Legal expert: Trump's Secret Police Snatching Protesters Is Within Bounds of the Law

And protesters have no legal recourse against the agencies involved

After Donald Trump started to build an insurmountable lead in the 2016 Republican presidential primary, the Boston Globe ran a parody front page detailing the horrors of a potential Trump presidency. Some of the headlines like “Deportations to begin,” “Markets sink as trade war looms,” and “curfews extended in multiple cities” have already come to fruition. But I’m willing to bet at least one person involved in that project pitched a headline that read something like “Trump assembles secret police force that kidnaps protesters and drives them away in unmarked vans” and a managing editor shot it down for being too on the nose.

So now, of course, Trump has assembled a secret police force that’s kidnapping protesters and driving them away in unmarked vans.

The Sparrow Project @sparrowmedia

Militarized Federal Agents from a patchwork of outside agencies have begun policing Portland (in rented minivans vans) without the explicit approval of the mayor, the state, or local municipalities. This is what that looks like in practice:

According to Oregon Public Broadcasting, a mishmash of federal agents from the U.S. Marshals Service and U.S. Customs and Border Protection are in Portland against the wishes of Mayor Ted Wheeler and Governor Kate Brown to lend reinforcement to federal officers stationed there to protect U.S. government property from vandalism. Protesters Mark Pettibone and Conner O’Shea gave firsthand accounts of the snatching operation:

“I see guys in camo,” O’Shea said. “Four or five of them pop out, open the door and it was just like, ‘Oh shit. I don’t know who you are or what you want with us.’”

…Pettibone did not escape the federal officers.

“I am basically tossed into the van,” Pettibone said. “And I had my beanie pulled over my face so I couldn’t see and they held my hands over my head.”

Pettibone and O’Shea both said they couldn’t think of anything they might have done to end up targeted by law enforcement. They attend protests regularly but they said they aren’t “instigators.” They don’t spray paint buildings, shine laser pointers at officers or do anything else other than attend protests, which law enforcement have regularly deemed “unlawful assemblies.”

Blinded by his hat, in an unmarked minivan full of armed people dressed in camouflage and body armor who hadn’t identified themselves, Pettibone said he was driven around downtown before being unloaded inside a building. He wouldn’t learn until after his release that he had been inside the federal courthouse. 

“It was basically a process of facing many walls and corners as they patted me down and took my picture and rummaged through my belongings,” Pettibone said. “One of them said, ‘This is a whole lot of nothing.’”

Pettibone said he was put into a cell. Soon after, two officers came in to read him his Miranda rights. They didn’t tell him why he was being arrested. He said they asked him if he wanted to waive his rights and answer some questions, but Pettibone declined and said he wanted a lawyer. The interview was terminated, and about 90 minutes later he was released. He said he did not receive any paperwork, citation or record of his arrest.

(A protester being snatched off the street in Portland, Oregon by federal officials: Screenshot from video uploaded to Twitter on July 15, 2020 by The Sparrow Project)

It would seem at first glance that protesters like Mark Pettibone and Conner O’Shea — who have been kidnapped by state security forces for expressing their Constitutional rights — would be a civil rights lawyer’s dream clients.

“I am not familiar with this,” Dr. Erwin Chemerinsky, Dean of the UC-Berkeley School of Law, told me in an email Friday morning. “But I do think using federal armed forces for this would violate the Posse Comitatus Act.  It also sounds like it would violate the First Amendment.”

The Posse Comitatus Act, which has been federal law since 1878, prohibits the federal government from deploying the U.S. Army, Air Force, Navy, and Marines against U.S. citizens on U.S. soil. And as most of us have known since elementary school, the First Amendment, among other things, guarantees all Americans the right to freedom of assembly.

But according to Harvard Law School constitutional law professor Dr. Mark Tushnet, the federal agencies on the ground in Portland are almost certainly acting within the bounds of the law. And protesters who have been snatched off of the street may not actually have any legal recourse.

“If the federal officials aren’t members of the armed forces (that is, if they are FBI or Secret Service or treasury agents, etc.), there’s no Posse Commitatus[sic] problem,” Dr. Tushnet told me in an email. “Whether the statutes creating those agencies authorize their use in this way is something I’d have to look into, though.”

“And as to state action against the federal government, there are three major cases saying no: one from before the Civil War saying states can’t stop federal agents from enforcing the Fugitive Slave Act, one from Reconstruction saying that they can interfere with federal enforcers of civil rights law, and one from the 1970s (Puerto Rico v. Branstad, if I recall the name correctly),” he added.

In a series of exchanges, I asked Dr. Tushnet to clarify if there was any way protesters who have been deprived of their First Amendment rights could sue the Trump administration.

“Probably not a damages action,” Dr. Tushnet wrote, saying that option has been ruled out by decisions in a line of cases that limit what are known as Bivens actions, meaning the agencies themselves are immune from such actions, and that protesters wouldn’t be able to pursue “novel” constitutional claims against the officers themselves. Protesters would also be prevented from filing lawsuits against these agencies thanks to the Federal Tort Claims Act, since these Constitutional abuses would be considered “law enforcement” actions.

“The nest chance of success, and it’s slim, would be under the Administrative Procedure Act for taking action not authorized by the statutes creating these agencies,” Dr. Tushnet wrote. “[B]ut there are a bunch of limits on when you can get relief under the APA, and odds are that at least one would prevent the action from going forward.”

“So essentially Portland protesters would be SOL on legal actions against these federal agencies, barring a hail-mary APA argument?” I asked.

“Based on what I’ve read, including your e-mails, that’s right,” Dr. Tushnet replied.

This fairly alarming information is one consequence of the far right’s decades-long campaign (first outlined in the Powell Memo of 1971) to overwhelm the courts with right-wing extremists. Justice Lewis F. Powell wanted the courts reformed in order to benefit big business (a strategy that has proven to be wildly successful) but as Dr. Tushnet explained, past legal precedent has almost unilaterally supported the expansion of the police state at the expense of individual rights. And with the help of Senate Majority Leader Mitch McConnell (R-Kentucky), President Trump has appointed more judges at this point in his presidency than any president since Jimmy Carter. Unless Democrats get as serious about judicial activism as Republicans have been over the last several decades, the trend of federal law favoring police abuse and federal overreach will only worsen.