Over the past week, reports have emerged of unidentified federal law enforcement officers confronting, and sometimes detaining, protesters in Portland, Oregon, moves opposed by the city and state’s elected leaders. The state’s governor, Kate Brown, has called the Trump Administration’s actions a “blatant abuse of power.” On Monday, President Donald J. Trump suggested that the federal government might soon deploy officers to Chicago and other large cities run, he said, “by liberal democrats,” to respond to protests and to combat ongoing gun violence. In Chicago, where 55 people were shot and seven killed this weekend, Mayor Lori Lightfoot expressed “great concern” about the prospect of “federal agents without any insignia taking people off the streets.”
Harvard Law School Professor Andrew Crespo ’08 says that, although the United States government has the authority to enforce federal law anywhere in the country, events in Portland have raised serious concerns about unlawful police tactics possibly being used by federal agents without proper training. The Fourth Amendment to the U.S. Constitution, he notes, imposes certain requirements on police—restricting the use of excessive force and requiring probable cause to make arrests—while the First Amendment guarantees the right to free speech. Crespo recently discussed the federal government’s law enforcement actions in Portland with Harvard Law Today.
Harvard Law Today: What is the situation in Portland?
Andrew Crespo: Portland has seen more than 50 consecutive days of sustained protests in its downtown area, as people have taken to the streets to demand police reforms and to call out systemic racial injustices. The protests have only recently broken into the national news media, and it is hard to get a clear sense of the facts on the ground from so far away. But it appears that, like virtually all of the protests across the country this summer, the majority of people speaking out in Portland are peacefully exercising their constitutional right to free speech and to the freedom of assembly. There have also, however, been instances of vandalism and property destruction, including vandalism of federal buildings such as the federal courthouse.
In recent weeks, the president and top members of his administration have described Portland as a city overrun by a “violent mob” of “anarchists,” whom the president has urged state and local officials to “dominate.” But in Portland, the administration has gone a step further, sending in federal law enforcement officers to engage the protesters. This federal force includes agents from what is effectively the SWAT team of the Customs and Border Patrol agency. Dressed in full military gear, these federal agents have been videotaped carrying away apparently peaceful protesters in unmarked vans. They have been videotaped beating a Navy veteran who was speaking peacefully to the agents at the time. The agents sprayed tear gas in that man’s face, temporarily blinding him, and broke his hand. Most severely, federal agents were videotaped shooting a young man in the face with a nonlethal bullet, fracturing his skull and sending him to the hospital for emergency surgery.
The governor of Oregon, the mayor of Portland, and Oregon’s [United States] senators all vocally oppose the deployment of a federal paramilitary force in their city. The attorney general of Oregon and the local chapter of the ACLU have each filed lawsuits challenging the conduct of the federal agents, invoking the First and Fourth Amendments.
HLT: When is it appropriate for law enforcement agencies to intervene in protests, including protests that may largely be peaceful but might also include acts of violence or property destruction?
Crespo: When law enforcement agencies are called upon to police protests, or to respond to alleged criminal activity against the backdrop of broader protests, they face one of the most challenging balancing acts confronting the police in a free society. On the one hand, it’s the job of the police to maintain public order and to protect people from harm and from crime. On the other hand, the police also have to follow the law. And in our country that means, among other things, that they have to respect the legal right of the people to protest. This balancing act is especially fraught when the people are protesting against the police themselves. Still, if individuals commit violent acts or start destroying people’s stores and livelihoods, the victims of that behavior have a right to call upon the police for protection. But the police have an obligation to respond in a way that is focused on the specific alleged criminality. And they have a broader obligation to engage with all of the protesters in a manner that neither bars nor chills people from speaking out—as loudly, as insistently, and as persistently as they see fit.
HLT: Does the federal government have legal justification for deploying federal law enforcement officials in a U.S. city or state whose local officials don’t want them?
Crespo: As a general matter, yes. The federal government has the authority to enact federal criminal statutes, to establish federal law enforcement agencies, and to authorize federal agents to investigate federal crimes and to arrest offenders. Most federal crimes happen within states, because most of the country is made up of states. As a result, federal and state law enforcement agencies typically have overlapping jurisdiction. To take an example, if someone tries to blow up a post office, that is simultaneously a federal crime and a state crime, and it can be investigated by state and federal agencies.
Usually, state and federal agencies cooperate in these situations, coordinating as to who will take the lead. But sometimes, there is a conflict. These conflicts can have different political valences. Liberals, for example, might object when the federal government prosecutes marijuana offenses in a state where marijuana is legal under state law. But they might cheer when the federal government prosecutes civil rights violations by police officers whom state officials refuse to charge. State officials, though, have no freestanding authority to block federal law enforcement activities or to expel federal agents from their territory. The Constitution is clear that whenever there are conflicts between state and federal authority, federal authority is “the supreme law of the land.” The real question, then, is not whether the state officials want the federal government there. It’s whether the federal agents are complying with federal law.
HLT: So, are there legal limits on the tactics being used by the federal agents, which include reports of unidentified federal officers jumping out of vans and detaining people for questioning, and of using substantial physical force against civilians?
