from the aaaaaand-I’m-proud-to-be-an-Americaaaan-where-at-least-I-[pepper-spray] dept
Protests related to the killing of George Floyd by Minneapolis police officer Derek Chauvin have passed the two-month mark in Portland, Oregon. In response to unfettered liberalism, the Trump administration has sent in the troops. Officers from ICE, CBP, US Marshals Service, and other federal agencies flooded into Portland with the ostensible aim of protecting federal property, like the courthouse targeted by protesters.
Instead of a measured response to defuse tensions, federal officers engaged in Gestapo tactics. Unidentified officers in unmarked vehicles began removing protesters from the streets, hauling them away to unknown locations for questioning. Those released after being detained were given no paperwork commemorating their interaction with America’s secret police, nor were they told why they had been detained.
This wasn’t the only broadside against Constitutional rights. Federal officers also attacked journalists and legal observers. This didn’t just violate social contracts. It violated the First Amendment. Local journalists and observers sued. And they obtained a restraining order from a federal court blocking federal agents from attacking clearly identified journalists and observers. The court noted that local law enforcement — which had been hit with an earlier restraining order — was able to abide by the court-ordered rules of engagement. The court said the federal government offered no plausible argument why it would be impossible to abide by the same restrictions.
The plaintiffs are back in court asking for sanctions to be brought against the federal government for refusing to abide by the restraining order. (h/t Mike Scarcella)
The opening of the motion [PDF] contains some invective, but it appears to be justified.
On July 23, 2020, the Court issued a temporary restraining order prohibiting federal agents from assaulting and dispersing journalists and legal observers. Within hours, federal agents began violating the Court’s TRO and have continued to do so every night since. These violations are not inadvertent. They are intentional acts by a lawless president, who has sent his paramilitary forces to shoot up the streets of Portland, choke downtown in a haze of toxic chemical fumes, and generate reelection soundbites—in blatant disdain of public safety, the rule of law, and the most fundamental principles of our Constitution.
The plaintiffs aren’t wrong. Trump has made it clear he’s only sending federal agents into “liberal” cities. This may score points with his voter base but it’s doing nothing for the rest of America, which has expressed its disdain for the tactics deployed in Portland.
These tactics are forbidden — not just by the Constitution, but by a court order directly addressing the targeting of journalists and protesters. And yet, the government persists.
On July 23, a federal agent shot reporter Jonathan Levinson while he was trying to take a photo. No protesters were near him. A federal agent also shot journalist Brian Conley, when he was trying to video an arrest. Later that night, federal agents tear-gassed Mr. Conley. The same night, federal agents shot reporter Rebecca Ellis and separately prevented her from documenting their dispersal of protesters.
On July 24, federal agents shot legal observer Haley Nicholson in her chest, just above her heart, from four feet away. Impact munitions should not be used at distances of less than 15 feet or above the waist.
On July 25, federal agents deliberately sprayed toxic chemicals into the faces of multiple legal observers, including Bruce Knivlia and Kat Mahoney, at point blank range. They were all clearly identified in blue ACLU vests and green NLG hats. They also shot photojournalist Kathryn Elsesser, who was also clearly marked with “PRESS” on her helmet.
On July 26, a federal agent temporarily left an advancing line of agents to kick a flaming tear-gas canister directly at a group of clearly marked journalists.
On July 27, Plaintiffs contacted government counsel to raise these blatant violations. (Declaration of Matthew Borden (“Borden Decl.”), Ex. 1.) Instead of investigating and providing information as promised, the federal defendants claimed that they were unaware of what agents and commanders were involved and offered nothing to extenuate their violations of the TRO. That night, the federal agents heaped on more acts of contempt.
If sworn declarations aren’t enough, there’s also video:
Here’s a copy [PDF] of the depressing communication the law firm representing the journalists had with DHS counsel Joshua Gardner. When asked for information about the agencies he represents, Gardner had almost nothing useful to say.
First, Gardner said he had no idea what policies or directives were guiding agents’ actions. He promised to “check” on those. The DHS’s lawyer also claimed agents had seen protesters “masquerading” as journalists. When asked for proof of these claims, Gardner was unable to cite any such instance being observed by a federal officer. Finally, the government’s lawyer claimed he had no information about any officers observed violating the restraining order or any details about supervisors tasked with communicating the specifics of the order to federal agents.
Chances are, very few agents have been formally made aware of the order’s specifics. Ignorance is, at least for the moment, bliss. Those who don’t know can’t be blamed for their actions. Or, at least, not as easily. Plausible deniability in all things, including the continued violations of rights in contempt of a court order. But this ignorance may be less blissful than usual. The restraining order made it clear officers were to be made aware as soon as possible because the usual lawsuit escape hatch was being removed by the court issuing the order.
Because the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity in any action brought against any individual employee, officer, or agent of the Federal Defendants under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), notice of this Order must be widely disseminated.
If you’re paying close attention, you can see the loophole being exploited. “Willful violations” are tough to prove when no one has received updated instructions. And if no one orders anyone to violate the court order, supervisors can’t be held accountable either. It’s a perfect storm of non-accountability. And that’s what appears to be going on in Portland.
The plaintiffs are asking for justice and respect for their rights. They’re asking for the federal government to play by the rules. Federal agents are responding with “Fuck you. Make me.” The federal government is priming the powder keg while pretending to care about buildings and statues. If a federal court can’t make federal agents play by the Constitutional rules, who can?