Federal Law Enforcement and the Portland Protests: Legal Considerations

Federal Law Enforcement and the Portland Protests: Legal Considerations

Legal Sidebari
Federal Law Enforcement and the
Portland Protests: Legal Considerations
July 31, 2020
During the spring and summer of 2020, protests in response to the death of George Floyd erupted in
major cities across the country. Responding to a perceived failure by state and local officials to control the
protests, President Trump threatened to take action by, for example, deploying the military into cities to
restore order. Recently, in the midst of ongoing protests in Portland, Oregon, the Trump Administration
deployed hundreds of agents from the Department of Homeland Security (DHS). Although, according to
some, the Portland protests were largely nonviolent, DHS reported numerous instances of what it terms
“violent anarchists” committing crimes against federal property, justifying the presence of federal
officers. Reports of unidentified federal law enforcement officers detaining protestors and transporting
them in unmarked vehicles escalated tensions between local officials and the Trump administration.
The federal law enforcement presence in Portland comes after federal agents were used to respond to
similar protests in Washington, DC. Because of Washington, DC’s unique status as a federal district, the
federal government had more leeway to direct federal agents to assist in law enforcement. However,
because Portland is under the authority of the State of Oregon, unique concerns have arisen over what
legal authority the federal government possesses to use federal officers to respond to local protests,
particularly as the Trump administration seeks to expand the use of federal law enforcement in other
cities. And beyond the legal justification, the tactics reportedly being used by federal officers in Portland
have raised legal questions and have led to a number of lawsuits filed against the federal government.
This Sidebar discusses the general legal authorities relied on by DHS to al ow for the federal presence in
Portland and explores the potential legal questions raised by the presence of federal law enforcement in
Portland, including the constitutional implications of the various tactics used by the federal officers.
Legal Authorities Supporting Local Presence of Federal Law Enforcement
Reports indicate that the federal law enforcement presence in Portland largely has consisted of officers
from DHS, an agency that includes, among other components, the Transportation Security Administration
(TSA), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE). It also
appears that the United States Marshals Service (USMS) within the Department of Justice (DOJ) has been
involved. Public statements from administration officials have cited DHS’s authority to protect federal
property as the central justification for enhanced DHS law enforcement activity in Portland (USMS has
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its own, distinct statutory authority to secure federal courts, among other things.) DHS’s authority with
respect to the protection of federal property is established in 40 U.S.C. § 1315, which requires the DHS
Secretary to “protect the buildings, grounds, and property that are owned, occupied, or secured by the
Federal Government . . . and the persons on the property.”
The component within DHS with primary responsibility under this authority is the Federal Protective
Service (FPS). However, Section 1315 more broadly authorizes the DHS Secretary to “designate
employees” of DHS “as officers and agents for duty in connection with the protection” of federal property
and persons on the property, as wel as (1) to “detail” designated officers and agents to protect specific
federal property at the request of a federal agency head, and (2) to “utilize the facilities and services” of
other federal, state, and local law enforcement agencies (with their consent) when determined to be
“economical and in the public interest.” It appears that Acting Secretary Wolf has used his Section 1315
authority to dispatch officers from TSA, CBP, and ICE (among others) to assist FPS in Portland.
Under Section 1315, officers and agents may be designated for duty “in areas outside” federal property
“to the extent necessary to protect the property and persons on the property.” Designated officers and
agents may also “conduct investigations, on and off the property in question, of offenses that may have
been committed against [federal] property . . . or persons on the property” and “carry out such other
activities for the promotion of homeland security as the [DHS] Secretary may prescribe.” In other words,
the statute al ows for designated agents and officers to operate outside of federal property provided that
there is a nexus to property protection or a federal property offense. These federal property offenses
include (1) statutes that criminalize damaging or destroying federal property in some circumstances and
(2) regulations promulgated under Section 1315 itself that carry criminal penalties.
Furthermore, federal agencies or state or local governments with broader law enforcement mandates may
agree to give designated officers and agents the authority to enforce concurrently unrelated federal, state,
or local laws, and state law may also authorize federal agents to enforce state criminal provisions in some
circumstances. But even setting aside those prospects, designated officers or agents engaged in the
performance of their official duties under Section 1315 may make arrests without a warrant for any
federal offense committed in their presence or any federal felony if there are “reasonable grounds to
believe that the person to be arrested” committed the felony.
Although judicial authority construing the scope of the Section 1315 provisions described above is
limited, at least one circuit court has held that FPS officers “reasonably exercised their investigative and
protective authority” under the statute when they followed a woman who had caused a disturbance in a
federal building and ultimately stopped and arrested her four or five blocks from the building. The court
agreed that the officers’ “monitoring [beyond the property of] what they reasonably believed to be an
ongoing threat to the orderly functioning of” the federal building fel within the “protective and
investigative roles prescribed by the statue.” The court also held that the FPS officers had authority to
arrest the woman based on threatening hand gestures she made while they were following her outside the
property, as the gestures gave the officers probable cause to believe she was threatening assault of a
federal law enforcement officer in violation of federal law.
Legal Issues with Local Presence of Federal Law Enforcement
As discussed, DHS officials maintain that federal law enforcement activity in Portland is grounded in
protecting federal property and agents under Section 1315. Despite this cited legal justification, some
state and local officials have taken issue with federal policing in Portland, especial y because it was
initiated without invitation by the city or state. One lawsuit—filed by Portland-based organizations and
Oregon elected officials—al eges that the use of federal law enforcement officers violates the Tenth
Amendment by infringing on Oregon’s police power, noting that under the federal constitution, “whether,
and how, to police is left to the states and their municipalities.” Conversely, DHS has asserted that

