ACLU Sues Federal Officers Over Excessive Force Deployed Against Portland Protesters

from the feds-chose-the-thug-life dept

The Trump Administration’s decision to send federal agents — led by the DHS — to Portland, Oregon to handle civil unrest (prompted by yet another killing of an unarmed Black man by a white police officer) continues to generate litigation.

Supposedly sent to protect federal buildings targeted by Portland protesters, the DHS task force — composed of CBP, ICE, and FPS officers — rolled into Portland Gestapo-style, sending out unidentified officers to toss people into unmarked vehicles, spiriting them away to undisclosed locations to be subjected to detainment and interrogations that were never documented.

The DHS task force redefined riot police to include rioting federal police. Officers attacked press and legal observers with the same enthusiasm they attacked protesters with. Local journalists sued, obtaining a restraining order against federal agents… one the federal agents immediately violated.

Another lawsuit has been filed, this one accusing the DHS task force of violating the rights of protesters. The ACLU — along with a number of other plaintiffs (including the “Black Millennial Movement”) claims federal officers are deploying excessive force and engaging in unlawful detainments of participants in the ongoing Portland protests.

The complaint [PDF] opens up with a nice little dig at the Administration’s unwillingness to properly staff its departments, reminding the court (and readers) the DHS still doesn’t have a legally appointed director.

As part of a federal mission known as “Operation Diligent Valor,” spurred by President Donald J. Trump and directed by the purported Acting Director of the United States Department of Homeland Security (“DHS”) Chad Wolf, the federal government deployed more than a hundred federal law enforcement officers or agents employed by a variety of federal agencies in an alleged effort to “quell” the protests, which were occurring near the Mark O. Hatfield Federal Courthouse (the “Hatfield Courthouse”) in the center of Portland.

As befits an administration that likes the concept of “rule of law” as long as no one applies it to the administration, the DHS task force began violating laws and rights as soon as it set foot in Oregon.

Such federal law enforcement officials, heavily armed and clad in military-type camouflage or dark uniforms, indiscriminately used violent tactics on lawful protesters, including shooting them in the head and body with impact munitions and pepper balls, spraying them directly in the face with pepper spray, shoving them to the ground, hitting and beating them with batons, firing massive clouds of tear gas at them, and, in some instances, arresting and detaining them without any lawful basis.

All pretty unlawful. And that’s if you accept the assumption that the DHS has the legal authority to perform duties normally performed by local law enforcement. And there’s no reason you should accept that because [taps link discussing Chad Wolf’s illegitimately obtained position].

“Operation Diligent Valor” was not legally authorized. Pursuant to 40 U.S.C. § 1315(a), the Acting Secretary of DHS has limited statutory authority to designate DHS employees to “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government . . . and the persons on the property.” Defendant Wolf, however, had no such authority because he was not properly designated and serving as the Acting Secretary of DHS under the requirements of the Homeland Security Act of 2002, 6 U.S.C. § 113(g), and the Federal Vacancies Reform Act., 5 U.S.C. § 3348. As a result, he had (and still has) no authority whatsoever under 40 U.S.C. § 1315 and his designation of DHS officers pursuant to “Operation Diligent Valor” was null and void.

If the court chooses to believe Chad Wolf was legitimately appointed, this won’t change much.

[E]ven assuming “Operation Diligent Valor” had been properly authorized, the DHS officers conducting the operation exceeded their limited powers under 40 U.S.C. § 1315, which does not allow making warrantless arrests or taking actions such as detaining individuals or suppressing protests in locations that are away from, or not required to protect, federal property.

The officers brought in to settle things down riled them up instead. They shot protesters in the face with “less lethal” munitions, flooded the streets with tear gas whether or not the situation demanded extreme crowd control, expanded their “perimeter” far past the federal buildings they were supposed to protect, and snatched people off the streets (and, sometimes, right out of their vehicles).

