Standing up to Trump’s secret police
Will governors side with state residents or Trump’s paramilitary secret police?
As is my routine, yesterday morning I opened up Twitter expecting to see the usual lineup of outrages from the Trump administration. But something was different yesterday. What I saw made my blood run cold.
I’m referring to the federal paramilitary forces deployed to Portland, cruising the streets looking for people who appear to be protesters so they can arrest them.
Arrest, though, might be too kind a word. In an era when police overreach has been amply documented, the video of these masked stormtroopers taking away 29-year old Mark Pettibone was downright terrifying. For a moment, I had a hard time believing I was watching a video from an American city. It seemed more like something from a movie about Chile where the Pinochet regime “disappeared” critics of the government. Or maybe, it was more like something from the Handmaid’s Tale.
Last night, Clay Rivers and I were messaging back and forth bemoaning the state of our country when he asked me where the protesters were taken to. That’s a legitimate question. It turns out that the protesters, according to Pettibone, were taken into the Federal courthouse. But the fact that Clay had to ask is terrifying. In Chile, administration critics were grabbed by government paramilitary forces only to be dropped from helicopters into the ocean. I would have never expected to be concerned about that happening in our country, but now, who knows?
The policy of patrolling streets looking for peaceful civilians to arrest comes from the top, apparently. Acting Secretary of Homeland Security Chad Wolf, a political appointee who has not been confirmed by the Senate and who has no law enforcement background, was in Portland overseeing the operation. According to Wolf’s Deputy, Ken Cuccinelli, this operation is just the first step. Apparently federal paramilitary secret police are coming to a neighborhood near you.
It’s particularly ironic that some conservatives have defended the actions of these federal secret police. These are the same people who defend the Confederacy, saying it was defending “states’ rights.” Well, here is an example of states’ rights being trampled upon, and conservatives say nothing. I guess I should no longer be surprised by the hypocrisy of the right.
The way these federal secret police behave is particularly disturbing. The federal government can certainly deploy its police forces to protect federal facilities in the various states. But these forces were patrolling the streets far from any federal facility, using unmarked rented minivans and failing to identify themselves. There is no way to know that they are really federal sworn officers or just right-wing paramilitary groups looking for peaceful protesters to harass. They could be just like those armed camo-clad protesters who occupied Michigan’s state capital in Lansing recently. In fact, that is just a distinction without a difference at this point.
The good news is that state officials have taken action. Oregon’s Congressional delegation responded forcefully with a strongly worded letter. Portland’s mayor and Oregon’s governor asked federal forces to leave the state. And the Attorney General filed a lawsuit that might get a hearing… sometime.
If you are nonplussed by these actions, I would imagine that Donald Trump and Chad Wolf are as well.
We seem to be forgetting, however, that we live in a federal system. What that means is that the federal government, according to our Constitution, is a government with limited powers. According to the Constitution, power comes from the people to the states, which delegate certain authority to the federal government. That authority is limited to two areas: national defense and commerce. The states have retained authority over all other areas.
The states, in other words, are separate sovereigns. All Americans, as a result, are citizens of two countries: the United States and their individual state. Don’t believe me? Consider that the jurisdiction of federal courts is based upon “diversity of citizenship.” The states don’t act through the federal government, as regional governments do in most countries, and indeed as municipalities do in each state. The states have their own separate powers over which the federal government has no control.
That’s why we file taxes to two governments each year, and why we have two sets of police forces, prisons, and courts. The federal government enforces its laws against its citizens, and the states enforce their laws against their citizens. The fact that Americans are citizens of both is a moot point.
I would argue, therefore, that the state governments, Oregon’s for now at least, have an obligation to protect their citizens from federal overreach. A civil lawsuit, a letter or a tweet, no matter how strongly worded, is not an appropriate response.
Instead, the states need to use their own police powers to enforce their own laws. Consider the fact that Oregon has a kidnapping statute, which makes it a crime “if, with intent to interfere substantially with another’s personal liberty, and without consent or legal authority, the person: (a)Takes the person from one place to another; or (b)Secretly confines the person in a place where the person is not likely to be found.”
This sounds exactly like what the federal secret police did to Mark Pettibone. After all, they intended to interfere substantially with his liberty, they did not have consent, they took him from one place to another, and they secretly confined him in a place where he was not likely to be found.
Consider his description of the kidnapping to Oregon Public Radio. “I am basically tossed into the van,” Pettibone said. “And I had my beanie pulled over my face so I couldn’t see and they held my hands over my head.” They did not identify themselves despite repeated requests. They were not driving marked vehicles or wearing police uniforms. They did not tell him why he was being arrested. How is this different from what a drug cartel would do in seizing one of its enemies?
DHS and its supporters, of course, will argue that the secret police had “legal authority” to detain Pettibone. And indeed, the Supreme Court in Terry v. Ohio gave police pretty broad discretion to briefly detain, question and search individuals when the police officer can point to “specific and articulable facts which, taken together with rational inferences from those facts,” would lead a neutral magistrate on review to conclude that a man of reasonable caution would be warranted in believing that possible criminal behavior was at hand and that both an investigative stop and a “frisk” was required. This case is the basis for the now largely discredited “stop and frisk” policy that had been implemented in New York City and elsewhere.
What the federal secret police in Pettibone’s case did, however, goes far beyond what is allowed under Terry. Remember that the 4th Amendment to the Constitution protects us from “unreasonable search and seizure.” As a result, while the Supreme Court has allowed police to briefly detain, question and even search suspects when they have a reasonable basis to do so, this is not what happened with Pettibone.
First, he was for all intents and purposes arrested. He was not momentarily detained. He was taken to a different location and read his Miranda rights. That is much more than a simple stop and frisk. For such stops, according to Davis v. Mississippi the higher standard of probable cause is required. Secondly, they did not even have a reasonable basis to stop him. An individual’s appearance (per United States v. Brignoni-Ponce) or their location (per Brown v. Texas) cannot be a basis to detain someone. By all accounts, Pettibone’s clothing and his presence in the area of the protests were the only basis for his arrest. Under settled Supreme Court precedent, those factors do not give the officers “legal authority” to arrest him.
Second degree kidnapping is a class B felony in Oregon, a very serious crime. Class B felonies are punishable by as many as ten years in prison, a fine of up to $250,000, or both. For the state to protect its citizens, it needs to do more than sue the federal government. Instead, it needs to arrest the officers involved in the stop, as well as any federal officials overseeing the action, up to and including Chad Wolf. This is the basic requirement of the state to protect its sovereignty.
What’s more is that going forward, state and local police need to be as vigilant for the kidnapping of state residents as they are for the unlawful actions of protesters. If local and state police spot an unmarked minivan carrying paramilitary secret police and an unarmed, peaceful citizen who had violated no law, they need to stop the vehicle and arrest the federal secret police officers for kidnapping.
Just imagine a slightly different set of facts, that this “arrest” was undertaken by armed civilians of the kind who recently occupied Michigan’s capital. The state would immediately arrest these individuals and bring kidnapping charges against all involved. Although police are allowed some discretion, they are not allowed unlimited discretion, and in this case, the federal officers clearly overstepped their bounds.
The Nazi regime in Germany did not happen overnight. It occurred bit by bit as one norm after another was violated. If we become immune to such violations of our constitutional order, then what will stop paramilitary groups, whether they be sworn officers or not, from terrorizing us in our communities? This is no longer a theoretical danger.
The only question now is whether the state will do more than vocally protest the illegal actions of the federal secret police. We must all urge Oregon to take decisive action. If they don’t, we can expect to see similar paramilitary secret police across the country in the near future.