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Today marks the 50th straight day of protests in Portland, Oregon—which have been ongoing since shortly after the May 25 murder of George Floyd. The protests have been largely peaceful, but there have been several well-documented episodes of violence, vandalism and property damage. In the past few days, however, the protests have been met with what appears to be a significant federal law enforcement response—the contours of (and legal authorities for) which are, at best, unclear. By all appearances, there are now at least 100 federal law enforcement officers on the ground in Portland. But media reports suggest that many of those officers (a) are not wearing identifiable uniforms or other insignia, (b) are not driving marked law enforcement vehicles, and (c) are not identifying themselves either publicly or even to those whom they have detained and arrested. Making matters worse, local authorities—from the mayor to the sheriff to the governor—have repeatedly insisted not only that they don’t want federal assistance but that the federal response is aggravating the situation on the ground. Acting Homeland Security Secretary Chad Wolf, in contrast, has repeatedly taken to Twitter to claim that local authorities are refusing to restore order—albeit with only vague references to which federal laws are not being enforced (and repeated allusions to “graffiti” and other property damage by “violent anarchists”).
In all of these respects, what’s happening in Portland appears to be a reprise of much of what happened in Washington, D.C., at the beginning of June, when Attorney General William Barr called upon a wide array of statutory authorities to commandeer hundreds of federal law enforcement officers in order to “restore order” in the nation’s capital. At the time, many who both criticized and defended Barr’s actions pointed to the federal government’s unique legal authority over the District of Columbia—implying (whether as a feature or a bug) that the same authorities wouldn’t be available, at least to the same extent, in the 50 states. But if nothing else, the events in Portland appear to underscore that the federal government sees no such distinction—and that it believes it has the power to similarly deploy federal law enforcement authorities across the country, even (if not especially) over the objections of the relevant local and state officials.
All of this raises a host of questions, very few of which can be answered at this point. This post is not meant as a comprehensive explainer but, rather, as an effort to separate out the many distinct (if overlapping) issues that the federal response in Portland appears to raise. Thus, what follows is a list of questions and a few tentative thoughts as to possible answers. Needless to say, it would behoove Attorney General Barr and Acting Secretary Wolf to answer these questions—and to do so sooner rather than later.
Question 1: Which agencies’ officers are being utilized for federal law enforcement purposes in Portland, and under which statutory authorities?
In June, the attorney general pointed to a host of agencies and authorities in a letter responding to D.C. Mayor Muriel Bowser. In his words,
We have deployed personnel from the major law enforcement components of the Department of Justice, including the Federal Bureau of Investigation; the Bureau of Alcohol, Tobacco, Firearms, and Explosives; the Drug Enforcement Administration (“DEA”); the Bureau of Prisons (“BOP”); and the U.S. Marshals Service (“USMS”). Each of those agencies acts within the scope of its federal authorities, and where useful and appropriate, we have assigned additional duties to the agencies to assist in the enforcement of federal law. For instance, we have assigned additional law enforcement responsibility to DEA under 21 U.S.C. § 878(a)(5), and USMS has deputized officers from the Department of Homeland Security and from BOP, including its Special Operations Response Teams, to assist in the enforcement of federal law. See 28 U.S.C. §§ 561,566.
It also appears that the federal government is using Customs and Border Protection officers in Portland—which, like so much of the United States, lies less than 100 miles from an international border (yes, the Pacific Ocean counts). Although federal immigration authorities are generally nationwide, there are a few specific authorities (and some important constitutional exceptions) that come into play “along the border.” Simply put, there are a ton of statutory authorities that allow the federal government to use a wide array of federal law enforcement officers to enforce federal law (including destruction or vandalism of federal property). Those authorities don’t usually require officers to stay in their regulatory lanes (for instance, immigration officers can arrest for any federal offense committed in their presence). There’s a good bet that that’s at least part of what’s going on here. And although many of those authorities extend only to offenses against (and on) federal property, if a federal officer personally observes such an offense, it is not controversial that he or she can arrest the offender even if the arrest takes place on a public street.
Question 2: Okay, but which federal laws are being enforced?
This is a significant question, and the answer is hardly obvious. Unlike D.C., which is entirely federal territory (and where even “local” law is technically “federal”), Portland is principally subject to the sovereignty of the state of Oregon. There is some federal property in Portland, but not much. And federal law enforcement officers do not generally have the authority (under federal law, anyway) to enforce state laws on nonfederal property. Some of Acting Secretary Wolf’s statements have referred to vandalism of “courthouses,” including the three federal courthouses in downtown Portland. And there are a handful of other federal buildings in the city. But this is where the Portland situation starts to look very different from D.C. Protecting a federal courthouse from vandalism is an easy case for the use of federal law enforcement authorities. If, as media reports have suggested, federal officers are patrolling streets a significant distance from federal buildings (and arresting protestors who pose no imminent threat thereto), that would be far murkier.