The DHS task force also ignored local politicians’ demands they leave the city and allow the Portland Police to handle ongoing protests. An agreement was reached between the Trump administration and the governor of Oregon for federal officers to leave downtown Portland. They didn’t.

DHS confirmed that although federal officers had not interfered with peaceful protesters during the preceding days, “[t]here has been no reduction in federal presence; federal law enforcement officers remain in Portland at augmented levels.” “[T]he increased federal presence in Portland will remain until [DHS] is certain that federal property is safe.”

[…]

On August 7, 2020, OPB also reported that federal officials speaking off the record said that some of the forces might be drawn down, depending on how the weekend went, but an elevated force would likely remain in Portland through the November election.

Here’s a sampling of the abuse suffered by Portland protesters under the purported command of Chad Wolf’s DHS:

Federal officials were clearing nonviolent protesters in SW Third Avenue immediately in front of the Hatfield Courthouse, some 15 to 20 yards away from where Mr. Smiff was standing. Mr. Smiff was approximately 10 feet away from any other protesters. When Mr. Smiff looked down at his phone to send a tweet, he was shot in the right side of his face with an indelible hard-cap paintball, just below the line of his helmet and just above a face mask he was wearing.

[…]

On July 24, 2020, she was personally subjected to such unlawful tactics when she had a tear gas cannister hurled into her head, causing a three-inch gash to her forehead that ultimately required 11 stitches. Ms. Denison had come to the protests that evening as a member of the Wall of Moms, an unincorporated association with a mission to support Black Lives Matter, and to protect protesters supporting Black Lives Matter from being subject to excessive use of force by the federal government.

[…]

Mr. David then attempted to ask the officers what they were doing and why they were not honoring their oath to support the Constitution. The officers did not verbally respond or instruct Mr. David to move, but one of the officers trained his firearm on Mr. David’s chest and then lowered it, after which another officer plowed into Mr. David to knock him back.

Mr. David stumbled backwards in the street to recover his balance. Two federal officers then approached Mr. David, one after the other, and struck him with their batons while one of them deployed a canister of chemical irritant spray directly into Mr. David’s face. Mr. David was able to knock the cannister away in self-defense only to have another officer approach and spray him in the face again.

[…]

A flash-bang grenade then went off at Mr. McNulty’s feet, and the area began to fill with tear gas, which was blowing towards Mr. McNulty. To escape from the tear gas, Mr. McNulty moved through the intersection of Main Street and SW Third Avenue, crossing in front of the federal officers. As he crossed the intersection, his eyes and face began to burn. The federal officers then shot Mr. McNulty four times: three times with rubber bullets and one time with a pepper ball. He was given no warning and was not disobeying any orders or engaging in any violence before he was shot.

Mr. McNulty was bleeding, in considerable pain, and unable to move easily. He sought out volunteer medics who could assist him. The medics provided Mr. McNulty with short-term treatment and sent him to a hospital emergency room. At the emergency room, Mr. McNulty learned that one of the munitions that struck him in the back had not only gone through his clothes, but pierced his skin, fat layer, and at least one layer of muscle. The wound was severe enough that Mr. McNulty had to have a CT scan to confirm that it had not punctured his peritoneal cavity.

The ACLU and other plaintiffs are asking the court to find federal officers violated the rights of protesters by subjecting them to excessive force and curtailing their ability to protest peacefully. The ACLU is also wants the court to compel the release of records related to the unlawful arrest of one of the plaintiffs, which includes anything accessed by officers on the phone they seized during his arrest.

The federal government’s interlopment in Portland has been 100% ugly. And it’s been encouraged by the Commander-in-Chief, someone who appears to feel the “rule of law” should be applied rapidly and harshly against those questioning decades of abuse at the hands of law enforcement.

