Free Speech

Oregon Doesn't Get Injunction Against Certain Federal Enforcement Procedures

The State asked the court to impose "(1) a requirement that officers identify themselves and their agency before arresting or detaining any person; (2) a requirement that officers explain to any person being seized that he or she is being arrested or detained; and (3) an enjoinder against arrests that lack probable cause."

|The Volokh Conspiracy |

From Judge Michael W. Mosman's opinion yesterday in Rosenblum v. Does (D. Or.):

In the wake of the tragic killing of George Floyd in Minneapolis, international protests have demanded fundamental changes to our criminal justice system, particularly to police culture and tactics. These important protests have, in Portland, centered on a four-block area that includes the U.S. Courthouse, known as the Mark O. Hatfield Courthouse. By virtue of it being a federal building, the law enforcement personnel involved are federal agents.

One of the most difficult tasks for law enforcement in a free country like ours is to support robust protests while still maintaining order through lawful methods…. It is … common for [police-citizen] interactions [in such cases] to result in lawsuits, with protesters contending the police violated their First and Fourth Amendment rights and seeking redress by money damages and injunctive relief. There is a well-established body of law paving the way for such lawsuits to move forward in federal court.

This is not such a lawsuit. It is a very different case, a highly unusual one with a particular set of rules. In the first place, although it involves allegations of harm done to protesters by law enforcement, no protester is a plaintiff here. Instead, it is brought by the State of Oregon under a rarely used doctrine called parens patriae.

In the second place, it is not seeking redress for any harm that has been done to protesters. Instead, it seeks an injunction against future conduct, which is also an extraordinary form of relief. Under the governing law for such cases, the State of Oregon must make a very particularized showing in order to have standing to bring a parens patriae lawsuit, a task made even more challenging by the nature of the remedy it seeks. Because it has failed to do so—most fundamentally, because it has not shown it is vindicating an interest that is specific to the state itself—I find the State of Oregon lacks standing here and therefore deny its request for a temporary restraining order. I do so without reaching the merits of the underlying claims….

For about eight weeks, these protests against police brutality and systemic racism have been a nightly occurrence in the area of the Multnomah County Justice Center (which includes the local jail) and the Hatfield Courthouse. At the beginning of July, Acting Secretary of the Department of Homeland Security Chad Wolf announced that his agency would deploy special units of officers to protect federal property…. [R]eports [then] surfaced that federal officers were "grabbing protesters, pulling them off the sidewalks of downtown, and shoving them into unmarked vehicles." … I will refer to the alleged interactions between police and protesters as "seizures" for purposes of this opinion because, while it is unclear whether they constitute arrests, detentions, or something else, they are seizures for purposes of the Fourth Amendment.

The State argues that the alleged seizures are unlawful for several reasons: (1) they violate the Fourth [and Fifth] Amendment rights of the individuals being seized, … [and (2)] they violate the First Amendment rights of individuals who wish to protest but are discouraged from doing so because they fear being seized…. In the motion before me, the State is seeking a temporary restraining order that would impose three remedies: (1) a requirement that officers identify themselves and their agency before arresting or detaining any person; (2) a requirement that officers explain to any person being seized that he or she is being arrested or detained; and (3) an enjoinder against arrests that lack probable cause….

[W]hile the complaint paints a picture of numerous protesters being seized from the streets of Portland by unidentified agents, the State's evidence in its brief and at the hearing consists of just two examples.

First, it presents two declarations from an individual who claims he was detained by federal officers without probable cause. There is no video of this arrest and no evidence relating to its legality other than Mr. Pettibone's sworn statements. Defendants have not refuted the State's allegation that Mr. Pettibone's seizure lacked probable cause. I therefore assume, only for purposes of this opinion, that this seizure was unlawful and constituted a violation of Mr. Pettibone's rights under the Fourth and Fifth Amendments.

As its second example, the State has offered a video, which it states has been circulated heavily online, and which appears to show an individual being seized without any verbal explanation from officers. The video shows the seizure but does not show any context for what preceded it. It therefore does not speak to probable cause one way or another because it is equally plausible that the individual was an innocent bystander or that he had committed some criminal act just before officers seized him. There is simply no way to know on the record before me, and I am not permitted to assume one way or the other. It is not, for purposes of this opinion, evidence of an arrest that lacked probable cause.

The State argues that, regardless of whether the officers had probable cause for the arrest, the lack of verbal identification from the federal officers renders the seizure unreasonable for purposes of the Fourth Amendment. Defendants argue that the officers were otherwise identifiable, given their official uniforms and insignia, and that no verbal identification was required. {It appears that the State has largely backed away from any argument that the federal agents were not at all identifiable as law enforcement. Mr. Pettibone acknowledges that their uniforms said "Police," and the video shows agents wearing clothing clearly marked as "Police."} Whether these seizures are reasonable or unreasonable is a close legal question that I will not answer here. What I will do is assume without deciding that this seizure was constitutionally unreasonable, while stressing that this is not a legal ruling for purposes of future litigation.

Taken together, for purposes of this opinion, the State has presented just one example of an arrest without probable cause and one example of an unreasonable seizure. That is the sum total of the evidence before me that underpins the legal injuries the State asserts in its brief and that I address below. Notably, the State does not request any relief with respect to Defendants' use of unmarked vans, a fact that has been widely reported in both local and national media. The use of unmarked vehicles is therefore irrelevant to the legal analysis that follows, and I do not consider that practice at all….

Judge Mosman concluded that the state didn't satisfy the standards required to sue the federal government on behalf of its citizens:

The State asserts a two-part injury to its quasi-sovereign interest in protecting its citizens from unlawful seizures: (1) that Oregonians are at greater risk now of being victimized by genuine kidnappers, and (2) that Oregonians are at a greater risk of violence by the police if they reasonably resist what they believe to be a genuine kidnapping when they mistake federal agents for kidnappers.

