By David Futrelle
You may have seen the video on Twitter: two federal law enforcement officers, kitted out as if they’re patrolling the streets of Kabul, march across a Portland street, grab a seemingly peaceful protester standing on the sidewalk and hustle him into an unmarked van. (If you haven’t seen the video, it’s below.)
It looks for all the world like a state-sponsored kidnapping, the sort of thing we’re more used to seeing in authoritarian regimes. But maybe that’s what we’re becoming.
As Willamette Week notes:
The sight of armed federal officers—who look dressed for overseas combat or the U.S. border they are trained to protect—is an alarming one for many citizens. The image summons memories of other moments of civil unrest in U.S. history: National Guardsmen shooting college students at Kent State in 1970, or federal troops responding to the Rodney King riots in Los Angeles in 1992.
For the past several weeks, a ragtag army of federal law enforcement officials from four different departments, including Border Patrol and Homeland Security, have been running wild in downtown Portland, treating it like their own private fiefdom. They were send there, unrequested, by Donald Trump, who thinks they’re doing a “great job.” On Monday he said,
Portland was totally out of control. We very much quelled it, and if it starts again, we’ll quell it again very easily. It’s not hard to do, if you know what you’re doing.”
The feds have already seriously injured one peaceful protester, whom they shot in the head with supposedly “less-lethal” ammunition while he was standing in the street holding a speaker over his head. His skull was fractured and he has had to undergo facial reconstruction surgery. Portland police are barred by a restraining order from using tear gas and “non-lethal” munitions on protesters, except in life-threatening circumstances; the feds are not.
Elected officials want them out. Oregon senator Ron Wyden has compared the federal officers to an “occupying army.” Portland mayor Ted Wheeler tweeted that “We do not want or need their help.”
The Portland Police have been making some questionable arrests themselves. In the video below, you can see an officer knock a bike rider to the ground and a swarm of police descend on him. It’s not clear what, if anything, the biker did to deserve such treatment.
What the feds are doing in Portland is indefensible, a clear attempt to intimidate all protesters, peaceful or otherwise and effectively deny them their right to protest. But the bigger worry is what Trump may do next. Trump has complained endlessly that the mayors of large cities like Chicago and Washington DC aren’t doing enough to control violence (and protests) in their streets, and has long threatened to send in the feds in to do the job for them, so to speak.
Is Portland merely a dry run for a much larger campaign to intimidate protesters in big, Democratic cities? Does he plan to use federal officers to intimidate voters come November? Is what’s happening in Portland a strange one-off experiment or is it just the beginning of a wave of political repression to come? What happens if heavily armed Trump supporters and “boogaloo” fanatics decide to get involved? I shudder to think.
Is there anything we can do about this? Nothing but raise our voices in protest and, for those able to, put our bodies on the line.
UPDATE: There’s finally some national news coverage of this. See this newer post of mine for links.
Below, you can find an assortment of Twitter threads I’ve found useful in making sense of what’s happening. (Just FYI, I don’t necessarily agree with all the analyses; I just think these threads contain helpful perspectives and useful information)
Feel free to post additional links in the comments below — articles, blog posts, tweets, etc. If you’re in Portland now and have seen this first hand, please share your story.
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I explicitly told the universe that I did NOT want to live through a 21st-century version of B5’s President Clark. I want to speak to the manager now.
(Yes, I’m laughing to keep from weeping for my country.)
What I find even more disturbing is that there’s been hardly any coverage of this. I only know about it because I follow so many lefties on Twitter.
A question for those who know about constitutional law: could the state of Oregon or the city of Portland sue the federal government about this? I ask because the Supreme Court has been standing up to Trump a lot lately and they might be able to force the occupation out.
The Trump is Mother, the Trump is Father? Trump is indeed President Clark. I shudder to think about his scorched earth policy.
I’ve been telling people about this and I’m a bit alarmed that nobody else is as concerned as they should be. When I said this could be a dry run before taking on bigger cities, they all said that was unlikely. Evidently they have learned nothing from how things have escalated for the past few years.
