepper spray, whatever else, the
24 batons caused people to stop and actually did seize them.
25 MR. HAIR: I think that would be a better question for

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1 my colleagues in the Constitutional Torts Branch.
2 THE COURT: Okay. Who is next? That question can
3 wait, if someone is -- Mr. Cutler, is that you?
4 MR. CUTLER: Yes. Good afternoon.
5 THE COURT: I can save that for later. But address
6 briefly the points on Bivens. Is there no (distorted audio)
7 that can be done here?
8 MR. CUTLER: I'm sorry?
9 THE COURT: Is there no limit? Mr. Michelman's point
10 that there's no Bivens claim, can there be no liability if the
11 federal agents literally fired shots on a peaceful crowd?
12 MR. CUTLER: Your Honor, we're not arguing that
13 federal officials can violate rights with impunity and that
14 there is no sort of remedy for that. We've identified a host of
15 alternative remedies for officers who violate people's rights in
16 the name of presidential security. We have identified equitable
17 remedies. We've identified other statutory damages remedies.
18 But the question is, is the decision to add a nonstatutory
19 Bivens remedy on top of all of those existing remedies is the
20 question that is most often -- is a question for Congress, and
21 most often, it's for Congress and is certainly the case in a
22 case like this one when there is an issue of presidential
23 security.
24 I can briefly address the Court's additional questions. I
25 have two brief points I can make --

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1 THE COURT: Go ahead and make your brief points.
2 MR. CUTLER: Okay, briefly.
3 Your Honor, the plaintiffs allege again with the idea that
4 the FDCA amendments somehow lead to expansions of Bivens. The
5 D.C. Circuit in Meshal has rejected those arguments or taken a
6 different view of those arguments, and the Supreme Court in
7 Hernandez just last year said that the FDCA amendments are not
8 likely to expand Bivens into new contexts not previously
9 recognized by the Supreme Court.
10 My final point, Your Honor, which is on Dellums, Dellums
11 for new context purposes has been overtaken. That's what the
12 D.C. Circuit said just a year ago in Loumiet. As far as the new
13 context analysis, two points. One, Dellums did not involve a
14 presidential appearance. So it's factually different. And two,
15 Dellums predated 40 years of subsequent Supreme Court precedent
16 elaborating on expanding the special factors test and
17 restricting Bivens liability in this context.
18 So that's all I have on the Bivens question. Any other
19 questions, Your Honor?
20 THE COURT: No, sir. Thank you.
21 MR. CUTLER: Thank you very much. And Your Honor, I
22 don't think we have any additional rebuttal from the individual
23 federal capacity defendants.
24 THE COURT: Do you or anyone else want to address this
25 argument that keeps resurfacing about the shifting

114
1 justifications for clearing the park?
2 MR. CUTLER: Your Honor, the justification, the
3 presidential security justification is a response to what
4 plaintiffs have alleged in the case. One of the -- they alleged
5 that the president showed up, and they alleged in paragraph 8 of
6 the BLM complaint that the White House requested the Secret
7 Service, which in turn requested assistance from other federal
8 agencies in clearing the park. So we are responding to what the
9 complaint alleges.
10 I know that that paragraph is omitted from the timeline.
11 We don't think that's an important allegation. But of course,
12 paragraph 4 of the BLM complaint, the purpose was to clear the
13 park for the purpose of a photo opportunity, and that's why
14 we're responding to that.
15 Does that answer the Court's question?
16 THE COURT: Yes. Thank you.
17 MR. CUTLER: No further arguments, Your Honor.
18 THE COURT: Mr. Hair, does Mr. Martin have any further
19 points?
20 MR. MARTIN: No, Your Honor.
21 MR. HAIR: Nothing additional from me, Your Honor.
22 THE COURT: All right. Who would address this intent
23 to restrain? Mr. Sobiecki?
24 MR. SOBIECKI: I was not going to address -- I can.
25 If I can hit three other quick points, Your Honor.

