Pro Bono Innovators 2025 Honoree BraunHagey & Borden

BraunHagey & Borden’s key pro bono matters include Index Newspapers LLC v. United States Marshals Service in the U.S. Court of Appeals for the Ninth Circuit. The firm prevailed on behalf of journalists and legal observers who claimed local and federal police physically interfered with them during Portland protests in 2020. The firm obtained restraining orders and injunctions, and the City Council approved a $938,000 settlement in March. The firm also obtained an injunction and a settlement in state court in Green, et al. v. Mass. Dept. of Correction, et al., prohibiting the Massachusetts DOC from disciplining inmates based on allegedly faulty drug tests performed on legal mail. How did your firm strategize on these two matters?

Index Newspapers: While strategy is case dependent, all our impact cases share some strategic similarities. In all our cases, we anticipate appeal. With this in mind, one of our common strategies has been to build an extensive factual record below—what the Ninth Circuit referred to as a “mountain of evidence” in Index Newspapers—using the same techniques that we have developed through decades of commercial litigation.

In Index Newspapers, we built the factual record through extensive fact-gathering from social media posts about the protests, reporters, and photojournalists, some of whom were referred to us by our clients and spent the good part of every morning chasing down new videos and declarations. As in any commercial case, we sought electronically stored information communications from a wide range of custodians—from line agents to former acting Secretary Chad Wolf [whose appointment was later ruled unlawful]to help show that defendants’ policy of retaliating against the press percolated down from the top.

Building a robust record is especially important in cases like Index Newspapers when we are trying to expand the law. It was all the more so in Index because retaliatory intent, which can generally only be proven circumstantially, was at issue. The videos of clouds of tear gas and gratuitous violence against journalists, defendants’ internal communications about the events, and testimony we secured in depositions provided compelling support for our First Amendment argument that the free press had to be able to cover those historic events.

Green vs. Mass. Department of Correction: In Green, as in Index, we needed a mountain of evidence before filing in order to secure a preliminary injunction right away. The evidence we needed ran the gamut—from scientific data showing that the tests were unreliable, to the Massachusetts Department of Correction’s own laboratory test results revealing the volume of false positive results it had tolerated, to formal polices demonstrating that it had relied on the tests in a manner that made test performance critical.

In nearly all of our impact cases, we gather extensive data from the start. In just the last four years, our firm has served over 120 Public Records Act and FOIA requests on public agencies, collecting reams of criminal justice and other data for our civil rights cases. In Green, we gathered the data we needed through FOIA requests, expert testing on publicly available samples, friendly public defenders, and the government’s own public websites. By the time we filed, we had everything we needed to show the court how harmful and unjust DOC’s practice was.

What were the most innovative aspects of two of your clients’ matters in your view? And who took the lead on driving innovation with the work?

Index Newspapers matter: In Index we extended the Supreme Court’s holding in Press-Enterprise II, which established a First Amendment right of access to court proceedings, to cover protest events. That application was new. The injunctive relief we sought was also unprecedented and complicated by the fact that, in the age of smart phones, almost anyone can report on protests or police activities. (In fact, the protests had arisen because someone had recorded the police murdering George Floyd with her phone). The way we built the case—creating what the Ninth Circuit called “a mountain of evidence”—through declarations, photos and videos capturing the conduct we were litigating over was also brand new. Matthew Borden drove these innovations with the assistance of people on the ground, courageous members of the press, and friends and family of the firm.

Green vs. Mass. Department of Correction: In Green, we took a traditional civil rights approach by seeking immediate injunctive relief against the offending state agency (here, Massachusetts Department of Corrections or “DOC”). However, in line with our firm’s aggressive commercial strategies, we also pursued damages claims against the manufacturer and distributor of the faulty drug tests concurrently. (This case is currently ongoing in federal court.) By pursuing a damages case against the manufacturer and distributor of these harmful, unreliable products, we can attack these corporations where they hurt most in their wallets—while also extending our impact by ensuring that any forward-looking changes to the tests reach other jurisdictions. This is also a workaround for state immunity to obtain damages for our clients. Kory DeClark and Marissa Benavides are the leads on this case.

Tell us more about the impact of these two matters on the local, national, and/or global level:

Index Newspapers: As recent national events have shown, the rights to protest and report are critical to our constitutional democracy. If the government can suppress them with violence, then the government alone will control what information citizens receive. That is the hallmark of a totalitarian state and the very evil the First Amendment was designed to protect against. Other jurisdictions, such as Minnesota, issued similar injunctions modeled after Index Newspapers. Several police departments around the country, including in Portland, adopted similar provisions as part of their police procedures to protect the press during civil unrest.

A few weeks ago, we extended the precedent we created in Index Newspapers to obtain an even broader injunction against DHS to prevent it from attacking reporters, legal observers, and protesters in Los Angeles Press Club v. Noem. That precedent, in turn, was used to secure an identical injunction in Chicago. Index Newspapers has become the national template for protest litigation in jurisdictions where the federal government is conducting militarized immigration raids and people want to object and record what the federal agents are doing.

The case has also reverberated outside the US: Reporters Without Borders, Human Rights Watch, and other international organizations submitted an amicus brief in support of our clients in Index because attacks on the free press are a matter of international concern.

Green vs. Mass. Dept of Correction: The protections we established through the preliminary injunction were ultimately adopted as DOC policy. We then locked that policy in place through our recent settlement, which directly helped our clients but will also protect tens of thousands of incarcerated individuals who cycle through the Massachusetts Department of Correction in the coming years.
The impact of our case rippled out into the world. The mainstream press reported on our preliminary injunction. Soon after, other states began to halt the use of the same faulty tests, in some cases citing our litigation as a reference point. The influence spread even further when oversight bodies stepped in. Inspectors General and ombudsman offices have begun conducting their own independent investigations into the reliability of these screening tests. These have included inquiries in New York (late 2023), Nebraska (March 2024), and Iowa (Office of Ombudsman report). Our case is sometimes cited expressly in these investigations. In 2025, Colorado formed a working group to investigate field drug tests, informed in part by the findings in our case.

Much like the precedent we established in Index Newspaper and LA Press Club, we hope this litigation provided a model for other jurisdictions to follow when confronting systemic violations of rights.

Why do you think your team ultimately achieved successful results in these two matters?

Index Newspapers: Our success is the result of the creativity with which we approached the legal issues and complicated questions around crafting effective, safe, and workable relief with the aid of experts from law enforcement. We also deployed the same skill set, dedication, and approach that we bring to our commercial cases—thorough investigation and fact development, precise discovery deployment, and compelling advocacy. These are the same attributes that have enabled our litigation boutique to face down larger opponents and to consistently create outsized results.

Green vs. Mass. Department of Correction: In addition to offering a novel legal theory regarding the duties of corrections agencies, our team succeeded because we spent the hours and resources necessary to create an incontrovertible factual record demonstrating that the tests in question were faulty and that DOC’s use of them was coercive and unconstitutional. We also persevered in the face of DOC’s endless efforts to delay the litigation and short circuit our attempts to resolve the case in a manner that would provide lasting relief. By forcing the DOC to change its procedures, we not only secured justice in the moment but also dismantled a flawed system. This combination of immediate relief and systemic reform is a hallmark of our impact litigation.

Responses provided by BraunHagey & Borden partner Matthew Borden, co-founder, partner, and head of impact litigation for the Index Newspapers matter.

Responses provided by BraunHagey & Borden partners Kory DeClark and Marissa Benavides for the Green vs. Mass Department of Correction Matter.