An Oregon Criminal Prosecution of Federal Officers Could Be Removed to Federal Court

State Prosecutors would then prosecute state criminal offenses in federal court.

|The Volokh Conspiracy |

The Oregon Attorney General has opened a criminal investigation into the conduct of various federal officers in Portland. If this investigation actually proceeds to some sort of criminal court proceeding, then the officers would be able to remove the case to federal court. 28 U.S.C. § 1442(a) provides:

(a)A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue….

(3)Any officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties;

The statute clarifies the circumstances when removal is proper under subsection (a)

(c) Solely for purposes of determining the propriety of removal under subsection (a), a law enforcement officer, who is the defendant in a criminal prosecution, shall be deemed to have been acting under the color of his office if the officer—

(1)protected an individual in the presence of the officer from a crime of violence;
(2)provided immediate assistance to an individual who suffered, or who was threatened with, bodily harm; or
(3)prevented the escape of any individual who the officer reasonably believed to have committed, or was about to commit, in the presence of the officer, a crime of violence that resulted in, or was likely to result in, death or serious bodily injury.

I do not know enough about the facts to conclude whether the officers in question would fit within subsection (a)(1). It is possible their actions are not authorized by federal law, in which case removal would not be appropriate. The acts in question occurred near federal courts. The standard for removal under (a)(3), which concerns officers of the courts, is much broader.

This statute was often invoked during Reconstruction. Southern state prosecutors would indict federal officers–often tax collectors.

One unique wrinkle of Section 1442: A remand order can be appealed. 28 U.S.C. 1447(d) provides:

(d)An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

In the event a district court remands a prosecution to state court, the United States could then appeal to the Ninth Circuit. Supreme Court review would be present in any event.

Assuming a motion to remand is denied, state prosecutors would actually be prosecuting a federal officer in federal court, based on state law. This strange dynamic occurred on remand in Strauder v. West Virginia, which was a removal case.

Finally, for those keeping score at home, these crimes would not be "Offences against the United States," and would not be subject to a presidential pardon.

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  1. “It is possible their actions are not authorized by federal law, in which case removal would not be appropriate.”

    I’m not sure exactly how this is supposed to work. The prosecution claims that defendants kidnapped the victim. The defense claims that defendants were performing a lawful arrest in accordance with federal law. It seems like you would have to determine whether the defendants were innocent or guilty in order to determine which courtroom they should be tried in.

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    2. No, you wouldn’t really have to determine anything more than that there was an arrest warrant or exigent circumstances; An arrest doesn’t have to have been of somebody guilty to have been legal, or every acquittal would be accompanied by false arrest charges for the cops.

      1. I think that the assumption seems to have been that this supposedly (but unlikely) “peaceful” protester was rousted by the Feds just to terrorize him. I doubt that very many actually believe that, but it is a convenient legal figment, to justify pushing federal authorities out of the area, and keeping them from interfering in the rioting and arson. Merely rousting him would presumably lack a legitimate (and legal) federal purpose.

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        2. But again, that’s an argument about the merits of their justification defense. There’s no serious question that they were acting under color of their federal office, except among all the people on the last thread who were convinced they were imposters.

      2. No, you wouldn’t really have to determine anything more than that there was an arrest warrant or exigent circumstances;

        That’s not the standard for the legality of an arrest, but that’s beside the point. A state can’t criminalize a federal officer enforcing federal law. So if the standard for removal was whether the officer’s actions were legal, the court would have to rule on the merits of whether the defendant was guilty in order to determine which court should hear the case. Which would be odd. Not as odd as thinking that whether someone is an officer of a federal court depends on how close they are to the courthouse ], as Prof. Blackman apparently also believes, but still odd.

        1. “Not as odd as thinking that whether someone is an officer of a federal court depends on how close they are to the courthouse”

          As I understand it, the federal agents in this case are US Marshals. The Marshals claim that they were assigned to security for the court house and that they were acting in that capacity when they arrested the protester. So yes, proximity to the federal courthouse could be relevant in this case.

          1. There are a lot of different incidents involved here, so I’m not sure which one you mean by “this case”. But USMS expressly denied arresting the Pettibone guy who’s been speaking to the media.

            At any rate, my point isn’t that being close to a federal courthouse is irrelevant to whether a federal officer is properly exercising their authority. It’s they it’s not very likely to be relevant to whether the officer in question is an “officer of the courts of the United States” for purposes of 28 U.S.C. §  1442(a)(3).

