HILTON et al v. NOEM et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ELINOR HILTON, et al., 	)
)
Plaintiffs, 	)
)
v. 	) 	No. 2:26-cv-00092-JAW
)
KRISTI NOEM, 	)
in her official capacity 	)
as Secretary of the United States 	)
Department of Homeland Security, 	)
et al., 	)
)
Defendants. 	)
ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER
In a putative class action alleging the government violated Mainers’ First
Amendment right to observe and record immigration enforcement operations in
public, the named plaintiffs seek an emergency order from this court, requiring the
government, its officers, and agents not to collect, maintain, or disseminate the
named plaintiffs’ biometric and personal data or otherwise threaten to or retaliate
against them in response to exercising their First Amendment rights. 	Given the
current 	evidence 	in 	the 	record, 	the 	court 	cannot 	conclude 	that 	a 	temporary
restraining order should issue at this time. 	Furthermore, the scope of relief the
named plaintiffs seek at this stage is too broad and too vague and likely unenforceable
under the law. 	The court concludes that this lawsuit raises serious constitutional
issues that are better aired and resolved on a nonemergency basis.
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I. 	BACKGROUND1
A. 	Procedural History
On February 23, 2026, Plaintiffs filed a class action complaint against the U.S.
Department of Homeland Security (DHS) and several of its component agencies,
officials, and agents, alleging that several unnamed Immigration and Customs
Enforcement (ICE) agents (collectively, Defendants) violated their First Amendment
rights while Plaintiffs and other class members were observing and recording
immigration enforcement operations in Maine, in part by threatening to place them
on an alleged “terrorist watchlist.” Class Action Compl. for Decl. and Inj. Relief (ECF
No. 1) (Compl.). 	That same day, the named Plaintiffs in this action moved for a
temporary restraining order (TRO) seeking immediate injunctive relief prohibiting
Defendants from (1) collecting, maintaining, or disseminating their biometric and
other personal 	data 	based on 	their observation 	and recording 	of 	immigration
enforcement activity; (2) placing the named Plaintiffs in any alleged government
database or “terrorist watchlist”; and (3) threatening or placing them in any such
database or watchlist, or otherwise retaliating against them based on their First
Amendment-protected activity. Mot. for TRO (ECF No. 3).
On February 27, 2026, the Court held a telephone conference and set an
expedited briefing schedule on Plaintiffs’ motion for a TRO. Min. Entry (ECF No. 17).
On March 10, 2026, Defendants filed their response in opposition to the TRO. Defs.’
1 	In ruling on the motion as quickly as possible, the Court has done its level best, but the parties
should appreciate “the temporal constraints under which the district court labored.” See Bl(a)ck Tea
Soc’y v. City of Boston, 378 F.3d 8, 15 (1st Cir. 2004).
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Opp’n to Pls.’ Mot. for TRO and Req. for Immediate Relief (ECF No. 18) (Defs.’ Opp’n).
On March 12, 2026, Plaintiffs filed their reply in support of their motion for a TRO.
Pls.’ Reply Memo. of Law in Supp. of Pls.’ Mot. for TRO (ECF No. 20) (Pls.’ Reply).
The Court heard oral argument on March 16, 2026. Min. Entry (ECF No. 22).
B. 	Factual Background
For the purposes of the requested TRO, the Court reviews the relevant facts as
pleaded in the verified complaint and the declarations submitted by the parties,
which the Court takes as true at this stage of the proceeding.
1. 	The Parties
The named Plaintiffs are Elinor Hilton and Colleen Fagan, residents of
Portland, Maine. Compl. ¶¶ 8-9. Both Plaintiffs allege Defendants, during separate
encounters in late January 2026, collected their biometric data and license plate
information 	and 	made 	threatening 	and 	intimidating 	remarks 	to 	Plaintiffs 	for
observing and recording ongoing immigration enforcement activity in public. Id.
The complaint names as defendants DHS and several of its component
agencies, including U.S. Homeland Security Investigations (HSI), U.S. Customs and
Border Protection (CBP), U.S. Border Patrol (USBP), and ICE; several DHS officials,
including Kristi Noem in her official capacity as the Secretary of Homeland Security,
Todd Lyons in his official capacity as the senior official currently performing the
duties of the Director of ICE, John A. Condon in his official capacity as the Acting
Executive Associate Director for ICE’s HSI directorate, Rodney Scott in his official
capacity as the Commissioner of CBP, Michael Banks in his official capacity as the
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Chief of the USBP, as well as several unidentified federal agencies, departments, or
components of the U.S. government whose employees or agents, acting under color of
federal law and within the scope of their federal employment and duties, are
participating in the allegedly unlawful conduct described in the complaint; and
finally, several unidentified federal immigration enforcement agents and officers,
acting under color of federal law and within the scope of their federal employment
and duties, who are participating in the allegedly unlawful conduct described in the
complaint. Id. ¶¶ 10-21.
