A federal judge heard arguments Wednesday on Oregon’s request for a restraining order against federal agents sent to the state’s biggest city to quell protests that have spiraled into nightly clashes between authorities and demonstrators.
The lawsuit, filed by Oregon Attorney General Ellen Rosenblum, alleges that federal agents sent by President Donald Trump have arrested people with no probable cause, whisked protesters away in unmarked cars and used excessive force to quell the unrest. It’s part of growing pushback against the Trump administration’s use of federal agents in Portland and its plans to do the same in other cities.
In a twist, the judge hearing the case — U.S. District Court Judge Michael Mosman — works out of the Mark O. Hatfield Federal Courthouse, which has been a target for more than 50 nights of protests following the killing of George Floyd. Floyd, a black man, died after being pinned at the neck by a white Minneapolis police officer, igniting protests against racial injustice nationwide.
The motion for a temporary restraining order asks the judge to immediately command agents from the Department of Homeland Security, the U.S. Customs and Border Patrol, the Federal Protective Service and the U.S. Marshals Service to immediately stop detaining protesters without probable cause, to identify themselves before arresting anyone and to explain why an arrest is taking place.
“There is no question that they have the right to protect federal buildings,” the motion reads. “But these officers have also pursued peaceful, unarmed citizens through city streets and used unlawful intimidation tactics to instill fear of violence and chill the exercise of rights protected by both the Oregon Constitution and the United States Constitution.”
During the hearing — held by videoconference because of the coronavirus pandemic — Rosenblum said she was asking the court to “declare it not acceptable for federal officers to use unconstitutional police state-type acts to detain citizens of Oregon without cause.”
There are 114 federal agents in Portland, according to Steve Lippold, another attorney for the state.
David Morrell, an attorney for the U.S. government, called the motion “extraordinary” and told the court it was based solely on “a few threadbare declarations” from witnesses and a Twitter video.
“It’s important to underscore what’s at stake here. The Hatfield courthouse did not damage itself,” he said, calling the protests “dangerous and volatile.”
It wasn’t clear when Mosman would rule.
Ahead of Wednesday’s hearing, a fence was raised around the federal courthouse, outside of which protesters and federal agents had clashed again overnight, according to the Portland police, who were not present. Protesters repeatedly tried to break into the courthouse and set fires around it, and the federal agents drove them back with tear gas and stun grenades, the police said.
Far from tamping down the unrest in Portland, the presence of federal agents on the streets of the progressive city has recently energized the nightly protests that had begun to devolve into smaller crowds.
In addition to the suit from the state attorney general, the Trump administration also faces another lawsuit, accusing federal agents of violating protesters’ 10th Amendment rights by engaging in police activities designated to local and state governments. That legal action was filed by the Western States Center, which helps organize and promote the rights of communities of color and low-income people.
State and local officials have rejected the presence of the agents and did not ask for them.
“It is time for the Trump troops to go home and focus their attention on other activities,” Democratic Gov. Kate Brown said on MSNBC.
Federal authorities, however, said state and local officials had been unwilling to work with them to stop the vandalism and violence against federal officers and the U.S. courthouse in Portland.
“We need to find a peaceful outcome,” acting Department of Homeland Security Secretary Chad Wolf said at a news conference Tuesday in Washington. “At the end of the day, we have to protect the federal property and the law enforcement officers.”
The use of federal agents against the will of local officials also has set up the potential for a constitutional crisis, legal experts say. It could escalate if Trump sends federal agents elsewhere, as he says he plans to do, including to Democratic-led Chicago.
Wolf defended the federal response and said agents have been assaulted with lasers, bats, fireworks, bottles and other weapons. While he said federal agencies have made 43 arrests since July 4, he disputed that they were done by unidentified agents, noting that they have the word “police” on their uniforms.
“These police officers are not storm troopers, they are not Gestapo. That description is offensive,” Wolf said.