In a court hearing Wednesday, attorneys representing both the Oregon Department of Justice and federal agencies deployed in Portland made their arguments in a lawsuit claiming civil rights abuses amid ongoing protests.
In the federal lawsuit filed last week by the Oregon Department of Justice, Oregon Attorney General Ellen Rosenblum claims federal officers in Portland are violating protesters' First, Fourth and Fifth Amendment rights by detaining people off the streets without wearing any identifying information, having a warrant or probable cause, and using unmarked vehicles to do so.
“We are bringing this action, asking the court to declare it unacceptable to use police state-type tactics to detain Oregonians without cause,” Rosenblum said Wednesday.
Federal officers deploy tear gas against people protesting racism and police violence in front of the Mark O. Hatfield federal courthouse in Portland, Ore., on July 18, 2020. The federal police presence in Portland has galvanized protesters, bringing out larger crowds than in preceding weeks.
Jonathan Levinson / OPB
Rosenblum and the Oregon DOJ are asking Oregon U.S. District Court Judge Michael Mosman to issue a temporary restraining order to stop federal authorities from unlawfully detaining Oregonians. The state is requesting specifically that federal officers need to identify themselves and their agencies, as well as the reasoning for their actions, before detaining or arresting people.
Attorneys representing the federal agencies said Wednesday that the judge should deny that request as it would hinder the “split-second judgements [sic] that federal law enforcement officers have to make while protecting federal property and themselves during dynamic, chaotic situations,” court documents state.
“I want to underscore the critical situation that law enforcement officers are contending with right now,” David Morrell, an attorney representing the federal agencies, said.
“The situation on the ground is dangerous and volatile,” he said, citing unspecified injuries to federal officers and damage to federal buildings including the Mark O. Hatfield Courthouse.
Related: Federal Law Enforcement Use Unmarked Vehicles To Grab Protesters Off Portland Streets
The lawsuit filed by the state specifically refers to a situation in which unidentified federal officers removed Mark Pettibone, a Portland demonstrator, from the streets in the early morning hours of July 16, put him into an unmarked van and took him to the federal courthouse before reading him his Miranda rights.
Morrell, representing the federal agencies, argued that since the state instigated the lawsuit, the burden of proof is on the Oregon DOJ to show how Oregonians' rights have been violated. He said the state has failed to do so.
“Of course, federal law enforcement officers can protect federal property, they can perform investigations, they can carry out the mission that is delegated to them,” Sheila Potter with the Oregon DOJ said during the hearing. “What they are doing breaks with basic law enforcement procedures, and what we are asking the court to do is to address the ways in which that varies from [those] procedures.”
Potter argued that the behavior of federal officers is not due to “split-second” decision-making as the attorneys representing the federal government had stated, but is an attempt to “chill” protesters’ First Amendment rights.
“There is no other reason for law enforcement to take five seconds to say, ‘We’re with the U.S. Marshals. You’re under arrest,’ before they arrest someone other than to terrify people and to quell protests,” Potter said.
Related: DHS defends use of force, tactics during Portland protests
Potter also said that if Pettibone’s detention was a singular, isolated incident that the federal agencies’ concluded was a mistake, then “we would not need to be here.”
“The fact that what we are asking law enforcement officers to do is to identify themselves and their agency and what it is that they’re doing to the person they’re taking away, whether they’re arresting them, whether they’re asking them to come with them for questioning,” Potter said, “the fact that the government is fighting that suggests that the government intends to continue exactly that same conduct in the future.”
Judge Mosman did not indicate when he intends to make a ruling.