Law & the Courts

The Portland DHS Operation Is Legal and Proportionate

Rioters use shields to block non-lethal rounds and react to tear gas fired by federal law enforcement in Portland, Ore., July 23, 2020. (Caitlin Ochs/Reuters)
The comparisons to stormtroopers are a disgrace.

We live in an age of viral videos that often can be deceiving.

That’s certainly the case in Portland, where the hyperbolic charges of federal stormtroopers hunting down peaceful protesters first began based on videos that didn’t tell the whole story. Now that Department of Homeland Security officials have explained the operation, there’s no excuse for the continued Nazi references — not that there ever really was.

The DHS deployment in Portland is plainly legal, justified, and proportionate.

There are no random arrests, and as of Tuesday, there had only been about 40 arrests total since the beefed-up presence began around July 4 weekend, when there was intelligence — that turned out to be correct — of the prospect of escalating attacks on the federal courthouse.

The officers are operating under clear legal authority. 40 U.S. Code § 1315 says that the DHS secretary “shall protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government (including any agency, instrumentality, or wholly owned or mixed-ownership corporation thereof) and the persons on the property.”

Furthermore, officers protecting the property may “conduct investigations, on and off the property in question, of offenses that may have been committed against property owned or occupied by the Federal Government or persons on the property.”

The sense of isolated protesters getting picked off the streets on the videos arises from the tactics of the federal officers, in keeping with this provision. When they identify someone who, say, may have attacked an agent, they don’t immediately wade into the crowd to go arrest him.

“That’s dangerous for our law enforcement officers, it is dangerous for those individuals as well,” acting DHS secretary Chad Wolf explained at a DHS press conference on Tuesday. Instead, they try to track the suspect until he’s separated from rioters.

Also, it would be ridiculous to let a suspect simply walk away once he’s no longer in the immediate vicinity of the courthouse.

As Mark Morgan, the acting commissioner of U.S. Customs and Border Protection, put it at the press conference, “We’re not going to allow somebody to walk up to the federal property, assault a federal officer, or agent, and then, because then they walk off federal property, then we’re going to say, ‘Oh, we can’t go arrest you,’ that doesn’t make sense. Of course, we’re going to arrest you, and we have the authority to make that arrest, and we will continue to do that. What this means is, we are not patrolling the streets of Portland, as has been falsely reported multiple times in the past few days.”

In an interview, Ken Cuccinelli, the acting deputy secretary of DHS, describes the viral video from an arrest late last week that jump-started a lot of the outrage: “The video starts one or two blocks after a foot pursuit where the officers in question had approached an individual who appeared to match the description of someone who had assaulted two federal officers about an hour beforehand. So it wasn’t a day ago, it was an hour before. And [they] identified themselves as federal agents verbally. And of course they’re wearing the same uniforms they’ve been wearing for weeks with . . . Department of Homeland Security indicia on both shoulders and ‘police’ on front and back, and the guy took off running.”

“So they ran after him,” he continues, “and he stopped running. Ironically, he ran to the courthouse, and at that point they caught up with him, detained him.”

These aren’t rogue arrests, but are made in keeping with all relevant procedures. “The U.S. Attorney’s office is consulted on every engagement that our officers are doing,” explained Kris Cline, the principal deputy director of the Federal Protective Service (FPS) at the same press conference. “The U.S. Attorney’s office is also at our roll call every evening to make sure that officers and agents are aware of the use of force, rules of engagement, authority, jurisdiction. They spend a lot of time on that.”

What about the optics of officers in camouflage without name badges operating from unmarked cars?

The background is that the FPS is charged with protecting federal buildings, but, according to Cuccinelli, lacks the manpower to respond to the current threats. So it, also in keeping with the 40 U.S. Code § 1315, is being supplemented with officers from CBP and ICE.

“As it relates to CBP officers deployed in Portland,” Acting DHS secretary Chad Wolf said at the presser, “these highly trained officers are in multi-camouflage wear, because they work on the southwest border and they work in an environment that demands that. That is their everyday uniform and it is completely appropriate.”

“This is a standard uniform,” Cuccinelli says, noting that everyone on the ground is familiar with them at this point. “They’ve seen them in their uniforms for weeks now. They all recognize what those uniforms are. And they’re all clearly visible, and have been for weeks. They’re readily identifiable.”

Indeed, given what’s happening at the courthouse, it’s not as though the rioters don’t know they are confronting federal officers — they are throwing projectiles at them and pointing lasers at them. Does this person who broke through the security fence last night have any doubt who is making the arrest?

Cuccinelli explains that the officers don’t wear name badges because of the threat of doxing, of which he says there have been more than 30 instances. “The point is to intimidate and threaten,” he says of these incidents, “and it imposes a danger to the officers; not just individually, but their families as well.”

He notes that “individual officers can be identified by individual badge numbers on their uniforms that are right next to, really above, their DHS identifiers.”

As for unmarked vehicles, he says, “I love listening to Speaker Pelosi gripe about that among other things. Maybe she should go check and see if the San Francisco police department uses unmarked vehicles. Oh yeah, they do. Because every law-enforcement organization in America of any size whatsoever, uses unmarked vehicles. It’s completely acceptable law-enforcement practice, and for very good reasons.”

In light of the attacks on marked law-enforcement vehicles around the country, he adds, it “would be foolish of us not to use unmarked vehicles.”

(Here, by the way, is a marked Portland police car getting objects thrown at it after officers make literally their twelfth warning that tear gas might be used:)

 

Cuccinelli insists that the officers aren’t clashing with or arresting protestors, but rather with a violent rabble that shows up late every night. On Monday night, according to Cuccinelli, “there were peaceful protesters, about 75 to 100 of them in front of the courthouse until about 11:00 p.m., and they left. And a short while later, 1,000 people or so surrounded the courthouse and commenced attacking it. So 75 to 100 peaceful protestors, and a few minutes later over 1,000 violent rioters, criminals, and terrorists show up.

“Welcome to Portland.”

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