2. 	January 2026 Immigration Enforcement Operations in
Portland, Maine
In 	late 	January 	2026, 	Defendants 	conducted 	immigration 	enforcement
operations focused on Portland, Maine, unceremoniously referred to as Operation
“Catch of the Day,” in which DHS publicly announced a “target list” of 1,400
individuals to arrest. Id. ¶ 25. 	Defendants arrested more than two-hundred people
within the first week of the operation, and immigration enforcement activity has
continued into February and March, though Defendants maintain these operations
have diminished since January 25, 2026. Id.; Defs.’ Opp’n at 4 & Attach. 2, Decl. of
Assistant Field Off. Dir. Stephen W. Wells ¶ 6 (Wells Decl.).
a. 	Plaintiff 	Colleen 	Fagan’s 	January 	23, 	2026,
Encounters with Federal Immigration Enforcement
Agents
On two separate occasions on the morning of January 23, 2026, Plaintiff
Colleen Fagan exercised her First Amendment right to observe and record law
enforcement activity in public. Id. ¶¶ 31-37. The first of the two encounters on the
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morning of January 23, 2026, occurred while Ms. Fagan was driving on Westbrook
Street in South Portland during which Ms. Fagan pulled over to the opposite side of
the road to observe, and from her own car, began to record on her phone as federal
agents questioned and ultimately arrested a woman. Id. ¶¶ 35-36. Ms. Fagan reports
that she observed the arrest without issue. Id. ¶ 35. Ms. Fagan remained in her own
car during the arrest and federal agents did not indicate to her that she was
obstructing or impeding their arrest. Id.
The second encounter began later that same morning in the parking lot of a
different apartment complex on Westbrook Street. 	Id. ¶ 37. 	While driving through
the neighborhood, Ms. Fagan noticed at least two large, black vehicles she thought
contained federal agents stopped inside the complex and blocking some of its parking
spots. 	Id. ¶ 38. 	Ms. Fagan parked her car several car lengths away from federal
agents and began to record. 	Id. ¶¶ 39. Immediately after she began recording, two
federal agents, with their smartphones out as if to record video or take photos,
approached Ms. Fagan, as well as a second individual who was also observing. 	Id.
¶ 40. One agent (Agent 1) came up close to Ms. Fagan and appeared to film her face
before walking back to his vehicle. 	Id. ¶ 41-42. 	A second agent (Agent 2) walked
behind Ms. Fagan to her vehicle and appeared to document her license plate number
using his smartphone. Id. ¶ 43.
Ms. Fagan perceived the Agents to be recording, scanning, or otherwise
capturing her biometrics and license plate information. 	Id. ¶ 42-43. 	Upon Ms.
Fagan’s asserting her right to record law enforcement in public, Agent 2 replied
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“Exactly, that’s what we’re doing.” Id. ¶ 44. When Ms. Fagan asked Agent 2, “Why
are you taking my information down?”, Agent 2 responded, “Cause we have a nice
little database. 	And now you’re considered a domestic terrorist, so have fun with
that.” Id. ¶ 45. Like her earlier encounter that morning, the Agents did not tell Ms.
Fagan that she was acting unlawfully or that she was obstructing or impeding law
enforcement activity. Id. ¶ 47.
b. 	Plaintiff Elinor Hilton’s January 21, 2026 Encounter
with Federal Immigration Enforcement Agents
On the morning of January 21, 2026, Plaintiff Elinor Hilton observed and
recorded federal agents making an arrest in the South Portland Home Depot parking
lot. Compl. ¶ 54. Ms. Hilton parked in a public parking spot several rows away from
the agents before exiting her vehicle to observe and record the arrest. Id. ¶ 55. Ms.
Hilton observed two groups of federal agents, a pair of agents (Agents 3 and 4) using
their vehicle to block off an area of the parking lot near the store’s garden center and
a second group of at least four agents farther back in the corner of the parking lot
who appeared to be attempting to detain or arrest one or more individuals. Id. ¶ 54.
Almost immediately after Ms. Hilton began recording, one of the two agents closer to
her (Agent 3) began using his smartphone to record Ms. Hilton. Id. ¶ 56. Ms. Hilton
walked past the two agents to get a better view of the group of agents she believed
were making an arrest. Id. ¶ 57. Neither Agent 3 nor 4 told Ms. Hilton to stop. Id.
As Ms. Hilton moved to a closer vantage point, one of the agents from the arrest
group (Agent 5) walked toward Ms. Hilton and ordered her not to move any closer;
she complied. 	Id. ¶ 58. 	While Ms. Hilton was speaking with Agent 5, Agent 3 got
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into his vehicle, drove around Ms. Hilton, and then swerved right in front of her,
blocking her view of the second group of agents. 	Id. ¶ 59. 	Then, Agent 3 exited his
vehicle, stepped in front of Ms. Hilton, and began filming her again. 	Id. ¶¶ 59, 61.
Around this time, another agent (Agent 6) reiterated the earlier order not to come
closer; again, Ms. Hilton complied. 	Id. ¶ 60. 	Meanwhile, another agent (Agent 8)
approached Ms. Hilton, stopping within approximately six inches of her face, and
proceeded to record her with his smartphone. 	Id. ¶ 62. 	As both Agents 3 and 8
continued to record Ms. Hilton, Agent 8 asked the other, “which car did she get out
of? Was it this car?”, to which Agent 3 replied, “I got ‘em, I got ‘em. Yeah, I got ‘em.”
Id. ¶ 63. Agent 3 then said to Ms. Hilton, “I hope you know that if you keep coming
to things like this, you are going to be on a domestic terrorist watchlist. Then we’re
going to come to your house later tonight.” 	Id. ¶ 64. Agent 3 then turned to Agent 8
and said, “she’s just going on the domestic terrorist watchlist.” Id. Agent 8 replied,
“Oh, absolutely.” Id. Around the same time, Agent 8 told Agent 5 “she’s going on a
domestic terrorist watchlist. 	I just want to put it in,” to which Agent 5 replied,
“absolutely, go for it.” Id. ¶ 65.