The State's theory is that individuals who oppose the protests could assume the attire of federal police and mimic these unlawful arrests in order to kidnap protesters, thus subjecting them to the risks discussed here. The State reasserted this theory at oral argument, insisting repeatedly that it had an interest in protecting its citizens against the potential for kidnappings, both real and mistaken. This bi-fold injury rests on a "public health and welfare" theory of parens patriae that seeks to vindicate the constitutional rights of Oregon's citizens, and it meets the requirement that it be independent of the interest of any one individual. It does not, however, satisfy the requirements of general Article III standing because it is purely hypothetical.

In order to sue in federal court, a "constitutional minimum" of standing must be met. That minimum requires three elements to be satisfied: (1) the plaintiff must have suffered an "injury in fact"—i.e., an invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent (as opposed to conjectural or hypothetical), (2) there must be a causal connection between the injury and the offending conduct, and (3)

Oregon's asserted interest fails the first prong of Lujan because the injury the State asserts is entirely conjectural. First, the State candidly admits that it does not have a shred of evidence that counter-protesters have ever, anywhere, kidnapped a protester or anyone associated with protests. Second, the asserted interest rests on an utterly implausible inference. The State's reasoning is that counter-protesters, once they learn of seizures of protesters by federal agents, will dress up like police and go out on private missions to kidnap protesters. This despite the fact that such kidnappings are Measure 11 felonies in Oregon, punishable by mandatory minimum sentences of up to 70-90 months in prison. I do not discount the animosity among these groups and had I been asked to assume that the ongoing conflict would result in fistfights, or theft, or destruction of signs, or damage to vehicles, that would have made sense. But the idea that seizures by law enforcement will lead to kidnappings by private parties is a bridge too far.

I put in a similar category the State's asserted interest in preventing a spate of cases in which protesters mistakenly think the federal agents who are seizing them are actually counter-protest kidnappers. Again, there is no evidence to support such an assertion. The State has not pointed to any instance in which a protester was subjected to state violence because she believed she was resisting a kidnapping. In both instances of a federal seizure it is either admitted or clearly visible that the agents' uniforms say "Police." The State further admitted at oral argument that, to its knowledge, counter-protesters have never dressed up as police.

Finally, the State's asserted interest here fails the third prong of [the test for standing in such cases]: redressability. The State's requested solution to the kidnapping problem is to require actual federal agents to verbally identify themselves as such, presumably guaranteeing that they are the real deal. But if one is willing to go along with the State's concerns about copycat kidnappers, it requires me to assume that such nefarious characters are willing to dress up like federal agents and willing to commit the very serious crime of kidnapping, but that they would blanch at the thought of identifying themselves as police. The requested remedy here is a linguistic Maginot line, of no use in the real world….

Elsewhere in its briefing, the State also [expresses a concern about] … a chilling effect upon its citizens' First Amendment rights of free speech and assembly …. The "chilling effect" injury comes closest to satisfying the Article III standing requirements described above. It is the only one of the alleged harms that has any evidentiary support in the record.

At argument, however, the State seemed to assert this interest on the theory that speech would be chilled by the fear of kidnappings. It relies on statements by declarants who claim their protest speech was chilled by this fear. This theory creates a problem under the third prong of [te standing test], similar to the problem with the State's alleged interest in Fourth Amendment violations, which requires that the alleged harm be redressable by the remedy that a plaintiff seeks. The injury the State asserts—a chilling of its citizens' speech—is not actually redressable by the requested remedy, given that citizens could still believe they might be kidnapped even if police are required to verbally identify themselves. Apparently, the word "police" and other official insignia on uniforms has not quelled this fear among the public, and it is highly questionable whether the requested relief would do so either.

More fundamentally, the "chilling effect" injury presents a problem for the State under the parens patriae doctrine. While the State has asserted a quasi-sovereign interest in the civic well-being of its citizens, and the "chilling effect" injury is a violation of that interest, parens patriae also requires that the state's interest be more than a nominal interest in an individual dispute. In other words, it must be a harm to the state and its citizens more broadly.

This is the problem with the "chilling effect" injury. Oregonians, like all Americans, have individual rights to freedom of speech and assembly, conferred by the First Amendment. They can, and often do, bring individual lawsuits to vindicate those rights. And the State of Oregon has not explained why this case is different, why the chilled speech it alleges here injures the state in a way that is distinct from the individual harms that it also alleges. Perhaps there is an argument or a theory that could draw this distinction. The State did not manage to do so in its briefing or at oral argument, and I find that this interest, while it may or may not satisfy Article III, does not satisfy the requirements of parens standing….

Judge Mosman also concluded that the state hadn't shown enough evidence of federal government misconduct to justify an injunction against future misconduct:

Even assuming arguendo that the State has generally pleaded parens patriae standing, … [its] theory rests, fundamentally, on the idea that the unlawful seizures described above violate citizens rights. The State simply did not present enough evidence that those unlawful seizures are likely to continue.

Standing is a remedy-specific inquiry. "Past exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does not continue to suffer adverse effects." In other words, injunctive relief requires more than a showing that a plaintiff has been harmed; it requires a showing that she will likely be harmed again….

The State could try to show, for example, that all of Defendants' seizures are illegal, or that they are under orders to fail to identify themselves or to make random arrests without probable cause. The state has shown none of this. It has presented no evidence of any official orders or policies and has presented no evidence that these allegedly illegal seizures are a widespread practice. Despite the broad language in the complaint, Oregon has shown—at most—that this type of seizure has happened twice. {In its briefing and at oral argument, the State described what has happened here in Portland as "disappearance squad[s]" and "disappearing" people. This is apparently a reference to "the Disappeared," i.e., the 30,000 people who were tortured and murdered by the Argentine military junta 40 years ago. Even taking every word of the State's arguments and evidence at face value, this comparison seems out of proportion.} …

The State's argument, regardless of how it is framed, rests on too little evidence to satisfy [precedents related to injunctions against unconstitutional government activity]….

