Fed's Rule Of Law: Portland Riots And Beyond

The Portland riots, which began in May 2020, saw federal agents deployed to the city to quell the violence. The federal response to the Portland riots has been criticized by many, including local leaders, constitutional law experts, and civil rights organizations, who argue that the federal agents' actions may have violated the law and infringed upon civil liberties. The federal government, on the other hand, maintains that their intervention was necessary to protect federal property and personnel, and that they were within their legal rights to do so. This has sparked a debate about the limits of federal power and the rule of law in responding to civil unrest.

Federal law enforcement officers' use of force

In the United States, federal law enforcement officers are permitted to use force in specific circumstances, such as in self-defence or in defence of another individual or group. The use of force by federal officers is judged against the Fourth Amendment's "objective reasonableness" standard, as set out in the 1989 Supreme Court decision in Graham v. Connor. This standard requires a careful balancing of the nature of the intrusion on the suspect's liberty against the countervailing governmental interest at stake.

The "reasonableness" of force used by federal officers is determined by various factors, including the severity of the crime, whether the suspect posed an immediate threat, and whether the suspect was actively resisting or attempting to evade arrest. The Supreme Court has acknowledged that police officers often have to make split-second judgments about the amount of force necessary in a given situation, and that "hindsight may prove one option better than another". However, the use of force must still fall within a "range of reasonableness".

In the context of the Portland riots, federal law enforcement officers were deployed to protect federal property and personnel, including the federal courthouse in downtown Portland, which had been the target of coordinated violent attacks by anarchists. While federal officers are permitted to use force to defend federal property and personnel, there were allegations of excessive force and illegal tactics used by federal officers during the Portland riots. For example, federal officers were accused of using batons on protesters in a more aggressive manner than is typically employed by local police, and of using force on reporters, which would be a violation of the First Amendment.

It is important to note that the rules governing the use of force by federal law enforcement officers are complex and subject to interpretation. While federal officers have more leeway in some areas, they are still bound by the Constitution and must act within a reasonable framework when using force.

The right to protest

Protesting is a fundamental human right, and many international treaties contain clear articulations of this right. These include the 1950 European Convention on Human Rights, especially Articles 9 to 11, and the 1966 International Covenant on Civil and Political Rights, especially Articles 18 to 22.

In the United States, the right to protest is protected by the First Amendment, which guarantees freedom of speech and the right to peaceably assemble. However, this right is not always respected in practice, and there have been numerous incidents of law enforcement using excessive force against protesters, particularly during the racial justice protests and the Black Lives Matter movement following the killing of George Floyd in May 2020.

In Portland, Oregon, protests in 2020 resulted in violent clashes between protesters and federal law enforcement officers. The protests, which lasted for over 50 consecutive nights, were sparked by the killing of George Floyd and targeted city and federal properties, including the federal courthouse. The Department of Homeland Security (DHS) responded to the protests by increasing its presence in Portland, citing the need to protect federal property and personnel. While DHS officers are identifiable by their uniforms, they did not wear name tags due to doxing attacks against law enforcement officers.

The tactics used by federal officers during the Portland protests were described as “shocking” and included the use of batons on protesters, the deployment of tear gas without warning, and the detention of protesters in unmarked vans. While some of these tactics are legal for federal officers, they would be illegal for local police. For example, federal officers are allowed to use any building as a jail and can detain a person if they have probable cause, even transporting them in an unmarked vehicle.

The use of force against reporters covering the Portland protests also raised concerns. While it is a violation of the First Amendment to use force on members of the press, federal agents injured multiple reporters, and a federal judge in Oregon had to file an injunction prohibiting Portland police from using force on journalists.

The Portland protests and the response by federal law enforcement sparked a wave of anti-protest laws across the United States. Rights experts have criticized these laws as an attempt to suppress racial justice protests and the Black Lives Matter movement. These laws have been introduced in over 35 state legislatures and provide vague definitions of "riot", "mob intimidation", and "obstruction", granting excessive discretion to law enforcement authorities to intimidate and criminalize legitimate protest activities.

Federal agents' presence in Portland

In July 2020, federal forces were deployed in Portland, Oregon, as part of the PACT (Operation Diligent Valor). The use of unmarked cars and officers in camouflage without clear identification badges generated outrage. The Department of Homeland Security (DHS) confirmed that federal officers used unmarked vehicles to pick up people in Portland. Homeland Security Acting Deputy Secretary Ken Cuccinelli acknowledged the use of unmarked vehicles but stated that officers wore the same uniforms and equipment daily, so demonstrators could identify them. He also said that officers used these vehicles to move detainees to a "safe location for questioning".

