Federal boots on city streets

With Congress gridlocked and courts restrained, public opinion confronts authoritarian tactics.

 

Federal officers deployed tear gas and less-lethal munitions while dispersing a crowd of about a thousand protesters in front of the Mark O. Hatfield U.S. Courthouse on Thursday, July 24, 2020 in Portland, Oregon. Protesters continued to clash with federal officers after President Trump announced plans to deploy similar federal forces to other U.S. cities.
Nathan Howard/Getty Images

For one night in late July, the mayor of Portland, Oregon, joined a series of protests against police brutality outside the downtown federal courthouse. Alongside the demonstrators, the mayor, Ted Wheeler, was tear-gassed when federal law enforcement cracked down on the assembly. “I’m not going to lie — it stings; it’s hard to breathe,” Wheeler told the New York Times. “This is an egregious overreaction on the part of federal officers. This is flat-out urban warfare.”  

Many of the protesters were unsympathetic; some jeered or blasted him with leaf blowers and scuffled with his security team. That’s because Wheeler, who is police commissioner as well as mayor, oversees a department that uses tear gas so often he’s been nicknamed “Tear Gas Ted.” The nightly protests, which were sparked by the killing of George Floyd in May but were tapering off at the time, took on a new dimension with the arrival of federal law enforcement from the Departments of Justice and Homeland Security, including elite militarized Border Patrol officers.

Suddenly, Portland was in the national spotlight. Acting Homeland Security Secretary Chad Wolf claimed the city was under siege by violent rioters, while free-speech advocates warned of a constitutional crisis, as Oregon Public Broadcasting verified reports of federal agents detaining demonstrators in unmarked vans. Federal officers pulled back in late-July, but the episode tested the limits of domestic policing by the federal government. In Portland, the impunity with which federal officers can be deployed was on full display — a challenge to the ability of the U.S. Congress and courts to rein in an executive branch that is bending both federal policing norms and constitutional rights.

Federal law enforcement is omnipresent across the country. Agencies like the Federal Bureau of Investigation, Drug Enforcement Agency, Bureau of Alcohol, Tobacco and Firearms, and (most controversially, due to its role in carrying out President Donald Trump’s hardline immigration agenda) Immigration and Customs Enforcement, are expected to enforce federal laws. But their recent arrival at protests is remarkable. Whats more unusual is seeing them add agents with the specific purpose of crowd and protest control,” said Tung Yin, a professor at Lewis and Clark College’s Law School in Portland, who specializes in national security and terrorism law.

The deployment in downtown Portland was within the purview of federal law enforcement officers, who have a clear cause and mandate” to protect federal property, Yin said. But that mandate usually falls on the U.S. Marshals Service rather than other agencies — one sign that what was happening in Portland was different. When Customs and Border Protection officers started arresting people and dispersing nonviolent protesters with tear gas and nonlethal (but dangerous) munitions, concerns about the constitutionality of their presence grew. Even as tensions escalated, President Donald Trump openly flirted with deploying troops to other U.S. cities.

Democratic politicians condemned the actions of federal agents, with Sen. Jeff Merkley, D-Ore., leading an ill-fated legislative push to constrain federal law enforcement actions through an amendment to the defense spending bill. The No Secret Police in America Act” prohibits federal agents from using unmarked vehicles and requires that agency and individual identification be visible on uniforms, and that agencies notify the public about deployment. Senate Republicans blocked debate and a vote. A similar bill in the House of Representatives has yet to be put to a vote.

I havent spoken with anyone who disagrees with the need for police to have unique identifiers.”

The failure to respond to what happened in Portland is a sign that the Senate is deeply broken,” Merkley told High Country News. I havent spoken with anyone who disagrees with the need for police to have unique identifiers.” With the election so close, Merkley thinks Republicans are unwilling to challenge their party's presidential candidate. Instead, they’re using their majority and parliamentary tactics to avoid debating laws that curtail federal law enforcement.

Absent legislative checks, lawsuits filed in federal courts have secured some protections for legal observers, journalists and medics at Portland protests. Federal agents were issued a temporary restraining order against detaining or targeting members of the press or legal observers, and from seizing any recordings or equipment from the press, following a lawsuit from the Oregon chapter of the American Civil Liberties Union. We have a Constitution for a reason — the rubber meets the road in the courts,” said Kelly Simon, ACLU Oregons interim legal director. Theres been a waterfall of cases in the face of these unconstitutional actions and that waterfall is going to keep falling.”  

Though the legal actions have helped limit the current abuses of authority, they cannot prevent them from happening entirely. They are reactive because of legal nuances,” Simon said. Its hard to go to court before something happens.”

Protestors wave placards as they take part in a rally against police brutality in Portland, Oregon, on July 24, 2020. Police fired tear gas and fought running battles with protesters during the demonstrations against police brutality and the deployment of federal troops to U.S. cities.
Kathryn Elsesser/AFP via Getty Images

In the end, the court of public opinion may hold the most sway when it comes to the mobilization of federal forces on U.S. streets. Some of the reforms proposed in the Secret Police Act are already being considered by federal law enforcement after widespread public backlash. In early August, Acting Deputy Homeland Security Secretary Ken Cuccinelli told Congress that law enforcement will stop wearing Army-style uniforms. Despite Cuccinelli’s testimony, some federal officers have kept their battle dress uniforms while breaking up demonstrations in Portland.

Merkley said he thinks the escalation of federal police was a failed campaign ploy. “They alienate the suburbs because it’s totally un-American,” Merkley said. “I feel positive that they backed off already,” he said, following a deal Oregon Gov. Kate Brown, D, made to add more state police for crowd control in Portland in exchange for a diminished federal presence. Since the agreement was announced, federal law enforcement have been less visible, but they have still engaged with crowds outside the downtown courthouse and at an Immigration and Customs Enforcement building.

With Congress at a partisan standstill, and courts unable to react quickly, public pressure has prevented the further reach of federal law enforcement. The power of public opinion can only go so far, however, and some Washington, D.C., analysts have already gamed out grim scenarios that highlight the lack of checks on executive power, should Trump lose the Electoral College but attempt to hold onto power.

Yin, however, thinks the rhetoric around the federal deployment in Oregon belies the actual scale of what happened. The significance of the abuses is unquestioned and impacts some people in downtown, but outside of the immediate area the disruptive nature isnt there,” Yin said. Opposing sides projected their own fears and agendas onto the situation, and their conclusions don’t reflect the reality for most Portlanders. The city isnt burning, and theres not secret police all over,” Yin said. Besides, he said, absent Trump federalizing the National Guard — a move that would likely be contested by state governors — there aren’t enough federal agents to occupy every American city.

Carl Segerstrom is an assistant editor at High Country News, covering Alaska, the Pacific Northwest and the Northern Rockies from Spokane, Washington. Email him at [email protected] or submit a letter to the editor

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