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Comments on “ACLU Sues Federal Officers Over Excessive Force Deployed Against Portland Protesters”

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66 Comments
Anonymous Anonymous Coward (profile) says:

Re: Re: I'm pessimistic

The Appeals Court in this case was a three judge panel. While a different three judge panel might obtain a different decision, or the appeal Samuel mentions could get bumped up to an en banc hearing (ten of the 29 Ninth Circuit judges). Then it may or may not become eligible for appeal to the Supreme Court.

Thad (profile) says:

Re: Re: Re:2 I'm pessimistic

But where’s the precedent?

The legal precedent in the ruling you’re talking about establishes that journalists and legal observers are not exempt from dispersal orders. In what way does that legally require a lower court to rule that the police’s use of force was not excessive?

I think you’re mixing up two different issues here.

One: Are lower courts bound by the Ninth Circuit ruling? The answer is "yes."

Two: If this case were to come before the same two-judge majority as the previous case, can we reasonably infer that they’d rule that the police did not use excessive force in this case? I think the answer is "yes" there, too.

But you seem to be thinking that those two things, taken together, mean that this case is somehow bound by the precedent established by the other case. It isn’t. While they concern the same events, they’re completely different questions of law. One regards whether journalists are exempt from dispersal orders; the other regards whether the police used excessive force in said dispersals. Precedent established by the former has nothing to do with how a lower court is allowed to rule on the latter.

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Anonymous Coward says:

Good

Lets get all of the videos supoened from every device in the area and go through all of the evidence that gives the government for prosecuting hundreds of people there with property crimes. When the protest stops being peaceful, it is up to the police to deal with the riot it has become. Just because you individually might not have done anything wrong, doesn’t mean you bear no guilt from what your fellow rioters have done. This will 100% backfire on the rioters that were present.

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Uriel-238 (profile) says:

Re: Just because you individually might not have done anything wrong

Just because you individually might not have done anything wrong doesn’t mean you bear no responsibility for the failure of the society you depend on to enforce the social contract.

When you outlaw a people they are obligated (by God, as Jefferson would put it) to raze your society to the fucking ground.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

Just because you individually might not have done anything wrong, doesn’t mean you bear no guilt from what your fellow rioters have done.

If a spur-of-the-moment protest with no real “leaders” and no organization whatsoever turns into a riot, who bears the guilt for that besides the people who rioted?

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: 'The other officer pulled the trigger, you share the blame.'

When the protest stops being peaceful, it is up to the police to deal with the riot it has become. Just because you individually might not have done anything wrong, doesn’t mean you bear no guilt from what your fellow rioters have done. This will 100% backfire on the rioters that were present.

Talk about the dictator’s best friend. ‘An unnamed person who definitely wasn’t on my side instigated violence at your protest, and as such all of you are guilty and as such can and will be treated as rioters rather than protesters.’

As for the standard, are you willing to apply it equally to the police, and hold to it should someone join a group you are a member of or agree with with the intent of doing something violent, or does that only apply to those you don’t agree with?

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Good

"Just because you individually might not have done anything wrong, doesn’t mean you bear no guilt from what your fellow rioters have done."

Oh cool, so innocent people can now be beaten because of some false guilt by association? Yeah, that will stop the protests against police brutality, you potato.

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

Re: Good

"Just because you individually might not have done anything wrong, doesn’t mean you bear no guilt from what your fellow rioters have done."

So by your own argument you are guilty of not stopping your own employees, the police, from murdering people?
When your neighbor hits his wife you are guilty of assisting for being in the next apartment?
When your shady uncle shoots someone you get to do the time?

Thanks, Baghdad Bob, for that brief glimpse into the yawning crumbling ruin of what you appear to use for a mind.

In case you really didn’t know – in a civilized society (and yes, that’s what the US is supposed to be) the government isn’t allowed to use force out of sheer convenience. At least have the moral courage to admit that the real reason you’re on the side of the police here is because in your own mind Black Lives don’t Matter.

I guess that’s just racists for you today. Sniveling and whiny trolls tip-toeing around like toddlers too nervous to fess up to their own opinions.

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Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"Oh, you know the ones."