          2. If they had probable cause, that resolves the merits

            1. Something we cannot assume – they should be made to demonstrate such.

              1. Well, sure, but don’t just assume they won’t be able to.

                1. So far I’m seeing no shortage of folks here saying there’s no need to put them to the question. That’s screwed up.

    3. That’s because Prof. Blackman is wrong. The standard is whether the defendant claims to be acting under color of their federal office, not whether their actions were legally authorized.

      1. That makes more sense. A Federal judge would rule in favor of removal due to the nature of the defense. He doesn’t have to decide whether the defense is actually persuasive until the end of the trial, when he has seen all of the relevant evidence. (And he doesn’t decide even then if it is a jury trial.)

        Thanks.

  2. I believe it was Montana who wanted to criminally prosecute the FBI sniper who killed Vicky Weaver. How did the Feds prevent that from happening?

    1. Removed to federal court, then dismissed by the judge. On the basis of the supremacy clause, the judge basically reasoned that it was impossible for a federal officer to wrongfully violate state law in the course of their job.

      A classic modern example of “For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:”

      It seems rather getting ahead of events at this point to assume that investigation will result in charges. The most likely outcome, I suspect, is determining that there was a warrant, and that’s that.

      1. Just out of curiosity: what is it about the last 3.5 years of the Trump administration that has given you such confidence in their ability to do their paperwork correctly?

      2. “Removed to federal court, then dismissed by the judge.”

        Dismissal overturned by the ninth, Montana abandoned the prosecution.

        1. Yes, by then the county prosecutor who had gone after Horiuchi had been replaced by one who didn’t want to.

          F.B.I. Agent To Be Spared Prosecution In Shooting The special prosecutor assigned the case was really ticked off about it.

          1. The publicly stated reason was the enormous expense for the small county.

        2. Idaho, Montana, what’s the diff? All deplorable country, amirite?

          1. As with a lot of places, you really have to live there to appreciate the differences. I think that it may be significant that Randy Weaver and his three daughters moved to the Kallispell, MT area (where we returned from yesterday) after his wife was murdered, with the youngest of those daughters in her arms, by the FBI sniper.

            The real estate prices in the US 95 corridor from Coeur d’Alene up through Sandpoint, in N ID, have exploded, esp with the COVID-19 pandemic. A lot of people fleeing from big Dem controlled cities, esp on the West Coast. By Sandpoint, you can comfortably snow ski in the morning at a decent sized ski area, then sail on Pend Orielle in the afternoon. Prices of some multimillion dollar houses along the lake have jumped 50% in the last year or two. The center of the state is some of the most rugged country in the country, and the east and south is open potato (and Mormon) country. The state is one of four delivered to the GOP in trade for UT statehood. So, traditionally, it was Mormon Republican on the eastern and southern edges, and western mountain Republican in the center and north.

            I think that maybe it is the much less Mormon influence in MT, that cause many of its residents to be very independent, more so, in my experience, than in much of the rest of the country. On the flip side, the Democrats have long been powerful in the state – traditionally from unionized extractive industries, but more lately from the booming college towns (esp Missoula). The result is a narrow Dem corridor from Missoula through Butte along I-90, with a finger up to Helena, with its state workers, and most of the rest of the state quite conservative – but not Mormon conservative (like much of ID), but individualistic (Mountain West) conservative. For example, esp throughout the mountains, there are a number of people doing what the Weavers were trying to do by Ruby Ridge – building cabins, and living with minimal connection to civilization. Much easier in MT thuan in ID. And then the eastern half the state is heavily agricultural, much of it wheat and cattle. A lot of both. A nuke to Missoula, or a pandemic outbreak from the CDC facility in Hamilton, just south of there, and it would be the perfect state for me.

            1. I should note my biases – we are MT residents, but travel routinely through ID, esp to and through N ID, on the way to Spokane. Best friend is a bit over an hour away in N ID (we actually live 21 miles from ID). So, there is always a bit of competition going on.

            2. Oh, and with the crazies in Seattle, WA, even by Spokane, has gotten very depressing. We have a doctor’s appointment in Spokane later this month, but are going to stay safely in N ID, instead of in crazy WA. They even had rioting in Spokane, but it didn’t cross the border. Some adventurous prospective rioters apparently crossed into ID, but turned back, seeing the number of heavily armed citizens patrolling the streets in Coeur d’Alene.

              1. Funny how bullies turn back when they see that people are able to defend themselves, isn’t it?

            3. “A nuke to Missoula, or a pandemic outbreak from the CDC facility in Hamilton, just south of there, and it would be the perfect state for me.”

              The lamentation of the misfits’ women . . .