115
1 I want to go to Section 1985. Mr. Michelman was just
2 talking about it. It's not the object of the conspiracy. I'm
3 not really sure how that would work. I would point Your Honor
4 to Thomas v. News World Organizations. There, you had the Young
5 Americans For Freedom and The Washington Times were alleged to
6 be co-conspirators. The Court examined the intent of those
7 entities separately. It did not simply say well, Young
8 Americans for Freedom had this requisite intent, therefore I
9 don't need to look at The Washington Times. Let's say President
10 Trump kept his motivation secret and then other people joined
11 this conspiracy. We're not going to impute the motive to them.
12 Griffin v. Breckenridge also, the Supreme Court looked at
13 the intent of the defendants' actions, the individuals joined in
14 the conspiracy. You have to want to advance the goal of the
15 conspiracy. You're just not kind of joining -- if you're
16 joining for your own reason, you're not -- it doesn't satisfy
17 Section 1985.
18 On judicial notice, I just want to make clear,
19 Mr. Michelman was clear to say that Your Honor should not accept
20 all of the characterizations in the mayor's curfew order. That
21 may be the case. I don't think that's what we're looking for.
22 I think what we're really saying and I think Your Honor gets it,
23 it's the principal facts in the order and was there widespread
24 disruption across the District on May 30 and May 31. I did not
25 hear any plaintiffs dispute that.

116
1 On the COVID point, I think maybe Mr. Crain misheard me. I
2 was not raising COVID in this context. I was just saying
3 judicial notice, we're coming off a long run of courts invoking
4 judicial notice to kind of accept facts that we as a society do
5 not dispute.
6 Coming back to the Fourth Amendment, intent to restrain,
7 this was not -- and I know we have to stick to the allegations
8 in the complaint. This was not an uninterrupted course of
9 events. The plaintiffs cite an article that goes through a
10 chron of the course of events. You had kind of stages. So you
11 had the federal plaintiffs begin at 15th. They keep saying a
12 block away. It's 15th and then 16th and then Connecticut and
13 then 17th Street where they allege the District defendants were
14 located. So we have three full city blocks separating where the
15 events started and where the District defendants were
16 positioned. And they then over the course of 10 minutes moved
17 1,000 feet from 15th to Connecticut. And then at the very end
18 of that, you had a small group of protestors head around the
19 District defendants.
20 So I'm not sure if that gets to your intent to restrain. I
21 think I would just go back to what I said earlier. These
22 were -- it was a split-second decision. They were facing a
23 crowd that had just gone through, as plaintiffs allege, a very
24 stressful situation and were looking to de-escalate the
25 situation.
117
1 Now, I understand it was not 7:00 p.m. exactly, but I'm not
2 sure why, you know, at 6:59 it just doesn't -- how are they
3 going to get off the streets in the next 60 seconds, 90 seconds.
4 So I think it's not as if this is 3:00. We are right on the
5 cusp of the curfew happening.
6 And so when all of those are taken together, I don't think
7 there's been a Fourth Amendment violation.
8 THE COURT: All right. Thank you. Anyone else?
9 Mr. Michelman, let me just ask you or whoever on your team
10 is the appropriate person to ask this, but does anyone dispute
11 that the District officers were three blocks away?
12 MR. MICHELMAN: Well, I think as Your Honor may know
13 from the layout of the city grid, there's one block between 16th
14 where St. John's Church is located, which is in the middle of
15 Lafayette Square, and 17th. Connecticut happens to come in in
16 the middle of those because it's a diagonal street. And so it
17 doesn't follow the grid. I mean, if this is about one block or
18 two blocks --
19 THE COURT: They're not on the square?
20 MR. MICHELMAN: The BLM plaintiffs agree they are not
21 on the square. However --
22 THE COURT: I guess I'm wondering if any of the other
23 plaintiffs who maybe have not alleged that, is this really a
24 fact in dispute. I don't know that it matters at all. I know
25 there has been some back and forth in the briefing, and I just
118
1 want to make sure that I understand your respective positions.
2 MR. MICHELMAN: So the Buchanan plaintiffs have
3 alleged that the MPD officers were at the square. We allege
4 that the MPD officers were one block away, i.e. 17th, not 16th,
5 where the crux of the federal action occurred. But given the
6 proximity, the proximity in time, the fact that the people
7 running from the federal assault were basically funneled
8 continuously by the D.C. officers again in the District's
9 preferred direction, again further away from the site of the
10 protest, we are entitled to the inference that that was a
11 coordinated action because it took place in a coordinated
12 manner.
13 And frankly, I have to say that Mr. Sobiecki's suggestion
14 that anyone was trying to, quote, de-escalate by using tear gas
15 I don't think should persuade the Court.
16 THE COURT: All right, then. Anybody else?
17 I want to thank all of you again for the excellent briefing
18 and argument.
19 Mr. Hair, are you popping on to say something?
20 MR. HAIR: No, Your Honor. I just wanted to be
21 present while you're --
22 THE COURT: All right. Again, I thank you all, and I
23 am going to take this under advisement, and I hope to issue an
24 opinion in the not too distant future.
25 (Proceedings adjourned at 1:22 p.m.)

