The feds take their Portland approach on the road. Three questions.

Why We Wrote This

Portland, Oregon, looks to be the test case of a new White House policy of deploying federal officers to cities to deal with civil unrest. But the agents’ actions are raising questions about the legality of the approach.

Noah Berger/AP
Federal officers’ actions at protests like this one on July 20, 2020, in Portland, Oregon, are raising the prospect of a constitutional crisis – one that could escalate as weeks of demonstrations find renewed focus in clashes with camouflaged, unidentified agents outside Portland’s U.S. courthouse.

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President Donald Trump announced plans Wednesday to send hundreds of federal law enforcement agents to Chicago and Albuquerque, New Mexico, as each city confronts a spike in crime. The move follows his deployment of federal officers to Portland, Oregon, where protests have continued since George Floyd died in police custody in Minneapolis.

The president dispatched more than 100 personnel from the Department of Homeland Security to Portland to protect federal buildings and monuments. Clad in camouflage and tactical gear, the agents have stood guard outside a federal courthouse, one of several federal buildings in the city vandalized in recent weeks.

Videos have also shown officers engaged in less passive acts: tear-gassing protesters, firing “less lethal” munitions at demonstrators, and using unmarked vehicles to grab protesters off the streets.

Michael Dorf, a law professor at Cornell University, explains that the government may deploy forces to protect federal property or when state officials request help to enforce state laws.

The arrests conducted by DHS agents away from federal property – and the opposition to their presence from state officials – muddy the legal picture. “There’s at least some reason to suggest that what’s happening may not be justification for execution of federal authority.”

President Donald Trump announced plans Wednesday to send hundreds of federal law enforcement agents to Chicago and Albuquerque, New Mexico, as each city confronts a recent spike in crime. The move follows his deployment of federal officers to Portland, Oregon, where protests over racial inequality and police brutality have continued since George Floyd died in police custody in Minneapolis on Memorial Day.

The president’s self-styled “law and order” campaign targets cities led by “liberal Democrats” who he accuses of failing to crack down on street violence and civil unrest. Local and state officials have criticized the effort as an election-year ploy as he lags in polls behind Democratic challenger Joe Biden.

Federal statutes enable a president to deploy government forces to states under certain conditions. But the actions of agents in Portland have triggered demonstrations and litigation, raising questions among law enforcement and legal experts about what awaits Chicago, Albuquerque, and other cities that President Trump has sought to portray as lawless.

How have Oregon’s elected officials responded to the presence of federal officers?

Portland Mayor Ted Wheeler blamed the agents for inflaming protests and called for their withdrawal. Gov. Kate Brown seconded that demand and labeled their patrolling of streets “a blatant abuse of power.” Democratic members of the state’s U.S. congressional delegation, including Sens. Jeff Merkley and Ron Wyden, introduced legislation to limit the role of federal forces in cities.

The president dispatched more than 100 personnel from the Department of Homeland Security (DHS) to Portland under an executive order he signed last month to protect federal buildings and monuments. Clad in camouflage and tactical gear, the agents have stood guard outside a federal courthouse that protesters defaced with graffiti, one of several federal buildings in the city vandalized in recent weeks.

Videos have also shown officers engaged in less passive acts: tear-gassing protesters, among them a “wall of moms” and Mayor Wheeler; beating and pepper-spraying a Navy veteran; firing “less lethal” munitions at demonstrators, leaving one man with a fractured skull; and emerging from unmarked vehicles to pull protesters off the streets and haul them away.

The state’s attorney general filed a federal lawsuit July 17 against DHS and other federal agencies that asserts the officers violated the civil rights of Oregonians by seizing and detaining them without probable cause.

Michael Dorf, a constitutional law professor at Cornell University, explains that federal law grants authority to the government to deploy its forces to protect federal property or when state officials request help to enforce state laws.

The arrests conducted by DHS agents away from federal property – and the opposition to their presence from state officials – muddy the legal picture. “There’s at least some reason to suggest that what’s happening may not be justification for execution of federal authority,” he says.

Why are federal agents wearing military-style uniforms and using unmarked vehicles?

DHS officials have called the camouflage uniforms “standard” and “appropriate for any operational environment,” and further claim that the removal of name badges protects officers against potential harassment. The agency’s acting deputy secretary has described the use of unmarked vehicles by law enforcement as “so common it’s barely worth discussion.”

The agents sent to Portland belong to a “rapid deployment force” drawn from DHS agencies that include Immigration and Customs Enforcement and Customs and Border Protection. Defense Secretary Mark Esper has aired concerns to Trump administration officials that the public will mistake federal officers for military troops because of their similar uniforms.

“We want a system where people can tell the difference,” a Pentagon spokesman told reporters Tuesday.

Oregon Attorney General Ellen Rosenblum on Monday asked a federal judge to impose a temporary restraining order on the agents in Portland. She argued that their lack of recognizable police uniforms, failure to identify themselves when arresting protesters, and use of unmarked vehicles make them indistinguishable from “lawless militia” or “kidnappers.”

The absence of identifying details about the officers sows confusion, according to Edward Maguire, a professor of criminology and criminal justice at Arizona State University, and an expert on policing protests. “If people don’t know who you are,” he says, “you’re defeating their ability to hold agents and agencies accountable.”

What is likely to happen in Chicago and Albuquerque?

Agents from the FBI, DHS, and other federal law enforcement agencies will head to both cities. Their stated mission appears different from that of the officers sent to Portland, with a focus on combating violent crime and greater coordination with local officials and police.

The mayors of Chicago and Albuquerque have voiced wariness about the impending arrival of federal agents. In Chicago – where more than 400 homicides have occurred so far in 2020, an almost 50% increase from the same time last year – Mayor Lori Lightfoot told reporters that city officials “welcome actual partnership but we do not welcome dictatorship.”

Black Lives Matter and other activist groups in Chicago filed a federal lawsuit Thursday seeking an injunction against federal authorities from interfering with peaceful protests, arresting people without cause, or concealing their identity.

Activists frame the litigation as an attempt to prevent a replay of Portland. Recent events there make that concern understandable, says Dennis Kenney, a professor at the John Jay College of Criminal Justice and a former police officer.

“We’re not used to seeing things like that in the U.S.,” he says. “Those are things we associate with places like Venezuela and Colombia.”

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