Flash Bangs, Tear Gas & Legal Questions
Last night, I decided to check out the downtown Portland protests. Apparently, Mayor Ted Wheeler had the same idea. And both of us experienced tear gas for our first time.
I went to the federal courthouse, where I have had many hearings and trials. It has become the focal point of the protests ever since President Trump ordered federal officers to come to Portland.
I did not see the vandalism and mayhem used to justify the federal troops, except for a few small fires outside of the courthouse. What I noticed mostly was the coordinated conduct of the protesters, despite being the after-midnight crowd and wearing black. They were barbecuing and handing out food across the street from the courthouse. Some pulled wagons full of snacks and water bottles. A makeshift ambulance was waiting nearby, attended by people with red crosses taped to their clothing. When people started to run others yelled out to walk and stay together.
What is the legal justification for the federal officers’ presence in Portland?
The Trump administration has stated that they are here to protect federal properties and monuments. This is permitted. Federal officers may enforce federal laws. However, While House Chief of Staff Mark Meadows acknowledged that the presence of federal officers in Portland is not just about protecting statues. “The statues are one thing, but it’s really about keeping our communities safe,” he asserted. Striking protesters with batons or whisking away others in unmarked vans would appear to advance neither goal.
Can federal officers arrest people for crimes beyond damaging federal property?
Yes. Federal officers can also arrest individuals for committing other federal crimes beyond destroying federal property. However, the officers need probable cause that the federal crime is being committed. Oregon Attorney General Ellen Rosenblum recently filed a lawsuit and is seeking an injunction against federal officers for detaining people without such probable cause.
Do the federal officers need permission from state and city leaders?
Yes and no. Federal officials usually only dispatch federal agents to assist with local incidents if the state or municipal governments ask for help and deputize that responsibility. Here, the local leaders have done the opposite. Accordingly, the federal agents cannot generally rely on state and local laws to justify their arrests. However, they can still enforce federal laws without such consent.
What about state and local crimes committed in front of a federal officer?
Most likely the federal officers in Oregon cannot enforce state and local law even if the crime is committed in front of them. Oregon allows a federal officer to arrest someone that has committed any crime in the federal officer’s presence but only if certain requirements are met. The federal officer must have probable cause to believe the person committed the crime, the officer must inform the person of the federal officer’s authority and reason for the arrest, and the officer must have been first certified by the state as having received the proper training. ORS 133.245.
Should you bring a gas mask if you attend a protest?
Yes.