Moments later, another observer arrived and began recording the agents, as
well. Id. ¶ 66. Agent 8 told the new observer, “We’re gonna do the same thing. Just
for a warning, we’re putting you into a watchlist.” Id. ¶ 67. A moment later, Agent
6 pointed at the new observer and said, “Take a picture of this guy! We’ll put him on
the watchlist.” 	Id. 	As more observers arrived, the Agents directed Ms. Hilton and
the other observers to move farther away; they complied. Id. ¶ 69.
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Ms. Fagan and Ms. Hilton do not believe the federal agents involved in their
separate encounters are the same agents, and Defendants have not contested this
assertion or provided evidence to the contrary. Id. ¶ 70.
c. 	Other Unnamed Plaintiffs Encounters with Federal
Immigration Enforcement Agents in January 2026
Plaintiffs report similar encounters between Mainers and federal agents. 	Id.
¶¶ 71-82. 	In some cases, Mainers, who exercised their First Amendment right
observe federal agents, report that upon following federal agents’ vehicles from a safe
distance to document their conduct, were led by those agents to the observers’ own
homes. 	Id. ¶¶ 72-76, 81. 	Federal agents told one observer, “This is a warning. 	We
know where you live,” and told another observer “This is your one warning. 	You’re
impeding an operation.” Id. ¶ 77.
3. 	Relevant DHS Technology
DHS, like many law enforcement agencies, uses advanced technologies to
achieve its mission, including facial recognition software and license plate readers.
Id. ¶ 93; Def’s Opp’n, Attach. 2, Decl. of Assistant Special Agent in Charge Jeffery P.
Barbero ¶ 8 (Barbero Decl.). 	In May 2025, Defendants ICE and CBP began using a
new facial recognition app, Mobile Fortify, that enables agents to identify an
individual 	using a smartphone 	camera. 	Once 	an agent takes 	a 	photo 	of an
individual’s face, the app searches through approximately 200 million images across
several 	government 	databases 	to 	quickly 	identify 	subjects 	of 	interest 	during
operations. Id. ¶¶ 94-95. DHS agents use Mobile Fortify in the field, and all photos
taken using Mobile Fortify are retained in DHS’s Automated Targeting System for
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fifteen years, along with geolocation data tracking where an agent’s encounter with
the individual took place. 	Id. ¶ 95-97. 	In other operations outside Maine, ICE has
used facial recognition tools provided by Clearview AI, which deploys a private
database of billions of images scraped from online sources, including social media,
YouTube, and millions of other websites. Id. ¶ 98.
DHS also uses license plate readers that allow agents to obtain information
about a vehicle’s owner and travel history. Id. ¶ 99. In November 2025, ICE began
using a mobile app called Mobile Companion to scan a license plate using a
smartphone. 	Id. ¶ 100. 	The agent is then able to access previous sightings of the
vehicle, information about the vehicle’s travel patterns, and data from private data
brokers including phone numbers, addresses, associates, social media activity, driver
license data, voter registration, and more. Id. 	The Mobile Companion app can also
be 	used 	to 	set 	up 	watchlists 	of 	license 	plate 	numbers 	and 	obtain 	real-time
notifications whenever a listed vehicle is captured on a national camera network. Id.
USBP also uses a network of license plate readers and predictive intelligence to
identify and detain individuals whose travel patterns it considers suspicious. 	Id.
¶ 101.
4. 	Relevant DHS Policy
DHS official policy regarding First Amendment protected activities prohibits
DHS and its personnel from profiling, targeting, or discriminating against any
individual for exercising his or her First Amendment rights. Defs.’ Opp’n, Attach. 4,
DHS Policy Memo. at 1. DHS also prohibits maintaining records that describe how a
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U.S. citizen exercises his or her First Amendment rights, including information about
an individual’s lawful participation in protests or other non-violent demonstrations
against 	government 	policy 	or 	actions, 	unless 	expressly 	authorized 	by 	statute,
pertinent to or within the scope of authorized law enforcement activity, or by the
consent of the individual about whom the record is maintained. Id. at 1-2.
Following the encounters described, federal agents in Maine were reminded of
DHS standing policy and informed not to tell individuals they will be on a database
or watchlist simply for exercising their First Amendment rights. Barbero Decl. ¶ 11;
Wells Decl. ¶ 8-10. 	ICE and HSI searched their respective databases and report
neither Ms. Hilton’s nor Ms. Fagan’s information was entered into a database and
that neither Plaintiff is under investigation or monitoring related to the complaint’s
alleged encounters. Barbero Decl. ¶¶ 9-10; Wells Decl. ¶ 9. As to Ms. Fagan’s second
encounter with federal agents on January 23, 2026, ICE’s Assistant Field Office
Director Stephen Wells, the supervisor overseeing the Maine operation, states that
he is “still reviewing the facts of this incident to determine whether any disciplinary
action will be taken” and that he neither “approve[s] nor condone[s]” the alleged
conduct. Wells Decl. ¶¶ 8, 10.
