The cities of Portland and Oakland, California, have filed a lawsuit against the U.S. Homeland Security and Justice departments, alleging both have engaged in unconstitutional overreach by sending in or threatening to use federal officers to quell social justice protests.
The suit cites dispatching federal officers “either secretly or with little warning" to Portland, the continued authorizing of special deputy U.S. marshal status to Portland police despite the city’s objections, deploying federal officers to non-federal property with “virtually limitless jurisdiction” and erecting a fence around the Mark O. Hatfield United States Courthouse in a city right-of-way without a permit in downtown Portland.
Oakland joined the suit partly to thwart the possibility that the federal government would deputize its police officers.
The cities allege President Donald Trump has violated the anti-commandeering rule, which says the federal government can’t require states or its officials to enforce federal law.
The federal practices mark a “monumental policy change” that harms the cities' abilities to safely govern and has stirred further civil unrest, the 48-page suit says. Past local collaborations with federal law enforcement have been voluntary and consensual, the suit notes.
“As local governments, Plaintiffs have independent police forces; community relationships; and locally-determined policing policies, practices, and procedures. Plaintiffs' police forces have always been able to expect when and how federal law enforcement agents could assert federal powers within their jurisdictions,” attorneys wrote in the suit.
“The use of deployments and operations violating established constitutional parameters, politically motivated interventions, and lawless commandeering of local law enforcement are unconstitutional and unauthorized in part because of the havoc such actions impose on local jurisdictions and the innumerable ways in which these deployments run roughshod over the longstanding federalist balance of the general policing power."
The suit was filed in federal court in the Northern District of California late Wednesday. It comes 16 days after Oregon’s U.S. attorney announced that the U.S. Marshals Service wouldn’t cancel the federal deputization of certain Portland police, state troopers and Multnomah County sheriff’s deputies. It also falls as protests have occurred almost nightly for four and a half months in Portland since shortly after the May 25 death of George Floyd, a Black man who died after a Minneapolis police officer knelt on his neck.
Matt Boggs, a Homeland Security spokesman, issued a statement in response to the suit: "Yet again, dangerous politicians and fringe special interest groups have ginned up a meritless lawsuit. They aim to harm President Trump and distract from his law and order agenda. Department of Homeland Security have acted entirely lawfully. Instead of condemning the violence we are seeing across the country, these politicians focus on scoring cheap political points to the detriment of the American people.''
Oregon’s U.S. Attorney Billy J. Williams and Oregon’s U.S. Marshal Russ Berger have called the enhanced federal powers bestowed on local police an important deterrent to violence during protests that also helps protect officers.
The deputization of 56 Portland officers and 22 county deputies is set to last until Dec. 31, according to the U.S. Attorney’s Office, despite Portland Mayor Ted Wheeler’s request to halt the designation.
On the morning of Sept. 26, the U.S. Marshals Service swore in officers from the Portland Police Bureau’s Rapid Response Teams as special deputy marshals, hours before the far-right group Proud Boys rallied in North Portland’s Delta Park while left-wing counter-demonstrators gathered in other city parks.
Oregon State Police Superintendent Travis Hampton had requested the federal powers for the local officers after Gov. Kate Brown tapped him to lead the police response to the weekend rallies along with Multnomah County Sheriff Mike Reese under an emergency executive order.
Portland City Attorney Tracy Reeve wrote to Oregon’s U.S. attorney on Sept. 29, requesting removal of the federal powers bestowed on Portland’s officers. No one from the U.S. Attorney’s Office or any other federal agency responded to Reeve or city officials, the suit says.
“The practice of continued deputation of Portland’s officers limits the City’s law enforcement discretion, creates potential conflict between defendants and Portland over the use of tactics of Portland’s own officers and other law enforcement personnel, and unlawfully usurps the legislative and governance prerogative of local officials,” the suit says.
In response to the federal steps taken in Portland, Oakland’s City Council on July 28 adopted a resolution authorizing the city attorney to take “any and all lawful necessary steps” to protect the rights of the city “against President Trump’s threats to take actions that result in harm to the people of Oakland” or against any federal officers' actions.
Both cities' police agencies are under negotiated settlement agreements with the Justice Department that require much more restrictive use-of-force policies than those governing federal law enforcement, according to the cities' lawyers.
The suit cites Trump’s “threats and warnings," including statements suggesting he would send law enforcement to polling places on Election Day.
The federal agencies have violated the 10th Amendment’s separation of powers, the suit says, arguing that public safety is reserved as a state police power.
“Long-established principles of federalism, paired with congressional limitations, restrict the ability of the federal government to unilaterally deploy domestic military or police interventions,” the suit says. “The motivation animating Defendants' Policy is the ‘takeover’ of City police forces and powers, and is untethered to strictly federal interests or activities.”
The suit also names Attorney General William P. Barr and Acting Homeland Security Secretary Chad F. Wolf.
It challenges Wolf’s position, noting he wasn’t nominated by the president or confirmed by the Senate. That means he’s serving in his role unlawfully and makes his orders governing federal officers in Portland void in violation of the Administrative Procedure Act, the suit claims.
Wolf has cited a section of the Homeland Security Act of 2002 , saying it gives the department’s secretary the power to deputize other federal agents to help the Federal Protective Service safeguard U.S. government buildings such as the federal courthouse in Portland.
Federal officials have said in court papers filed in Portland in other lawsuits that additional federal officers were sent to Portland in early July under the Trump administration’s “Operation Diligent Valor” and that withdrawing them “will depend on unknown future circumstances in Portland and presence of any threat to the federal judiciary or property.”
The suit urges a judge to halt the federal agencies' actions, declare them unlawful and an abuse of discretion and award each city costs to cover their expenses.
Portland incurred millions of dollars in police overtime in July when actions by federal officers outside the courthouse increased the scope of the protests and heightened tensions on the street, the suit contends.
The legal action is signed by Reeve, Oakland City Attorney Barbara J. Parker, and Jonathan Miller, a lawyer assisting the cities from the national nonprofit Public Rights Project.
“The call for police reform and racial justice is urgent,” Miller said. “The Trump Administration’s unlawful deployment of federal agents is a tactic used to foment violence and interfere with the very reform efforts with which the Administration disagrees.”
Federal officers face a string of lawsuits alleging excessive force, including using tear gas, rubber bullets and batons against crowds, causing serious injury in some cases. Federal officers also whisked people off the street for questioning and stormed onto city streets away from the courthouse to break up demonstrations. Wolf and other government officials said the force was necessary to protect federal property and their officers from some protesters who ignited fires, threw fireworks, rocks and other objects and smashed windows and doors.
Clifford Davidson, a lawyer representing the Western States Center Inc. in a separate pending suit against four federal law enforcement agencies that sent tactical officers to defend Portland’s downtown federal courthouse this summer, applauded the new case filed.
“We are pleased to see that elected officials recognize what our clients have argued in federal court since July: state and local government have the exclusive power to conduct general policing in the City of Portland. The Federal Constitution guarantees such autonomy to foster innovation and ensure local accountability—precisely what the movement for Black Lives is about,” he said.
-- Maxine Bernstein
Email at mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
Subscribe to Facebook page