Umm…do you mean the people who happen to be black and therefore in the AC’s mind, radical left and guilty by default?
Or did you mean those right-wing extremists the feds caught when they were planning to sneak into a BLM protest and do some firebombing to provoke the police?

He could mean either of those.

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Uriel-238 (profile) says:

Re: Re: Re:2 Right Wingers without Critical Thinking Skills

This is actually intentional and on-brand. It was noted (here on TechDirt maybe?) that the Texas GOP platform willfully defunded the teaching of critical thinking skills as such curricula encouraged challenges to authority, and discouraged obedience.

They really wanted an army of dumb soldiers.

The problem, of course, is dumb soldiers will soldier for anyone and sooner or later, an authoritarian demagogue slides into power, and suddenly that army is his army.

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Uriel-238 (profile) says:

"Rule of law"

So the phrase rule of law has become like the phrase justice to mean violence for the pleasure of an aristocrat meted out by his minions.

We’ll need a different name, then, for the thing where the lowest, most despicable of suspects gets the treatment by the justice system that O. J. Simpson got. and isn’t just shot in the back.

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sumgai (profile) says:

the DHS task force — ALLEGEDLY composed of CBP, ICE, and FPS officers — rolled into Portland Gestapo-style

T, FTFY

Unless this ACLU lawsuit can produce some hard evidence to the contrary, then I and others like me will continue to doubt that a majority, if not all, of those Gestapo-like persons were actually American. I mean, come on, are you really gonna put the smack-down on your own mother… or one of her close friends? If so, they you’re a Class A candidate for forced removal of your head from your ass so that your rose-colored glass belly button no longer distorts your vision.

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Bloof (profile) says:

Re: Re: Re: No true Scotsman

Americans are getting a taste of the governance they inflicted on south and central America and the Caribbean for most of the twentieth century, right down to the supporting of far right murderers and militias. Americans have happily backed, trained, even actively participated in this sort of thing for the longest time, the only thing that’s changed is the venue.

sumgai (profile) says:

Re: Re: Re:

@ Thad,

No, I don’t believe #45 for a minute, not even a second. He’s lied to the American public (and who knows who else) more than 20,000 times since he took office – why do you think he’d start telling the truth now? Without names and preferably with badge numbers, we’ll never know for sure.

However, I am reminded of #45’s call to arms about all the caravan "men coming to rape and kill your wives and mothers". That was an imaginary threat – this is too real for my personal comfort.

Anonymous Coward says:

And what really takes the piss is Trump condemning the protests against a white police officer who actually murdered a blackman, then condoning the killing of 2 more people by a 17 year old who may have been killed himself by unarmed protestors! I doubt if you can get any more inflammatory than that and it’s from the guy at the very top! Talk about racially biased! And dont forget, according to Mr President, he’s done more racial relations, more for black communities in 1 term than the last 3 presidents did in 6! Yeah, right! Try convincing those communities! But then when you hold the number 1 spot, you can lie all you want and get away with it!

David says:

Re: Re:

then condoning the killing of 2 more people by a 17 year old who may have been killed himself by unarmed protestors!

The video Trump referenced was of unarmed protestors trying to apprehend the shooter after he killed his first victim. He killed another one and injured another one before he was brought down. After which he was not lynched but apprehended and arrested.

Trump will pardon him on the spot if that is what it takes to cause wide-scale uprisings that will detract from the humongous death toll his COVID-19 incompetence and negligence is still causing daily.

There is an election approaching.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re: Re:

He killed another one and injured another one before he was brought down.

If by “he was brought down” you mean “he escaped, then walked by a bunch of cops without being stopped, then left both the city and the state only to be arrested the next day”, sure, they “brought him down”.

Trump will pardon him on the spot

He can’t do that unless federal charges come into play. He won’t do it until after the election because, regardless of the result, he’ll have nothing left to lose by pardoning a murderer who happens to be one of his supporters.

