Written by: Stephen J. Corell, paralegal
On May 25, police officers murdered George Floyd. On this particular coin, there are not two sides. Immediately thereafter, protests began to erupt across the country in response to George Floyd’s death, joining in the protests that pre-existed his death but fought for the same goal: an end to police brutality, especially that which is racially motivated.
The protests spanned most of the major cities in the United States, and one of those cities was Portland, Oregon, a city that has been no stranger to protests—even occupations—in the past.
However, what some have reported to be largely peaceful beginnings began to turn sour when the current administration sent in federal agents, with many still currently active in Portland as of today, despite alleged agreements to withdraw. President Trump stated he would not order withdrawal until “safety” had been restored. This statement, however, raises a basic question. Will safety ever be restored while federal agents are present? Were the protests already violent before they arrived? Or did the mere presence of federal—armed—troops with the potential to harm U.S. Citizens engaged in protest exacerbate an already deep unrest with the current state of things?
Ignoring for now the cluelessness of using armed troops to address protestors’ concerns about State-funded police violence, these questions have been the subject of conflicting reports. Some—like Attorney General William Barr—have alleged that the troops were a necessity due to the already violent nature of the protests and that the violence done against the federal troops outweighs that done to the protesters. It is unclear how he can have any knowledge to support this statement, especially considering the fact that there has been documented cases of federal agents tear-gassing protesters, crushing a Navy veteran’s hand, and shooting a history teacher in the head. The involvement of federal agents is further exacerbated by the existing controversy surrounding the use of similar federal agents to clear a path for the President’s envoy to take a photoshoot in front of a church.
The cherry on top is that some of the federal law enforcement units deployed to the Oregon city used unmarked vehicles—an allegation that has been confirmed by the Department of Homeland Security themselves—making it impossible to even identify one’s captor, should a protestor be scooped up and taken into a van and transported away. There are serious Fourth Amendment concerns here.
The messy—if not downright unconstitutional—response has prompted not only the Department of Justice, but also the Department of Homeland Security to launch independent investigations into the use of federal agents in Portland to quell allegedly violent protests.
Whomever you believe, and whether or not you think the protests began violently, turned violent and required intervention, or were forced into violence by the intervention itself, the threshold question that informs the entire debate is this:
The answer is yes, but what they are allowed to do when they arrive is not unlimited.
Initially, President Trump attempted to shroud the influx of troops beneath an executive order allegedly protecting monuments. Nobody is convinced this was the actual reason, and the actions of the agents in Portland do not support this either. As explained in more detail by Garrett M .Graff—a former editor at Politico—it is in many ways entirely legal for the federal government to designate individuals from the Office of the Federal Protective Services (“FPS”), to mobilize “in connection with the protection of property owned or occupied by the Federal Government and persons on the property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property.”
This is a little known provision of the U.S. Code found at 40 U.S.C. 1315. However, as Mr. Garrett points out, it is not entirely in the spirit of the law to use these powers to protect Federal “property” to quell protest by going out into the streets and affirmatively engaging in violence and not simply protecting buildings or property. Kayleigh McEnany—the White House Press Secretary—parroted this same statute almost verbatim at a recent press conference, stating that "agents can conduct investigations of crimes committed against federal property or federal officers."
The question, therefore, becomes not whether it is illegal to send agents to Portland, but rather, what is the extent of their power—and use of force—when they arrive. Certainly if protestors are burning government buildings, this would be well within the purview of the federal agents to deal with, but when the FPS, ICE, and the U.S Marshals Service are actively out in the streets detaining protestors, it begins to look like the protection of buildings is, at best, a false flag. For a fascinating discussion on this, listen to this episode of “We the People”, which discusses the nuances of federal involvement in protests.
Even President Trump’s own Defense Secretary, Mark Esper, has voiced his concerns over the administration’s actions, stating that "the option to use active duty forces in a law-enforcement role should only be used as a matter of last resort, and only in the most urgent and dire of situations." Sending in federal agents to do police work is toeing the line of the Tenth Amendment of the Constitution, which delegates to the State—and the State alone—the offices of policing the local populace. However, the tactics being used by the agents, and the jurisdiction they seem to be claiming—may be stepping over it, especially in a situation where Portland’s mayor not only did not request the influx of federal agents, but explicitly asked them to leave.
The Tenth Amendment is not the only one at issue here. The preservation of the First Amendment rights of the protestors and the Fourth Amendment rights of the populace to probable cause are equally questionable. In each of these cases, it is unclear where the line is, and the ensuing legal action by the Oregon Attorney General may shed some light on this question for the future. For now, it is still a question, unless a discussion arises surrounding the judges who have ordered arrested protestors never to attend protests of any kind in Oregon—not just Portland—again, which is so transparently overbroad and unconstitutional that it bears no further writing.
When it comes down to it, this is all a judgment call; a balancing act. In such a complicated situation, especially considering the context of the protests, the explicit disagreement of the mayor, the unidentified nature of the forces, and the tactics being used by the agents, the line is a sketchy one at best. Adding in the fact that it is unclear whether the violence pre-existed the influx of federal agents or if the federal agents caused a stir that became a self-fulfilling prophecy, it becomes even more murky.
At best, the use of federal agents in the manner described is “legal” and maybe Constitutional, but suspiciously thin on precedent and honest, forthright motive. At worst, it is a transparently political use of apolitical agencies to intentionally stoke a fire to the point it has to be put out, with the next inevitable step being to blame the fire for everything.