21 July 2020
Late last week my oldest son began telling me about the clandestine deployment of Federal forces in Portland, Oregon. He was quite concerned about these forces inclusive of the Customs and Border Patrol use of unmarked vans. He also was upset that officials wearing camouflage without badges or any identifications had been observed throwing protesters into unmarked vans. I kind of blew him off saying we don’t use police state tactics like that here. I think I couched it in terms like ‘that is something Pinochet would do, not the US government.” I was so very wrong.
Trying to make sure he wasn’t paranoid I scanned all my usual news sources from that day one and saw nothing at first. But then the stories began bubbling up. Detailed accounts came first from small outlets and then a brief story appeared in one national source. By today, Tuesday July 21st, the story has hit the main stream media.
President Trump has indicated that he has just begun to roll out this program. Portland, a relatively obscure and small west coast city out of the mainstream of American vision, was his test case. The man on Pennsylvania Avenue says he plans to roll this heavy-handed response tested in Portland out to cities run by liberal/radical Democratic mayors and take control of the streets back. The President really hasn’t responded to publicly raised issues of detention without probable cause of persons by unnamed federal agencies and unidentified officers using unmarked vehicles. His response is that the Democrats in control of Portland and these other places including Chicago, are weak and that he is going to bring back law and order to them, one of his key campaign talking points.
Just a little constitutional law primer. The First Amendment indicates clearly, Congress shall make no lawrespecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The Fourth Amendment provides, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fifth Amendment says that individual liberty shall not be impinged without due process of law.
The case law has long been established that when an officer observes unusual conduct which leads them reasonably to conclude that criminal activity may be afoot, he or she may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer's suspicions. Terryv. Ohio, 392 U.S. 1 (1968); Minnesota v. Dickerson, 508 U.S. 366 (1993) The reasonable nature of the stop combined with the brevity of the contact are key here. You can’t as Michael Curtiz acting as Captain Renault in Casablanca just say, “Round up the usual suspects.” The importance of the brevity component in a slightly different context was reemphasized when the Court determined a state may set up highway checkpoints where the stops are brief and seek voluntary cooperation in the investigation of a recent crime that has occurred on that highway. Illinois v. Lidster, 540 U.S. 419 (2004).
A brief review of the literature did not disclose to me a clear requirement that police specifically answer questions about their names or badge numbers. However, the general consensus was that the fact that the officers were in clearly identifiable police agency uniforms and were using clearly marked police vehicles made the citizen aware they were involved with a bona fide police force action. Note in Portland the Federal agents have been using unmarked vans and are wearing no identification whatsoever on their persons.
Having laid this out let us look at Portland. If you go to the news stories coming from the cities there are numerous examples that no amount of straining can fit into the key rule set out in Terry about brief investigatory stops. Mark Pettibone’s story is one getting a great deal of press but there are others, https://www.refinery29.com/en-us/2020/07/9919725/portland-protest-officers-unmarked-vehicles-trump-twitter Mr. Pettibone was grabbed, put in a van and never told who took him or why. He was read his Miranda rights so he was clearly arrested, but no charges were laid. He was summarily turned back out onto the street after he refused to relinquish his Miranda rights.
In another case, a Navy veteran one Christopher David, had his hand broken in another very disturbing tale. Mr. David was a graduate of the Naval Academy and he wanted to ask what was the basis for the Federal agents actions acting in this secret-police like manner. In response to Mr. David’s questions to the anonymous men in camo he was beaten and his hand was broken to the point it will require surgery, https://www.nytimes.com/2020/07/20/us/portland-protests-navy-christopher-david.html
There is no indication that the Federal agents observed either of these men doing anything wrong other that being out on the night of a protest. There is no indication that the night these men was encountered by the unnamed men in unmarked uniforms and cars were particularly violent or that there contact with these agents was anywhere near a violent incident of any sort.
We all want ours to be a safe world. We all want things to work in an orderly fashion. We don’t want ugly lawlessness at our doors. But the world is not safe and the world is disordered. People have legitimate grievances. George Floyd’s ugly and painful death, a death that was unwarranted and unlawful, ripped off scabs opening the wounds have long festered from racism and classism in this country. People of color have had enough. People denied access to the economic mainstream have had enough. People who don’t agree that a white race governed, male centric, capitalistic to the point of social Darwinism set of values and institutions are their vision of American, have had enough. Right here, right now they are petitioning and assembling seeking a redress of grievances and they are doing it in the streets.
Out in the streets sometimes passions get inflamed and things get violent. In those situations, arrests are made with merit. But the vast majority of protests are not violent. Graffiti is not violence despite what the Homeland Security folks say. But to pick up people who are not observed acting violently or behaving in a manner that would raise a reasonable suspicion of being engaged in criminal behavior is not lawful. Simply being out on the night of a protest or posing a question however awkwardly to someone apparently a law enforcement official warrants neither an arrest by anonymous agents of an anonymous agency or a beating by those same agents. Reasonable grounds and brief contacts. Protesting is not a reasonable ground to assume criminality. Being out on the night of a protest is not a reasonable ground to assume criminality.
The fact that Trump is targeting cities controlled by officials of the Democratic party for his deployment of his anonymous police forces is as troubling as these secret agents of these secret agencies disappearing people off the streets of Portland. None of these mayors have requested Federal help in their cities. Trump is a big fan of local rule, we have all observed his hands-off approach to the coronavirus and testing. The President has ignored countless requests from governors and majors for Federal government assistance with testing and assistance in controlling the outbreak. But when Mr. Trump perceives there to be a problem with unruly assembly relative to long simmering grievances in cities controlled by the opposing political party during an election year, when his chances of re-election are starting to look ugly, he is willing to send in Federal agencies to usurp local law enforcement powers in a way not consistent with the parameters of the Constitution.
I am aghast that people of both parties aren’t incensed by this use of federal agencies to bolster the President’s apparently sagging political fortunes. There are legal rules related to arrests and detentions that must be followed. What is occurring now is far outside that legalities. The fact that protestors who don’t look or sound like you are the victims may seem to make this more palatable. But what happens when a President’s focus fixes on an area where you live because of perceived labor unrest, or perceived anti-government sentiments or some other speciously perceived problem? Will a stop of you or a loved one by an unmarked vehicle carrying an unidentified government agent be okay with you? I don’t think so.
There are norms of Federal and status government relations. Opting to send Homeland Security and the CBP in without a request when there is a police presence on the ground already violates those norms. This is not the sending in of the National Guard to enforce the orders of the Supreme Court in the 1960s. This is a unilateral decision by a politically weakened President trying to bolster his support among his base. It is without precedent.
What is happening is just wrong.
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