Oregon lost a fight with the Trump administration over federal agents’ detention of anti-racism protesters in Portland, as the president takes on Democratic-run states and cities in the run-up to the election. Oregon Attorney General Ellen Rosenblum had asked a federal judge to stop Department of Homeland Security agents and US Marshals from detaining or arresting people without identifying themselves and without probable cause, a warrant or any explanation.
US District Judge Michael Mosman on Friday denied the temporary restraining order she sought, saying the state had failed to prove it had any business suing the US in the first place. Oregon had to show it had standing to sue on behalf of the protesters, defending people who can’t protect themselves, he wrote, and hadn’t.
The ruling probably means the end of the lawsuit and could make it harder for local officials elsewhere to resist deployments of federal agents, said Stanford Law School professor David Sklansky.
It “could help persuade a federal district court in another state that it made sense to do what the Oregon federal court did,” Sklansky said.
Protesters could still bring their own suits, as a group of journalists in Portland did — in that case winning a temporary restraining order against the US.
Kristina Edmunson, a spokeswoman for Attorney General Rosenblum, declined to comment on any plans for an appeal.
The White House referred a request for comment on the ruling to the Department of Homeland Security. DHS and the Justice Department didn’t immediately respond to an email sent and a call made after regular business hours.
The decision is a victory for President Donald Trump, who deployed the agents amid the sometimes violent protests in Portland, part of a nationwide outcry following the death of George Floyd. Trump warned he would send federal officers to Chicago and other cities as well, drawing criticism from local officials, Democrats, civil libertarians and others. Amid poor re-election polling, the president and his allies have seized on the protests to paint Democratic-controlled cities as letting “anarchists” and criminals run wild, even though the vast majority of protests around the country have been peaceful.
Seattle is shaping up to be the next battleground. U.S. Attorney Brian Moran said in a statement on Friday that U.S. agents being sent to the city “are here to protect federal properties and the important work” that occurs there. Last weekend, he added, “the Nakamura Federal Courthouse was broken into, a smoke bomb and an American flag were burned, and the building was tagged with graffiti inside and out.”
Sheila Potter, an attorney for Oregon, argued at a hearing on Wednesday that federal agents were grabbing people in Portland and marching them into unmarked vans.
“That is terrifying,” she told the judge, and part of a deliberate effort to deter people from protesting, denying them both their First Amendment right to free speech and assembly and their Fourth Amendment protections against unlawful seizure.
But she stumbled when she proposed that the conduct could lead to kidnappings by counterprotesters posing as police.
“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 judge wrote.
The judge stopped short of voicing wholesale approval of the federal agents’ tactics. He noted that the government had no response to a protester who claimed he was detained while walking home on July 15 after peacefully participating in a Black Lives Matter demonstration.
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