There is disturbing evidence of strange occurrences out of
Portland, Oregon.
Videos and eye witness accounts spread across the Internet, detailing
the action of armed men in camouflage fatigues and body armor pulling up in unmarked mini-vans,
grabbing people off of the streets, and putting them in the back of those
vans. The reports began surfacing around
July 14th, and Federal Government officials have admitted that these
tactics are going on.
The story of Mark Pettibone and Connor O’Shea is
chilling. In the early morning hours of
July 15th, Pettibone and O’Shea were heading home after spending the
night in demonstrations. The
demonstrations were rather peaceful, with very little activity by either the
Portland police or federal law enforcement.
While walking home, an unmarked mini-van pulled up in front of them, and
four to five armed men in camouflage fatigues and body armor jumped out.
O’Shea ran and hid, and began taking video with his
phone. Pettibone was caught, and thrown
into the back of the van. The men pulled
the beanie he was wearing over his face and held his hands over his head. Pettibone says he was driven around downtown
Portland for a while, and then taken to a building. He was patted down, and his belongings
searched. Officers put Pettibone in a
cell, and later read him his Miranda
rights. No one told him why he was
arrested. But he was asked if he would
waive his rights and answer some questions.
Pettibone demanded a lawyer, and was released about ninety minutes
later.
Pettibone and O’Shea believe they were targeted merely
because they were wearing black clothing near the area where demonstrations had
occurred. They denied engaging in
activities such as spray painting any buildings, or using laser pointers to
shine in the eyes of law enforcement officials.
Our Federal Government is one of limited power. Whatever power it has, it has been given by
the people, through the Constitution.
Keep in mind, in our system, the central government co-exists with state
and local governments. The Tenth
Amendment to the Constitution makes it clear that if the Constitution does not
give the Federal Government the power to do something, that power is reserved
to the states or the people. That is our
federalist system.
The whole idea is that there are some issues that are
inherently local. The legal rules over
those issues should be made by smaller governments, that are closer to the
people. Land use, health and safety
issues, traffic rules, these are just a few examples of those types of
issues. Whereas foreign policy, trade
among the states, establishing a common currency, these are all issues where a
national government needs to be able to make the rules.
When you read the Constitution, you will find that it does
not give the Federal Government the power to make rules and act to protect the
health, safety and welfare of the people.
That is called the police power.
Through the auspices of the Tenth Amendment, the police power is reserved
to the states. That is why most criminal
law is state law, and most law enforcement agencies are part of the state or
local government.
For the Federal Government to be able to engage in criminal
law enforcement activities, there has to be a federal hook. Meaning, the activity being policed has to
have some connection either to a power explicitly given to the Federal
Government through the Constitution, or something that’s necessary in order for
the Federal Government to do its job, like having employees or owning property.
For what’s going on in Portland, the federal hook is the
protection of federally owned property.
The Federal Government needs to be able to own property to perform its
functions. It owns courthouses, office
buildings, military installations. Heck,
the Federal Government owns parks for people to enjoy.
That’s why, for instance, it was the U.S. Park Police, an
arm of the Federal Government, that used tear gas, flash-bang grenades, and
brute force to push people out of Lafayette Square, a federally owned park, in
early June, so President Trump could have a clear path to take his highly
controversial photo op.
And keep in mind, I’m not saying how the Park Police did
their job was legal. There is an awful
lot of documentation showing that their tactics to clear the park of
demonstrators peacefully exercising their First Amendment rights, and news
crews reporting on the demonstrations, was way over-aggressive and very likely
a violation of law itself.
But getting back to Portland, the specific legal
justification for federal law enforcement activities stems from Chapter 40 of
the U.S. Code, section 1315. This
provision of law empowers the Secretary of Homeland Security to protect federally
owned and occupied property, and the people on that property. The Secretary is also empowered to designate
employees of the Department of Homeland Security, as well as other federal
employees transferred to the Department of Homeland Security, to be law
enforcement officers for this purpose.
So far so good. There
is nothing really controversial about the Federal Government having the power
to protect its property. Nor is it
controversial to give the Secretary the power to respond to requests by other
federal agencies to deploy law enforcement officers to the requesting agency’s
property.
But having the power to engage in law enforcement activities
doesn’t necessarily mean that everything that the agency does in the name of
protecting federal property is authorized by law. Like every law enforcement agency, the
Department of Homeland Security must exercise its powers consistently with the
requirements of the Constitution.
