President Donald Trump has said he wants authorities to “dominate” cities such as Portland, where nightly demonstrations have continued unabated over nearly two months since the police killing of George Floyd.
In Oregon, that has meant dozens of unidentified and camouflaged federal officers from a slew of agencies roaming the streets in unmarked vehicles, snatching protesters for interrogation, and firing tear gas and pellets into crowds of protesters. Despite the objections of state and local officials, not to mention lawsuits filed against the administration, the Department of Homeland Security has refused to pull back. (In a separate but equally controversial initiative, Trump on Wednesday evening defended plans to dispatch federal agents to combat violent crime in cities such as Chicago where “radical left Democrats” are in charge.)
From its inception straight through to its heavy-handed and widely condemned implementation, Trump’s crackdown on protesters has flouted well-established constitutional protections. Just how improper it is should have been clear from the executive order that underpins it. It might not be the quickest way to challenge Trump’s authoritarian crackdown, but anyone with constitutional standing to sue the Trump administration—one of the many people rounded up or injured in Portland, for example—would have a strong case.
Boiled down, the executive order asserts that the president, as the chief federal law enforcement officer, has decided that it is “the policy of the United States to prosecute to the fullest extent permitted under Federal law” any individual who vandalizes government property, incites violence in connection with riots, or “destroys religious property.” Trump’s constitutional power to execute existing laws is not in dispute. Presidents—like governors and attorneys general—can pick and choose which kinds of crimes to enforce and prosecute. When Rudy Giuliani was mayor of New York 20 years ago, he picked on minor offenses like subway stowaways and graffiti as a catalyst for cleaning up the much more serious crime problems in the city. So if Trump wants to protect statues of dead white men, that’s his prerogative.
But Trump‘s executive order goes much further and betrays its malign intent.
“Many of the rioters, arsonists, and left-wing extremists who have carried out and supported these acts have explicitly identified themselves with ideologies—such as Marxism—that call for the destruction of the United States system of government. Anarchists and left-wing extremists have sought to advance a fringe ideology that paints the United States of America as fundamentally unjust and have sought to impose that ideology on Americans through violence and mob intimidation.“ The order further charges that their “selection of targets reveals a deep ignorance of our history, and is indicative of a desire to indiscriminately destroy anything that honors our past and to erase from the public mind any suggestion that our past may be worth honoring, cherishing, remembering, or understanding.” There’s more, but you get the point.
The First Amendment’s free speech clause vigorously protects speech that is targeted for its content or point of view. The framers did not want government singling out certain people for punishment based on what they say. The Supreme Court has thus consistently rejected laws that put prior restraints on speech—i.e., government proclamations that stop speech from occurring in the first place. Trump’s executive order targets speech for its viewpoint, threatening federal action against protesters with perceived “left-wing” ideologies before they’ve even spoken.
In the wake of 9/11, former Attorney General John Ashcroft and then-FBI Director Robert Mueller were sued for allegedly imposing a top-down discriminatory policy against Muslims, rounding them up because of their race, religion and national origin. The Supreme Court threw the lawsuit out on the grounds that there was no reason to believe Ashcroft and Mueller acted with discriminatory intent rather than out of a legitimate desire to protect the public from further terrorist attacks. But Trump’s executive order says the illegal stuff out loud. His unconstitutional motive—targeting people for their viewpoint—is crystal clear.
The federal government’s enforcement of Trump’s order in Portland has been no less constitutionally flawed.
Trump’s attacks on protesters—which began with the tear-gassing of demonstrators in Lafayette Square in Washington so he could march to a historic church for a photo op holding a Bible—plainly violate at least two provisions of the U.S. Constitution: the First and Fourth amendments.
Again, the First Amendment protects against government infringements on “freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Although this area of the law is complex, suffice it to say that Trump’s intimidation of peaceful protesters infringes on the ability to peaceably assemble, because—as Portland moms showed in holding up their hands and chanting, “Hands Up, Please Don’t Shoot Me”—if people fear possible government violence for protesting, they might stay home. The fear itself squelches the ability to freely assemble. Couple that with the lack of insignia and identifying badges among Trump’s police force, a tactic that began at Lafayette Square, protesters are left unable to reasonably enforce their First Amendment rights in court. You can’t well sue someone if you don’t even know who they are.
The Trump administration’s actions in support of the executive order are also offensive to the Constitution’s Fourth Amendment (among other provisions). In Portland, a 26-year old man was videotaped being shot by federal officers with an impact weapon while he stood outside a federal courthouse. The man wound up with skull fractures that required brain surgery. Others were pulled off the streets by camouflaged agents in unmarked vans, hoods thrown over their heads, and charged with crimes simply for walking home from a protest.
For its part, the Fourth Amendment bans unreasonable searches and seizures, including seizures of a person—also known as kidnapping (if performed by a civilian). It also requires “probable cause” (that is, a reasonable basis) for believing that a crime may have been committed before police can make an arrest. Taking people off the streets for being part of a protest and transporting them to a detention facility against their will is illegal and unconstitutional because demonstrating—without more information indicating commission of a crime—does not give rise to probable cause. (Nor does it justify probable cause for a judge to issue an arrest warrant.)
But even if Trump’s federal agents had jurisdiction over offenses that traditionally fall to state and local police (which is a big “if” here, to the extent these victims were on state and local property and nobody crossed state lines), and even if there is probable cause to believe in a particular case that a demonstrator hypothetically committed a nonviolent offense like jaywalking that might justify an arrest under state or local law, there is no legal or constitutional justification whatsoever for physical violence under these scenarios. The Fourth Amendment’s touchstone is reasonableness. Fracturing someone’s skull for standing on a sidewalk is not reasonable. Indeed, the Supreme Court has held that police cannot use deadly force even on a fleeing felon unless the suspect poses a substantial risk of serious physical harm.
What are the legal consequences for Trump’s troubling policy? Oregon’s attorney general has already filed a lawsuit against the federal government. There are at least two other pending cases thus far. But the federal judge assigned to Oregon’s case seemed doubtful at a hearing Wednesday that an injunction directing officers to identify themselves would lessen any chilling effect on speech.
Detained protesters could alternatively file civil lawsuits for money damages arising from allegedly improper arrests, or they could cite the Constitution in defense to any criminal charges brought against them. (The same judge did say that one protester, Mark Pettibone, who was grabbed off the street by an officer in camouflage, appeared to have been illegally detained.)
Alternatively, Congress could pass a law amending the power of the various federal agencies Trump is using to carry out the order. Agencies exist, after all, at the behest of Congress. Or lawmakers could starve the guilty agencies of funding, but those options, even assuming Republicans were willing to stand up to the president, won’t stop the violations now.
From religious freedom to Obamacare, conservatives have long been especially hawkish about government overreach that could block the expression of unpopular ideas. It is happening here too, and both sides of the political aisle should be sounding the alarm.