Oregon Judge Denies Request to Restrict Federal Agents During Arrests

July 24, 2020 Updated: July 25, 2020

A federal judge in Oregon on July 24 denied a request for an order by the state’s attorney general to restrict how Department of Homeland Security (DHS) agents act when arresting rioters during the nightly unrest in Portland.

Portland has seen more than 50 nights of riots which regularly evolve out of peaceful daytime demonstrations in response to the police-custody death of George Floyd. The rioters recently switched their focus to federal property, vandalizing and setting fires near a courthouse. Regular protective staff in the buildings called for federal reinforcements upon being overwhelmed.

Democratic leaders in the progressive city had begun to oppose the nightly violence, but reversed course when president President Donald Trump said he personally ordered the reinforcements. Since then, the city’s officials have criticized Trump’s decision and demanded that the federal agents leave.

Feds Attempt To Intervene After Weeks Of Violent Protests In Portland
A rioter throws a flaming item at the Mark O. Hatfield U.S. Courthouse in Portland, Ore., on July 22, 2020. (Nathan Howard/Getty Images)

U.S. District Judge Michael Mosman said Oregon lacked standing to sue on behalf of protesters because the lawsuit was a “highly unusual one with a particular set of rules.”

The state sued on behalf of its residents and was seeking a restraining order not for injuries that had already happened but to prevent injuries by federal agents in the future. That combination makes the standard for granting such a motion very narrow, and Oregon did not prove it had standing in the case, Mosman wrote.

Legal experts who reviewed the case before the ruling warned that he could reject it on those grounds. A lawsuit from an individual who alleged federal agents violated their freedom of speech or rights against unconstitutional search and seizure would have a much higher chance of success, Michael Dorf, a professor of constitutional law at Cornell University, said ahead of the ruling.

“The federal government acted in violation of those individuals’ rights and probably acted in violation of the Constitution in the sense of exercising powers that are reserved to the states, but just because the federal government acts in ways that overstep its authority doesn’t mean the state has an injury,” he said.

The daily cycle of peaceful protests in Portland offer ample fodder for two distinct realities playing out in the media. Opponents of the president conflate federal arrests of the violent rioters with images of peaceful demonstrations. Trump’s supporters, in the meantime, are lauding the president’s push for a law and order while lamenting the vilification of the DHS agents.

portland rioting
Federal officers deploy tear gas and less-lethal munitions while dispersing a crowd from the Mark O. Hatfield Courthouse in Portland, Ore., on July 24, 2020. (Nathan Howard/Getty Images)

Federal agents have used tear gas, less-lethal ammunition that left one person critically injured, and other force to scatter rioters, and they have made arrests. The rioters arrived armed with baseball bats, baseball bats, explosive fireworks, metal pipes, lasers, glass bottles, flammables, and other weapons. Three officers may never recover sight in eyes injured by the lasers used by rioters.

Oregon Attorney General Ellen Rosenblum sued the Trump administration last week, alleging federal agents have arrested protesters without probable cause, whisked them away in unmarked cars and used excessive force. U.S. authorities deny those accusations.

Rosenblum sought a temporary restraining order to “immediately stop federal authorities from unlawfully detaining Oregonians.”

David Morrell, an attorney for the U.S. government, called the motion “extraordinary” and told the judge in a hearing this week that it was based solely on “a few threadbare declarations” from witnesses and a Twitter video. Morrell called the protests “dangerous and volatile.”

In the lawsuit, Oregon had asked Mosman to command agents from the DHS, the Customs and Border Protection, the Federal Protective Service and the U.S. Marshals Service to stop detaining protesters without probable cause, to identify themselves before arresting anyone and to explain why an arrest is taking place.

U.S. agents have arrested 18 people in Portland this week, not including arrests made early Friday, when federal officers again used tear gas to force thousands of demonstrators from crowding around the courthouse. Protesters projected lasers on the building and tried to take down a security fence. They scattered as clouds of gas rose up and agents fired crowd control munitions.

The rioters who were arrested face federal charges including assaulting federal officers, arson and damaging federal property, U.S. Attorney Billy J. Williams said. All the defendants are local, and they were released after making a court appearance.

The Associated Press contributed to this report.

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