Let’s take these abductions in the middle of downtown
Portland in the early morning hours following a demonstration as an
example. Federal law enforcement
activities are limited to federally owned or occupied properties. That doesn’t mean that there is a magic line
where the federal property stops and the federal agency therefore has no power
to do anything. The statute itself says
the Department of Homeland Security’s authority extends to “areas outside the
property to the extent necessary to protect the property and persons on the
property.” But that language and
authority has to be interpreted with a degree of reasonableness.
If U.S. law enforcement officers are protecting a federal
courthouse for example, and someone from across the street has fireworks that
he or she is aiming at the courthouse in order to do damage, it would be
reasonable for the federal officers to be able to cross the street, regardless
of whether that agency then crosses over into land that is not owned by the
Federal Government, and arrest that person.
But it doesn’t give federal law enforcement officers the
authority or power to drive around downtown Portland, blocks away from the
federal courthouse, and randomly pick people up off of the streets. That is what the Federal Government is being
accused of doing.
Moreover, the exercise of law enforcement power must be
reasonable. An arrest, for example, must
be based on a warrant, or probable cause.
So the statute empowers federal law enforcement officers to make an
arrest without a warrant if a crime has been committed in their presence, or
the officer has reasonable grounds to believe that the person being arrested
has committed a felony. And again, those
specific powers are not in and of themselves controversial.
What is controversial, is grabbing someone off of the
streets, blocks away from where a demonstration has taken place, hours after a
demonstration has taken place, and assuming due to the color of the clothing
that person is wearing, that that person has engaged in unlawful
activities. Especially when the officers
are just grabbing the person, without announcing that they are law enforcement
officers from the Federal Government, without announcing that the person is
under arrest, without announcing why the person is being taken, and throwing
that person in the back of an unmarked van.
That doesn’t look like an arrest. That looks like kidnapping.
It doesn’t help that the law enforcement officers aren’t
wearing traditional police uniforms.
They are wearing plan camouflage fatigues. They are not wearing any clearly visible and identifiable insignia
communicating that they are part of any government agency. They are not wearing any name tag. They are not showing any badge of
office. They have a tiny patch above the
breast pocket that says “police.” But
that’s very ambiguous and not helpful.
Let’s throw out there that there have been reports of
right-wing militia type groups, some of whom are wearing military-style
fatigues, mixing in with protesters, either to agitate or incite protesters into
violence.
Under these circumstances, the actions of the federal
officers is very dangerous, both to themselves and to the protesters. Without a clearer indication of who these
officers represent, it is very much reasonable for the person being abducted to
assume that they are in fact being kidnapped, and possibly by these right-wing
paramilitary groups. It would be very
reasonable, where the officers are not announcing who they are or why they are
grabbing this person, for that person to fight back and try to protect
themselves.
And while normally, as a lawyer, I would tell you, if you
are being arrested or detained by a law enforcement officer, don’t fight back,
and don’t physically resist,regardless of whether you think the arrest is legal, because such actions can themselves constitute a
crime giving the officer further authority over you, in these cases how is the
person supposed to know that they are being placed under arrest.
The danger created by federal law enforcement’s actions is
further intensified by the fact the specific law enforcement officers in this
case are not properly trained for the task at hand. We’ve learned that the specific arm of the
Department of Homeland Security assigned to protect the federal courthouse in
Portland is the U.S. Customs and Border Patrol Tactical Unit, or BORTAC. BORTAC’s primary law enforcement mission is
to combat drug smugglers at the border.
And that is a very different type of law enforcement than crowd control. BORTAC is simply not trained to keep the
peace when it comes to large scale demonstrations. Their tactics may very well be effective when
you are talking about a member of the cartels trying to smuggle drugs across
the Mexican border. But it’s not the way
to handle largely peaceful protesters exercising First Amendment rights.
Indeed, many critics of these abductions have likened the
federal agents’ behavior to the disappearances of political opponents that
often happens in third world tin-pot dictatorships. Authoritarian dictatorships, like Venezuela, the
right-wing’s favorite whipping boy when they engage in scare tactics to warn
the electorate against turning socialist.
When you examine the root cause of this current campaign in
Portland, the parallels between the Department of Homeland Security’s current
actions, and those of authoritarian regimes because inescapable.
These actions are tied to a campaign to protect federal
monument, memorials and statues, as outlined in President Trump’s June 26, 2020
Executive Order. But the language Trump
uses in that order is just striking. In
the preamble, Trump rails against “left-wing extremists,” whom he claims “call
for the destruction of the United States system of government.” His call to action is filled with references
to “anarchists,” “left-wing extremists,” “fringe ideolog[ies],” and “Marxism.” Trump is not even trying to hide his
motivation in signing this Executive Order, and that is political. He is targeting people and groups because of
their political beliefs, and because of their involvement in left-wing
politics.