5. 	Plaintiffs’ Complaint
Plaintiffs allege Defendants and other federal agents acting at their direction
are unlawfully retaliating against Mainers for exercising their First Amendment
right to observe and record immigration enforcement activity in public spaces. 	See
Compl. 	They allege Defendants use government surveillance capabilities to collect
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and track personal information about observers and other protestors, and in some
cases, deploy those surveillance tools and the information collected to threaten and
harass Mainers to deter them from exercising their constitutional rights. Compl. ¶ 3;
27-82. They allege Defendants in Maine have engaged in a policy and practice, at the
direction of DHS leadership, to chill the exercise of protected activity by collecting
Plaintiffs’ biometric and personal information, often by scanning their faces or license
plates, and then storing that information in a database or “terrorist watchlist.” Id.
¶ 29; 83-102. 	They further allege that Defendants have used that identifying
information 	to 	deter 	First 	Amendment-protected 	activity 	by 	either 	expressly
threatening observers that they will be treated as “domestic terrorists” or by engaging
in 	other 	tactics 	designed 	to 	intimidate 	or 	harass 	Mainers 	engaged 	in 	First
Amendment activity. Id. ¶¶ 30; 31-82; 103-137.
Plaintiffs maintain that Defendants’ alleged policy and practice of collecting
and maintaining biometric and other personal data, as well as threatening and
harassing 	Mainers 	for 	exercising 	their 	rights 	objectively 	chills 	that 	First
Amendment-protected activity and causes substantial harm. 	Id. ¶¶ 138-160. 	They
seek declaratory and injunctive relief on a class-wide basis for the Mainers that
Defendants 	have 	allegedly 	targeted 	for 	intimidation 	and 	whose 	information
Defendants allegedly have collected and tracked in response to observing and
recording immigration enforcement operations. Id. ¶¶ 5-7, at 44.
a. 	Database Claims (Counts I and II)
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According to Plaintiffs, pursuant to an official policy or practice, Defendants
are 	collecting 	and 	maintaining 	Mainers’ 	biometric 	data 	and 	other 	personal
information in one or more government databases or watchlists because of their
exercise of their First Amendment rights. 	Id. ¶¶ 172-176; 181-184. 	In Count I,
Plaintiffs allege Defendants’ collection and maintenance of the alleged database or
watchlist constitutes First Amendment retaliation. 	Id. ¶¶ 177-180. 	In Count II,
Plaintiffs allege Defendants’ collection and maintenance of the alleged database or
watchlist unconstitutionally burdens free speech. Id. ¶¶ 185-190.
b. 	Harassment Claims (Counts III and IV)
Plaintiffs further allege a pattern and practice by Defendants of threatening
and intimidating Mainers engaged in First Amendment activity by telling them they
are being added to a “terrorist watchlist” or that agents would come to their homes,
constitutes First Amendment retaliation (Count III) and unconstitutionally burdens
free speech (Count IV). Id. ¶¶ 191-208.
II. 	THE PARTIES’ POSITIONS
A. 	Plaintiffs’ Motion for a TRO
Ms. Hilton and Ms. Fagan seek a TRO barring Defendants from collecting,
maintaining, and disseminating their biometric data and other personal information
based on their First Amendment-protected activity and from threatening them with
placement in any database or watchlist, or otherwise retaliating against them for
exercising those rights. Mot. for TRO at 20. They maintain all four factors for issuing
a TRO weigh in their favor. 	First, Plaintiffs insist they are likely to succeed on the
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merits of their claims, as Defendants targeted them for engaging in constitutionally
protected 	activity 	(Counts 	I 	and 	III) 	and 	Defendants’ 	targeting 	of 	Plaintiffs
unconstitutionally discriminates based on content and viewpoint (Counts II and IV).
Id. at 6-14. 	Second, Plaintiffs claim irreparable harm without a TRO because
Defendants’ threats and retention of Plaintiffs’ information on a database chill their
ability to exercise their constitutional rights and subject them to significant collateral
consequences. 	Id. at 14-15. 	Lastly, Plaintiffs maintain the balance of equities and
public interest support protecting their constitutional right to document immigration
enforcement operations. Id. at 15-17.
B. 	Defendants’ Opposition
Defendants oppose Plaintiffs’ motion. 	First, Defendants dispute several of
Plaintiffs’ primary factual claims. 	Defendants assert there is no formal or informal
policy or practice sanctioning the unnamed agents’ conduct described in Plaintiffs
complaint. 	Defs.’ Opp’n at 6; id., Attach. 3, Boston ERO Email; DHS Policy Memo.
Rather, the alleged encounters with federal agents described in the complaint are
“empty threats” contrary to standing DHS policy, which does not authorize agents to
threaten members of the public for observing or recording law enforcement activity.
Id. Furthermore, they represent that Defendants did not enter Ms. Hilton’s and Ms.
Fagan’s data into any alleged database or “terrorist watchlist.” 	Defs.’ Opp’n at 5-6;
Wells Decl. ¶ 9; Barbero Decl. ¶ 10. 	Accordingly, Defendants argue Plaintiffs are
unlikely to succeed on the merits of their claims against the Defendant agencies and
federal officials. Defs.’ Opp’n at 7-8.