Question 3: What authority do these federal officers have to detain and arrest individuals?
Insofar as federal law enforcement officers are enforcing federal law and/or state law on federal property, federal law also provides detention and arrest authorities. Of course, detention and arrest must still comport with the federal Constitution—under which warrantless arrests require probable cause to believe the individual has committed a crime.
Like most states, Oregon does authorize federal officers to enforce state law. Under Oregon Revised Statutes § 133.245, a federal officer may arrest any person “[f]or any crime committed in the federal officer’s presence if the federal officer has probable cause to believe the person committed the crime.” The statute also provides, however, that “[t]he federal officer shall inform the person to be arrested of the federal officer’s authority and reason for the arrest,” and that “[a] federal officer making an arrest under this section without unnecessary delay shall take the arrested person before a magistrate or deliver the arrested person to a peace officer.” (The statute also allows the federal officer to use the same physical force that a local or state officer would be allowed to use in effectuating the arrest.) In other words, federal law enforcement officers in Portland could have the legal authority to arrest individuals when they have probable cause for violations of federal or state law—but in the latter case, there are statutory notice and transfer requirements that, if media reports are accurate, are not being honored. But the Oregon statute also requires state certification that federal officers have received proper training before effectuating arrests under state law before such arrests can happen. Suffice it to say, it is hardly clear that any of the federal officers have received such certification here.
Question 4: How come none of these federal officers have to identify themselves?
As Rachel Brown and Coleman Saunders explained on Lawfare last month, there’s no general requirement under federal law that federal law enforcement officers disclose either their identity or the identity of their employer. (One of the many reforms that seems worth pursuing in response to recent events is to consider whether there are circumstances in which federal law should require identification.) The messier question is whether Oregon law requires them to do so. As noted above, the Oregon statute that authorizes federal law enforcement officers to enforce Oregon law requires the officers to identify their authority and their reason for making the arrest. It does not seem like a stretch to interpret that provision to require officers to identify themselves at least as a federal law enforcement officer, if not as an employee of a specific federal agency with law enforcement authority. That doesn’t mean that these officers must wear uniforms or drive marked vehicles, but it shouldn’t be remotely controversial to require federal officers, when making arrests, to make it clear to those whom they are arresting why they have the legal authority to do so.
Question 5: Is the Department of Homeland Security in charge? If so, why?
By all accounts, the federal law enforcement response in D.C. last month was coordinated by, and run through, Attorney General Barr and the Department of Justice. Here, in contrast, the response seems to be under the control of Acting Secretary Wolf. If so, it’s unclear why that would be the case, given that most of the authorities the attorney general identified in June are authorities he possesses in his capacity as attorney general. True, there are a number of law enforcement agencies in the Department of Homeland Security, but only a handful of them seem to be relevant to the situation in Portland (again, perhaps including Customs and Border Protection). And insofar as the hook for much of this response is the protection of Portland’s federal courthouses, that’s the bailiwick of the U.S. Marshals Service—an arm of the Department of Justice.
Question 6: How will we learn the answers to any of these questions?
Whatever the answers to the above questions, there ought to be common cause on the need to hear them. The federal government does not seem especially inclined to volunteer answers, which leaves things to Congress or the courts. Congress, of course, can attempt to compel testimony from executive branch officials (although we know how that story goes). And it’s only a matter of time before litigation also requires the federal government to account, under penalty of perjury, for exactly what its officers are tasked with doing in Portland and what they have done. But insofar as any of these individual federal law enforcement officers have exceeded their authority, it’s worth emphasizing that it is increasingly difficult to hold federal law enforcement officers liable for damages—even for violating constitutional rights. Not only would federal law enforcement officers be able to argue that they’re entitled to “qualified immunity” in such cases, but the Supreme Court has made it harder and harder for federal courts to allow private parties to sue federal law enforcement officers for damages even in cases in which no immunity defense is available. And so not for the first time this summer—and likely not for the last—the real upshot may be the need for Congress to enact comprehensive law enforcement reforms, not just to the substantive authorities that law enforcement officers may and may not exercise, but to when they must be required to identify themselves and to whom.
There’s definitely reason to be alarmed about what’s going on in Portland. And even if the federal officers are technically complying with the relevant statutes, there’s something more than just unseemly about camouflaged officers who refuse to identify themselves or their employer purporting to conduct arrests on the streets of American cities. Whether these officers are in fact abusing their authorities or not remains to be seen, but either answer would be deeply troubling.