I didn’t save the twitter thread I saw this in, (it was in one of David’s retweets from yesterday), but there’s been some speculation that the kidnapping from the first video was actually an undercover agent removal instead of an arrest. I have no idea how likely that might be, or what exactly they needed to rescue the supposed UCA from, but that theory is out there.
Otherwise, I gotta ask – when did this year turn into an especially bad company-wide Marvel Superhero crossover? I mean, those are waaaay more fun to read about at leisure than live through. At least it is in my opinion.
Then again, there’s that old observation about the definition of a dystopia being when the things that have always afflicted the so-called Third World countries hit the First World ones hard, so….
@Redsilkphoenix
By most definitions, the 21st century world already is a dystopia. Constant surveillance, everyone absorbed in devices that distract us from what’s going on, an illusion of democracy that falls apart below the surface, massive corporations having all the power…this is worse than the worst nightmares of people a few centuries ago.
Or, in musical form:
Short answer, almost certainly not.
Longer answer, you have to have something called “standing” to sue. The state itself (nor the city) has no right to bar federal officers from its territory – those officers are as free to travel Oregon as anyone else. And neither the state nor city have any right to bar federal officers from enforcing federal law within their borders – the federal officers have federal grants of power, and so where and when they are able to exercise that power is up to Congress, not the states.
But important to your framing about constitutional law: when & where an officer is empowered to take certain actions is a statutory question. It’s not addressed in the constitution.
So, in order to challenge this in court, given that no rights, separation-of-powers, or federalism claims are involved that could be argued to have been “disparaged”, we have to have someone whose rights have been violated to make the challenge. This is because a legal injury must (almost always, let’s not address the rare exceptions that are irrelevant here) occur before a case can be brought.
This comes from the US constitution’s limit on the power of the courts to addressing only actual “case[s] or controvers[ies]”. In other nations the courts can be used to to test out ideas and claims, and in those circumstances the courts will issue what are often called “advisory opinions”. Because of the “case and controversy” clause in the US constitution, you have to have suffered a legal injury before you file your lawsuit.
What injury has the city of Portland suffered if the Feds enforce federal law within the city limits? Effectively none.
====> THAT SAID
The “officers” (I’m assuming that they do indeed have a valid grant of law enforcement power) take custody of someone in that video without actually saying the magic words, “You are under arrest,” and do not actually inform that person of the crime that they are accused of committing. Nor are the Miranda warnings issued as the person is arrested.
So any individual whose rights are violated could bring a lawsuit, and if a lawsuit is brought, a court could issue a ruling that includes what’s called a “remedy” that would address more than that one rights violation.
An individual, for instance, could insist that they do not feel safe exercising their First Amendment without some clarity and when, where & how the feds are exercising their law enforcement powers. If the court finds that a rights violation occurred, and further finds that the rights violation has a chilling effect on free speech, THEN they could order federal law enforcement curtailed in certain ways the court finds necessary to prevent that chilling effect on free speech.
Now, if the court finds that legal behavior (twenty or thirty officers simply standing in locations scattered through the park blocks in pairs) has a chilling effect on free speech, but doesn’t find them guilty of any rights violations, the court would be extremely unlikely to curtail otherwise legal behavior to prevent such a chilling effect.
But if the court finds that illegal arrests have been made AND officers have been standing in pairs in scattered locations in and around gatherings of protestors, then the court might decide to (and might have authority to) order not only that illegal arrests stop, but also that the officers not stand in & among the protestors.
The difference is that the effect of standing around on protestor speech is not separate from the effect of the illegal arrests. And, in fact, the illegal arrests make the standing around inherently more intimidating than if the arrests had never happened. Plus, even in the face of a court order, it would be reasonable for protestors to fear that officers willing to arrest illegally before the court order might be willing to break a court order as well. This increases the court’s willingness to find that a reasonable person would find their first amendment right to speak infringed by the armed officers standing nearby.
In sum, then, the city and state have no good claim. But if the feds have been doing anything illegal, a valid lawsuit by even a single person who has been illegally deprived of a right or otherwise legally injured could result in a court ruling that protects all the protestors.