Toom1275 (profile) says:

Re: Re: Re:

The video Trump referenced was of unarmed protestors trying to apprehend the shooter after he killed his first victim. He killed another one and injured another one before he was brought down. After which he was not lynched but apprehended and arrested.

Sounds like the same "self-defense!" false narrative the fascists tried to defend the Charlottesville killer.

David says:

"handle"

The Trump Administration’s decision to send federal agents — led by the DHS — to Portland, Oregon to handle civil unrest

I suppose you mean "handle" in the sense of "put into execution". I mean, they have not been sent in order to keep out-of-country militia convoys from driving into town and attacking demonstrators with paint guns and mace while being heavily armed in order to be able to escalate any reaction further.

With more than 183000 Americans dead predominantly through incompetence (there is a reason casualty numbers in the U.S. are currently around 1000 per day and in Germany around 5 per day), the cost of having a few dozen people killed by creating a situation that Fox News can represent as civil war (COVID-19 is off its headlines) is easily accepted by a presidency that will happily accept the death toll of superspreader events for rallying its base in order to improve its chance at reelection.

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That One Guy (profile) says:

'Nice city you got there...'

On August 7, 2020, OPB also reported that federal officials speaking off the record said that some of the forces might be drawn down, depending on how the weekend went, but an elevated force would likely remain in Portland through the November election.

Lets see, heavily armed goons attacking and kidnapping protesters, occupying the city during the election… Blast, I mean clearly they’re meant to accomplish something, but I just can’t put my finger on what that could be…

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Anonymous Coward says:

Sad to see federal officers described as thugs and using gestapo tactics. It’s a pathetic tactic to compare people to Nazi’s, rather than addressing the issue which is stopping the violence. Perhaps Techdirt would rather have federal buildings burned to the ground, rather than protecting them, because of ? Trump is a bad man? Trump is a bad orange man?

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

Sad to see federal officers described as thugs and using gestapo tactics.

If the brownshirt fits…

It’s a pathetic tactic to compare people to Nazis

Normally? Yes. But in this case, we can make an exception.

rather than addressing the issue which is stopping the violence

You mean the violence inflicted upon peaceful protesters by unmarked federal law enforcement officials who are essentially accountable only to the president of the United States? That violence?

Perhaps Techdirt would rather have federal buildings burned to the ground, rather than protecting them

If burning a building to the ground means people don’t get killed? I say let it burn. Besides, which one is more valuable to you: a replaceable piece of property or an irreplaceable human life?

This comment has been deemed insightful by the community.
ryuugami says:

Re: Re: Re:

> Perhaps Techdirt would rather have federal buildings burned to the ground, rather than protecting them

If burning a building to the ground means people don’t get killed? I say let it burn.

Indeed. And Mr. Cushing already took it up a few notches several months ago: Let. The Motherfucker. Burn. Here’s a taste of that excellent (yet depressing and enraging) article:

If it’s going to burn — and it should — it should start with those who have earned the flames. Cop cars are burning. Police stations are burning. Good. There is nothing wrong with this.

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Uriel-238 (profile) says:

Re: described as "thugs" and "using gestapo tactics"

Not Gestapo but Sturmabteilung. I likened them to Imperial Stormtroopers but others noticed they behaved much like Little Green Men or zelyonye chelovechki the Ukranian term for Putin’s irregulars during the 2014 Ukranian Crisis.

Anonymous Coward do you really intend on dismissing criticisms of a White House administration that has openly and blatantly demonstrated it is glad to incite violence for political optics and has openly admitted it disregards large demographics of American citizens as people with rights?

This comment has been deemed insightful by the community.
David says:

Re: Re: described as "thugs" and "using gestapo tactics"

Anonymous Coward do you really intend on dismissing criticisms of a White House administration that has openly and blatantly demonstrated it is glad to incite violence for political optics and has openly admitted it disregards large demographics of American citizens as people with rights?

Why not? Compare the polls from two weeks ago to now. It works. Never mind how stupid or depraved it looks.