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As for the unnamed federal agents, although Defendants do not contest that
Plaintiffs sufficiently allege that the agents in the videos acted contrary to DHS policy
during the Hilton and Fagan encounters, Defendants maintain Plaintiffs lack
standing to pursue prospective relief because they fail to establish a real and
immediate likelihood they will encounter agents who will make similar statements
in the future or statements that would create an objectively reasonable chilling effect
if Plaintiffs heard them again. Id. at 8-15. Defendants argue Plaintiffs do not face a
risk of irreparable harm because Defendants did not enter their information into a
database, federal agents in Maine have been reminded of DHS’s policy on First
Amendment activity, and they acknowledge that Plaintiffs are free to continue
engaging in such activity. 	Defs.’ Opp’n at 15-16; Boston ERO Email. 	Defendants
argue the balance of equities and public interest weigh in favor of the Defendants and
against Plaintiffs’ requested TRO. 	Id. at 17. 	Finally, Defendants argue Plaintiffs’
requested TRO is impermissibly overbroad and vague. Id. at 18-19.
C. 	Plaintiffs’ Reply
In response, Plaintiffs point out that their First Amendment claims do not
depend on Defendants placing their information into a database, but rather the
collection of biometric and other data itself constitutes a First Amendment violation.
Pls.’ Reply at 2. 	Plaintiffs further highlight that Defendants do not deny that they
maintain the data they collected in some form but merely say they searched a specific
subset of databases and assert that Plaintiffs are not under “investigation or
monitoring” by Defendants. 	Id. at 2-3. 	As for standing, Plaintiffs insist they have
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provided evidence that their information is currently retained by the government,
which Defendants have not meaningfully disputed, and demonstrated a substantial
risk that Defendants will repeat their unlawful collection and retention of Plaintiffs’
biometric and personal data. Id. at 3-5. Additionally, Plaintiffs maintain they have
standing 	on 	their free 	speech 	claims 	and dispute 	Defendants’ assertions 	that
diminished immigration enforcement activity in Maine and the “recent reminder” to
agents that the alleged “empty threats” are against government policy do not show
that the alleged harm will not likely recur. Id. at 5-7. Plaintiffs further contend they
have demonstrated irreparable harm and that their requested TRO is not too vague
or broad and imposes no unnecessary burden on Defendants. Id. at 7.
III. 	LEGAL STANDARD
Injunctive relief “is an extraordinary and drastic remedy, one that should not
be granted unless the movant, by a clear showing, carries the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). The standard for
issuing a temporary restraining order is the same as for a preliminary injunction.
See Fairchild Semiconductor Corp. v. Third Dimension (3D) Semiconductor, Inc., 564
F. Supp. 2d 63, 66 (D. Me. 2008). The movant must show “(1) a substantial likelihood
of success on the merits, (2) a significant risk of irreparable harm if the injunction is
withheld, (3) a favorable balance of hardships, and (4) a fit (or lack of friction) between
the injunction and the public interest.” NuVasive, Inc. v. Day, 954 F.3d 439, 443 (1st
Cir. 2020) (quoting Nieves-Márquez v. P.R., 353 F.3d 108, 120 (1st Cir. 2003)). 	The
third and fourth factors “merge when the Government is the opposing party.” Nken
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v. Holder, 556 U.S. 418, 435 (2009). 	Trial courts enjoy wide discretion in making
judgments 	regarding 	the 	appropriateness 	of 	preliminary 	injunctive 	relief.
Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 158 (1st Cir. 2004).
IV. 	DISCUSSION
A. 	Likelihood of Success on the Merits
“In the First Amendment context, the likelihood of success on the merits is the
linchpin 	of 	the 	preliminary 	injunction 	analysis.” 	Sindicato 	Puertorriqueño 	de
Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012). To demonstrate likelihood of
success on the merits, Plaintiffs must establish a “strong likelihood,” not just a “mere
possibility,” that they will ultimately prevail. Respect Maine PAC v, McKee, 622 F.3d
13, 15 (1st Cir. 2010) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 21
(2008)).
1. 	The Present Record and the Unresolved Facts
Before addressing Plaintiffs’ likelihood of success on the merits, the Court
briefly addresses what the limited record establishes at this early stage. In doing so,
the Court emphasizes that it is not commenting on the merits of several of Plaintiffs’
claims. Rather, given the dearth of evidence at this stage, the Court is pointing out
that, at this time, it cannot evaluate either parties’ likelihood of success on the merits
of several of Plaintiffs’ claims because there is information that the parties have yet
to discover and present to the Court. Accordingly, the Court makes clear that when
it determines that Plaintiffs have not yet shown sufficient evidence to support certain
claims, the Court cannot forecast what might be revealed during the course of
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litigation but is instead holding Plaintiffs to their threshold burden of production, as
the 	party 	seeking 	the 	injunction, 	to 	present 	the 	Court 	with 	the 	evidence
demonstrating extraordinary relief they seek is warranted. See García-Colón v. State
Ins. Fund Corp., No. 21-1211 (RAM), 2024 U.S. Dist. LEXIS 126093, at *7 (D.P.R.
Jul. 15, 2024) (citations omitted).
Here, several contested facts are critical to the merits of Plaintiffs’ requested
TRO. First, whether Defendants collect and maintain a database of individuals who
exercise their First Amendment right to observe and record immigration enforcement
activity. Second, whether Defendants maintain a policy and practice of collecting and
retaining the data of First Amendment observers or otherwise retaliating against
individuals for exercising those same rights. At this time, given the record before it,
the Court cannot conclude that Plaintiffs have carried their burden to prove either of
these significant facts. Plaintiffs have not established an alleged informal policy and
practice nor that any alleged database or “terrorist watchlist” exists or that their
information is retained on it. 	Rather, Plaintiffs, so far, have only shown that on
January 21 and 23, federal agents acted contrary to formal DHS policy, and at least
some images taken of Plaintiffs during those encounters are retained on the agents’
phones, in part pursuant to a litigation hold. Tr. of Proceedings at 25:2-10, 25:16-21,
28:7-14, 28:20-29:22 (ECF No. 23) (Tr.).
