Taking a page from Hitler’s Brownshirts, Donald Trump is sending his secret paramilitary forces into U.S. cities to terrorize the population. Ostensibly designed to “restore order” in the wake of massive uprisings against white supremacy and police brutality, this move appears to have a more cynical purpose lurking behind it: Trump’s desire to tar Democrat-led cities with a false narrative to boost his sagging poll numbers. But protesters are taking to the courts to rein in an out-of-control executive.
In light of the brutal federal occupation of Portland, Oregon, Black Lives Matter (BLM) Chicago and other organizations filed a lawsuit on July 23 to prevent a Portland-style federal domination of their city. They allege that Trump is dispatching agents to Chicago in order to “intimidate and falsely arrest civilians who are exercising their constitutional right to speak and to assemble.” The groups seek an injunction to prohibit federal agents from “interfering in or otherwise policing lawful and peaceful assemblies and protests” in Chicago or arresting people without probable cause.
The same day the BLM Chicago suit was filed, a federal judge in Portland issued a 14-day temporary restraining order that bars federal agents from threatening or attacking journalists and legal observers. Significantly, the judge wrote that any “willful violation” of his order will violate “a clearly established constitutional right” and thus the officer will not be able to claim the qualified immunity defense.
On July 12, federal agents in Portland shot two journalists, Mathieu Lewis-Rolland and Garrison Davis, with impact munitions. Lewis-Rolland was shot 10 times in the back and side, all above the waist. Davis was hit in the back with a tear gas canister, which fell into his bag and inundated him with tear gas. He was also shot with pepper bullets and other munitions. Both men were clearly marked as members of the press. Davis witnessed federal agents swinging truncheons as they chased legal observers clearly affiliated with the National Lawyers Guild.
Portland has seen unidentified federal officials in unmarked vehicles snatch peaceful protesters off the streets, transport them to unknown locations, without informing them of why they’re being arrested, and later release them with no record of their arrest. The troops are lobbing chemical weapons and dangerous projectiles at protesters, journalists and legal observers. These actions violate the First Amendment’s free speech and press guarantees, the Fourth Amendment’s prohibition on unreasonable searches and seizures, and the Fifth Amendment’s right to due process of law.
Moreover, the Tenth Amendment provides that powers not delegated to the feds are reserved to the states. The abductions took place outside the jurisdiction of federal authorities, the people abducted were not attacking federal personnel or property, and those abducted were not on federal property when they were abducted, according to a lawsuit filed in federal court by a public benefit corporation, a church and two Oregon state representatives.
Furthermore, Trump’s troops are present over the objection of Portland Mayor Ted Wheeler, who says federal troops “are sharply escalating the situation … actually leading to more violence and more vandalism.” Oregon Gov. Kate Brown tweeted, “I told Acting [Department of Homeland Security] Secretary Wolf that the federal government should remove all federal officers from our streets. His response showed me he is on a mission to provoke confrontation for political purposes.”
Federal forces are supposedly there to protect federal property, which is a miniscule area of Portland. “The idea that there’s a threat to a federal courthouse and the federal authorities are going to swoop in and do whatever they want to do without any cooperation and coordination with state and local authorities is extraordinary outside the context of a civil war,” said Cornell law professor Michael Dorf.
Incognito arrests and crowd control are beyond the authority and training of Trump’s troops. Yet agents from Customs and Border Protection, U.S. Marshals Service and Federal Protective Service have been patrolling non-federal areas of Portland, brutalizing and illegally arresting law-abiding people. The only uniforms they wear are military fatigues with patches that say “POLICE.” They have no other identifying information.
Oregon Department of Justice Sues Department of Homeland Security and U.S. Marshals
“Ordinarily, a person exercising his right to walk through the streets of Portland who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped and is the victim of a crime,” the Oregon Department of Justice (DOJ) states in its lawsuit against the Department of Homeland Security, U.S. Marshals Service and Federal Protective Service, filed on July 17. Kidnapping by “militia or other malfeasants dressed in paramilitary gear” would trigger the lawful right of self-defense.
The Oregon DOJ’s lawsuit accuses the federal forces of violating “the state’s sovereign interests in enforcing its laws and in protecting people within its borders from kidnap and false arrest.” It alleges violations of Portlanders’ First Amendment rights to peacefully gather and express themselves. The purpose is to discourage lawful protest, “an illegal prior restraint” on the right “to peacefully protest racial inequality.”
In addition, the lawsuit alleges that defendants violated the Fourth Amendment by seizing protesters without a warrant or lawful exception to the warrant requirement. And it charges defendants with violating the Fifth Amendment’s prohibition against “depriving a person of life, liberty or property without due process of law.”
