Alan Zendell, July 17, 2020

During the first week in July, federal officers from Customs and Border Protection and the U.S. Marshals Service arrived in Portland, Oregon to allegedly help guard Portland’s federal courthouse against violent demonstrators. They were dressed in camo uniforms with no name tags or any indication of the federal agencies they represented. No one in either the city or state governments requested their assistance, and the State Attorney General has made it clear that they are neither needed nor wanted there.

These anonymous, warrantless officers have been prowling the streets of Portland, harassing peaceful protestors, arresting people, and in one instance, seriously injuring an unarmed man when an unidentified federal officer fired a “nonlethal” projectile that fractured his skull. Trump portrays these actions as necessary to assist local law enforcement in controlling violent protests and protecting federal property, but the operation is politically motivated, intended to shore up his base, as he continues his divisive re-election campaign.

Portland was selected as a test case because it is a progressively governed city in a blue state that Trump is desperately trying to associate with “Marxist, anarchist” elements of the largely fantastical Antifa movement often cited by U. S. Attorney General Bill Barr. In fact, there is no evidence that local law enforcement required any assistance, and none was requested.

The decision by the Department of Homeland Security to occupy Portland is an obvious attempt to counter the Black Lives Matter movement, red meat for the far-right extremists who make up a large portion of Trump’s base. In mimicking the Fascist tactics of Hitler’s Brownshirts in the 1930’s it raises the frightening specter of a secret police force acting in violation of the Constitution. American society and its institutions are strong enough that we needn’t fear a Gestapo-like force terrorizing the country, but there are other concerns.

We live at a time when local law enforcement officials understand the need for accountability, when police forces all over the country require that body cams record all interactions with civilians. Armed, aggressive federal agents grabbing citizens off the streets without identifying either who they represent or the reasons for the arrests undermines all attempts at police reform. Such intrusion by the federal government into the peaceful affairs of private citizens is unacceptable, and in the opinion of the Oregon Attorney General, unconstitutional.

Unidentified, armed individuals in camouflage gear arresting people also raises more practical concerns. Oregon is a diverse state whose population covers the entire spectrum from far-right extremists to left-wing activists. Heavily armed militia groups, visibly indistinguishable from anonymous federal agents in camo are a common part of the Oregon landscape. If you saw a protestor seized and whisked away in an unmarked van by people who fit that description, how would you know whether you’d witnessed a lawful arrest or a kidnapping? When a sizable portion of the population is armed, the consequences could be disastrous.

Last evening, the Oregon Department of Justice filed a lawsuit against several federal agencies and ten officers named John Doe-1 through John Doe-10 (their identities are not yet known to local authorities) for “unlawful law enforcement in violation of the civil rights of Oregon citizens by seizing and detaining them without probable cause.”

Since my understanding of the Constitution is as limited as most Americans’, I was fortunate to have access to a sitting judge who is familiar with the events in Portland and a scholar in constitutional law. My first question was whether the Tenth Amendment to the U. S. Constitution prohibits the federal government from interfering in local law enforcement. It does not. I also asked about the Fourth Amendment which protects citizens against unlawful search and seizure or arrest without a warrant. That argument could be made in this case, but there is a stronger one.

The Oregon lawsuit is framed as a First Amendment violation of civil rights based on two ideas. First, by refusing to identify themselves, the federal agents deprived citizens of their constitutional right to face their accusers and hold them accountable for any misconduct. Second, the arrests were intended to intimidate people from engaging in lawful protests. It’s one thing to legally and peacefully protest when law enforcement respects citizens’ rights and limits the use of force with clearly defined rules of engagement. It’s quite another to protest when you can be arrested and brutalized by unknown armed assailants.

As the State was filing the lawsuit, Oregon Senators Ron Wyden and Jeff Merkley announced that they will attach an amendment to the next defense appropriation to prevent a president from deploying paramilitary squads on American streets. As disturbing as the DHS decision to send federal officers to Portland is, the quick response of the Oregon Attorney General and the state’s Senators reassures us that Trump’s attempts at intimidation will ultimately fail. Unlike the fractured state of the Weimar Republic in 1932, ours is strong and vital. If it comes to that, we can depend on Chief Justice John Roberts to protect our Constitution.