      3. The most likely outcome, I suspect, is determining that there was a warrant, and that’s that.

        I don’t know exactly which incident you’re talking about, but it there had been arrest warrants, the arrestees should have been taken before a magistrate judge, and there would be cases with the charging documents available in PACER. Since those things don’t appear to have happened, it seems extremely unlikely that any of these arrests were made pursuant to warrants—and if they were, then there was further irregularity at the very least.

        (Since the police don’t need a warrant to arrest someone in public, the absence of one wouldn’t necessarily make the arrest illegal, of course.)

        1. What they DO need, however, is a crime committed in their presence which constitutes a breach of the peace. No breach of the peace? Go get a warrant, come back and arrest since the delay won’t harm the public.

          1. That’s also incorrect. The fourth amendment allows a warrantless arrest if there is probable cause to believe that the person has committed a crime, and federal law enforcement officers are generally authorized to arrest if they have probable cause to believe a person has committed a federal felony.

      4. Prof. Kerr worked for the Justice Department at that time, did he not? I guess not all arbitrary violence by federal officers is unconstitutional: it depends on the president’s political affiliation.

    2. Ruby Ridge is in Boundary County, ID, right across the state line from MT. The sniper was indicted for manslaughter, under ID law, and removed to federal court (presumably in Boise at the other end of a very long state), where the judge dismissed on the basis of sovereign immunity. That was reversed to some extend by an en banc panel of the 9th Circuit. By that time the Boundary County DA had been defeated, and his successor dismissed the case.

      At the time, the FBI sniper, who had murdered Vicki Weaver probably would have been lynched by the citizenry of Boundary County, if they could have gotten their hands on him. But with the transfer to federal district court, eight hours, and 454 miles south on US 95, in Boise, and a statewide jury pool, the outcome would have been very different.

      As an interesting aside, on a map, it looks like a straight shot down US 95 from Bonners Ferry to Boise. But it is actually a couple minutes faster to swing out through Spokane, WA on I-90, SW on US 395 to the (WA) Tri Cities, then SE on I-84 to Boise. It is rated as 2 minutes faster but 70 miles longer. It is a much easier drive. The difference is that 95 from COEUR d’Alene to Boise is windy, 2 lane road, whereas the westerly route is straight divided highway most of the way. Or, you can just take a flight from Spokane to Boise. Used to pop through Boise on SWA a bit when flying between Reno and Spokane to visit my GF in MT, and was always running into ID state employees on the flight.

  3. So the entire local and state Democratic Party elected leadership has been exposed as Antifa supporters and enablers. From the Mayor up to the Governor.

    Just like the Ku Klux Klan in the Deep South.

    And the local media is largely complicit.

    1. Again, just like the Ku Klux Klan in the Deep South. Except the national media are also largely complicit.

      1. Wasn’t the national media complicit with the Klan’s antics in the 1920’s?

        1. Except for some Northern papers, yeah. At this point there’s hardly such a thing as local papers, though; If the AP wants to be complicit with a terrorist group, pretty much every paper ends up complicit.

      2. “just like the Ku Klux Klan in the Deep South”

        I’m not sure which is more deficient, one’s sense of proportion or history in making such a comment.

        1. Yeah, it’s not like people in masks are running around attacking folks; Or rather it is, but they don’t wear *white* masks, so it’s all good.

          1. Yes, of course there’s no relevant difference between the two other than the color of masks.

            Again, I’m not sure which is more deficient, one’s sense of proportion or history in making such a comment.

            1. I’m not sure which is more deficient, one’s sense of proportion or history in making such a comment.

              No point in comparing. They’re both zero.

              No difference between graffiti and lynching. Bellmore has lost his mind. Really.

              1. Imagine….an individual in a group, including masked individuals, attempt to suppress voter registration of an opposition party, by threatening them with deadly violence.

                https://abcnews.go.com/US/man-arrested-allegedly-driving-van-gop-registration-tent/story?id=68859140

                1. Yes, this anecdote is exactly like the Federal government arresting protesters without charge.

                  1. In your infamous words…

                    “Stop changing the subject”

                    1. Haha, you’re really bad at this AL.

                      I addressed your comment directly, and did not offer some off-topic diversion.

                    2. “did not offer some off-topic diversion.”

                      You did actually offer an off-topic diversion from the thread of the conversation. You either can’t follow the thread, or are being disingenous. Come back when you realize where that thread was.

                    3. Your high-horse attempt ain’t gonna work.
                      Everyone can read that I responded directly to your comment.

