Experts and lawmakers unsure if Trump’s ‘bulldozer’ police tactics are legal
Portland’s mayor says Donald Trump sent camouflage-clad and heavily armed federal officers into his city “like a bulldozer” to quell protests, but whether they have the necessary legal authorities beyond federal property appears dubious.
The president will have an opportunity on Wednesday afternoon to address a list of questions about just what the federal personnel, a hodgepodge force composed of Department of Homeland Security officers, are doing in Portland and under what legal authorities. He is slated to give remarks on the subject, though he rarely focuses on federal laws and statutes – Mr Trump prefers to speak of “anarchists” and left-wing “mobs”.
Trump administration officials have yet to clearly explain under what federal authorities the law enforcement personnel are operating, other than to cite statutes allowing Washington to protect federal buildings. But Portland officials say the federal forces are doing more than that.
“We had a contained [situation], we were using our de-escalation strategies. We were engaged in limited arrests of people who were engaged in illegal activity, that’s modern policing. And then these guys came in like a bulldozer,” Mayor Ted Wheeler said. “And what it did was re-energised Portlanders, it brought people back into the streets.”
Mr Wheeler accused the Trump administration of having “trampled over the constitution”, saying the federal law enforcement officers “have fired munitions [at] non-violent demonstrators, in one case, nearly killing somebody, the way they’ve trampled over the requirement for probable cause”.
That is one of the biggest questions about the DHS deployment to the Oregon city, deployments the administration reportedly is planning in Kansas City and Chicago to address escalating violence in those midwest metropolises.
“Insofar as federal law enforcement officers are enforcing federal law and/or state law on federal property, federal law also provides detention and arrest authorities,” according to Steve Vladeck, a professor at the University of Texas School of Law. “Of course, detention and arrest must still comport with the federal constitution – under which warrantless arrests require probable cause to believe the individual has committed a crime.
“In other words, federal law enforcement officers in Portland could have the legal authority to arrest individuals when they have probable cause for violations of federal or state law,” according to Vladeck, “but in the latter case, there are statutory notice and transfer requirements that, if media reports are accurate, are not being honoured.”
It also is murky whether the federal forces are obtaining the legally required Oregon state certifications to make arrests.
‘Made-for-TV’
Congressman Earl Blumenauer, a Democrat who represents part of Portland, on Wednesday called the situation there a “made-for-TV artificial crisis”.
“Donald Trump and his henchmen have taken a very difficult situation” and turned it into a “militarisation” he called “unwelcomed” and ”uninvited”.
The congressman accused the federal forces of refusing to identify themselves to protesters; Mr Vladeck, however, said there is no federal statute requiring them to do so – unless they are making an arrest. But even then, it is legally murky if they have to disclose their specific agency.
Senate Judiciary Committee member Richard Blumenthal, a Connecticut Democrat, tweeted this week that “peaceful protesters exercising their constitutional rights aren’t an enemy & shouldn’t be attacked with weapons of war”.
“What we are seeing in Portland is not law enforcement, but a blatant disregard for Americans’ rights,” Mr Blumenthal wrote, suggesting the officers’ mission violates the law. “Unidentified federal officers should not be acting like a secret police force ‘disappearing’ people off the streets. This authoritarian escalation must stop.”
But Mr Trump and some of his top lieutenants say using federal officers is necessary to prevent sometimes-violent protesters from destroying American cities and suburbs.
“We’re going to have more federal law enforcement – that, I can tell you,” Mr Trump told reporters on Monday. “In Portland, they’ve done a fantastic job. They’ve been there three days, and they really have done a fantastic job in a very short period of time. No problem.”
Mr Trump boasted that DHS officers are arresting protesters, but he did not explain how they might be trying to comply with state laws.
“They grab them. A lot of people in jail. They’re leaders. These are anarchists. These are not protesters. People say ‘protesters.’ These people are anarchists. These are people that hate our country. And we’re not going to let it go forward,” the president said in the Oval Office.
‘They’re afraid’
Rather than speaking in terms of legal authorities or emergency powers, the president who warned about “American carnage” in his inauguration speech, said he is deploying what some call a “secret police” force because Democratic local and state leaders are scared.
“And I’ll tell you what: the governor and the mayor and the senators out there, they’re afraid of these people,” he said. “That’s the reason they don’t want us to help them. They’re afraid,” Mr Trump contended. “I really believe they’re actually maybe even physically afraid of these people – because what they’re doing is incredible.”
With some Democrats accusing him of using the federal force to help his re-election campaign, which includes his pitch as a “law-and-order president”, Mr Trump used the situation to take a jab at his expected general election foe.
“And you know what? If Biden got in, that would be true for the country,” he said. “The whole country would go to hell. And we’re not going to let it go to hell.”
His acting DHS secretary, Chad Wolf, on Monday made clear he has no intention of pulling his forces back.
“My message is simple: if you’re looking to peacefully protest in Portland, the department respects your right to do so,” he said. “Please do so away from the violent activity that’s taking place near the courthouse on a nightly basis, for your own safety.
“If you are a violent rioter looking to inflict damage on federal property or law enforcement officers, you need to find another line of work,” he said. “We will not retreat. We will continue to take the appropriate action to protect our facilities and our law enforcement officers.”
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