Is The Portland Federal Catch And Release Exercise A Dress Rehearsal For Bigger Secret Police Actions?

 lawfareblog |  Today marks the 50th straight day of protests in Portland, Oregon—which have been ongoing since shortly after the May 25 murder of George Floyd. The protests have been largely peaceful, but there have been several well-documented episodes of violence, vandalism and property damage. In the past few days, however, the protests have been met with what appears to be a significant federal law enforcement response—the contours of (and legal authorities for) which are, at best, unclear. By all appearances, there are now at least 100 federal law enforcement officers on the ground in Portland. But media reports suggest that many of those officers (a) are not wearing identifiable uniforms or other insignia, (b) are not driving marked law enforcement vehicles, and (c) are not identifying themselves either publicly or even to those whom they have detained and arrested. Making matters worse, local authorities—from the mayor to the sheriff to the governor—have repeatedly insisted not only that they don’t want federal assistance but that the federal response is aggravating the situation on the ground. Acting Homeland Security Secretary Chad Wolf, in contrast, has repeatedly taken to Twitter to claim that local authorities are refusing to restore order—albeit with only vague references to which federal laws are not being enforced (and repeated allusions to “graffiti” and other property damage by “violent anarchists”).

In all of these respects, what’s happening in Portland appears to be a reprise of much of what happened in Washington, D.C., at the beginning of June, when Attorney General William Barr called upon a wide array of statutory authorities to commandeer hundreds of federal law enforcement officers in order to “restore order” in the nation’s capital. At the time, many who both criticized and defended Barr’s actions pointed to the federal government’s unique legal authority over the District of Columbia—implying (whether as a feature or a bug) that the same authorities wouldn’t be available, at least to the same extent, in the 50 states. But if nothing else, the events in Portland appear to underscore that the federal government sees no such distinction—and that it believes it has the power to similarly deploy federal law enforcement authorities across the country, even (if not especially) over the objections of the relevant local and state officials.

All of this raises a host of questions, very few of which can be answered at this point. This post is not meant as a comprehensive explainer but, rather, as an effort to separate out the many distinct (if overlapping) issues that the federal response in Portland appears to raise. Thus, what follows is a list of questions and a few tentative thoughts as to possible answers. Needless to say, it would behoove Attorney General Barr and Acting Secretary Wolf to answer these questions—and to do so sooner rather than later.