119
1 CERTIFICATE OF OFFICIAL COURT REPORTER
3 I, Sara A. Wick, certify that the foregoing is a
4 correct transcript from the record of proceedings in the
5 above-entitled matter.
7 Please Note: This hearing occurred during the
8 COVID-19 pandemic and is, therefore, subject to the
9 technological limitations of court reporting remotely.
10
11
12 /s/ Sara A. Wick June 13, 2021
13 SIGNATURE OF COURT REPORTER DATE
14
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1

1 BEFORE THE UNITED STATES DISTRICT COURT

3 BLACK LIVES MATTER D.C., et al., .

24 TRANSCRIPT OF MOTIONS HEARING

2 For Black Lives Matter

10 JOHN FREEDMAN, ESQ.

18 For Individual Capacity

21 For Individual Capacity

2 For Individual Capacity

11 For Arlington County

20 Official Court Reporter: SARA A. WICK, RPR, CRR

2 (All participants present via video conference.)

3 THE COURTROOM DEPUTY: Your Honor, we are in Civil

4 Actions 20-1469, Black Lives Matter D.C., et al., versus Trump,

5 et al.; Civil Action 20-1543, Radiya Buchanan versus Trump,

6 et al.; Civil Action 20-1622, Ryan Roth versus Trump, et al.;

7 and Civil Action 20-2163, Isabella Kavanagh versus Trump, et al.

8 Mr. Michelman, please introduce counsel for the plaintiffs.

9 MR. MICHELMAN: Thank you. And good morning, Your

10 Honor. My name is Scott Michelman of the ACLU of the District

11 of Columbia on behalf of the Black Lives Matter plaintiffs.

12 And with me are co-counsel from the ACLU, Arthur Spitzer

13 and Michael Perloff, as well as others on the phone; Kaitlin

14 Banner of the Washington Lawyers' Committee on the video, as

15 well as others by phone; Noah Baron and David Brody of the

16 Lawyers' Committee for Civil Rights Under Law, with others

17 appearing by phone; and John Freedman of Arnold & Porter, with

18 others appearing by phone.

19 For the Buchanan plaintiffs, we have Randy Mastro, Lee

20 Crain, Matthew Aiken, Naima Farrell, and Amanda LeSavage, with

21 others appearing by phone.

23 Emily Lagan and Patrick Regan, with potentially others appearing

2 up by issue, and all of us -- each of us in our issue areas will

3 speak for all of the plaintiffs.

4 THE COURT: All right. Good morning, Mr. Michelman

5 and everyone else. Who do we have for the defense?

6 MR. CUTLER: Good morning, Your Honor. David Cutler

7 from the Department of Justice. I represent the individual

8 capacity defendants in Black Lives Matter, along with my

9 colleague, John Martin.

10 Also with me this morning from the Department of Justice,

11 Kelly Heidrich for the Roth and Kavanagh cases, individual

12 capacity defendants in Roth and Kavanagh, and then Sarah Whitman

13 for the federal individual capacity defendants in Buchanan.

15 THE COURT: All right. Good morning all.

16 MR. SOBIECKI: Your Honor, Rick Sobiecki of the Office

17 of Attorney General on behalf of the District of Columbia. With

18 me is Duane Blackman and Brendan Heath today. Good morning.

19 THE COURT: Good morning.

20 MR. SAMUEL: Ryan Samuel, Assistant County Attorney in

21 Arlington County for the Arlington County defendants.

22 THE COURT: Good morning. Is that everyone?

23 MR. HAIR: Good morning, Your Honor. This is

24 Christopher Hair of the United States Attorney's Office in the

25 District of Columbia for the official capacity federal

1 defendants, along with my co-counsel Special Assistant Sean

3 MR. MAHARD: Good morning.