Trump seems to conveniently forget that one of this
country’s greatest values is the protection of free speech, and specifically,
the protection of political speech meant to criticize the government and its
leaders. The fact that a sitting
president feels so comfortable attacking political ideologies critical of his
Administration is nothing less than shocking.
This is what authoritarian regimes do.
But Trump goes further.
He clothes his campaign against his political opponents in the supposed
need to combat rioters. But, in doing
so, he deliberately conflates peaceful expression of protected political speech
with the incidental violence that has coincided with the most recent protests.
This is not to say that violence hasn’t occurred since the
protests over the killing of George Floyd by Minneapolis police began at the
end of May. It certainly has. But the causes of that violence has been
complex, and it is not necessarily true that the main proponents of the
violence have been those who have protested against police brutality targeted at
African-Americans and in support of Black Lives Matter. Indeed, some of the
violence has been instigated by overly-aggressive police tactics aimed at the
peaceful protesters.
The point is that you can’t presume that people gathered at
or near federal properties to protest against institutional racism are going to
engage in violence or property damage.
Turning back to Portland, it is true that federal
properties, including the federal courthouse, have been damaged in the most
recent demonstrations. The damage to the
courthouse after July 4th appears to stand out in the minds of
Homeland Security officials. Specifically,
in the early morning hours, at around 4:00 AM, about a thousand people had
gathered at the federal courthouse, and launched commercial fireworks at the
building. Because no one was in the
building at the time, the Portland police concluded that there was no immediate
threat to any person’s life or safety, and decided against dispelling the
crowd.
Now, I’m not in a position to second guess the actions of
the Portland police. It can certainly be
argued that police presence could have served to escalate the situation, and
incited that crowd to turn toward more violence. In their judgment, it was better to wait it
out.
This doesn’t prevent either the state or federal officials
from prosecuting anyone involved in the July 4th incident. In this modern society, video cameras seem to
be everywhere in the public space. To
the extent that law enforcement officials are able to obtain evidence that
implicates any specific person in the damage to the federal courthouse, by all
means, that would be an appropriate exercise of law enforcement authority.
But President Trump and Homeland Security officials have
used this incident not only to criticize local political decision-makers, but
as an excuse essentially to usurp state and local law enforcement entities,
with shock troops from the U.S. Marshal Service and the Department of Homeland
Security. On July 16th,
Acting Secretary of Homeland Security, Chad Wolf, released a statement condemning
the “failed response” of state and local leaders. In a laundry list of damage to federal
properties in Portland, Wolf justified the Department’s enhanced law
enforcement activities in Portland; activities that the state and local leaders
neither requested, nor wanted. Some of
the items listed in the Homeland Security release appear like desperate
attempts to paint a dire picture for public relations purposes. The list includes items such as graffiti,
taking down temporary fencing, plywood and wooden barriers, and ripping a card
reader off of its mount. This is not to
defend those who were causing property damage, or to say that the Federal
government didn’t have the right to take some action to protect federal
property. But the response has been way
out of proportion to the damage sustained.
It bears noting, that Homeland security’s response has
trampled on the very notion of states’ rights, a concept that the right-wing
usually champions in political discourse.
Moreover, Trump and Homeland Security officials have overstepped their
authority.
Even before federal thugs in rented mini-vans were abducting
random people off the streets in Portland, the U.S. Marshal Service was
continuing the trend we have seen nationwide in response to the George Floyd
protests. And that is overly aggressive
tactics against peaceful demonstrators.
Specifically, on July 12th, a twenty-six year old man had
joined demonstrators across the street from the federal courthouse. He was holding a speaker over his head with
both hands. He was unarmed. One of the Marshals took that as an
opportunity to shoot the young man in the head with a so-called non-lethal
impact munition. The man fell to the
ground, unconscious and bleeding profusely.
He had fractures in his face and skull, and required surgery.
The Federal Government hasn’t denied that these things have
happened. Quite the contrary, Trump and
Homeland Security officials have threatened further escalation. Trump is threatening to expand the use of
federal officers to cities like New York, Chicago, Philadelphia, Detroit,
Baltimore and Oakland, because these cities are, in Trump’s words, run by
“liberal Democrats.” That’s right. The political party of the chief executive of
major metropolitan cities is being used as the reason to threaten the
wide-scale deployment federal stormtroopers.
