The continuing unrest in Portland, Oregon, which has now lasted some 55 nights, exemplifies the breakdown of law and order that has become a daily occurrence in many cities with progressive mayors. Portland police are nowhere to be found at the sight of the protests outside the Mark O. Hatfield Courthouse, a federal building. On June 26, President Trump issued an Executive Order sending federal troops to protect the courthouse—and so far, they have made at least 43 arrests. The President minced no words when he attacked the protesters as “anarchists and left-wing extremists” spurred on by “agitators who have traveled across State lines” to wreak havoc.
Both his words and his use of federal troops have provoked a fierce reaction. Writing in The Atlantic, Ronald Brownstein accused the President of driving an ugly wedge between Red and Blue America to boost his reelection chances this coming November. Similarly, The Atlantic’s Quinta Jurecic and Benjamin Wittes insist that it violates the rule of law for plainclothes federal agents to arrest local protestors and cart them away in unmarked vehicles. Meanwhile, Joe Biden accused the Trump administration of “brutally attacking peaceful protesters.” And Nancy Pelosi has likened the federal agents to “stormtroopers.”
This chorus of criticism rests on the assumption that all governmental processes should be transparent and above board, and that any federal presence in local communities only will further inflame a tense situation.
These events have led to an extraordinary letter to the Trump administration, signed only by Democrat mayors, including the mayors of Portland (Ted Wheeler), Seattle (Jenny Durkan), Atlanta (Keisha Lance Bottoms), Washington D.C (Muriel Bowser), Chicago (Lori Lightfoot), and others. Their message is unambiguous: “We urge you to take immediate action to withdraw your forces and agree to no further unilateral deployments in our cities.” The letter insists that federal forces should not conduct law enforcement activities “without coordination or authorization of local law enforcement officials.”
The letter is significant for several reasons: It omits key factual details; it takes a truculent and confrontational tone; and it jumps to a hasty legal conclusion in claiming that the unilateral deployment of federal troops “is unprecedented and violates fundamental constitutional protections and tenets of federalism.”
Oddly enough, the letter has been overtaken by recent events because it fails to confront the chaotic state of play on the ground in Portland and other cities, including Seattle and Oakland. By its account, there is no reason for the federal government to intervene. The letter does not make any mention of the looting, rioting, and arson that occurred in the aftermath of the killing of George Floyd in Minneapolis, nor does it mention the direct and repeated acts of vandalism at the Hatfield Courthouse. It also does not refer to the spike in crime in major cities across the United States, including Minneapolis, Washington, Atlanta, and Philadelphia.
And it refuses to acknowledge that local police have sometimes been ordered to stand down during the violence, thereby exposing both federal property and the property of ordinary citizens to ruinous destruction, for which no compensation will come from either the local or state government. Nor have the mayors identified any effort by their own police departments to arrest and prosecute these offenders. Most conspicuously, the letter offers no substantive critique of the President’s recent Executive Order, which has as its object “Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence.”
One reason why these federal actions are unprecedented is the unprecedented indifference of state and local officials to mayhem and violence within their jurisdictions. The Mayors’ letter rightly points out that federal officials are not ideal for undertaking local policing efforts, which normally are better left to local officials who are trained to deal with crowd control and similar issues. But, unfortunately, the correct frame of reference throughout is the wholly unsatisfactory performance of state and local officials, who have refused to use their resources to quell these disturbances. Surely, the use of federal police is preferable to doing nothing at all, lest a Seattle-esque CHOP zone spreads to other cities, resulting in a breakdown in law and order, and an inevitable loss of life.
The letter’s claim that federal intervention violates long-standing legal standards governing federalism is profoundly mistaken. For starters, Trump’s Executive Order did not seek to take over operations throughout Portland, but was only directed to activities that were located around federal buildings—and there is specific statutory authorization for that. It is a federal crime under Title 18, Section 1361 of the United States Code for someone to “willfully” injure or commit “any depredation against any property of the United States.” The law specifies fines up to $1,000 and imprisonment for up to one year against such individuals. The federal government, in other words, is authorized to arrest those individuals for prosecution.
In addition, it is widely understood that the federal government today has broad jurisdiction under the Commerce Clause to the Constitution to punish, as federal law also provides, anyone who travels in interstate commerce or uses the instrumentalities of commerce “to incite a riot” or “to organize, promote, encourage, participate in, or carry on a riot.” Indeed, Elizabeth Goitein of the Brennan Center unhappily conceded that the United States Code gives President Trump “broad authority to deploy the military in response to civil unrest,” though she added that “injecting military forces into a domestic crisis has the potential to make a bad situation worse.”
But has the federal power been abused, as many on the left claim, by officers in plain clothes using unmarked vehicles? Generally, all law enforcement persons, whether federal or state, should present their credentials to subjects of arrest. But police officials acting under emergency conditions, as in Portland, should be allowed to dispense with these formalities to protect their own safety. It would be folly to send in marked police vans, which could then be targets of crowd violence.
On July 17, Oregon’s Attorney General Ellen Rosenblum filed an unusual parens patriae lawsuit against the United States Department of Homeland Security seeking to halt allegedly systematic excesses and abuses of the Trump administration in quelling the protests. Parens patriae literally means “parent of the country”—and it involves the power of the state to act as a guardian on behalf of its citizens.
But what made the case, Ellen Rosenblum v. John Does, unusual is that no individual person sought redress for his or her personal harms. Rosenblum objected that officers seizing people on public streets “without any verbal explanation” violates the Fourth Amendment guarantee against unreasonable searches and seizures, and counts as an interference with the freedom of speech and of the right of the people peaceably to assemble. She did not press the claim that the use of unmarked vans gave rise to a constitutional violation.
Judge Michael Mosman—a George W. Bush appointee, who sits in the Hatfield Courthouse—dismissed her case a week later on the ground that the state did not have “standing” to represent its citizenry. But even assuming that these arrests were unconstitutional, the most Oregon could muster was two inconclusive incidents of possible federal abuse against individuals who notably brought no claim on their own behalf. Such evidence falls far short of the legal requirements which at a minimum require a plaintiff to show a “very particularized” injury and to demonstrate a high probability of success on the merits. Given the constant and tense interactions between federal officials and the local protestors, a record devoid of any concrete allegations speaks to the astounding performance of federal agents under the most trying circumstances.
The dismissal of the lawsuit does not block further individual actions, but it should serve as a reminder that the attacks on the federal officials were, at the very least, overwrought. Judge Mosman’s decision demonstrates how difficult it is to constitutionally protect the right of peaceful assembly when lawful protesters are commingled at night with violent actors. It is not too much to insist that federal (and state and local) officials try to target only dangerous persons for arrest and removal. But in fast moving and chaotic situations, the likelihood of error is common to both law enforcement personnel and demonstrators. In these circumstances, law enforcement officials should get the benefit of the doubt if it turns out that they arrested the wrong persons, unless it can be shown, which is highly unlikely, that those persons were known to be innocent observers at the time of their arrest.
In addition, it should be perfectly within the power of federal, state, and local officials to ban midnight protests that occur side-by-side with violent episodes, so long as other areas of protest remain available. Indeed, the limited scope of the federal intervention still leaves both Portland and Oregon ample room and opportunity to restore order within their jurisdictions. The sad conclusion is that the same Democratic leaders who proudly attack the President are, simultaneously, willing to expose their own citizens to personal injury and property damage to undermine the Trump administration.