On July 15, plaintiff Mark Pettibone was accosted by armed men dressed in camouflage, removed from the street, forced into a van and driven through downtown to a building believed to be the Mark O. Hatfield United States Courthouse. Pettibone was placed in a cell and read his Miranda rights, but was never told why he was arrested. He was not given a lawyer and was later released with no citation, paperwork or record of his arrest.
The Criminal Justice Division of the Oregon DOJ and the Multnomah County district attorney have launched an investigation in the case of Donavan LaBella, who was shot in the head with an impact munition on July 11, as he was holding a speaker above his head. The federal agents fractured LaBella’s skull and shattered his facial bones.
In a July 21 interview on Fox News, acting Secretary of Homeland Security Chad Wolf made an astounding claim. He said that federal law enforcement officers in Portland are “proactively” arresting protesters. Wolf should know this violates the Fourth Amendment, which requires an arrest to be supported by probable cause that a crime has been committed.
Portland Is Trump’s Bellwether
When she announced the filing of the DOJ’s lawsuit, Oregon Attorney General Ellen Rosenblum said in a statement, “The federal administration has chosen Portland to use their scare tactics to stop our residents from protesting police brutality and from supporting the Black Lives Matter movement. Every American should be repulsed when they see this happening. If this can happen here in Portland, it can happen anywhere.”
Portland is the bellwether to test Trump’s plan to assert unbridled federal power in cities led by Democrats. He intends to send about 200 troops to Chicago this week. After initially opposing the presence of federal agents in her city, Chicago Mayor Lori Lightfoot has now conditionally agreed.
Trump, apparently signaling where he intends to order federal troops, told reporters in the Oval Office, “I’m going to do something — that, I can tell you. Because we’re not going to let New York and Chicago and Philadelphia and Detroit and Baltimore and all of these — Oakland is a mess. We’re not going to let this happen in our country. All run by liberal Democrats.” Trump is trying to paint a picture of violent anarchy if Joe Biden is elected.
On July 21, the House of Representatives approved an amendment to the Insurrection Act which would require that the president consult with Congress before deploying federal troops to U.S. cities. It compels the administration to certify to Congress with “demonstrable evidence” that local authorities are unable or unwilling to quell the violence and would forbid federal troops from conducting searches, seizures, arrests or “other similar activity” unless “otherwise expressly authorized by law.” But it is unlikely the GOP-controlled Senate will agree to such an amendment.
The House chairs of the Judiciary, Oversight and Reform, and Homeland Security Committees wrote to the Inspectors General of the U.S. Department of Justice and Homeland Security on July 19, asking them to investigate the use of federal law enforcement agencies “to suppress First Amendment protected activities,” and they agreed to launch such an inquiry. The congressional leaders noted, “The Administration’s insistence on deploying these forces over the objections of state and local authorities suggest that these tactics have little to do with public safety, but more to do with political gamesmanship.” This is part of Trump’s reelection strategy.
Indeed, Juan Cole wrote at Informed Consent, “It now appears clear that part of that strategy is to send Federal agents dressed like Iraq War troops to Democratic-run cities, on the pretext of protecting Federal property, and then for them to attack and provoke Black Lives Matter and Defund the Police protesters, causing violence to escalate and using it … to scare the [white] suburbs” into voting for Trump.
Perhaps most alarming are reports that Trump is consulting Bush administration torture lawyer John Yoo to justify his dictatorial agenda. The Berkeley law professor subscribes to the marginal “unitary executive” theory that places unfettered executive power in the hands of the president. On June 22, Yoo wrote in the National Review that Trump “could declare that he would not enforce federal firearms laws, and that a new ‘Trump permit’ would free any holder of state and local gun-control restrictions.” Yoo opined, “Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.” Now Yoo is advising White House officials that Trump can issue executive orders about whether to apply existing laws. “I talked to them a fair amount about cities, because of the disorder,” he told the Guardian.
The ramifications of Yoo’s scenario are frightening: Trump continues to send his federal goons to Democratic cities to foment chaos and frighten people into thinking a strong leader is required to achieve order. If he is not reelected, Trump illegally declares martial law and marshals his federal forces to suspend civil liberties. When asked by Chris Wallace on “Fox News Sunday” whether he will accept the results of the election, Trump demurred, saying, “I have to see.”
Be very afraid. But as the legendary labor leader Joe Hill said, “Don’t mourn, organize!”
Copyright, Truthout. Reprinted with permission of the author. May not be reprinted without permission.
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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and a member of the advisory board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.
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