First, as to Plaintiffs’ database claims, there is no evidence before this Court
to 	conclude 	the 	alleged 	database 	exists 	or 	that 	either 	of 	Plaintiffs’ 	personal
information was ever entered or is still retained in any such alleged database.
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Granted, 	Defendants 	have 	been 	careful 	not 	to 	affirmatively 	assert 	that 	the
Government does not have a database that covers protestors and observers as
Plaintiffs have alleged and have limited their factual representation to say that, if a
database exists, the Plaintiffs “were not placed on any database.” Id. at 27:16-28:1.
At this stage, it remains Plaintiffs’ burden to produce evidence of any alleged
“terrorist watchlists’” existence. 	Furthermore, even if they did sufficiently produce
evidence of any alleged database, in the face of the Defendants’ denial, Plaintiffs have
also not met their burden as to whether either Plaintiffs’ biometric or other personal
information was ever entered or retained in such a database. 	At oral argument,
Plaintiffs conceded that they do not yet know whether the Agents from the January
21 and 23 encounters used their personal phones or government phones to record
their biometric data and license plate information, or what the Agents did with that
information, including running Plaintiffs’ information through DHS’s technology,
such as Mobile Fortify or Mobile Companion. Id. at 30:18-34:3.
Similarly, Plaintiffs have not produced evidence to sustain their allegation that
Defendants’ immigration enforcement operations in Maine have acted pursuant to an
informal policy and practice, at the direction of DHS leadership, to chill the exercise
of protected First Amendment activity by retaliating and collecting protestors’
biometric and personal information or by threatening to do so. 	Notwithstanding
formal 	DHS 	policy 	prohibiting 	its 	personnel 	from 	profiling, 	targeting, 	or
discriminating against any individual for exercising his or her First Amendment
rights, including information about an individual’s lawful participation in protests,
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DHS Policy Memo, Plaintiffs maintain they have presented sufficient evidence to
show an informal policy at DHS, sanctioned by agency leadership. As evidence, they
present to the Court the accounts of Ms. Hilton and Ms. Fagan, as well as three other
Mainers’ alleged encounters, news reports detailing ICE’s alleged tactics across the
country, and public statements from DHS officials. Compl. ¶¶ 31-82, 91-93; Decl. of
Melissa Hewey in Supp. of Pls.’ Mot. for TRO (ECF No. 4) (Hewey Decl.).
The evidence in this motion contrasts with Los Angeles Press Club v. Noem,
799 F. Supp. 3d 1036 (C.D. Cal. 2025), where the Los Angeles Press Club and other
media sought to enjoin the DHS’s allegedly excessive use of force, which the plaintiff
maintained 	constituted 	retaliation 	for 	constitutionally 	protected 	activities 	in
violation of their First Amendment rights. 	In Los Angeles Press Club, the district
court granted a preliminary injunction, not a TRO. 	Id. at 1045 (“Order Granting
Plaintiffs’ Motion for Preliminary Injunction”). Moreover, the Los Angeles Press Club
plaintiffs were able to adduce what the district court described as an “avalanche of
evidence” that “federal agents acted pursuant to a common and widespread practice
of 	violating 	the 	First 	Amendment 	rights 	of 	journalists, 	legal 	observers, 	and
protestors.” Id. at 1067. In Los Angeles Press Club, DHS had policies to limit the use
of crowd control weapons, but the district court concluded that DHS could not resort
to “a pristine set of policies” to justify its actions because the violations of the rights
of journalists, legal observers, and protestors were so common and widespread. 	Id.
(quoting Castro v. Cnty. of L.A., 833 F.3d 1060, 1075 n.10 (9th Cir. 2016) (citing City
of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). The district court also pointed
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to statements of Secretary Noem, which it found, “ratified Defendants’ practice of
meeting First Amendment protected activities with force.” Id.
Plaintiffs have shown neither at this stage. First, Plaintiffs have not presented
the Court with a multitude of evidence indicating a general practice among agents
conducting enforcement operations in Maine. Plaintiffs present this Court with two
affidavits, involving two observers, and although they are detailed and credible, it is
not the kind of multitudinous evidence sufficient to demonstrate a widespread
pattern and practice of immigration authorities violating First Amendment rights in
Maine. Cf. id. at 1045 (finding of an informal policy based on “detailed and credible
declarations from nearly 50 journalists, legal observers, and protestors”). Nor is there
evidence in the record of federal officials ratifying the agents’ alleged conduct during
the Maine operations. Cf. id. at 1067 n.8 (finding ratification from agency leadership
based on their public statements explicitly referring to the Los Angeles enforcement
operations at issue).2 In fact, a supervisory official for ICE explicitly states he neither
“approve[s] nor condone[s]” and is “still reviewing . . . whether any disciplinary action
will be taken.” 	Wells Decl. ¶¶ 8, 10; cf. L.A. Press Club, 799 F. Supp. 3d at 1067
(explaining that a policy or custom of retaliation may be inferred from widespread
evidence of repeated constitutional violations and the absence of evidence that
officers were discharged or reprimanded).