Judge Mosman's opinion doesn't foreclose First and Fourth Amendment damages lawsuits by people who claim their own rights were violated; those lawsuits would be decided normally, based on their own facts. It's just that federal agents' actions would be governed by First and Fourth Amendment law, not by an extra injunction issued by a federal court.

NEXT: Can Congress Issue A Subpoena to Federal Judges About Internal Judicial Deliberations?

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  1. If Drumpf exercised the power Democrats insist he should all the times they’re not crying that he’s usurping too much power he has an obligation to march straight into every rioting city with the national guard and arrest even the ‘peaceful’ protestors for spreading covid.

    1. If Trump is a fascist he is really bad at being one. And if the Feds are really supposed to be a brigade of “secret police” they ought to really call up Russia and ask the KGA from some advice. I’m sure Trump has a direct line there, so what are they waiting for?

      1. If he was 1/10th the fascist they say he is he would have rolled tanks and sent the #wallofantifamoms packing with their bikelocks between their legs and had this wrapped up before any ongoing narrative could be established and be 20pts ahead of Hands Biden.

        1. If they genuinely thought he was 1/10th the fascist they say he is, they’d be afraid to say he is. That’s the truth of the matter: They’ve only got the guts to say it because they know it isn’t true.

          1. Argentina was flying people a couple hundred miles offshore and dumping them out to be eaten by the sharks. That isn’t happening here, is it?

            If Trump was half of what these clowns allege, these protesters would simply disappear…

          2. Or perhaps they are educated, can read the largely predictable course of the culture war, and expect a reckoning to begin relatively soon?

            Fearing a bunch of obsolete, impotent, soon-to-be-replaced clingers does not seem worthwhile.

            1. You are a tiresome, one-note bigot. People who disagree with you aren’t clingers, and they’re not impotent. Many of us who oppose everything you write are educated (I’m a retired journalist and lawyer, so I not only can read, I can understand big words.) Nor will these folks be obsolete should Biden win. They’ll bide their time, as they did with Obama, and come back with a deafening roar.

  2. Wait, THAT was the state’s argument? We’re they actually trying to win an injunction, or was this just a PR exercise? I suppose they might have thought the fix was in, and they didn’t need a good argument to prevail…

    1. I’d say that the primary purpose of the suit was performative, although considering some of the decisions coming out of the Portland district court in the last few years in think they could have reasonably believed they had a nonzero chance of prevailing.

      1. Would it be illegal to sell bright colored tie-dyed T-shirts and hats that say PORTLAND SECRET POLICE DISAPPEARANCE SQUAD?

        1. Or just get a rental van and some paintball gear, drive around, and scare the shit out of some protesters. Probably would make a great prank video for Youtube.

          1. Remember those chuckles come January, clingers.

            They might provide some brief respite for vanquished, impotent right-wingers during the next segment of the culture war.

            1. Do you really want to push the buttons that much AK to where you drive this nation to the brink of civil war? Is that your ultimate intent?

              1. I think Kirkland is actually on Team Red, and is just trying to rile people up to get Team Blue’s ass kicked.

              2. Remember the “good times” for bigoted clingers, Jimmy. Soon enough those memories will be just about all you have.

            2. Remember those chuckles come January, clingers.

              Kirkland wants Potted Plant for President!

              1. “Gropey Joe: Our Molester Isn’t Orange!”

                1. “Gropey Don: Our Molester has 20x the sexual assaults as your guy.”
                  #sadtotal

          2. No, you’re dealing with honest cops, and they likely would prosecute. Because they’re honest.

        2. I occasionally amuse myself with thoughts of creating blue nylon windbreakers with POLITE in yellow block letters.

          Zoomers’ critical reading skills are nonexistent, perhaps even they are illiterate for too many emoties.

          1. On a serious note, *could* they charge you with anything for this?

            1. They can always charge you with something. Could they make it stick? Likely not.

    2. PR exercise.

      Your taxpayer dollars at work.

      1. What do you think the whole business of putting federal agents in Portland is but a campaign tactic?

        Distract attention from Covid.
        Get some carefully chosen video for Fox to show.
        Get the base riled up about The Great Antifa Menace. MS-13 has gotten kind of stale, after all.

        1. “What do you think the whole business of putting federal agents in Portland is but a campaign tactic?”

          Trying to prevent the federal building from being burned?

          What’s you’re preferred outcome? Let it burn and not have federal offices/courts in Portland? Rebuild for however many millions, rinse and repeat?

        2. Campaign tactic? No.

          Preventing the Federal Courthouse from being burned down or blown up? Yes.

          The Federal Government has a right to protect its property from terrorists.

          1. And bring RICO charges….

  3. Footnote 2:

    The State initially included a third example [of a purportedly illegal arrest], but it withdrew that video because it recorded events that occurred in San Diego.

    1. That’s some good police work there Lou.

    2. You will also note they didn’t use any of the supposed arrest videos from last week on Twitter. Why? Because those were fake.

      1. “There is no video of this arrest and no evidence relating to its legality other than Mr. Pettibone’s sworn statements. Defendants have not refuted the State’s allegation that Mr. Pettibone’s seizure lacked probable cause. I therefore assume, only for purposes of this opinion, that this seizure was unlawful and constituted a violation of Mr. Pettibone’s rights under the Fourth and Fifth Amendments.”