              2. Why are you dismissing Antifa crimes as “graffiti”? Are you an Antifa supporter or enabler?

                Antifa Mob Viciously Assaults [gay Asian] Journalist Andy Ngo at Portland Rally

                Andy Ngo, a photojournalist and editor at Quillette, landed in the emergency room after a mob of antifa activists attacked him on the streets of Portland during a Saturday afternoon demonstration.

                1. Andy Ngo’s injury turns out to have likely been a hoax, chief.

                  1. What’s your source for that? The brief research I just did turned up plenty off anti-NGO material, but I didn’t see anyone making that claim.

                    1. https://www.rollingstone.com/culture/culture-features/andy-ngo-right-wing-troll-antifa-877914/

                      “Attacked by antifa. Bleeding. They stole my camera equipment. No police until after. waiting for ambulance . If you have evidence Of attack please help,” he tweeted, later adding that he had been diagnosed at the ER with a brain hemorrhage and that antifa had thrown quick-dry cement milkshakes at him. (This claim was later debunked.)

                      There’s a click-through but Reason only allows one link at a time.
                      There’s also a Vox article about how Ngo being released from the ER the next day was not in keeping with a brain hemorrhage either.

                      There are plenty of examples of legit left-wing violence in these protests, but Ngo is not a good one to go with.

                    2. “injury turns out to have likely been a hoax,”

                      “There’s also a Vox article about how Ngo being released from the ER the next day was not in keeping with a brain hemorrhage either.”

                      An ER, in 2020, kept him overnight for a hoax?

                      The closest my googling found was this</a, which doesn't seem to make that claim. I made various searches along the line of "Ngo hemorrhage site:vox.com". Can you recall any more about the article?

                    3. Yeah, that’s the article I was refering to.
                      It appears I misread that, Absaroka. I thought the article argued his being held overnight was too short a time for a brain hemorrhage, but it looks like it went the other way, and finds the overnight stay evidence of a brain hemorrhage being legit.
                      Apologies for that.

                      My thesis about Andy is unchanged however. He was injured, probably by leftists, and that’s not something I’m condoning.
                      But he also blew it up into a thing it was not.
                      Using him as an example shows you don’t do your homework.

            2. Yes, that’s right: There is no legally relevant difference between the Klan and Antifa: They are both criminal conspiracies against civil rights, and both wear masks for the same reason: So that members committing criminal assaults in public can’t be ID’d for purposes po prosecution.

              1. There is no legally relevant difference between the Klan and Antifa:

                You’ve lost your fucking mind. Is there a “legally relevant” distinction between murder and vandalism? Or murder and assault if you insist on it? A “morally relevant” distinction?

                Not to mention about a million other things.

                Is there a”legally relevant” distinction between a large organized campaign of terror and violence, certainly including murder, deprivation of rights, etc. against a minority of citizens, a campaign in which virtually all state and local officials, as well congressional representatives, are complicit, and spraypainting slogans on a courthouse?

                You’ve lost your mind.

                1. There may be, in specific instances, differences in the criminal acts the two groups committed; Antifa is really just getting started, while the KKK had a long run. So as Antifa continues escalating, there’s a good chance they’ll move from ‘mere’ assault to murder. After all, it’s only been good luck that some of their assaults didn’t end up with dead bodies.

                  But in both cases they are violent conspiracies against civil rights, and they both wear masks for the exact same reason: So that individual members can’t be ID’d for prosecution. They are, in fact, the same sort of organization, and in the end I expect we’ll find Antifa is as entangled with local government to the same degree the KKK was. The stand down orders they keep benefiting from certainly point to that.

                  1. Similarly, a mountain is just like a molehill, once you realize that the molehill is just getting started.

                    1. Why are you dismissing political intimidation as a “molehill”? Are you an Antifa supporter or enabler?

                      Washington Post: Portland rose parade canceled after ‘antifascists’ threaten GOP marchers

                      Quote:
                      Set to march in the parade’s 67th spot this year was the Multnomah County Republican Party, a fact that so outraged two self-described antifascist groups in the deep blue Oregon city that they pledged to protest and disrupt the April 29 event.

                      Then came an anonymous and ominous email, according to parade organizers, that instructed them to cancel the GOP group’s registration — or else.

                      The email said that 200 people would “rush into the parade” and “drag and push” those marching with the Republican Party.

                      On Tuesday, the business association buckled, announcing it would cancel the parade altogether.

                    2. Cat gets Sarcastro’s tongue.

                    3. Overreactions to an e-mail threat by local governments do not an actual KKK make.

                    4. Also 2017.

                    5. Then came an anonymous and ominous email, according to parade organizers, that instructed them to cancel the GOP group’s registration — or else.

                      Well, the KKK was most known for sending nasty emails, yes.