This is a threat that has been backed up by Deputy Secretary
of Homeland Security Ken Cuccinelli, who cited vague “intelligence about
planned attacks on federal facilities,” in response to the enhanced federal
activities in Portland, and warned, “If we get the same kind of intelligence in
other places . . . we would respond in the same manner.”
Indeed, in the wake of the federal action in Portland, it
has been revealed that the Department of Homeland Security has been spying on
people domestically, thought to be threats to monument, memorial and
statues. Moreover, the intelligence
being gathered is not limited to statues that are owned by the Federal
Government. That’s an awful lot of resources being expended on protecting
lifeless representations of people long dead.
Trump’s real motivation is to quell demonstrations that call
attention to systemic racism that plague law enforcement agencies across the
country. Trump has clearly allied
himself with white nationalists and others who would deny that systemic racism
is a problem. Specifically, Trump
opposes the move to remove statues and memorials dedicated to Confederate
soldiers and politicians from the public space.
He highlights the vandalism and damage to such statues in his call for
greater federal protection.
Trump has equated patriotism with the veneration of approved
national symbols and historic figures, with no debate over whether the beliefs,
actions and behaviors of these national figures actually merits the honor of
having a statue in the public square. To
motivate his white nationalist allies, Trump likes to expand the discussion,
and highlight the odd exceptions to the call for the removal of Confederate
historical figures. His Executive Order,
for example, references the statue of Ulysses S. Grant in San Francisco. But, Trump conveniently leaves out that while
Grant fought against the Confederacy, he himself owned a slave in his lifetime,
and his wife inherited slaves. This is
the very inconsistency that movements like Black Lives Matter have been
pointing out, and that Americans who want their government to live up to the
ideals and principles of our Founding Fathers, principles such as liberty and
equality, ought to be able to question without having their patriotism
impugned.
More disturbingly, Trump called attention to “Christian
figures” supposedly “in the cross-hairs, too.”
Although Trump failed to mention any such Christian figures by name, in
California a statue of Franciscan monk Junipero Serra has been removed. And while Father Serra attempted to protect
indigenous Americans from the abuse of Spanish Conquistadors, he was still part
of the drive of the Spanish Catholic Church to eradicate the religious beliefs
of Native Americans, and compel them to adopt Catholicism.
Yet, Trump uses this as justification to protect religious
symbols and property, specifically mentioning depictions of Jesus, through
federal action. Trump cites
the Church Arson Prevention Act of 1996, and in doing so, he turns the very purpose of that Act of Congress on its head. Historically speaking, church burnings have
been acts of intimidation perpetrated by white supremacists, such as members of
the Ku Klux Klan, against the African American community. The Church Arson Prevention Act was not meant
to protect Christianity, per se. It was meant to fight racial
discrimination. And here, Trump is invoking
it to further the interests of white nationalists, who like to argue that the
United States was founded on Judeo-Christian principles, and often use that as
an excuse for discrimination against no-Christian Americans, such as Muslims.
This is very much at odds with the Establishment Claus of
the First Amendment, which prevents the Federal Government from establishing a
state religion. Trump cannot show
favoritism to any specific religion. Yet,
that is exactly what he has done by including the protection of Christian property
and symbols as a goal in his Executive Order.
What is striking about all of this, is just how pointless it
is. Mark Pettibone, for example,
asserted his right to an attorney, and the federal agents simply released
him. It is almost as if federal agents
are just picking people up in the vicinity of where demonstrations took place,
without cause and without any criminal charges, just in the hopes that someone
waives their Miranda rights and
incriminates himself. Anne Applebaum, a
writer for The Atlantic, has described these activities as “performative
authoritarianism.” That is, it is aimed
at appealing to Trump’s base by making an apparent show of force, but a show
that it meaningless as it fails to accomplish any true law enforcement
aims. If anything, it only telegraphs
the ultimate impotence of the Trump Administration, while communicating that
certain segments of American society are going to be treated as enemies. These actions do set a dangerous precedent,
as they firmly set America further down the road towards authoritarianism.
By: William J. Kovatch, Jr.
For the YouTube video of this article, click here: https://youtu.be/hbqWB_3SULc
Photograph of federal officers in Portland on July 15, 2020, from Macha Chai on Twitter (@macha_chai), depicts unidentified officers who took a man off the streets and threw him in an unmarked mini-van without identifying who they were, or why the man was being abducted. Photograph is used for the purpose of education, commentary, and research.
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