        The court also assumes the seizure actually happened, mind you, though they didn’t make a point of mentioning it.

        1. I’ll bet the court was also calculating the distance between Portland and San Diego…

        2. Because it did?

          What evidence did you expect? And, as has been pointed out here many times, a sworn statement is evidence.

          Do you expect the feds to confess that they did it? Note that they didn’t bother to refute it.

  4. Federal court refuses to indulge dumb melodramatic kabuki theater. Wannabe victims of fantasy secret police get no court support.

    Will the Ninth Circuit help the performers on appeal? Some of the true theater patrons there are gone now.

    1. Where “federal court” = stale-thinking (anti-gay) former federal prosecutor turned Republican-nominated judge.

      The state encountered a bad draw on the judicial wheel. It happens.

      1. Not as anti-gay, bigoted, and intolerant as you.

      2. Darn those law-abiding judges. Spin the wheel again…

        1. Kirkland is not the sharpest scissor in the drawer, that is for sure!

          1. Yet I have won the culture war, and the clingers have lost.

            Does that make the losers feel even worse?

            1. You have won nothing except in your dreams, Grow up.

      3. One President came to office openly supporting gay marriage.

        It was not a Democrat.

        1. It was Reagan who really was gay friendly — largely from his Hollywood days.

          1. All the people who died from AIDS while the Reagan administration ignored the issue would like a word with you.

            1. Blaming Reagan for AIDS is BS.

              Once we knew it was spread by behavior, it became the responsibility of those engaging in the behavior.

              1. Once we knew it was spread by behavior, it became the responsibility of those engaging in the behavior.

                This is bullshit.

                Do we do research on lung cancer? Heart disease? Diabetes? Behavior plays a huge role in those as well.

                1. FWIW, in the mid 80’s I happened to work in a medical research place. Almost as soon as HIV was identified the federal research dollars shifted dramatically from cancer to HIV. I dunno if Reagan favored that or not, but it sure happened.

                  1. And then calculate the research dollars relative to the number of deaths annually. AIDS is way over funded.

      4. Well go ahead, point out where the judge misapplied the law. He assumed most of their allegations were true, and they still couldn’t show standing.

        If there really are numerous actual cases of people being arrested without probable cause by officers that refuse to identify themselves then the courts are still open to the people alleging the injury.

        Then the facts can be examined, not fantasies profounded.

    2. There was a fair amount of dumb melodrama concerning Portland from several of the Conspirators this past week, but I know Conspiracy policy is never to admit mistakes

  5. Countdown to 9th Circuit imposing an injunction because it’s “THIS president” in 10….9….8…….

    1. Browsing the internet today and see the glut of liberal op-eds against “federal ‘troops'” looked almost exactly like militia type opinions from the late 90’s. Politics – it is a strange beast.

      1. Well, the same except that we were complaining about people being shot by snipers or being burned alive. Somewhat different from being tear gassed while rioting, I think.

        1. Yes, a minor distinction….

        2. There it is. Reflexively repeat the lie to support this president. So predictable.

          1. A lie?

            Just how did Vicky Weaver die?

            1. “Just how did Vicky Weaver die?”

              Two possibilities:

              (1) Vicki Weaver was shot (while inside a building) by a government agent who fired at her husband, a fugitive, who was running toward that building after being injured?

              (2) The Zionist Organized Government assassinated Vicki Weaver; it had concluded it could not permit her to live because she was able to perceive divine revelations about government persecution of the World Aryan Congress. It therefore confected a story about armed resistance, warrants, court appearances, and a siege to provide cover for the assassination of certain innocent sovereign citizen patriots.

              1. Kare to justify a “shoot to kill” order being given to a sniper?

        3. How about being tear-gassed while not rioting.

          Get your head out of your ass and your eyes off Hannity or whatever crap you get your information from.

  6. “Even assuming arguendo that the State has generally pleaded parens patriae standing…”

    Bad Judge! Bad!

  7. I have to say, I don’t understand this at all.

    The State asked the court to impose “(1) a requirement that officers identify themselves and their agency before arresting or detaining any person; (2) a requirement that officers explain to any person being seized that he or she is being arrested or detained; and (3) an enjoinder against arrests that lack probable cause.”

    I see nothing in the opinion to explain why these shouldn’t be imposed. Most of it is just the judge’s statement that the claims of what has happened are exaggerated.

    So what? Who cares?

    Is it OK for the feds to do this stuff, as long as they don’t do too much of it? How much is allowed? If the judge refuses to tell them they can’t detain people this way, then he’s telling them it’s perfectly fine to make arrests without probable cause, for example.

    That’s ridiculous.

    1. Could the answer be that the constitution does not compel any of those things? Arrests must simply be supported with probable cause. That is the only constitutional requirement.

    2. Because
      1. The state doesn’t have standing.
      2. The injury asserted by the state is entirely conjectural.

      Courts resolve real disputes between parties. They don’t make orders based on hypothetical injuries.

      1. Isn’t any injury that an injunction is intended to prevent conjectural? We don’t see injunctions against past behavior, after all.

        And if the misconduct is unlikely, then why defend against the injunction at all? It would (I hope) be silly for me to ask the court to enjoin you against committing murder, and I imagine there are good reasons why the court wouldn’t do that, but why would you spend time and money fighting it if you had zero interest in murdering anyone?

        1. Injunctions that simply direct someone to obey the law are generally disfavored. And i think it’s entirely reasonable for the federal government to object to having the Oregon Attorney General and a district court judge micromanaging its law enforcement operations.

          1. i think it’s entirely reasonable for the federal government to object to having the Oregon Attorney General and a district court judge micromanaging its law enforcement operations.

            Even if the “micromanaging” is simply insisting that the federal government obey the law?”