2 	This is not to say that the record lacks any evidence of an official policy to track and document
observers. Exhibit 21, for example, is a Reuters article dated February 10, 2026 that detailed this
allegation. See Hewey Decl. Attach. 21, “ICE is cracking down on people who follow them in their cars”.
It may well be that the Plaintiffs in discovery are able to demonstrate that the complained of policy is
more widespread and officially sanctioned and directed than the current record confirms.
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In sum, Plaintiffs, so far, have only presented evidence to demonstrate that, on
January 21 and 23, federal agents acted contrary to formal DHS policy in response to
Plaintiffs’ 	exercising 	their 	First 	Amendment 	right 	to 	observe 	and 	record 	law
enforcement operations in public. Again, this is not to suggest that facts supporting
their database and informal policy allegations will not come to light through
discovery, but for the purposes of Plaintiffs’ requested TRO, the Court is left with the
narrow task of determining whether prospective relief is appropriate to protect
Plaintiffs from federal agents acting contrary to DHS policy because of Plaintiffs’
First Amendment conduct in the future. Accordingly, the Court moves to the merits
of Plaintiffs’ claims on what the limited evidence shows at this stage.
2. 	Standing
To have standing to pursue their requested TRO against Defendants’ acting
contrary to DHS policy because of Plaintiffs’ First Amendment conduct, Plaintiffs
must “establish a real and immediate threat,” City of L.A. v. Lyons, 461 U.S. 95, 105
(1983), showing “a sufficient likelihood that [they] would again be wronged in a
similar way.” Am. Postal Workers Union v. Frank, 968 F.2d 1373, 1376 (1st Cir. 1992)
(citations omitted). 	Plaintiffs’ January 21 and 23 encounters with federal agents
alone do not establish a real and immediate threat. Gray v. Cummings, 917 F.3d 1,
19 (1st Cir. 2019) (“Past injury, in and of itself, ‘is an insufficient predicate for
equitable relief’”) (quoting Am. Postal Workers Union, 968 F.2d at 1376). 	Instead,
Plaintiffs must point to evidence that the threatened harm is “certainly impending,”
not “speculative.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 410 (2013).
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Because Plaintiffs have produced insufficient evidence to demonstrate a real
and immediate possibility that Plaintiffs will encounter threats or conduct from
Defendants in the future, the Court cannot conclude that there is a real or immediate
threat of harm such that a TRO should issue at this time. Although Plaintiffs at oral
argument maintain that they have refrained from observing and recording law
enforcement activity in public despite having the opportunity to do so, they have not
placed that information into the record for the Court to evaluate. 	Tr. at 38:14-39:6
(Mr. Atkinson: “Yes, there were opportunities to do so. 	We haven’t put those into
the record . . ..”). In any event, for the purposes of standing to pursue their requested
TRO, Plaintiffs cannot rely on their “subjective apprehensions,” but instead must rely
on evidence demonstrating the “reality of the threat of repeated injury.” Lyons, 461
U.S. at 107; accord Noem v. Vasquez Perdomo, 146 S. Ct. 1, 2 (2025) (K AVANAUGH , J.,
concurring in grant of application for stay) (quoting id. at 107 n.8).
Again, the problem is that Plaintiffs present scant evidence to the Court
beyond key contested facts. Plaintiffs have not shown why their fear of alleged harm
is 	likely 	to 	recur 	despite 	Defendants’ 	representations 	that 	agency 	leadership
instructed the agents involved in the January 21 and 23 encounters not to make such
statements that violate DHS policy. Barbero Decl. ¶¶ 11; Wells Decl. ¶¶ 8. Moreover,
ICE disavowed the alleged conduct and reports they are investigating “whether any
disciplinary action will be taken.” Wells Decl. ¶¶8-10. Plaintiffs’ disagreement with
how Defendants have addressed the agents’ conduct on January 21 and 23 is not
evidence that Defendants are likely to exhibit the same conduct in the future.
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Accordingly, given the evidence available at this stage, the Court cannot conclude
that Plaintiffs have shown an immediate and real threat that the alleged misconduct
will recur in the future, such that their requested TRO should issue.
3. 	Scope of Relief
Finally, even if Plaintiffs could demonstrate an ongoing injury from their
January 21 and 23 encounters with Defendants or, at minimum, a likelihood of
recurring injury, the scope of Plaintiffs’ requested relief is impermissibly broad and
vague, and it raises fundamental issues of enforceability. An injunction must “state
its terms specifically” and “describe in reasonable detail . . . the act or acts restrained
or required.” See F ED. R. CIV. P. 65(d)(1)(B)-(C). A general prohibition not to retaliate
against peaceful observers because of their First Amendment activity is too broad and
too vague to provide Defendants a clear idea of what conduct is prohibited. In Tincher
v. Noem, 164 F.4th 1097 (8th Cir. 2026), the Eighth Circuit recently stayed a
preliminary injunction in which the district court enjoined the Government from
retaliating against persons engaged in peaceful and unobstructive protest activity,
because the injunction constituted a forbidden “universal injunction.” 	Id. at 1099
(citing Trump v. CASA, Inc., 606 U.S. 91, 98 (2025)).
