6 Trial Lawyer • Summer 2023 Michelle Burrows By Michelle Burrows OTLA Guardian “We cannot understand our present moment without recognizing the lasting damage caused by allowing white supremacy and racial hierarchy to prevail . . .” Bryan Stevenson, Director, Equal Justice Initiative In June 2020, several lawyers came together forming a team dedicated to suing the United States for the horrifying abuses witnessed during the summer of 2020. The plans were big, the goals lofty, the passion real, but reality quickly challenged even the most hardened and experienced litigator. The United States is a nearly impossible foe and often presents a real and serious danger for justice and due process if left in the hands of the wrong people. On May 28, 2020, following George Floyd’s death, months of sustained protests in Portland began. The Portland Police responded with generalized violence including the use of batons, pepper balls, sonic weapons and tear gas. Between June 9 and June 30, 2020 limitations were imposed on the use of tear gas and other force. On June 26, 2020 reacting to Oregon’s attempt to de-escalate police violence against protestors then-President Trump issued Executive Order 13933 unlawfully deploying over 700 federal agents to Portland. The Department of Homeland Security, Secret Service and the US. Marshal’s Service deployed unidentified agents without any insight as to who the agents worked for. For over 30 days, these deployed agents engaged with the public as enemy combatants. On July 6, 2020, Portland U.S. Attorney’s office advised the ostensible purpose of the deployment was to protect federal property and personnel. However, immediately on arrival, federal agents acted to quell nonviolent protesters by engaging in crowd-dispersal operations, deploying tear gas and impact munitions well beyond the immediate surroundings of federal property. Federal agents chased down protesters, observers, medics, journalists and even bystanders through the streets, pursuing them as many as 10 blocks beyond federal property while simultaneously firing potentially lethal munitions including pepper-spray balls, rubber bullets and flashbang grenades. Sometimes citizens were simply taken from the streets and tossed into unidentified vans. Federal agents blanketed numerous blocks of Portland public streets surrounding the courthouse in toxic tear gas and chemical agents during a global pandemic, concealing or blocking the pathways for protestors to safely disperse. Identifying the defendants The class action Clark v. Wolf USDC 3:20-cv-0143 was a Fourth Amendment Bivens action against individual agents involved in unreasonable force during the summer of 2020. Bivens’ actions must be brought against individuals. The first task was simply to identify the agents involved. Each agents wore a heavy gas mask, gloves and bore no identification of agency or personal name. They were the faceless provocateurs in an invasion of Oregon streets. The United States appeared but not as a named party. It held the discovery and information needed to advance the Clark case. Several supervisory defendants were named. A mandatory Rule 26 discovery conference must be held in any federal case. No one knew who the 700 unidentified defendants were and the United States would not provide information for service or identification. The plaintiff first sought consent from the court to issue a third party subpoena for the sole purpose of identifying the suing the united states of America: what to do when nothing works
RkJQdWJsaXNoZXIy MTY1NDIzOQ==