A federal judge on Friday denied a request by Oregon’s attorney general to restrict tactics used by federal officers in Portland, finding the state lacked legal standing and presented scant evidence to support allegations that the officers were illegally snatching people off city streets.
U.S. District Judge Michael W. Mosman issued his ruling on the 58th consecutive day of protests against police violence and systemic racism following the death of George Floyd, a Black man killed by a Minneapolis police officer who knelt on his neck for more than eight minutes.
“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,‘' Mosman ruled in the 14-page decision.
Attorney General Ellen Rosenblum had urged the judge to bar federal officers from engaging in “unconstitutional police state-type tactics,” alleging they have violated the rights of protesters to exercise free expression and assembly, be free from unreasonable search and seizure and receive due process.
The attorney general and her lawyers referenced two incidents last week by men in camouflage fatigues who stopped 29-year-old Michael Pettibone on a downtown street about 2 a.m. on July 15, placed him in an unmarked van and took him to the federal courthouse for questioning. Another person was shown the next day on a widely circulated social media video being led away to an unmarked dark van by men in camouflage, later identified as Border Patrol officers.
The suit was filed against the U.S. Marshals Service and the Federal Protective Service.
The judge determined for the purposes of a court hearing held Wednesday on the suit that Pettibone’s stop was likely done without probable cause, but that he had little information about the unidentified man in the video.
On Twitter last week, Mark Morgan, a senior official with U.S. Customs and Border Protection, referred to a person in a video and said Border Patrol officers “moved the suspect to a safer location'' for questioning to avoid a “large and violent mob,” suspecting he had previously assaulted a federal officer or destroyed federal property. Morgan provided no further information about the encounter.
Mosman said in his ruling that “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. In both instances of a federal seizure it is either admitted or clearly visible that the agents’ uniforms say ‘Police.‘”
Beyond the two examples, the state failed to show that the federal officers were involved in any widespread, unlawful practice or that others would be harmed in the future, Mosman found.
“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,” the judge wrote. “Despite the broad language in the complaint, Oregon has shown — at most — that this type of seizure has happened twice.”
State Attorney General Ellen Rosenblum said she was disappointed by the decision but remains hopeful that federal officers will alter their tactics.
“I believe all Oregonians have a right to know which federal law enforcement agencies are policing our streets, and why they are detaining peaceful protesters,” she said in a statement. “While today the court declined to issue an immediate order putting a stop to those tactics, we are, nevertheless, hopeful these abuses will stop and no other Oregonians will be subject to them or to the chilling effect they have on the right to engage in peaceful protest.”
Rosenblum was particularly disturbed by the finding that the state didn’t have standing in the case.
“While I respect Judge Mosman, I would ask this question: If the state of Oregon does not have standing to prevent this unconstitutional conduct by unidentified federal agents running roughshod over her citizens, who does? Individuals mistreated by these federal agents can sue for damages, but they can’t get a judge to restrain this unlawful conduct more generally. Today’s ruling suggests that there may be no recourse on behalf of our state, and if so that is extremely troubling.”
Attorney Sheila Potter, deputy chief trial counsel in the Attorney General’s Office, had argued that secretive maneuvers by federal officers make other protesters fear they’ll be grabbed off the city’s streets. They create a chilling effect on free speech and assembly and could cause people masquerading as federal agents to spirit people away, she said.
But Mosman wasn’t convinced, calling the state’s suggestion that seizures by law enforcement could lead to kidnappings by private parties “a bridge too far.”
“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,” he wrote. “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.”
David M. Morrell, a U.S. Department of Justice attorney, had argued that the state didn’t have standing to sue the federal government and failed to prove that the detention of Pettibone or the person captured on video was unlawful.
He urged the judge to use caution and not direct how police should do their jobs. What the state was seeking could curtail investigatory stops by officers, known as Terry stops, which are based on a different legal standard of “reasonable suspicion” rather than probable cause and are a lawful investigatory tool, he said.
Attorneys for the state also had asked the judge to require federal officers to verbally identify themselves and explain who they are and why they’re stopping someone.
But Mosman wrote: “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.”
His denial of a temporary restraining order followed a decision a day earlier by another federal judge in Portland, U.S. District Judge Michael H. Simon, who granted the American Civil Liberties Union of Oregon a temporary restraining order that exempts professional and certified journalists from federal officers’ orders to disperse during crowd control disturbances. The order lasts 14 days.
Jann Carson, interim executive director of the ACLU of Oregon, was dismayed by Mosman’s decision but vowed to keep the pressure on the federal forces.
“While the decision in the state’s lawsuit is disappointing, federal agents should not for a minute think their unconstitutional actions will go unanswered,” she said in a statement. “The ACLU will be in court again to hold federal agents accountable for their unconstitutional attacks on the right to protest.”
-- Maxine Bernstein
Email at mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
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