                      Emmett Till still fears opening the email app on his iPhone because of that campaign of online trolling.

                    6. Another distinction is that the KKK actually existed.

                  2. There may be, in specific instances, differences in the criminal acts the two groups committed; Antifa is really just getting started, while the KKK had a long run.

                    May be??? You’re nuts.

                    But in both cases they are violent conspiracies against civil rights,

                    Call us when Antifa lynches someone for voting, or looking at woman of a different race, or not stepping off the sidewalk to make way for one of their preferred people.

                    Call us when they bomb a church and kill people inside.

                    So as Antifa continues escalating, there’s a good chance they’ll move from ‘mere’ assault to murder.

                    So because you think they are going to be just as bad as the Klan that means they’re the same thing. You’re fucking insane. In your mind you’ve elevated a group of assholes to a threat to democracy and freedom in the country, while ignoring the vastly greater threats coming from your side.

                2. Why are you dismissing Antifa crimes as “spraypainting” ? Are you an Antifa supporter or enabler?

                  He brought an American flag to protest fascism in Portland. Then antifa attacked him

                  Quote:
                  Paul Welch came to the downtown protest Aug. 4 to let his political leanings be known.

                  With pride he clutched his U.S. flag as he moved among the crowd of like-thinking demonstrators.

                  Soon a group of black-clad anti-fascist protesters, also known as antifa, demanded he lose the flag, calling it a fascist symbol. Welch refused, and a tug-of-war ensued.

                  Video captured by Mike Bivins, a freelance journalist, shows what happened next.

                  As Welch and the counter-protesters wrangle over the flag, another masked counter-protester begins to strike Welch’s body from behind using a weapon concealed in black fabric.

                  That person then uses the weapon to club Welch on the back of the head, causing him to collapse instantly. The demonstrator with the weapon wanders off.

                  1. 2018? Really?

                    Stop with your confirmation bias nonsense in order to justify fascism in the streets.

                    Meanwhile, how many right-wingers have driven vehicles into protesters?

                    You’re creating a rationale for that as well.

                    1. At this point you’re just self-identifying as one of Antifa/BLM’s useful idiots, Sarcastro.

                    2. No, Brett, and screw your for saying so. I identify with not setting up a boogeyman to justify authoritarian crackdowns in protestors.

                      Again, screw you.

                    3. “2018? Really?”

                      Is June 2020 recent enough for you?

                      (Jeeze, for both sides. Outside of the narrow exemptions for self defense, violence is just bad, full stop. It’s bad when your side does it, even if the other side does it. Ayers and McVeigh are both horrible people; one doesn’t excuse or justify the other. It’s like saying ‘you’re side has pedophiles too!’. We just don’t want pedophiles of any political persuasion)

                    4. Absaroka. no one is arguing that there are violent yahoos on the left.
                      The argument I am against is this:

                      So the entire local and state Democratic Party elected leadership has been exposed as Antifa supporters and enablers. From the Mayor up to the Governor.

                      Just like the Ku Klux Klan in the Deep South.

                      And the local media is largely complicit.

                      The anecdotes offered above are in service of proving that.
                      I presume you realize that is silly, no?

                    5. Sarcastro, they’ve got rioting on their streets, violent attacks on police and federal buildings, they’re ordering the cops to let it go on, and trying to eject federal forces sent in response to federal facilities being attacked.

                      If they’re not outright the same people, they’re at least allied.

                    6. 1) These riots are *nothing* compared to riots in the past decade from sports and whatnot. I know people in Portland, and they felt safe if somewhat annoyed…until the Feds showed up.

                      2) I also think it’s quite fair to say that things in Portland were substantially inflamed by the Feds showing up in force. The situation mid-crackdown doesn’t tell us much about the need for a crackdown.

                      3) There is nothing sinister about state and local authorities not liking federal forces showing up and bigfooting them. Performative and violently. Certainly that does not create circular logic implying you need some Feds to calm down the resentment against the Feds caused by sending in the Feds.

                      4) There is no evidence Antifa is behind any of this. And your ‘at least allied’ is the stuff from which conspiracy theories are made.

                      5) I know of no evidence Oregon is telling the cops to stand down, and even if they are that’s not an invalid deescalation method. Indeed, I saw Portland PD beating up protestors last night.

                      I know the Administration is pushing this blood in the streets anarchy narrative to justify this blatant authoritarianism, but both reporting and in-person narratives belie that.
                      Under Obama you often argued that one must assume federal government authority is inherently more dangerous than anything private or local could be. So hew to that principle and quit abetting this police state nonsense.

