Over the weekend, a group of Portland, Oregon, moms confronted federal officers who had fired tear gas at them and other peaceful protesters on Saturday outside of a federal courthouse. The escalation of the Portland protests came as unidentified federal officers in paramilitary uniforms were caught on tape abducting protesters and as President Donald Trump announced on Monday that he might send “more federal law enforcement” to cities “run by liberal Democrats” to replicate the Portland tactics against protesters, including efforts to “grab them, a lot of people in jail.” On Monday, it was reported that the Department of Homeland Security would be sending 150 federal agents to Chicago this week with an unspecified mandate. The apparent legal justification for the abduction of protesters is weak, and it should be vigorously challenged in the courts before Trump can export these tactics to other cities for use against citizens exercising their First Amendment rights.
Last week, people wearing combat fatigues were seen pulling apparently peaceful protesters off the streets of Portland, Oregon, and hustling them into unmarked vehicles. Their uniforms carried no identifying insignia, but they were clearly military uniforms. Based on the video evidence so far, the people being arrested were not engaged in crime. So we are faced with two questions. First, are these people military personnel, or are they police officers dressed up like soldiers? Second, do these people have the authority to sweep people off the street like this?
According to the Department of Homeland Security, the answer to the first question is that the force patrolling the streets of Portland consists of the Federal Protective Service, whose job it is to protect federal property. Personnel from other federal agencies—principally the Border Patrol—have also reportedly been deputized to assist in that mission. So these uniformed personnel are a militarized police force, which is always a dangerous thing. The answer to the second question is that, under the Fourth Amendment, this force does not have the authority to detain people like this. But government lawyers will rely on expansive theories of police power that cripple Fourth Amendment protection against unlawful seizures. This would not be the first time the federal government has tried this, though it appears to be one of the first targeting people exercising their First Amendment right to protest.
The Federal Protective Service has the authority to make arrests “if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony.” If that doesn’t sound right to you, it shouldn’t. People can’t be arrested unless the arresting officer has probable cause—not merely reasonable grounds—to believe a crime has been committed or is underway. That’s required by the Fourth Amendment to the Constitution, which presumptively prohibits seizures without probable cause.
The problem is that this presumption has been overwhelmed by constitutional semantics. When the Supreme Court decided that the stop-and-frisk tactic was permissible under the Fourth Amendment, it created a category of detention short of an arrest and authorized it where a police officer has “reasonable suspicion” of a crime, instead of probable cause. Over time, the court has set aside the probable cause requirement for every seizure that doesn’t count as the direct enforcement of criminal law. When Border Patrol agents arrest someone for sneaking across the border, for example, they don’t need probable cause. They don’t even need a reasonable suspicion. They only need to detain the person in a reasonable manner—because patrolling the border is not criminal law enforcement. So both of the federal agencies involved here have been told they don’t need probable cause to make arrests. And the legal theory behind these dangerous rules is the same: that these federal agents are engaged in protecting national security instead of criminal law enforcement.
But where the arrests in Portland are concerned, there are two reasons to believe that this won’t stand up. First, there is the word felony in the law authorizing the Federal Protective Service to arrest without probable cause. An arrest for a felony is the direct enforcement of criminal law by definition. Nothing in the semantic campaign to drag as many seizures as possible into the national security category can change that definition. And an arrest for a felony requires probable cause.
Second, when government agents claim they have made a seizure for some purpose other than criminal law enforcement—such as national security—the Supreme Court has allowed the target of that seizure to argue that this purported purpose is an unlawful pretext. In the arrests captured on video so far, no imminent threat to federal property can be seen. More importantly, while Trump occasionally mentions protecting property, he has insisted again and again that city officials have failed to get control over antifa, anarchists, and agitators, and that he will do the job if they can’t. If we take the president at his word, then the defense of property is a pretext, and the law allowing arrests on a reasonable basis for that purpose doesn’t apply.
The uniforms these government agents are wearing are a deliberate attempt to evade accountability. But ultimately, it doesn’t matter which federal agency is committing these unlawful seizures. Constitutional search and seizure questions turn on what government officials do, not which agency they work for. The important thing is that federal agents are lawless actors here. Their uniforms are nothing more or less than part of the national security pretext for their actions.
It is important to understand the full implications of the government’s legal theory as it is playing out in Portland. It is the equivalent of declaring martial law for purposes of national security, based on the lie that military force is needed to keep the peace. Imposing martial law for national security is a tool of dictators, and Donald Trump has been a dictator in waiting for years. We can only hope that the wait isn’t over.