            1. The requested injunction would have done more than simply oblige the federal government to obey the law. But at any rate, the existence of an injunction like this one would mean that the Oregon attorney general would have the power to bring the federal government into court seeking to hold them in contempt any time they wanted to accuse them of breaking the law. That’s an enormous burden on a defendant, and an enormous amount of power for a plaintiff (and a district judge). Which is precisely why you’re not generally entitled to an injunction telling someone to obey the law, and why opposing one shouldn’t be taken as an admission that you intend to break the law.

            2. “insisting that the federal government obey the law”

              Let’s look at the first request: “(1) a requirement that officers identify themselves and their agency before arresting or detaining any person”

              Moreover, let’s assume that wearing a uniform with police insignia isn’t enough – the request is for an injunction that the police verbally say something like ‘Agent Smith, FBI’ before grabbing the suspect.

              Also, let’s put aside whether that’s a good idea or not (I can see policy arguments on either side of that issue). The issue isn’t whether you think it’s a good idea, the issue is whether the law requires it.

              1)Does the U.S. Constitution require that verbal notice? I’m not aware that it does – if you think it does, can you provide the text and/or S.C. decisions that make that a constitutional requirement?

              2)Ditto for the state constitution.

              3)There could be a statutory requirement? For example, the Oregon legislature could, to take a ridiculous example, pass a law that no arrest is legal unless the arresting officer is wearing a pink tutu. Has the legislature made a statutory requirement that Oregon LEOs verbally identify themselves for an arrest to be lawful?

              4)Ditto for the U.S. congress and federal LEOs (my IANAL guess would be that the Oregon legislature can’t impose requirements on federal LEOs[1]).

              If there isn’t a current constitutional or statutory requirement, what would you have the judge do? What limits, if any, would you place on judges mandating policies that the judge (and you) think are a good idea, but the legislature doesn’t agree with (or hasn’t enacted)? Alternatively, do you envision any limits on judicially originated policies that you disagree with?

              [1]If they could, what’s to stop the Arizona legislature from prohibiting BATF agents from making NFA arrests without, say, publishing their intent to do so 24 hours in advance in the newspaper? Or a Jim Crow era Mississippi legislature forbidding FBI agents from arresting Klan members?

              1. It’s been publicly stated that the alphanumeric numbers on the shoulders correspond to the unique individual, i.e a “badge number.”

                So they *are* identified….

                1. What’s wanted here is not that they be “identified”, but that they be “doxable”.

                  1. Exactly.

                    And Doxing is not going to end well — I’m waiting for when some terrified mother with young children opens up with a (lawfully owned/registered) automatic weapon because she is genuinely in fear of her life. Looking at what these schmucks are doing in Portland and knowing what bullies Antifa (et al) are, I’m thinking more a case of “when”, not “if.”

                    Something similar happened about 15 years ago when some schmuck came across the Maine/Canada border in Houlton and then went down I-95 hunting registered sex offenders. (Memory is that several weren’t home at the time and hence not killed.) See: https://www.cbc.ca/news/world/suspected-killer-accessed-online-sex-offender-registry-maine-police-say-1.624198

                    So knowing the type of people her husband deals with, and having a dozen or more of these schmucks on her front lawn, she’s going to think “home invasion” and who’s really going to blame her? And the local investigating authorities (who have wives of their own) are going to think “that’s exactly what I’d want *my* wife to do” and not charge her. And then things will get *really* ugly….

        2. So, the injury has to have some potential relevance. In this particular case, the state’s conjectural injury is that

          “The State asserts a two-part injury to its quasi-sovereign interest in protecting its citizens from unlawful seizures: (1) that Oregonians are at greater risk now of being victimized by genuine kidnappers”

          This is despite the fact that such kidnapping is already a state and federal crime, and very harshly punished. (In addition, there’s no evidence at all that anything like this has and/or will happen.

          To use your murder suggestion, it’s not akin to enjoining against committing murder. It’s more akin to an order to stop someone from selling bleach within a 5 block radius of a school, because it could lead to further murders by people who potentially use bleach as a murder agent.

          1. Sure. Train people to submit to strangers in vans who refuse to identify themselves grabbing them.

            How much PROOF do you need to see that this is a problem?

            Get a brain!

            1. The officers in question are clearly identified as police officers, the Oregon attorney general admitted that all the arrestees knew the people arresting them wee police officers, and (as this judge points out) it seems extremely unlikely that anyone who would dress up as a police officer to kidnap someone would balk at verbally identifying themself as a police officer as well.

              But please, as someone with a brain, how do you think people should react to being arrested in this way?

              1. When I first saw them, it sure wasn’t clear to me. And I know it wouldn’t be clear to most people.

                When you have to make a split-second decision whether to cooperate, this is just not good enough.

                They should dress like actual law enforcement.

                1. How does “actual law enforcement” dress? Absaroka linked below to a bunch of local and state law enforcement agencies with camouflage uniforms and “hard to read yellow ‘POLICE'” labels. Do those not count because they are not true Scotsmen, er, law enforcement agencies?

                  Maybe they dress like local police in St. Louis County, MO. Naperville, IL? Or Mesa, AZ? San Bernardino, CA (the story is about Arizona, but the image used to illustrate it is from California)? What about Fredericksburg, VA?

                2. “They should dress like actual law enforcement.”

                  They actually *are* — it’s virtually impossible to get military stuff like this “right” because it (a) isn’t universally consistent (i.e new and old versions of something continually being updated) and (b) the stuff on it means things.

                  Hence an imposter would be noticed — and *has been* — see: https://nypost.com/2020/06/03/armed-man-impersonating-national-guard-arrested-in-los-angeles/

        3. “Isn’t any injury that an injunction is intended to prevent conjectural?”

          But the injury can’t be purely conjectural, there has to be some reason to expect it.