Moreover, considering the First Amendment right to observe and record an
officer is limited “if the officer can reasonably conclude that the filming itself is
interfering, or is about to interfere, with his duties,” Gericke v. Begin, 753 F.3d 1, 8
(1st Cir. 2014), and that law enforcement collects and retains data for lawful purposes
separate from those challenged by Plaintiffs today, Defs. Opp’n at 5, any directive
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from the Court according to the broad terms of Plaintiffs’ requested TRO would
require agents to predict what this Court would consider peaceful and unobstructive
protest activity or an impermissible collection and retention of Plaintiffs’ data. 	Cf.
New York v. Trump, 133 F.4th 51, 72 (1st Cir. 2025) (“[T]he issuance of a nonspecific
injunction or restraining order may be justified . . . . when the information needed to
make the order specific in form is known only to the party to be enjoined” (quoting
11A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, F ED. P RACTICE AND P ROCEDURE
§ 1955 (2d ed. 2024) (footnotes omitted)).
In addition, as Defendants pointed out at oral argument, Plaintiffs’ proposed
injunction would present confounding problems of compliance. Plaintiffs propose that
the injunction apply only to the two named plaintiffs. 	How Defendants would
recognize the two named Plaintiffs to assure compliance with the proposed TRO was
unanswered by the Plaintiffs. 	Of course, it would be easy to say that Defendants
should refrain from engaging in unconstitutional activity and that would solve the
issue, but the myriad interactions among ICE agents, observers, protestors, and
others are too complicated to be reduced to simplicity. 	The Court is concerned that
the practical effect of the requested TRO would be a general injunction, which if it is
to issue, should be based on a more complete evidentiary record and more thoughtful
consideration of its implications.
To be clear, by rejecting the request for a TRO on this record, the Court is not
condoning what the videotapes confirm occurred to both Ms. Hilton and Ms. Fagan
in January 2026. 	The First Circuit has unequivocally reinforced the right of the
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public “to film government officials, including law enforcement officers, in the
discharge of their duties in a public space.” Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir.
2011); see Gericke, 753 F.3d at 7. Indeed, the First Circuit has written that to do so
is “a basic, vital, and well-established liberty safeguarded by the First Amendment.”
Glik, 655 F.3d at 85; Gericke, 753 F.3d at 7. 	But there is, in the Court’s view, a
significant 	difference 	between 	an 	agency-wide 	policy 	of 	First 	Amendment
suppression and the actions of a few agents, who are acting contrary to agency policy.
The latter may be remedied by training, discipline, and would be less likely to recur,
while the former suggests a more endemic issue that would require more significant
judicial intervention. 	On this record, the Court does not know which of these
alternatives, or perhaps a combination of both, underlies the January 2026 conduct
of these agents in this case.
Finally, not only would Plaintiffs’ requested injunction place this Court in the
untenable position of “exercis[ing] general oversight of the Executive Branch,” Casa,
606 U.S. at 861, its breadth and vagueness would irreparably harm the Government
and undermine the public interest by causing law enforcement to hesitate in
performing their lawful duties. See Tincher, 164 F.4th at 1100.
B. 	Remaining Factors
Because the Court cannot conclude Plaintiffs have shown they are likely to
succeed on the merits of their claims, the Court does not address the remaining TRO
factors. 	See New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st
Cir. 2002) (“The sine qua non of this four-part inquiry is likelihood of success on the
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merits: if the moving party cannot demonstrate that he is likely to succeed in his
quest, the remaining factors become matters of idle curiosity”) (citing Weaver v.
Henderson, 984 F.2d 11, 12 (1st Cir. 1993)).
C. 	Summary
The Court concludes that Plaintiffs have not met their burden to obtain their
requested TRO, but in doing so the Court reiterates that it is not weighing whether
Plaintiffs are likely to prevail on the merits of their claims, particularly their
allegations that Defendants entered Plaintiffs’ biometric data or other personal
information into a database or that the federal agents Plaintiffs encountered on
January 21 and 23 acted pursuant to an informal DHS policy to retaliate against
Plaintiffs’ First Amendment activity. Esso Standard Oil, Co. (P.R.) v. Monroig-Zayas,
445 F.3d 13, 18 (1st Cir. 2006) (“[T]he party seeking the preliminary injunction bears
the burden of demonstrating that these four factors weigh in its favor”); Peoples Fed.
Sav. Bank v. People’s United Bank, 672 F.3d 1, 8-9 (1st Cir. 2012) (“A preliminary
injunction is an extraordinary and drastic remedy that is never awarded as of right”).
Instead, the posture of this case, along with the limited available evidence and several
unresolved critical facts, compels the Court’s conclusion that a TRO is not appropriate
at this time. Accordingly, despite the “serious legal issues” Plaintiffs set forth in their
complaint, “because the caselaw in this area is nuanced” and Plaintiffs do not “provide
a sufficient uncontested factual record . . . they [have] failed to sustain their burden
to demonstrate that they are likely to succeed on the merits of their claim,” such that
their requested TRO should issue at this time. We the People PAC v. Bellows, 512 F.
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Supp. 3d 74, 77 (D. Me. 2021) (Bellows I) (denying TRO). In other words, given “the
scant factual record” beyond the contested, unresolved facts, “the Plaintiffs [have] not
proven their entitlement to extraordinary injunctive relief.” 	We the People PAC v.
Bellows, 519 F. Supp. 3d 13, 37 (D. Me. 2021) (Bellows II).
V. 	CONCLUSION
The Court DENIES Plaintiffs’ Motion for Temporary Restraining Order (ECF
No. 3).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of March, 2026
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