The state of Oregon is suing the Trump administration in federal court to halt what it likens to the “kidnap and false arrest” of protesters in downtown Portland, alleging that the administration’s secret-police tactics are violating core constitutional rights.
In a harrowing new tactic, reminiscent of fascist regimes, armed federal officers without agency badges have begun grabbing protesters off the street, throwing them into unmarked cars and jailing them without formally arresting them, according to court records. The state of Oregon is seeking a permanent injunction to prevent what it alleges are violations of the Fourth Amendment’s protections against “unreasonable seizures” and the Fifth Amendment’s guarantees of due process.
Demonstrators in Portland have been protesting police brutality for seven weeks since the killing of George Floyd. The city’s cops have cracked down on these protests with even more brutality, turning a small area of downtown into a nightly battle space. Typically, minor provocations by individual agitators — throwing water bottles, removing fencing, or defacing buildings — have been met with overwhelming and indiscriminate police violence against the crowds, including the use of tear gas, pepper spray, flashbang grenades, less-lethal munitions, and baton beatings.
The Portland Police Bureau, whose officers have been allowed to cover the names on their badges, have beaten and arrested journalists attempting to document these clashes, charging some with felonies. Over the course of the protests, the PPB has been subject to two temporary federal restraining orders to protect the First Amendment rights of reporters and legal observers, and to constrain the indiscriminate use of tear gas during a pandemic.
This illiberal spectacle has emboldened the worst impulses of our authoritarian president. On orders from Trump to control “the anarchists and agitators” and quell “50 days of anarchy,” federal agents descended on Portland. As the feds have stepped in, the epicenter of the nightly protests has shifted from the Multnomah County Justice Center — a local booking, jail, and courthouse complex — to the neighboring federal courthouse, which has been tagged with graffiti like: “Send home Trump’s piglets” and “FEDS get the FUCK OUT!”
Picking up where the PPB has been constrained, federal agents have subjected demonstrators to chemical agents and physical violence. One nonviolent protester who tossed away a tear gas canister at his feet was shot in the head with an impact munition, hospitalizing him with a fractured skull. Oregon officials, from Portland Mayor Ted Wheeler to Gov. Kate Brown to Sens. Ron Wyden and Jeff Merkley have called on the feds to withdraw from the city. Federal officials have insisted they’re not about to leave: “That’s just not going to happen on my watch,” tweeted acting Homeland Security chief Chad Wolf.
There is no clear indication of who is perpetrating these snatch-and-hold detainments — the patches on their fatigues simple read “police.” But the lawsuit names four federal agencies believed to be involved in the Trump administration’s Portland response: The Department of Homeland Security, U.S. Customs and Border Protection, the Federal Protective Service, and the U.S. Marshals. It’s routine for federal agents to guard federal property, but the allegedly unlawful snatch-and-detain operations have gone well outside that purview.
The lawsuit, brought by Oregon Attorney General Ellen Rosenblum, insists that the federal tactics make it impossible for detained citizens to know whether they are being lawfully arrested or are instead the victims of a crime. “Ordinarily, a person exercising his right to walk through the streets of Portland who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped,” the lawsuit states.
Oregon is a state with active militias, many affiliated with white supremacy movements and hostile to the racial-justice aims of the protesters. The lawsuit highlights the inability of citizens to know whether they have a right to fight back. It argues that the feds are “taking away citizens’ ability to determine whether they are being kidnapped by… malfeasants dressed in paramilitary gear (such that they may engage in self-defense to the fullest extent permitted by law) or are being arrested (such that resisting might amount to a crime).”
The lawsuit also also argues that the Trump administration’s tactics have a chilling effect on First Amendment rights to speech: “Citizens who are reasonably afraid of being picked up and shoved into unmarked vans — possibly by federal officers, possibly by individuals opposed to the protests — will feel compelled to stay away, for their own personal safety, and will therefore be unable to express themselves in the way that they have the right to do.”
In addition to defending the rights of its citizens, the Oregon suit also accuses the feds of usurping state and local authority “without serving any legitimate federal law enforcement purpose.” The state of Oregon, it insists, has “sovereign interests in enforcing its laws and in protecting people within its borders from kidnap and false arrest.”
Sen. Wyden praised the lawsuit as an urgent and necessary corrective, before the administration’s authoritarian tactics take hold elsewhere in the country: “If Donald Trump’s unconstitutional abuses can happen in Portland, they can happen anywhere,” he wrote. “This lawsuit is necessary to shed light on the truth and hold Trump accountable for his authoritarian tactics on American soil.”
President Trump, for his part, praised the actions of federal agents in Portland, saying “they’ve done a fantastic job… they grab em; lotta people in jail.” The president said he’s responding to “anarchists,” insisting: “These aren’t protesters. These are people who hate our country.”
Trump is now threatening to expand the deployment of federal agents to other cities. “We’re sending law enforcement,” he told reporters. “Because we’re not going to let New York and Chicago and Philadelphia and Detroit and Baltimore and all of these — Oakland is a mess. We’re not going to let this happen in our country. All run by liberal Democrats.” Trump appears to be using his crackdown on dissent as a campaign strategy, claiming that Democrats are too “weak” and “scared” to stand up to demonstrators, and that if Joe Biden were to win the election in November, “the whole country would go to hell.”