WMU-Cooley Law School Professors Brendan Beery and Jeff Swartz hosted a YouTube discussion, “Portland: What Does it Mean for the Rule of Law?” following allegations that unidentified federal agents injured, threatened, and detained protestors during a Black Lives Matter protest in Portland, Oregon.
During the discussion, Professor Swartz discussed previous contradicting positions by the Eleventh Federal Circuit Court and the Seventh Circuit. Swartz said the Eleventh Circuit has ruled that if someone looks like police officer and acts like police officer, then the public is on notice that they are police officers. Swartz also noted that the Seventh Circuit has ruled that there are very few occasions when police officers should not be identified.
The professors, who were joined by Michigan Attorney Daniel Ray, also discussed various issues surrounding the legality of the alleged detention of a protestor. It was reported that when a suspect was detained and questioned by the federal officers, the suspect asked for an attorney, and after doing so was quickly released. This discussion took a deeper look at the Fourth Amendment of the Constitution and if seizure violations were committed by the unidentified “officers.” The legal experts also looked into the Fifth Amendment right to counsel under the “Miranda Decision.”
I had a chance to interview Professor Beery to learn more.
For people who haven't seen this in the news, can you briefly describe what happened in Portland?
The situation in Portland is ongoing. Purporting to protect federal property, the Trump administration has deployed personnel to Portland who, although "law enforcement" agents, present as combat troops in an active war zone. These personnel come from a number of federal agencies, including Customs and Border Protection, but have no clear agency markings on their combat gear and wear no nametags. They have been filmed abducting protesters without identifying themselves or speaking at all, and clearly without probable cause.
What are the concerns in terms of legal rights for individuals?
Why is it also potentially a problem for states' rights in policing?
For people who aren't in the Portland area, why should this still be an important issue?
(Note: The questions were answered together).
There are concerns both practical and legal. As a practical matter, the methods employed by the Trump administration create serious concerns for citizens and for local police departments. Since federal agents in combat military gear refuse to identify themselves or their agencies and wear only a generic "police" patch on their uniforms, and since they abduct people in unmarked vans (reportedly sometimes rental vans), there is no way for a detained citizen to know whether she is in the custody of a law enforcement agency (and if so, which agency) or being abducted by a right-wing paramilitary unit with access to generic "police" patches. The risk of copycat operations around the country by nameless and unidentified right-wing militias is chilling. The Trump administration has also failed to alert local law enforcement of the presence, whereabouts, or tactical missions of federal agents, creating the risk of conflict between federal and state law enforcement agencies that are not acting in concert.
The legal problems are many: unlawful seizures, excessive use of force, denial of due process, and violations of protesters' First Amendment rights, to name a few. A federal judge recently issued a restraining order directing federal agents not to engage with clearly identified members of the press or official observers, as reporters and observers had also been confronted with force by federal agents in combat gear.
There seems much confusion in the Trump administration about two key constitutional concepts: separation of powers and federalism. The President is not a lawmaker; his job is to execute the laws enacted by Congress, which is itself the lawmaker charged with setting national policy. So it is not for the President to announce sweeping new domestic law-enforcement initiatives without authorization from Congress. Furthermore, it is the states, and not the federal government, who possess the "police power"--that is, the authority to regulate for the health, safety, and general welfare of the citizenry. In our constitutional structure, Trump has achieved a remarkable double whammy: he's confounded the error of invoking the power of the wrong branch of government with the error of invoking the power of the wrong level of government.
Nonetheless, there will be federal judges who abide this affront to American civic life. Courts often defer to the government in matters involving military operations, and federal agents do have the authority to protect federal property. Whether these considerations will trump foundational principles governing life in an ostensibly free society remains to be seen.
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