    3. I see nothing in the opinion to explain why these shouldn’t be imposed.

      The burden is on the party seeking the injunction to show an entitlement to it, not on the defendant to show why it shouldn’t issue.

      More importantly, a court can’t issue an injunction, however salutary, unless it has jurisdiction. And because parties can’t stipulate to jurisdiction, the court would be independently required to analyze the issue before issuing an injunction even if the government affirmatively agreed that an injunction was proper.

      1. Noscitur, I’m glad you took the time to comment here, so people like me can understand the problems with this case independent of our strong feelings about what seems to be happening there. Thank you.

    4. I don’t think that’s what the state was asking about.

      To answer your question though, yes, the feds can protect their own property.

      1. The Feds can also prosecute Federal crimes, and I’m wondering how much of this “catch & release” is just to positively identify individuals for subsequent Federal indictments.

        And I’m wondering where the line is between “class c common fireworks” which are legal under US law and “explosive devices” which aren’t (at least without certain licenses).

        You can’t buy commercial grade fireworks at WalMart — and I don’t see why the Feds can’t trace them to their source as there can’t be more than a couple hundred companies licensed to possess them, and we aren’t talking about just a few being missing.

    5. The problem was establishing standing. The state didn’t show enough evidence to show it had any interest in the matter. It ofered only one video and one affidavit indicating a problem with at most two protesters. The judge said a state can become involved only if there’s a pervasive pattern, not just one or two isolated incidents.

      Basically, they botched the investigation. They needed to collect more in-depth evidence before going to court.

      1. They only botched the investigation, if there was a pervasive pattern to investigate. Even the most competent investigation can’t produce evidence of what doesn’t exist.

    6. So what? Who cares?

      So you’ve officially moved on to the next lilypad from “CBP has admitted it” was them, huh?

      Apparently they indeed did not admit it. And apparently there isn’t jack for actual evidence that it was them.

      Oopsie.

    7. All the judge said is the state lacks standing because the stated injury is too speculative to show the state itself is suffering an injury. The state offered only 2 examples, one of which was unexplained video that didn’t support an assumption of illegal conduct

      If any individual, or group of individuals that themselves have suffered an injury wish to file their own suit the courts are still open, and an injunction can still be issued after facts are examined.

      I got a feeling that there maybe one or two arrests that don’t pass muster, but most are well founded. It’s not like there aren’t enough actual crimes taking place that the Feds would have to make something up.

  8. What happens if law enforcement officers don’t identify themselves, and a would be arrestee doesn’t know what’s going on, and fears for their life, and responds with deadly force? Has that happened much? Is there much case law from such incidents? Are the considerations much the same as they would be in other situations where someone asserted self-defense after having killed someone?

    1. There are a smattering of cases on the subject. I think someone here did a post on a few some years ago. It doesn’t usually end well from a functional standpoint (most don’t live to tell their tale.) But I believe in my jurisdictions self-defense statutes do provide for the objective and reasonable use of force if you fear for your life. Generally you don’t have the right to resist arrest, but if from an objective and reasonable point of view you have no idea if it is an arrest (say no uniforms, no identifying verbal commands, etc.) then I believe self defense could be plead.

      1. But in these cases, the federal agents are wearing uniforms that say “Police” on them. Hard to make the argument that their uniforms said “Police”, had agency patches, etc, but you didn’t think that they really were police, so fired in self defense on federal agents who actually were federal agents. And, of course, if your self defense claim was not reasonable, then you used legally unjustified lethal force against federal agents, who under those very same self defense statutes, are legally justified in using lethal force against you. Short story there – if you shoot at police without a solid self defense claim, expect them all to shoot back, with likely fatal consequences on your part.

        1. One problem with hard to read yellow “POLICE” written on camouflage uniforms is that a person who thinks they are being attacked may not and probably would not have time to process that. Assuming they even saw it.

          And even if they did process it, what basis would they have to believe it?

          1. Are you really saying that you don’t think you could figure out that these guys were police officers? If so, why couldn’t the Oregon attorney general find anyone who was willing to put that in a declaration?

            1. I don’t think upon being grabbed by people in camouflage that my first thought would be, these must be police officers.

              Quite the opposite.

              1. It’s pretty common … one example of many: Massachusetts State Police (4th pic down)

                1. Lastly, would your split second decision making be easier if the folks grabbing you are wearing this?

                  (TBH, I kinda agree that identifying police can be an issue. It’s not like the U.S. has one national police uniform. I’ve lived places where you could encounter city police from multiple jurisdictions, county, state, feds, etc, and not only did each dept. have different uniforms, each dept. had multiple uniforms. And of course, the police wear plainclothes as well. I just don’t see that camo is more problematic than lots of other uniforms. Or not uniforms – the guys in business suits arresting you could be detectives, FBI, …)

                2. Oooops, let’s try that last link again.

              2. David,
                Your claims are a big stretch that might apply to a rioter who was stoned but not to the “reasonable person.”

                1. Eh, I think blue uniform for cop, camo and mask with long gun troop.
                  Federal law enforcement suit.

                  Symbolism matters. This looks like an invasion by America to America.

                  I get that there’s no legal remedy, but it sucks and is very clearly making things much worse.

                  1. While I have no sympathy at all for the rioters. I actually agree with you that this symbolism is both unfortunate and counter-productive in terms of improving the situation. That doesn’t change the fact that it’s very, very obvious that these guys are law enforcement officers.

                  2. FWIW, BORTAC spends most of its time out in the field surveilling the southern border. That’s why their issue uniform is camo, because it’s useful for their normal job.

                    Blue would kind of sand out in the field, and suits … not optimal for what they do.