                3. Bernard…

                  Exactly what is it, when someone drives a speeding car into a peaceful group of people registering voters, out of the blue.

                  Is that just “vanadalism”?

                  1. What evidence do you have that this guy Timm has anything to do with the dreaded Antifa.

                    Besides your guys are driving cars into crowds fairly often, including of your “fine people.”

  4. Let the rioters run free and charge law enforcement with a crime?

    The people are getting exactly what they voted for.

    Up to this point the President has kept his power dry. Maybe he should pull the fed from the court house they are protecting, and let the citizens steep in their own shit. Don’t lift a finger of assistance until asked for. Through channels, in triplicate, and a 10 day waiting period. Then only provide a table to hold negotiations on.(VietNam reference)

    1. I think you are suggesting that the President is keeping his “powder” and not “power” dry. Maybe it is the preponderance of hydro power in the area that had me questioning dry power.

    2. My point is the precedence of the Vicki Weaver matter.

      He mistook a woman breastfeeding a baby for a man with a full beard — and he was a trained (purportedly highly qualified) marksman. (I never did quite understand the legality of the kill-on-sight order for Randy Weaver, but I digress…)

      My point is that whatever the Feds are doing in Seattle has got to be a lot egregious than this, and hence Oregon isn’t going to have much to say about it. The time for the left to be raising concerns about everything becoming a Federal offense was when it was happening — but they liked the results at the time, and now it’s going to come back to bite them.

      For example, they liked the Feds having the authority to chase abortion protestors across state lines — and now the precedent is established that the Feds have the right to chase BLM protesters across state lines. The time to object was 25-30 years ago when a lot of things were being made Federal offenses that ought not be. But the left liked the results.

      And now, it’s too late…

      1. The reason you don”t understand the legality of kill on sight, is because it is most assuredly NOT legal, and the FBI had shit all over it’s face when it had to attempt to explain it.

  5. The United States needs to withdraw from the west coast.

    1. We could make a deal with Canada: they get Washington, Oregon, and California (and maybe Hawaii), and we get Alberta, Manitoba, and Saskatchewan.

      1. If we wanted to do it on a more granular basis, we’d keep the Eastern parts of the Pacific coast states.

        1. You guys figure a majority of modern America, the mainstream, would prefer the can’t-keep-backwaters and half-educated bigots in any exchange?

          Some of you guys have been reading the works of movement conservative law professors too much and giving them far too much credit.

          1. Your having the nerve to call anyone a bigot is laughable.

      2. Why would Canada want California? Give California back to Mexico.

    2. Going to be hard. Too many military bases there, and particularly Navy bases. Interestingly though, Idaho has a Navy base, located at the bottom of (Lake) Pend Orielle, in Bayview, ID. Pend Orielle is the largest natural lake in ID, is deep enough that it doesn’t freeze, and is seismically inactive. The Navy runs a sonic test facility there, where they test out 1/4 scale models of their latest ships. The earliest pictures of our latest destroyer were likely from there, and they have a small fleet of submarines that operate late at night in the lake.

      1. Sorry. In redoing that comment, I accidentally left out the connection with the post, that the Navy acoustic test facility is two hours south of Ruby Ridge, that we were talking elsewhere here about in connection to removal to federal court in the FBI sniper prosecution that had started in Boundary County, ID, just north of there.

      2. “Idaho has a Navy base, located at the bottom of (Lake) Pend Orielle,”

        My first thought was that it must be a submarine base…

        1. Yup, the US Naval Surface Warfare Center in Bayview, Idaho is near the south end of Lake Pend Oreille, not at the bottom, which would be 1,151 feet underwater. During WWII it was Farragut Naval Training Station, 4,000 acres (at the time), population 50,000 including trainees and about 1,000 German PoWs, making it temporally idaho’s largest city. Over four years, about 240k sailors cycled through training there.

          Most of it is now Idaho’s Farragut State Park, great camping, fishing, boating, and, oddly enough, one of the best disc golf complexes in the country. In October, spent a week in nearby Athol, ID, visiting family. Most days, played several rounds on its four disc golf courses (mostly to avoid Athol family members).

  6. 2020 just keeps getting better and better.

  7. “If granted, the TRO would immediately stop federal authorities from unlawfully detaining Oregonians.” Makes the TRO seem kind of superfluous.

    1. As long as it didn’t interfere with federal law enforcement. OR cannot prevent the US from arresting people, or investigating federal crimes. It’s that pesky Supremacy Clause. But they may be able to prevent the in terrorem effect of federal agents merely rousting suspected rioters and arsonists.