Crespo: Absolutely, there are legal limits. Most notably, every law enforcement officer in the country—local, state, and federal—is bound by the Fourth Amendment, which serves as the primary legal constraint on police behavior in the United States. Fourth Amendment law is complicated enough to fill a full semester course, but some of its central tenets are clear. If the police make physical contact with someone, whether by laying hands on them or by shooting them, that is a “seizure.” If they take someone off the street and into a police station or a jail, that’s an “arrest,” even if the person is never booked, fingerprinted, or charged with a crime. Most importantly, the Fourth Amendment prohibits the police from using excessive force when executing an arrest or a seizure, and it prohibits arrests altogether unless the arresting officer has probable cause to believe the person being arrested committed a crime—in this instance, a federal crime.
Probable cause can be an elusive concept. (I just wrote a long article trying to explain what it means.) But here, too, there are some clear limits: The police cannot arrest someone just because the person seems vaguely suspicious. They need to be able to point to specific facts that would make a reasonable person think the person being arrested committed a specific federal crime. And of course, the police can never arrest someone for engaging in a peaceful protest. That would violate not just the Fourth Amendment but also the First, which protects our right to free speech.
Interestingly, the Fourth Amendment does not require law enforcement officers to reveal their identities. In fact, “undercover officers” are a staple of policing. But of course, the federal agents in Portland aren’t “undercover.” According to press reports, they’re “unidentified.” That raises some very serious accountability concerns. A group of senators is trying to address that concern through recently filed legislation, which would require federal agents to wear identification and use marked cars when engaging in operations like those in Portland.
HLT: Oregon does not share a border with any other countries. Why are federal Border Patrol agents conducting these activities, and is it lawful for the federal government to deploy these agents in particular?
Crespo: This is a really interesting question. The federal government does not have a general police force. Rather, it has a constellation of different law enforcement agencies—the FBI, the DEA, the ATF, to name a few. Each of those agencies has a specific domain of authority defined by federal statutes. Generally, the Border Patrol’s authority is to patrol the border, not to patrol American cities dealing with protests or civil unrest. But when Congress created the Department of Homeland Security (DHS) in the wake of September 11, it gave the secretary of DHS authority to transfer agents from one component of the department to another. That’s apparently what’s happening here: The acting secretary of DHS has essentially reassigned squads of Border Patrol agents to a separate federal law enforcement agency known as the Federal Protective Service (FPS), a much smaller agency tasked with protecting federal property. Technically speaking, the Border Patrol agents are thus operating as deputized FPS officers. And the government asserts that their actions in Portland are lawful because they are there to protect federal property, including the vandalized federal courthouse.
There are some tricky questions about how far this statutory authority extends. Can these reassigned agents patrol streets or make arrests in parts of the city that are not near federal property? What authority do they have to engage in crowd control or other activities more attenuated from the core federal-property mission?
These are open and important questions. But it’s also important to note that, legal issues aside, there are serious reasons to be concerned about Border Patrol agents being deployed to respond to these protests. For one thing, that’s not what they are trained to do or what they have experience doing. As I said before, policing protests is one of the most challenging things law enforcement officers have to do. It requires careful balancing of competing interests, and a skilled ability to deescalate the inevitable tensions that will arise. Parachuting in agents who are unprepared for that novel mission runs a serious risk of inflaming the situation, which appears to be exactly what has happened in Portland.
Beyond that, there is the added fear that sending in Border Patrol agents in particular will further politicize the law enforcement operation, and potentially law enforcement itself. Given the president’s primary and, in many ways, defining focus on curbing immigration, the Border Patrol is viewed by many people as an agency that is uniquely aligned with President Trump. Add to that the president’s recent statement that he intends to replicate what’s happening in Portland by sending federal forces to other cities “run by very liberal Democrats,” and it starts to raise fears of political retribution—at the barrel of a gun.
HLT: As you noted, the Oregon state attorney general and the ACLU have both filed lawsuits against the federal government. What do you think of their claims?
Crespo: Both of these lawsuits are in their earliest stages, with some pleadings filed just last [Monday] night. The legal arguments and factual allegations in both suits will surely develop in the days and weeks to come.
Generally speaking, though, there are a number of hurdles that arise in lawsuits of this nature which essentially ask a federal judge to halt an allegedly systematic practice of unlawful arrests. But there are also models of successful lawsuits along these lines. Perhaps most famously, a federal judge issued an injunction against Sheriff Joe Arpaio [of Maricopa Country, Arizona] that ordered him and his department to stop arresting people without probable cause. Likewise, a federal lawsuit against the New York City Police Department resulted in an injunction that sought to curb systematic Fourth Amendment violations caused by the city’s stop-question-and-frisk program. The ACLU could pursue a similar class-action strategy here, on behalf of the entire group of protesters who are exposed to continued risk of unlawful arrest and to tactics that on their face appear to involve excessive force. If it is able to marshal facts demonstrating a widespread practice of such abuses, then I believe the court should step in and put those abuses to a stop. To quote the Supreme Court, the judiciary stands “interposed between the citizen and the police” for situations precisely like this one.