The presence of federal officers was a direct response to the longstanding violence in Portland. The Portland Police Department had declared a riot on numerous occasions due to nightly violence, which occurred before the federal presence increased in early July. Federal law states that the DHS has the authority to protect federal property and arrest criminals who damage federal property or attack federal officers. The DHS works with a robust contingent of Oregon State Police (OSP) officers to secure the courthouse.

The federal presence in Portland has been controversial, with critics arguing that federal officers have used excessive force and violated the rights of protesters and journalists. There have been reports of federal officers using batons on protesters, assaulting reporters, and detaining people without probable cause. In one incident, a protester named Mark Pettibone was pulled into an unmarked van and taken to the federal courthouse without being told why he was being detained.

In late July 2020, Oregon Governor Kate Brown agreed to work with federal authorities to address the nightly criminal violence directed at the Hatfield Federal Courthouse in Portland. This cooperation between federal, state, and local law enforcement led to a downward trend in violence and attacks against federal facilities and officers. However, there has been no reduction in the federal presence in Portland, and federal law enforcement officers remain at augmented levels until the Department is certain that federal property is safe.

Criminal charges against rioters

The Portland protests, sparked by the killing of George Floyd, have resulted in numerous criminal charges against protesters. The charges range from misdemeanours to felonies, with some cases dismissed.

Federal officers have been present in Portland since the construction of the courthouse in 1997, and their numbers increased in 2020 due to the protests. The Department of Homeland Security (DHS) has the authority to protect federal property and arrest criminals who damage federal property or attack federal officers. Federal law enforcement officers have been subjected to threats and assaults from violent agitators.

The Portland Police Department had declared a riot on numerous occasions before the federal presence increased in July 2020. The city experienced nightly violence, vandalism, and destruction of property. Federal officers were deployed to protect federal buildings and personnel, and to maintain law and order.

Protesters have been charged with a range of crimes, including assaulting a federal officer, trespassing, creating a disturbance, arson, disorderly conduct, interfering with a peace officer, burglary, and unlawful directing of light from a laser pointer. In one instance, an 18-year-old protester was charged after an incendiary device was thrown into the portico of the federal courthouse, causing a fire. In another incident, a 36-year-old man was indicted for allegedly shining a laser into the eyes of police officers during demonstrations.

Federal prosecutors have dismissed more than one-third of the cases stemming from the 2020 protests, including some felony charges. This has been criticised by some as a lack of accountability, while others argue that the cases should not have been filed in the first place.

The role of the U.S. Attorney and Multnomah County District Attorney

The U.S. Attorney for the District of Oregon is responsible for representing the United States in civil and criminal cases in the district. They are also responsible for enforcing federal laws within the district and have the authority to investigate and prosecute cases involving violations of federal law. In the context of the Portland riots, the U.S. Attorney would be involved in prosecuting cases of federal crimes, such as those related to the destruction of federal property or attacks on federal officers.

On the other hand, the Multnomah County District Attorney's Office is responsible for prosecuting crimes that occur within Multnomah County, which includes the city of Portland. The District Attorney's Office works with local law enforcement agencies to investigate and prosecute crimes that fall under state and local laws. This includes crimes such as vandalism, assault, and other violations of state and local ordinances.

During the Portland riots, the Multnomah County District Attorney's Office would have been involved in prosecuting cases related to crimes that occurred within the county, but only if they fell under state or local jurisdiction. For example, if a protester committed assault or vandalism within the county, the Multnomah County District Attorney's Office would be responsible for prosecuting those cases.

It is important to note that the roles of the U.S. Attorney and the Multnomah County District Attorney can sometimes overlap, especially in cases where there may be violations of both federal and state laws. In such cases, both the U.S. Attorney's Office and the County District Attorney's Office may work together or share information to ensure that justice is served.

The U.S. Attorney for the District of Oregon at the time of the Portland riots was Billy J. Williams, who served from 2015 to 2021. The current U.S. Attorney is Natalie K. Wight, who was appointed in 2022. The Multnomah County District Attorney at the time of the Portland riots was Mike Schmidt, who took office in August 2020 and represented a progressive view towards prosecutions and criminal justice reform. However, Schmidt faced criticism for his handling of the protests and resigned in September 2021.

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