Of course, if the feds did inform that arrested person of the charge and of their Miranda rights immediately after they’re in the closed minivan, we wouldn’t know, but a court would have a hard time saying that a 45 second delay amounted to an infringement of legal right that rises to the level at which a court is permitted to take notice.
And, also, of course, the feds could like like fuck & say that they informed the person as soon as the car door was closed even if they didn’t. If you have 4 or 5 federal law enforcement officers say one thing and one defendant say another, what will the court do? Surely take the side of the officers.
All this is to say that even though individuals do have some theoretical power to accomplish what the state and city cannot, it’s going to be hard if not impossible to make that actually happen.
That this can happen proves that the US is a failed state. I am enraged.
Perhaps the US can rebuild a functional government with limits, but it’ll have to be after prosecuting every single person who stepped outside the law, even under orders. If orders weren’t enough to vindicate Nazis, they certainly should be enough to vindicate the Border Patrol.
Coincidentally just been reading something about US cops. This came up. Pretty scary; but seems relevant to this post.
Trump has wanted to send in the army to kill and arrest protestors for a while now, but someone told him about Posse Comitatus and held him back. He’s angry that he can’t do it, and this is his way of getting around Posse Comitatus – employ border patrol and whatnot instead of the army.
If he could send in the army to carry out his bidding, he absolutely would, and they absolutely would be armed with lethal ammo the same way the National Guard was when they were in town. They would have tanks and choppers and everything the army usually brings along when they are suppressing insurgents. That’s what gets Trump’s willie hard; that’s what he really wants to see.
Thanks, Alan. I’d seen data on that topic before, but not recently (certainly not recently enough to remember the numbers).
@Crip Dyke
Thank you for the explanation.
@PoM
Given the current state of the Republican Party that controls the Senate, I’m sure if he did send in the army they wouldn’t stop him.
This is all of course dress rehearsal for if he loses the election and refuses to leave and will need to squash the inevitable protests.
He can’t send in the army. Everyone from generals to the senior enlisted man have all but said outright that if he tries it they’ll remove him.
“Listen. When necessary, take the appropriate action.”
https://twitter.com/16thSma/status/1268324240287244293?s=19
Rather in keeping with the Babylon 5 theme we’ve got going, really. “Respect the chain of command”.
Apparently nothing. Here’s one person’s account of surviving a beating followed by a van kidnapping: https://www.opb.org/news/article/federal-law-enforcement-unmarked-vehicles-portland-protesters/
I have no idea if being released like that is normal or if most people have been “disappeared”; there don’t seem to be any reports either way yet. It’s probably too soon to know – the Feds may have been in Portland since the 11th, but they’ve only been going full “violent police state” for the past 2 days.
@WWTH
The real question is, if he refuses to leave, whether the Secret Service will follow the constitution and force him out.
I saw this (via Jim Sterling’s twitter), and just sighed… Amazing what they will use for justification to declare a riot.
https://twitter.com/KBOO/status/1282954116424073217
Next stop Guantanamo
@Naglfar
I’m sure they would. From what I hear, he basically treats them like dogs to begin with, so I’m sure they’re counting down the days to the election.
Out of topic, but i have read that the governor (Rep.) of the state where Atlanta is located is suing (sueing ?) the mayor (Dem.) of said city because she has imposed to wear masks (and asked non-essential shops to remain closed).
I do not know governor roles and powers in the US law and decisional systems, but that seems to be ludicrous !
Good luck, american Mammother. The endgame seem to be here, with Trump seeking if he can just take power and become a dictator.
So, it’s begun. Bleeding Oregon today, #Calexit tomorrow, and shortly thereafter the boogaloo bois will find out the true meaning of “be careful what you wish for”.
Fuck the police. Fuck them defending capital. I would like to see the institution abolished. As someone with gender issues I’d be fucked too.
@Surplus
I rather doubt California will attempt to exit, as that would give Trump the ability to send in the military and they’d be unlikely to actually be able to leave. More likely it would just do a ton of damage to the state.