You start with a Reichstag Fire Decree and move on to the Enabling Act. It’s a proven strategy of demagogists.

But of course, you need to start with the Reichstag Fire. For that you need a plausible backdrop, and that’s what the administration is working on.

Scary Devil Monastery (profile) says:

Re: Re: described as "thugs" and "using gestapo tactics"

"I likened them to Imperial Stormtroopers…"

If only. Sadly if the anonymous DHS agents had attended the much-acclaimed Imperial Stormtrooper Marksmanship Academy there would have been far fewer civilian deaths.

In fact I suggest a few classes in that institution should be mandatory for ANY US law enforcement officer, in order to safeguard the innocent public from accurate weapons fire.

Uriel-238 (profile) says:

Re: Re: Re: Imperial Stormtroopers

Oooh! A much needed opportunity to geek out!

In the 70s it was acceptable for heroes to have plot armor and escape crack troops even without training or a clearly-defined diegetic advantage. Han, Luke and Leia are missed by skilled riflemen by a sheer miracle of probability. Ben Kenobi talks about precise shots from Imperial Stormtroopers (contrast to the nomad Sandpeople). After that, Stormtroopers fail to work as advertised for the rest of the film with no clear explanation.

That said, the E-11 Blaster Carbine became well known in all the video game interpretations of having a horribly wide spread, the result of Blastech cutting corners to keep mass production cheap. Troopers and those with borrowed E-11s learned to ambush targets from around corners.

It’s also possible Lucas was taking a page from events in Vietnam, since the M16s famously required a lot of maintenance to stay battle ready, and jammed even with small amounts of debris.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Imperial Stormtroopers

"After that, Stormtroopers fail to work as advertised for the rest of the film with no clear explanation."

In addition to Stormtrooper myopia – "I can’t see a thing in this helmet!" – horrible aim – three movies, ONE hit on a still-sitting Leia who got lightly wounded – and of course their deadly allergy to blunt instruments, with overgrown koala bears with sticks being able to beat the stuffing out of, hrm, "An entire LEGION of my best troops (Palpatine)…The Imperial stormtroopers surely did set the standards for evil minions of all time.

I still can’t forgive Disney for the current standard of an emo kid throwing temper tantrums replacing Vader and whatever ghastly parody of stormtrooper those first order guys are.

It really holds true. If you want to suck the mystery and magic out of an old fairy tale, give it to Disney…

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PaulT (profile) says:

Re: Re:

"Journalists are aware of the dangers inherent when entering a war zone, or an insurrection zone."

Yes they are, and the rest of the world thanks them risking their lives in order to reveal the on the ground truths that your corrupt administration is attempting to misrepresent.

This comment has been deemed insightful by the community.
Uriel-238 (profile) says:

Re: Journalists entering a war zone

Shel10 am I reading this correctly, you think the protests across the US should be regarded as a military hot zone?

You get that even in war, correspondents are seldom fired at by either side, and yet in this one, the allegedly disciplined paramilitary units (that is, law enforcement) are the ones firing on journalists, not the alleged rioters.

It’s never a good look when state agents attack the press, and yet that is exactly what is happening here in the US.

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

Re: Re: Journalists entering a war zone

Here’s a hint where "Shel10" is coming from – look at his prior comment history. After the third "But Obama!!!" you start seeing the pattern.

He’s not concerned about "journalists in war zones". He’s just too scared to mention that his real beef with those journalists is that their fact-finding is coming up with a better image of the "nig_ers" than of the "heroic white boys in blue".

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

Re: Re:

"Journalists are aware of the dangers inherent when entering a war zone, or an insurrection zone."

A peaceful protest is not an insurrection zone.

And "getting shot by police when visibly interviewing peaceful participants" is not acceptable either.

But hey, looking at your past comment history I guess we should be grateful your comment didn’t simply consist of a "But Obama!!!" or a "Heil Trump!!!".

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