  8. Given that everyone agreed in the other thread that nobody related to the Federal government was breaking the law in any way, it’s only natural that this post resulted in a calm and mature conversation, given that its subject matter is entirely hypothetical.

    1. Well, we are all hypothetically calm and mature, so – – – – – – –

    2. I think it’s that the weekend crew involves fewer people calling folks on their Antifa riot conspiracies, so it just spins out.

      1. Well, I just spent 2 hours in the kitchen baking cherry pies, I can’t be everywhere at once.

      2. Reading this thread, I was like “wow, the Volokh conspiracy comments have gone pretty nuts”. But then I made the mistake of backing up to the Reason homepage and clicking on the piece about masks and I realized how relatively sane these pages are. (This particular post seems to have been linked from the front page so that probably helps to explain today’s dose of conspiracy theory nuttery.)

  9. Prosecutors are great about building cases where none exist. I’m sure an exercise trying to do just that to indict federal officials who are simply doing their jobs will be a great case study for many a law school class in the future on prosecutorial ethics.

    What is more sad, although still laughable, are the actions of the left here. They have decided that lawless mobs can cloak themselves as “non-violent protesters” and no one one would notice that this was going on. Now they are trying to control the narrative of said lawless mob vandalize a courthouse and assaulting federal agents by throwing out hilarious accusations that “Trump has a private army” and that such law enforcement actions, which are completely legitimate, are “fascism.”

    The left is getting really bad at this.

    1. Prosecutors are great about building cases where none exist. I’m sure an exercise trying to do just that to indict federal officials who are simply doing their jobs

      You know, every single person on the planet including me knew this would happen (and indeed predicted it) but it’s still astonishing to see the lightning pivot from “FakeNews; these people aren’t federal agents because you can get those uniforms online and they wouldn’t rent vans so the liberal media is stupid and lying” to “These are just federal agents doing their job.”

      1. Right.

        And not a word of, “Gee, maybe I was wrong about that all being a fake.”

        1. Just to remind you, I didn’t say it was fake. I just said that I wouldn’t trust the Washington Post’s account of what happened.

          1. Just backing away again, as usual. That’s our Brett.

            Imply something but always leave yourself room to claim “That’s not what I meant.”

      2. Well, either its fake news and the liberal media is stupid and lying, or federal agents exceeded their authority and did something illegal, or both.

        I’d say it’s even money on which. We know that both of these things happen with some regularity.

        1. I was hoping for some sanity from you.

          I’m disappointed.

  10. Great idea.
    Pull the federal police officers, and send in the troops.
    Nothing says “peaceful” like a line of infantry with fixed bayonets standing shoulder to shoulder around a federal courthouse.

  11. The sad truth is even if those videos were real (the ones on Twitter have not been verified to this day and there is a good chance they are fake) is that the media has lost all credibility which is hugely obvious in the fact that most people just assume, as a matter of fact, what they crank out is of course fake.

    What the speaks to is volumes about the media and its current state of affairs. Perhaps it is time they start doing some soul searching before they completely lose the entire public.

    1. Ah yes, the old ‘the fact that I refused to believe this true thing just shows how untrustworthy the other side is!’

      Reminds me of when some lefty used to get taken in by a ridiculous Trump hoax and say ‘the very fact that this was believable is an indictment of Trump!’

    2. The people who reject the mainstream and reason are the people who do not and will not matter in shaping American progress (although they should be treated fairly even as their opinions are ignored and their compliance required — obsolete bigots and anti-social losers have rights, too).

      You’re a human doormat, Jimmy. You should hope your betters wipe their feet before they walk all over you.

      1. Do you have a list of my “betters” or something? Just curious if you could give me a few examples. You talk about these “betters” a lot but never really seem to define them in any way. Makes me think they just exist in your head.

        1. Do you have a list of my “betters” or something?

          The phone book.

    3. the media has lost all credibility

      No it hasn’t.

      which is hugely obvious in the fact that most people just assume, as a matter of fact, what they crank out is of course fake.

      Nobody assumes that except right-wing cranks who get their news from Fox and Limbaugh and the like.

      What the speaks to is volumes about the media and its current state of affairs. Perhaps it is time they start doing some soul searching before they completely lose the entire public.

      You’re the one who needs to do some soul-searching.

      1. If you can’t see the media has lost all credibility, then you are obviously delusional.

        1. LOL Awesome arguing.

          1. Sometimes one just simply needs to state the truth.

  12. The media has lied about everything Trump and right for now four years straight. On top of that and all the Mueller related investigation hoaxes and fake hate crimes. Who would take the media seriously these days? (And those videos still have not been verified to this very day.)

