Deployment of federal officers violates the Tenth Amendment, chills the legal right to protest, alleges lawsuit.
Federal agents arrest a demonstrator during a Black Lives Matter protest at the Mark O. Hatfield United States Courthouse in Portland, Oregon, on July 29, 2020. (AP Photo/Marcio Jose Sanchez)
In response to violent encounters in Portland, Oregon, between federal law enforcement sent in by the Trump administration and protesters supporting the Movement for Black Lives, First Unitarian Church of Portland joined a federal lawsuit on July 21 alleging that the presence of the federal agents has chilled the congregation’s lawful right and spiritual call to protest.
The lawsuit alleges that the federal government exceeded its authority to protect federal property when, without arrest warrants, federal officers began to “pluck Portlanders off the streets, stuff them into vans, secret them to unknown locations, and release them—merely for walking home or protesting peacefully, and away from federal property.” It asserts that the federal agents were deployed in violation of the Tenth Amendment to the U.S. Constitution, which states that any power not specifically granted to the federal government belongs to the states.
The lead plaintiff is Western States Center, which works to pursue racial, gender, and economic justice and is one of First Unitarian’s community justice partners; other plaintiffs include an ACLU legal observer and two Oregon state representatives. First Unitarian was approached by Western States Center to be a plaintiff due to its ongoing witness of the protests for Black lives and transformation of Portland policing, said the Rev. Bill Sinkford, senior minister. “We believe the lawsuit falls squarely within our church mission to act for social justice,” he wrote in a July 21 email to the congregation.
“There is a long tradition of public witness and advocacy that is central to the story of First Unitarian,” Sinkford told UU World. “The opportunity to be a part of this lawsuit gives us the chance to extend and live out that tradition in these days. When the federal forces extended well beyond the confines of the federal building, dragged people into unmarked cars, showed up without their names on their camouflage uniforms, it’s my belief they significantly violated the separation of powers enshrined in the Constitution. After the violence increased as a result of the federal presence, our folks were discouraged from exercising their constitutionally guaranteed First Amendment rights. Those rights were chilled because [protesting] was seen as too dangerous by many, so I think we have good standing to take part [in the suit].”
As in thousands of communities throughout the country, protests in Portland began in response to the May 25 homicide of George Floyd, a Black man, by a white police officer in Minneapolis. Portland protesters have gathered for more than sixty consecutive nights outside the Mark O. Hatfield United States Courthouse in downtown Portland to protest police violence and racism, with a focus on the Portland Police Bureau. After Trump issued an executive order to protect statues and federal buildings, the Department of Homeland Security sent more than 100 militarized officers to Portland over the weekend of July 4. Their aggressive tactics drew national attention; among other incidents, many of which were captured on video, federal agents shot in the side of the face a protester whose hands were above his head, beat a Navy veteran with a baton even though he stood still, and snatched protesters into unmarked vans.
In response, more people joined the protests, including military veterans and a group of mothers who call themselves the Wall of Moms. Oregon’s governor, both U.S. senators, the Oregon attorney general, and others argue the feds have inflamed the situation and have demanded that they leave, and the ACLU and others have filed lawsuits, too.
On July 29, Governor Kate Brown said the federal agents would begin withdrawing from the city as early as July 30, with Oregon State Police taking over to protect the courthouse. But Chad F. Wolf, the acting secretary of the Department of Homeland Security, said the feds will remain in Portland until they feel assured that federal facilities won’t be attacked, according to the New York Times. And on July 30, President Trump called Portland a “beehive of terrorists” and threatened to send in the National Guard if the governor and mayor didn’t clear out the protesters within two days.
Even if the federal agents leave, the Western States Center lawsuit will proceed, said Sinkford, “because we want to get on record a court’s finding both that the federal presence made the violence and the confrontations worse,” and also because they seek to have the lawsuit’s Tenth Amendment argument validated by the court.
“It may be that our current president may have enough misleading video clips from Portland for his first election commercials, but he’s going to be wanting more,” said Sinkford. “To the extent that these troops are put into other communities—and it appears that that is going to happen—those communities are going to need arguments and resources to bolster their resistance as well.” (On July 22, Trump announced he was sending federal law enforcement to Chicago and Albuquerque in order to fight crime; Chicago’s mayor called the move a “political stunt.”)
On July 29, the Western States Center plaintiffs took the more urgent action of filing for a temporary restraining order, looking for faster action from the court. “We’ve been documenting that the federal agents continue to be operating outside of any clearly defensible area around the federal buildings,” said Dana Buhl, First Unitarian’s Social Justice director. “The abduction of people and all of the various tactics they’ve been using radically increase the concern and alarm for all of us who are protesting.”
Given the “shock-and-awe” tactics of the federal agents, Buhl said she and others at First Unitarian are worried that if they continue to exercise their “deeply held religious beliefs” through protesting, they will be targeted by federal surveillance, seriously injured, or abducted. (To maintain the safety and security of congregation members who have participated in the protests, Buhl declined to say how many have joined in.)
Buhl said it’s important to note that while the lawsuit is aimed at federal law enforcement, protests in Portland began in May against the Portland Police Bureau. “The eruption of protests against Portland police is rooted in the Portland Police Bureau’s ongoing, disproportionate violent treatment of Black and Brown, but primarily Black, residents,” including a number of Black Portlanders killed by police in recent years, said Buhl.
“The federal militarized law enforcement on our streets is really just an exacerbation of the militarized response our local police have had to the protests for Black lives, which we have been facing for two months,” Buhl said. “For African American and Black community members here in Portland and across the country, the level of police brutality exacted on them in particular is not going away just because the feds leave.”
Buhl dismissed claims by some that federal police are needed to protect Portland from violence. “They need to spend some time down at the protest to see the incredible community support and mutual care that has developed,” Buhl said. “While there may be differences in end goals and tactics of various protesters, overall what we’re seeing is that people are showing up because they believe we must do better, and we believe that Black Lives Matter.”
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Elaine McArdle is a UU World senior editor and a member of First Unitarian Church in Portland, Oregon. An award-winning journalist with more than 20 years of experience, she has also written for the Boston Globe, Harvard Law Bulletin, and others.
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