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“[e]nforcing federal law is not by invitation” and that “federal law enforcement agencies do not require
local requests from communities to enforce federal law.”
Regardless of whether the presence of federal law enforcement officers is in fact legal, some reports from
the Portland protests al egedly show federal officers engaging in conduct that could raise constitutional
concerns under the First and Fourth Amendments.
First Amendment
The First Amendment general y protects individuals’ right to peaceably assemble. According to the
Supreme Court, the right to assembly protects the right “not only to speak or to take action, but also to
listen, observe, and learn; [and] assemble for any lawful purpose.” While public city streets have largely
been protected as venues for expression, the government also has “a strong interest in ensuring the public
safety and order, in promoting the free flow of traffic on public streets and sidewalks, and in protecting
the property rights of al its citizens.” As a result, while the Constitution protects the right to assemble,
protestors have no right to harm people or property, and protests may be subject to “reasonable
regulation” such as time, place, or manner restrictions. For example, at least one circuit court has held that
a “spontaneous police order” requiring demonstrators to relocate can be considered a reasonable time,
place, or manner regulation. In deciding whether a restriction is reasonable, the Court has said that the
crucial question is “whether the manner of expression is basical y incompatible with the normal activity
of a particular place at a particular time.”
Relying on al egations that federal officers have used tear gas and non-lethal ammunition on peaceful
protestors, some have argued that federal policing in Portland runs afoul of the First Amendment. And a
federal judge recently granted a temporary restraining order (TRO) acknowledging that in some
circumstances the Portland police’s use of tear gas may have violated protestors’ First Amendment rights.
Beyond the general right to assemble, a recently filed lawsuit claims that federal officers in Portland
violated the First Amendment by assaulting news reporters, photographers, and legal observers. The
lawsuit claims that federal officers attacked journalists and legal observers with tear gas, batons, and
rubber bullets in retaliation for watching or reporting on the protests. Another federal judge issued a TRO
prohibiting officers from arresting or using force against any journalists or legal observer. In granting the
TRO, the court noted that the “public streets, sidewalks, and parks historical y have been open to the press
and general public, and public observation of law enforcement activities in these public fora plays a
significant positive role in ensuring conduct remains consistent with the Constitution.”
Fourth Amendment
The Fourth Amendment prohibits unreasonable searches and seizures by the government, and police may
violate the Fourth Amendment, for example, if they use excessive force during an investigatory stop or
arrest. According to the Supreme Court, force is unconstitutional when it is unreasonable considering the
facts and circumstances of the case. This analysis requires a careful balancing of “the nature and quality
of the intrusion on the individual’s Fourth Amendment interests against the importance of the
governmental interests al eged to justify the intrusion.”
DHS use of force policies state that DHS officers may only use force that is “objectively reasonable in
light of the facts and circumstances confronting him or her at the time force is applied.” Several reports,
however, have raised questions about the extent of federal officers’ use of force. In one instance, officers
al egedly used a non-lethal impact munition to shoot and injure a man who was standing across the street
holding a speaker. Another video appears to show federal officers using pepper spray and a baton to beat a
man standing in the street. USMS and DHS authorities have claimed they are investigating whether the
use of force was appropriate in these instances, and the DOJ Inspector General has opened an
investigation into federal officers’ use of force in Portland.