    1. See that is your problem–you have no grasp of reality. In fact you’ve inverted who is lying!

    2. Except this is BS. You quote the media when it’s narrative suits you.

      Your crying about bias and knee-jerk disbelief turns out to be just curating what’s true so your version of reality can be a safes space for your fragile little narrative.

      I guess this doesn’t really fit very well, so you try and shoot the messenger. Messengers. But looks increasingly like there’s too many of those now. And they’re increasing.

      Good luck with that.

      1. This does a very good job of avoiding my point and deflecting the conversation. That is exactly what I would do if given the task of doing something like defending the credibility of the media after the last four years of hack jobs and hoaxes it has perpetuated. Great rhetorical response, but does little to address the meat. But then again there is almost nothing you can say about the state of the media to support it in anyway.

        1. You offer no meat, only ad hominem and that you don’t only bring up when a story is inconvenient for you.

          1. My statement is simple – the media sold their credibility down the river to support “the resistance” by spewing any propaganda it had to in order to keep the mob active. You can’t argue against this conclusion because there is simply no argument to refute it. No one believes anything that the liberal media produces anymore. Period. (And you still haven’t addressed the fact that the videos on Twitter have not been verified to this very day.)

            Instead you try to forward your own narrative that is the same old trope – Trump is a facist, Feds enforcing the law are a “private army”, blah blah blah. You conveniently ignore the fact that average citizens in Portland are effectively under siege by the mobs that are terrorizing the city. Property damage and violent crimes are the order of each day. The police can’t effectively do their job. The feds are trying their best to protect the few buildings they have jurisdiction over from this lawless mob, but because it suits your purposes that is “facism.” (Funny how lockdown protesters, who were all law abiding attracted your venom and angst, but actual violent extreme mobs well that is just A OK.) So what do you have to say about that?

          2. But here you are lying to yourself – you do not in fact ignore the media, but rather to cherry-pick from it.

            Also, when your argument includes ‘there is no argument to refute my argument’ you’re into some pretty deep nonsense.

            My narrative has video proof, as well as journalists with standards and politicians with something to loose if they’re caught out.
            Yours is ginned up from your own spite and willingness to excuse whatever if it brings the left to heel.

            1. Again no one has proven or even verified that video. But keep on believing. Flip on MSNBC and get some more confirmation bias tonight.

            2. It’s perfectly defensible for Jimmy the Dane to quote mainstream media when it buttresses his case, but not otherwise. It’s a well-know legal concept, that admissions against interest are especially credible.

              1. No, y81, that isn’t defensible. First, because there is no motive for an admission against interest. Second, because the result is pure confirmation bias.

                Surely you can see that.

                1. For all the accusations I routinely quote the media when it suits me, please show me one instance where I have done so?

                  1. When I said quote, I was invoking the saying about the devil quoting scripture. Because, of course, every fact you have ever posted that isn’t eyewitness testimony comes from the media. Do you disagree?

                    Breitbart quotes the Washington Post and NY Times regularly to lay the background for their narratives. I’m speaking specifically quoting for factual purposes, not ‘oh soo biased!’ stories.

  13. I am very triunled by federal agents behaving lawlessly.

    I am also very troubled by many of the comments on this post. It appears that many commentators regard every member of the side they disagree with, every random person picked off ghe street, as not merely liable for all the crimes that the other side is alleged to have committed, but personally responsible for the fall of civilization.

    That way lies lynching. At the core of lynching is the perception of an all against all vendetta, in which the particular thing the lynchee is accused of hardly even matters.

    The essence of a civilized society – not necessarily particularly liberal, but merely covilized — is the ability to deal with individuals on their own merits, to see individuals as something others than mere instances of a class or group.

    The fact that we seem to be increasingly incapable of doing this says a great deal about how fragile our society is right now, how close we are to a tribal war. Or government by force.

    1. But your comrades believe that every white person is a racist, and that every white and Asian college applicant should receive minus points. I don’t see the difference.

  14. ” The fact that we seem to be increasingly incapable of doing this says a great deal about how fragile our society is right now, how close we are to a tribal war. ”

    Relax. America is positioned to continue its customary and successful trajectory — the liberal-libertarian mainstream shapes progress against conservatives’ wishes, the conservatives whine about it and comply, and America’s trajectory favors reason, tolerance, science, inclusiveness, education, and modernity. I believe America is stronger and more resilient than you seem to believe.

    1. And then from the other side of AK’s mouth he will tell you about how your continued compliance is expected implying that if you don’t sit down and shut up bad things will happen….

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