Constitutional Law

Oregon sues US agencies over protest arrests; what gave feds authority to intervene?

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Oregon Attorney General Ellen Rosenblum alleged in a lawsuit Friday that federal agencies dispatched to Portland, Oregon, demonstrations are violating protesters’ constitutional rights.

The lawsuit says federal officers are driving in unmarked vehicles, wearing military fatigues with patches marked “police” and detaining protesters without stating a reason.

The Washington Post, the Oregonian and Oregon Public Broadcasting have stories; a press release is here.

“Defendants are injuring the occupants of Portland by taking away citizens’ ability to determine whether they are being kidnapped by militia or other 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 suit says.

The suit cites the July 15 detention of Mark Pettibone, who says he was confronted by armed men dressed in camouflage, pushed into a van, placed in a cell and read his Miranda rights. He was released without any paperwork or record of his arrest, the suit says.

The suit alleges violations of the First Amendment right to protest racial inequality, the Fourth Amendment right against unreasonable seizures and the Fifth Amendment right to due process.

Defendants in the suit are the U.S. Department of Homeland Security, the U.S. Marshals Service, U.S. Customs and Border Protection and the Federal Protective Service.

The agents were sent to Portland to protect federal property as a result of an executive order signed by President Donald Trump, the New York Times reports. Officials cited the Homeland Security Act of 2002, which gives Customs and Border Protection the authority to deputize federal agents to help the Federal Protective Service protect federal property.

Other federal laws allow arrests away from federal property if a federal crime is committed, Peter Vincent, former principal legal adviser for U.S. Immigration and Customs Enforcement, told the New York Times.

“Homeland Security’s authorities are so extraordinarily broad that they can find federal laws that they are authorized to enforce across the spectrum, so long as it has some national security, public safety, human trafficking, criminal street gang conspiracy,” Vincent said.

Usually, federal agents are sent to a local jurisdiction in response to a request by officials there; Portland’s mayor and Oregon’s governor oppose federal intervention.

The suit seeks an injunction requiring federal agents to identify themselves and their agency before detaining or arresting any protester, to explain the reason for the detention or arrest, and to stop making arrests without probable cause or a warrant.

The American Civil Liberties Union Foundation of Oregon also took legal action Friday by adding federal agencies as defendants to a suit filed against local law enforcement on behalf of journalists and legal observers, according to a press release.

A federal judge has already blocked local law enforcement from dispersing, arresting, threatening to arrest or using physical force against journalists or legal observers at protests. The suit asks the judge to expand the order to block those actions by federal agents.

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