One trigger for the swelling demonstrations was the emergence of a video showing men in camouflage seizing a man walking down a street and putting him in an unmarked vehicle. The officers didn’t identify themselves or their agency when asked, and that the detention occurred some distance from the courthouse spurred concerns about the breadth of the federal activity.
A protester who was similarly detained described the experience to The Washington Post, saying that the situation “seemed like it was out of a horror/sci-fi, like a Philip K. Dick novel. It was like being preyed upon.”
Acting DHS secretary Chad Wolf has downplayed concerns, suggesting that his department’s efforts are a natural extension of its mandate to protect government facilities. The White House, though, clearly sees it as something more, announcing plans to send federal officers to other cities, generally predicated on increases in violent crime. President Trump has been using those increases and the scenes from Portland as part of his reelection pitch, warning that he’s the best candidate to prevent the sorts of violence and confrontation that are occurring while he’s president.
That proposed expansion increases a central concern about the federal deployment — the extent to which the officers and their agencies can be held accountable by the public. This is, after all, a central component of law enforcement in a liberal democracy, that government employees work for the public and not despite it.
In Portland, there have been a number of ways in which the federal authorities have eroded that sort of scrutiny.
In the video clip that went viral, the only way in which the officers are obviously identified as law enforcement is the word “POLICE” written in yellow on their chests. The protester who spoke with The Post, Mark Pettibone, said that he couldn’t tell whether he was being approached by law enforcement or by right-wing extremists who often wear military garb.
When Bureau of Prisons staffers were deployed in D.C. last month in a similar effort to stamp out protests, I spoke with experts who expressed alarm at the BOP officers’ initial refusals to identify themselves or their agency.
“The idea that the federal government is putting law enforcement personnel on the line without appropriate designation of agency, name, et cetera — that’s a direct contradiction of the oversight that they’ve been providing for many years to local police and demanding in all of their various monitorships and accreditation,” former New York City police commissioner William Bratton told me then.
Asked about the lack of identification during a news briefing Tuesday, White House press secretary Kayleigh McEnany insisted that the officers in Portland were properly identified as law enforcement.
“They, in the case you’re referencing, did identify themselves to the individual being obtained,” she said — presumably meaning detained — “but that they don’t identify themselves to crowds because it would put them at great risk. And I think you can see that, as I noted, when they’re sticking their hands into boards left out by some of the rioters.”
That last point referred to an incident in which, McEnany said, a U.S. marshal had impaled his hand on a board with protruding nails that the Justice Department says was placed near the courthouse by protesters.
Of course, it’s not clear how that overlaps with calls to identify the officers. There’s no suggestion that the physical harm that marshal faced resulted from his identity being known. In its delineation of the reasons a federal response was needed in Portland, the DHS included several incidents in which the identities of federal officers were made public — claiming that the information was released by “violent anarchists.” It is not the case that publicizing the names of government employees is a violent act or an anarchical one.
And there's a reason for the officers' identities to be known.
“If those officers engage in any type of misbehavior during the time that they are there representing the federal government, how are you to identify them?” Bratton said last month. “What is the need for anonymity in controlling crowd demonstrations?”
Particularly when combined with efforts to restrict the media and legal observers from access to the scene.
Earlier this week, the federal government asked a court to overturn an exemption from dispersal orders that had been granted to such observer groups.
“Having an unspecified number of people who lawfully may remain” after such an order, Justice Department counsel Andrew I. Warden wrote, “will not only greatly complicate efforts to clear an area and restore order, it will also present a clear risk to safety.”
Allowing the media and legal activists to be moved has another effect — removing independent observers from a place where they can witness what unfolds.
Imagine a scenario in which officers seize someone from the street and then order everyone to disperse. The federal government is arguing that the media and legal observers should have to evacuate the area along with everyone else, helping to shield their treatment of the detained individual from public view.
It’s not hard to understand why it’s important for such encounters to be observed. Without the video of the detention of that protester in Portland, there might not have been broad awareness of the government’s tactics. The protests themselves are an extension of ones that followed the killing of a Minneapolis man while being detained by the police. Video of George Floyd’s death was instrumental in spurring calls for change.
Change that law enforcement agencies have resisted.
Detentions without charges
There's a more subtle way in which federal law enforcement is avoiding accountability.
Harvard law professor Andrew Crespo, on Twitter earlier this week, outlined a significant constitutional problem with the Portland detention captured on video. He pointed out that the official excuse for seizing the demonstrator was that he had been in an area where another person was pointing a laser device at officers’ eyes. But that isn’t sufficient for probable cause, Crespo noted, meaning that the arrest violated the protester’s Fourth Amendment rights.
In a phone call with The Post, though, Crespo highlighted a more significant part of the incident. Instead of charging the protester with something, they simply let him go. The same thing happened to Pettibone.
To a layperson, that seems like good news. But from an accountability standpoint, it's problematic.
“If you push them out the back door of the station house and they never get charged, there’s not a case,” Crespo said. “They’re not going to be a defendant who can to raise the Fourth Amendment issues in a protective posture by trying to suppress any evidence.”
“Which means that if there’s going to be judicial review,” he said, “it’s got to come the other way: That person has to go out and sue these agents or the department.”
“It’s much harder to bring that sort of suit as a plaintiff,” he said, “than to raise these questions as a defendant. And the government gets to control who’s going to be a defendant or not by deciding who to charge or not.”
In other words, the protester’s constitutional rights were probably violated — but since he wasn’t charged, it’s much harder to hold the arresting officers accountable for violating them.
“Judges don’t come in and order the department to stop having a practice of false arrest if there’s not a practice of false arrest,” Crespo said. “To use an oft-bandied-about phrase these days, if it’s a few bad apples, the judges are not going to order the whole department to change if you haven’t shown them that it’s more than a few bad apples. But that burden is on you.”
That becomes harder, he noted, when media access is also restricted.
One point of debate here is intentionality. Is the federal government building shields against accountability through ineptitude or malice? Was the government’s apparent admission that it lacked probable cause (as noted by Crespo) in the viral-video incident a failure to understand the boundaries of detention or a mistake in how the government presented it?
However generously one views the government’s actions, these are questions that must be resolved as soon as possible, given the administration’s interest in expanding this activity.