                    Moreover, if I understand Mr. Welker’s objection, he’s not just arguing for his fashion preferences, he’s arguing that whatever they wear should be hard to fake. If you say ‘they are feds, so should be wearing suits’, and so when they get sent to backstop in Portland they all buy cheap suits off the rack … that’s not exactly hard for imposters to do as well.

                    1. Forgot to add … one of the reasons agencies like to use OCP is that because of DoD, flame retardant OCP is more available/cheaper than most other FR options. The suits on the cheap rack … or even from Brooks Brothers … aren’t FR, which matters a bit when people are throwing fireworks at you.

          2. David Koresh didn’t….

        2. Some time back, Detroit was having a real problem with fake officers and flashing lights pulling people over and robbing them, that the police made an official statement that if someone is pulling you over, you should drive to the nearest police station, first.

          Presumably theu notified their units of this.

      2. About 30 years ago, a perp murdered a Lewiston (ME) police officer and the jury ruled it “self defense” because the person being arrested thought his life was in danger. It was a quite controversial at the time, I forget most of the details beyond it being some sort of an arrest in a wooded area.

    2. The judge addressed that in his opinion:
      “I put in a similar category the State’s asserted interest in preventing a spate of cases in which protesters mistakenly think the federal agents who are seizing them are actually counter-protest kidnappers. Again, there is no evidence to support such an assertion. The State has not pointed to any instance in which a protester was subjected to state violence because she believed she was resisting a kidnapping. In both instances of a federal seizure it is either admitted or clearly visible that the agents’ uniforms say “Police.””

  9. 2 points for a takedown by Judge Mosman.

  10. Follow the feds looking for broken tail lights, rolling stops, and incorrectly worn masks in public?
    They can beat the rap, but still get the ride so to speak.

    1. That might have worked if the Mayor hadn’t alienated his own police department. As it stands now, I would expect PPD to very lackadaisically perform that enforcement.

  11. It looks like the Oregon AG botched this one. Its evidence was extraordinarily thin. One would have expected a lawsuit like this woiuld have been supported by an investigation that combed through protesters seeking a much larger set of affidavits and videos evidencing a much broader and more pervasive array of conduct.

    In addition to being extremely thin on evidence, the state only attempted to make a parens patriae claim that certain of its citizens had been deprived of their civil rights.

    It didn’t assert any interest in its own right. It could have asserted, for example, that the United States of America was sending in de facto mitary forces to quell domestic violence without any permission from the State’s legislature or governor, in violation of the express constitutional limitation, directly affronting its sovereignty and its sovereign dignity.

    It would obviously have needed much more evidence than one affidavit from one protester and one somewhat unclear video to support such a claim.

    1. Perhaps there was no such additional evidence to be had, the hyperventilating aside c

      1. That’s my point: The investigation was only botched if there was something to find.

  12. I guess all those arguments that we have a federal system with some rights and sovereignty belonging to the states were wrong. Or is it just that almost all who post and comment on this site believe that only works when states want to do things the commentators want them to do.

    Remember when it was conservatives who warned and railed against black suited anonymous federal troops invading. And of course when real threats, like armed Bundy’s who occupy and destroy federal property and those armed militias who went into Michigan government offices to threaten government employees are accosted by the feds, that is just overreach by the feds and denial of basic 2nd amendment rights.

    Of course the state of Oregon has standing. The federal government has assumed the power of police (they even wrote it on their uniforms even though they were not police). A sovereign state can go to court to keep the federal government from assuming state powers. Or, it used to be able to before the judicial acquiesence to the faux conservatives.

    If you cannot have integrity people, at least try to have some consistency because lack of both reduces your credibility to zero.

    How about it Professor, let’s hear your opinion.

    1. Our federal system provides that, notwithstanding state sovereignty, the constitution and laws passed pursuant to it are the supreme law of the land. That means that the executive branch is allowed (indeed, obligated) to enforce those laws, including through arresting and prosecuting those who violate them. Doing so doesn’t violate the constitution—on the contrary, it violates the constitution for states to unduly interfere with the federal government exercising that power. That is, presumably, why Oregon didn’t even try to assert this theory.

      As for your claim that federal law enforcement officers aren’t police, I don’t even know where to start.

      1. That is he place where I think that Finkel has gone astray. For the most part, state and local LEOs enforce state law, and federal LEOs enforce federal laws. Two sovereigns, two parallel justice systems. Separate law enforcement. Separate court systems. Thanks to federal Supremacy though, the states are typically not allowed to interfere with legitimate federal law enforcement.

        Some of those sympathetic to the cause of the rioters and arsonists have suggested that the local LEOs arrest federal LEOs. Absent a violation of a federal statute, or lack of a legitimate LEO objective on the part of the federal LEOs, that is likely to get the local LEOs arrested for and charged with Obstruction of Justice. Everyone knows that, which is why mayors may posture about it, but don’t order it, and if they did order it, they would be ignored.

    2. Feds are not without police powers. Rather, theIr police powers are limited. They do cover protecting federal buildings and monuments. As well as regulating interstate commerce (which covers the Civil Rights and Klan laws). So, their jurisdiction doesn’t cover arson, but does cover arson that involves interstate commerce (such as driving down from Seattle to commit arson).

      1. The federal jurisdictionwould cover arson of government property.

        1. I think it would cover incendiary devices in general….

          The ATF has a lot of powers…

        2. Agreed. Someone could potentially be indicted with crossing a state line to commit arson, attempting to destroy a federal facility through arson, use of an unauthorized incendiary device, and possibly several other federal crimes if they traveled from Seattle to Portland to throw a Molotov Cocktail at the federal courthouse in Portland.