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Beyond the use of force, police must also comply with the Fourth Amendment when conducting arrests.
For an arrest to be constitutional under the Fourth Amendment, a law enforcement officer must either
have a warrant or conduct the arrest in a public place upon probable cause that an individual has
committed a crime. Some reports from Portland al ege that federal officers are “driving up to people,
detaining individuals with no explanation of why they are being arrested, and driving off.” One video
appears to show federal officers detaining a man without a stated reason and placing him in an unmarked
van. CBP officials justified the incident by asserting they “had information indicating the person in the
video was suspected of assaults against federal agents or destruction of federal property.” The Oregon
DOJ, however, filed a lawsuit claiming that federal officers were il egal y seizing individuals off the street
in violation of the Fourth Amendment. Without deciding the merits, a federal judge recently dismissed the
claims, holding that Oregon lacked standing to seek injunctive relief.
Another potential Fourth Amendment issue concerns law enforcement identification. Some reports of
detentions by personnel in unmarked vehicles, under circumstances where it could be unclear that the
personnel are law enforcement, could implicate the Fourth Amendment’s prohibition on unreasonable
seizures. One federal appel ate court has pronounced that “it is general y not a reasonable tactic for
plainclothes officers to fail to identify themselves when conducting a stop.” Nevertheless, because the
reasonableness of a seizure is ultimately fact-dependent, failure to identify might not always be
considered unreasonable. As the same court observed, “certain dangerous circumstances may permit
plainclothes officers to initiate stops without identifying themselves, but that is . . . a rare exception, not
the rule.” In any event, it appears that wearing a uniform or some other display of law enforcement
involvement may be sufficient identification to be considered reasonable even if there is no verbal
identification. For its part, DHS has asserted that officers in Portland are “clearly identifiable as law
enforcement” and wear uniforms that contain insignia identifying their specific units or teams.
Additional y, DHS has noted that officers in Portland are not wearing name tags “because of doxing
attacks” that threaten their safety, but “each officer wears a unique identifier.” (As discussed in a separate
Sidebar, there is no general y applicable requirement in statute that federal law enforcement officers
identify themselves or display identifying information on their person when acting in public.)
Remedies
If a court determines that federal law enforcement has violated substantive constitutional rights, the focus
wil turn to options for remedying such violations. Discussed in further detail in this Sidebar, the Supreme
Court recognized a cause of action for individuals seeking money damages against federal law
enforcement officers for certain Fourth Amendment violations in Bivens v. Six Unknown Named Agent of
Federal Bureau of Narcotics. However, some suggest that it has become increasingly difficult for
individuals to recover against federal officers, which could be further complicated by an inability to
identify which officers are responsible for the al eged constitutional violations. While Bivens remains the
primary civil remedy to recover for certain Fourth Amendment violations, individuals may also assert
claims against the federal government under the Federal Tort Claims Act (FTCA) for certain torts
committed by federal law enforcement officers.
Bivens or FTCA actions are likely the central remedies available for individuals injured by federal law
enforcement officers. As discussed, a federal judge recently dismissed a lawsuit filed by the Oregon DOJ,
holding that Oregon did not have standing to seek injunctive relief. Relying on a 1983 Supreme Court
case, City of Los Angeles v. Lyons, the judge concluded that Oregon lacked standing because it had not
shown a sufficient likelihood that federal officers would continue committing constitutional violations—a
necessary showing for a federal court to exercise its power under Article III of the Constitution. In Lyons,
the Court held that the plaintiff, who police had previously placed in a chokehold, did not have standing
to seek an injunction against the future use of chokeholds. The Court reasoned that injunctive relief is
unavailable absent a showing of “any real or immediate threat that the plaintiff wil be wronged again.”

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Further, state law is unlikely to be used to regulate federal police activity. The Supreme Court has long
held that federal officers enforcing federal law are immune from state criminal prosecution so long as
they do only what is “necessary and proper” in the scope of their duties.
Considerations for Congress
The continued expansion of federal law enforcement in cities across the country has been met with
support from some and criticism from others. The administration recently announced additional federal
law enforcement deployment to Portland and sent federal officers to assist with protecting federal
property amidst similar protests in Seattle, though it appears that additional DHS personnel in both cities
have since begun to be withdrawn. While some Members of Congress have expressed support for the use
of federal law enforcement to defend federal property, others are cal ing for an investigation into the
administration’s use of federal law enforcement and potential civil rights violations. Some local officials
have cal ed for Congress to pass legislation requiring federal agents to obtain consent from local
authorities, to visibly identify themselves and their vehicles unless undercover, and to limit “crowd
control” actions to protecting federal property. Recently introduced legislation in response to the Portland
protests seeks to limit the use of federal law enforcement officers for crowd control by, among other
things, limiting law enforcement functions in that context to “[f]ederal property or in the immediate
vicinity thereof” unless an exception applied. This provision would appear to limit the scope of 40 U.S.C.
§ 1315. Nevertheless, were the proposal to become law, questions might stil arise as to the relationship
between its limitations and existing DHS authority to investigate crimes against federal property outside
of the property itself.
The same legislation and other recent legislative proposals would also impose new identification
requirements on federal law enforcement officers. First, the PEACE Act, one section of the Justice in
Policing Act of 2020 (H.R. 7120), would impose a limited requirement that federal law enforcement
officers identify themselves as officers, among other things, “[w]hen feasible” prior to using force against
any person. Separately, bil s introduced in the House and Senate would require federal officers “engaged
in any form of crowd control, riot control, or arrest or detainment of individuals engaged in an act of civil
disobedience, demonstration, protest, or riot in the United States” to “at al times display identifying
information in a clearly visible fashion,” including the agency, last name, and the officer’s badge number.
And in regard to potential remedies for those injured by federal law enforcement conduct, the limitations
imposed by Lyons on injunctive relief are constitutional y based and beyond Congress’s authority to alter.
However, there may be room for legislation with respect to individuals’ ability to recover against federal
law enforcement officers for potential constitutional violations under Bivens. The Supreme Court has
continued to emphasize that it is Congress’s role to create a cause of action for monetary damages against
federal government officials. Congress, therefore, could choose to codify an action for claims against
federal officials. In creating a new statutory cause of action, Congress could establish its parameters,
including which federal officials would be liable, what federal rights would be protected, or whether
officials are entitled to qualified immunity.

Author Information

Whitney K. Novak
Michael A. Foster
Legislative Attorney
Legislative Attorney

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