Cities Sue the Trump Administration Over Federal Agents in Portland
With fears swirling about deployments of federal officers around the election, cities are challenging past actions as illegal and unconstitutional.
In the months since camouflage-clad federal agents appeared in Portland, Oregon, during racial justice protests, President Donald Trump has reiterated his commitment to send more federal agents to cities in a number of different contexts. He has pledged to send federal agents in communities “plagued by crime” and to cities “run by liberal Democrats,” and hinted that he could even deploy them to polling places around the election.
A new lawsuit filed by the cities of Oakland, California, and Portland questions the legal justification for these deployments, alleging that they are both a violation of federal law and unconstitutional.
“The use of federal agents on the streets of Portland appeared to be a precursor for unknown future events, whether related to the election or beyond,” said Jonathan Miller, the legal director for the Public Rights Project, a nonprofit serving as co-counsel in the lawsuit. “The administration needs to be held accountable for trying to expand its authority beyond what’s a reasonable scope.”
Miller said the suit aims to curtail future deployments of federal agents and other personnel. Although Portland has already been swarmed by federal officers, Oakland was one of several cities targeted by President Trump in late July in comments about cities “run by liberal Democrats” that could see similar actions. The city “cannot rest easy” in light of these threats, Oakland City Attorney Barbara J. Parker said in a statement. With policies in place that allow for sending in federal troops with little transparency and a lack of consent by cities, “we cannot know whether similar actions will occur here,” she wrote.
The legal challenge, filed in federal court, argues that the U.S. Department of Homeland Security and the Department of Justice exceeded their authority under federal statutes when they deployed officers. It also argues that deputizing local police officers, as the government did this September in Portland, is a violation of the Tenth Amendment’s restriction on commandeering local law enforcement.
“Portland hopes to vindicate the right of local elected officials and local police agencies to determine how their communities are policed in response to public demonstrations,” Jim Middaugh, the director of communications for the City of Portland, said in a statement. “There is no place in our American constitutional system for the federal government to insert itself into Portland’s decisions about how local police respond to public demonstrations on our city streets.”
A DHS representative said in response to the lawsuit that the department acted lawfully and that the lawsuit aims to distract from from President Trump’s “law and order agenda.” “Instead of condemning the violence we are seeing across the country, these politicians focus on scoring cheap political points to the detriment of the American people,” the spokesman said in a statement. DOJ did not respond to a request for comment.
The complaint takes two recent types of federal intervention as its subjects. The first is the deployment of federal officers in cities. This summer, acting U.S. Department of Homeland Security Secretary Chad Wolf, who is named as a defendant in the lawsuit, ordered federal officers to deploy to Portland with the ostensible purpose of quelling civil unrest that had been simmering for weeks with spurts of violence. The agents — some of whom were specially trained for tactical raids on drug smugglers and border surveillance in places like Iraq and Afghanistan — instead drew alarm and criticism that they were making things worse, with highly controversial actions such as snatching individuals off the streets into unmarked minivans.
The Trump administration justified these deployments as protecting monuments in the city, citing a June executive order that expanded federal authority to protect federal property against damage. But the lawsuit questions the legality of this executive order. It also argues that this stated justification was a mere pretext for intervening in the protests against police brutality and racism, citing several actions that it deems outside the property-protection mission: Agents patrolled far outside the bounds of federal properties during the weeks they spent in Portland, read protesters’ text messages, and built a fence on city property around the federal courthouse “that encroaches on the City’s right of way.”
"President Trump and Defendants have repeatedly made public comments revealing that the officially stated goal of operations such as those in Portland is not protecting federal property,” the lawsuit states. “Instead, their statements suggest that the animating and invidious purpose for these actions … is to punish progressive cities and leaders and violently quell the exercise of constitutionally protected activity.”
The plaintiffs also cite internal memos indicating that DHS is prepared to allow widespread surveillance in response to “threats to any public monument, memorial, or statue.”
By the end of July, the Department of Homeland Security withdrew federal troops from Portland as part of a settlement negotiated by Oregon Governor Kate Brown. Yet the administration has continued to play a role in local enforcement, which is an additional subject of the cities’ suit.
When the Proud Boys, a far-right extremist group, announced its intent to hold a rally in Portland on Sept. 25, Brown issued a State of Emergency declaration that allowed the federal government to “deputize” 56 Portland Police Bureau officers, giving local officers the power to enforce certain federal laws. After the rally ended — having drawn fewer attendees and creating less disturbance than was feared — Portland City Attorney Tracy Reeve withdrew the city’s consent for this deputation. But the U.S. Attorney for the District of Oregon has refused to end the designation, which is ongoing. This usurps the city’s police powers, the complaint asserts.
“One of the bedrock principles of federalism is that police powers are reserved to the states and delegated typically to the cities,” said LiJia Gong, the Public Rights Project’s counsel. “All of our partners are very concerned about this massive overreach into powers that are constitutionally protected and have traditionally been held by local communities.”
Crimes against deputized officers can also be prosecuted at the federal level, said Gong, conferring a degree of protection that could embolden their actions. In Portland, the overreach has affected local matters beyond rallies and protests themselves.
“Federal deputation is causing concern and confusion among some community members about who is in control of the local police,” Middaugh stated. “For the city to have an effective dialogue with the community about police reform, it has to be clear to the public that local elected officials have the power and authority to determine how local police will operate, without uninvited federal interference.”
With the presidential election just weeks away, voting experts and city officials fear more deployments and deputations would heighten voter intimidation and fears, and elicit further conflict. In August, Trump called for deploying law enforcement officials to watch polls on Election Day, citing a baseless concern about voter fraud that he has often repeated.
Because of the unpredictable nature of past deployments, and the administration’s refusal to end its ongoing deputation in Portland, Gong says the cities are concerned about “another deployment like the one we saw in July to Portland in and around the election.”
A number of other lawsuits were also filed in connection to this summer’s federal troop activity in Portland, including one by the Oregon attorney general over “unlawful detentions” of protesters and others by protesters and journalists for alleged civil rights violations.
Middaugh says the Trump administration’s deployments fit into a broader pattern of federal overreach in local communities, from the census count to immigration. “The case filed with Oakland and the Public Rights Project challenges the starkest example of the federal government illegally imposing its over-reaching policies onto the streets of Portland in violation of local community values and needs,” he said.