          My point here is that while the federal government has limited police powers, there are more than enough federal criminal statutes available here. Sure, those federal criminal statutes have to be based or grounded on an Article I power, but for these statutes, that was addressed long ago. So, when I mentioned being arrested for crossing a state line to commit arson, the Article I power justifying or grounding that statute is the regulation of interstate commerce.

          1. Arguably the National Firearms Act was unConstitutional, but that was 80 years ago. And doesn’t it say something about incendiary devices & explosives?

            So while “crossing a state line” is cleaner — and “conspiring to” is even better — I’m thinking they have jurisdiction on mere possession and are hoping to catch someone with something in his backpack.

            1. Like the two lawyers in, I believe, NYC, who were observed throwing one Molotov cocktail, and when stopped, had another in their car.

      2. Technically, their police powers only cover protecting federal properties purchased with the consent of a state legislature.

        Everywhere else they’re just an ordinary property owner. But it’s not like the courts actually enforce that bit in the Constitution.

    3. I as a conservative would support drastically cutting back the Federal governments police power. But it should be done vigorously and systematically by Congress. Repeal federal laws and enforcement authority for bank robbing, drug offenses, workplace safety. Get rid of OSHA, the Park Police, BLM police, the ATF. Restrict the FBI to counter espionage and International criminal rings, they shouldn’t be investigating kidnappings and other local crime. Most federal law should be enforced in civil court, not criminal court.

      Attempts to cut back federal powers in court have largely failed like Wickard, Gonzales v Rauch, with only mild and ineffective pushback with Lopez.

      If you support OSHA warrantless searches and Federal gun free school zones then you support the federal response in Oregon.

      1. There’s a wee bit of a difference.

  13. This ‘parens patriae’ case just shows that the democrats wants to become then nanny state!

  14. “Judge Mosman’s opinion doesn’t foreclose First and Fourth Amendment damages lawsuits by people who claim their own rights were violated; those lawsuits would be decided normally, based on their own facts.”

    I am not sure I agree with this.

    Couldn’t this decision foreclose any relief and might even foreclose any possibility of the constitutionality of these seizures being adjudicated?

    Let’s say, for the sake of argument, that it is unconstitutional to seize people without identification and throw them into unmarked vans.

    What impact would qualified immunity have?

    Are we going to have prior case law that is “on point” surrounding these issues? This is seems like a pretty novel way to violate the Constitution. And in the absence of case law, may not a court simply rule in favor of the federal government without reaching the constitutional issue at all?

    Am I missing something?

    1. This opinion simply does not address those issues. They would be, as Prof. Volokh wrote, “be decided normally, based on their own facts”. The fact that the state of Oregon had neither standing nor evidence of the harms the state alleged, as described in the opinion, does not speak to the merits of such individual cases.

      Qualified immunity would only affect lawsuits that target federal agents or officers in their individual capacities. Presumably the bigger target will be the federal government, which cannot claim sovereign immunity for infringing these core rights.

      1. This originally bothered me suggesting an organic right to sue the federal government for Constitutional violations. They are the sovereign, after all. But it makes sense, if sued in Equity (e.g. for an injunction, as here) but not in Law. The difference is whether you want the federal government to stop (or start doing) something, or to pay damages. If you want to collect damages, then you need to find a statute to sue under (like the Federal Tort Claims Act).

    2. On your first question, either Res Adjudicata or Collateral Estoppel requires numerous elements that are not present here. The most obvious one is that the same persons have to be parties to both actions. Here no individual is a party but only the State, and accordingly a later 1983 action would not be prejudiced in any way. (Rather, I think the Judge considered that a ruling in favor of the State might have had some illegitimate persuasive action in a later proceeding.)

      Further an action at Equity and an action at Law have different requirements. An order denying an Injunction – the grant of which requires a higher standard than an action at Law for Damages – in no way forecloses the latter at a future time. (For the converse think of a Criminal proceeding preceding a Civil proceeding where the Defendant is found guilty. A Plaintiff’s lawyer loves such a scenario since a finding beyond Reasonable Doubt always satisfies the lower standard of Probable Cause.)

      On your second question, there is a lot of legitimate criticism of Qualified Immunity in general, much less the current SCOTUS-imposed requirement. (I personally would trim it greatly as well as severely restrict Absolute Immunity. The last I heard James I was no longer sitting on the throne.) It then is possible that if some of these alleged flagrant instances can be proved – on which I take no position one way or the other – QI might possibly not be available for assertion.

      1. I goofed by referring to 42 USC 1983. (My only excuse I suppose is that my practice was almost exclusively in the business environment, plus typing w/out reflecting.) This section of course only applies to persons acting under STATE authority.

        I can’t put my finger right now on the statute which applies to persons acting under FEDERAL authority.

        1. Are you SURE?

          I read it as color of ANY law.

          1. Section 1983 says “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia”. Not federal law — that’s what Bivens actions are for.

  15. I’d like to apologize to the corpse of Mayor Marion Barry for ever (OK, ‘constantly’ might be more accurate) saying that he was an embarrassment to my hometown.

    The mayor of Portland looks exactly like what would be drawn by a blind caricature artist after having recent press clippings and quotes read to her.

  16. Oregon apparently doesn’t want them, so just pull all Federal operations out of the state. Social Security and other assistance offices, Federal prosecutors and public defenders, FBI, Post Office, Coast Guard, etc.

  17. Press accounts of the violence last night and the militias marching Saturday got at least one thing accurate. Instead of using the usually code word for bad gun “assault rifle” or “automatic weapon” they have miraculously learned that these are actually “rifles.” Just take a look at most coverage. When talking about the black militia or the guy who was carrying at the BLM protest and was hit by a car, articles use “rifle” universally. Then goes back to “assault rifle” when talking about the Three Percenters.

    So it isn’t that the press is too dumb to realize the difference, they obviously do. Just another subtle way they throw bias out at every turn.

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