Here's Why Cities Won't Be Able to Stop Trump's Secret Police

While Trump's tactics against protesters may be brazenly unconstitutional, legal scholars say they’ll be very hard for mayors and governors to stop.
July 22, 2020, 3:46pm
A federal officer pepper sprays a protester in front of the Mark O. Hatfield U.S. Courthouse on July 20, 2020 in Portland, Oregon.

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Chicago Mayor Lori Lightfoot warned Tuesday that while she welcomes a “partnership” with federal law enforcement, “we do not welcome dictatorship, we do not welcome authoritarianism, and we do not welcome unconstitutional arrest and detainment of our residents.”

But while President Trump threatens a national surge of federal forces dubbed "Operation Legend," experts say there’s little local officials can do to stop the feds from turning more U.S. cities into Portland, where unidentified federal agents in fatigues have beaten and fired projectiles at BLM protesters and even snatched them off the streets in unmarked cars.

While some of Trump’s “secret police” tactics against protesters may be brazenly unconstitutional, legal scholars said they’ll be very hard for mayors and governors to stop, thanks to the vast authority Trump enjoys to protect federal property.

“It will be difficult for state officials to stop them, because federal authority is about more than just protecting federal monuments and bridges,” said Jens David Ohlin, vice dean of Cornell Law School. “It’s also about investigating and enforcing federal offenses, which can occur anywhere.”

Trump’s musings about sending federal agents to Chicago, Philadelphia, Detroit, Baltimore and Oakland now set the stage for a titanic legal clash over the limits of presidential power — in which Trump enjoys some distinct advantages, legal experts said.

And that courtroom rumble will play out against a presidential election cycle in which Trump is making “law & order” a core part of his campaign, while darkly warning that Americans will be unsafe in their homes if he loses.

“Based on the news reports that I’ve seen, there are pretty clear violations of the Fourth Amendment,” which bars arrests without probable cause, said Steven Schwinn, a Constitutional scholar at John Marshall Law School in Chicago. “But it’s still going to be difficult to find a judicial remedy.”

Oregon fights back

The state of Oregon fired an opening salvo on Friday by hitting Trump’s agencies with a lawsuit, and demanding a judge issue an order that stops the unorthodox detentions.

The complaint accuses Trump’s minions of violating the Fourth Amendment’s prohibition against arbitrary arrest, First Amendment rights to free speech, and Fifth Amendment rights to “due process of law.”

The state attached a sworn affidavit from a protester named Mark Pettibone, who recounts being pulled off the street at 2 a.m. by men in fatigues with generic “police” patches driving a random-looking minivan. At first, Pettibone said he had no idea whether he was being arrested by law enforcement officers or harassed by militia vigilantes. He was whisked to the local courthouse, questioned and released.

“No one told me why I had been detained, provided me with any record of an arrest, or explained what probable cause they had to detain me,” Pettibone stated.

Flagrantly arbitrary arrests represent a violation of the Fourth Amendment, legal scholars said.

“It is a core tenet of Fourth Amendment law that officers cannot arrest people unless they have probable cause to believe they committed a crime.”

“It is a core tenet of Fourth Amendment law that officers cannot arrest people unless they have probable cause to believe they committed a crime,” said Miriam Baer, a professor at Brooklyn Law School. “If the Fourth Amendment means anything, it means that federal officials can’t storm a city and scoop people off the streets in order to quell peaceful, lawful protest.”

Oregon could succeed in convincing a federal judge to slap an order on Trump’s agents demanding they act more carefully. But there are limits to what the courts can do — because the federal government packs a very powerful punch in this dispute.

Presidential power

As a result, the legal wrangling might boil down to a question of how many blocks away from federal property the feds can operate.

“A federal judge could order federal officers not to violate the First or Fourth Amendment, but they do have authority to protect federal property and federal personnel,” said Schwinn. “To the extent they’re engaged in that activity, that is lawful. So drafting an order to stop them gets tricky.”

And there simply aren’t federal rules that would force them to wear identifying badges, or drive official-looking cars, legal experts say.

“As a legal matter, federal law enforcement officers do not have an affirmative to disclose either their identities or their agencies of affiliation,” said Mark Nevitt, a professor of military ethics and law at the United States Naval Academy, adding: “I do not see a plausible scenario where the federal law enforcement agencies are required to leave absent a rapid change in facts.”

Even if a judge orders federal agents to immediately stop their cloak & dagger approach, Trump may still be able to work around such an order, legal experts said. His administration has proved expert in slow-walking the judicial system and fighting rulings it doesn’t like.

“I absolutely believe the administration would bulldoze over such an order, although they’d do it in a way that has the trimmings of legality,” Scwhinn said. “It’s disheartening to me to see how the Trump administration has figured out how to play the legal and political system in a way that gets to these kinds of crazy results — but they have.”

Cover: A federal officer pepper sprays a protester in front of the Mark O. Hatfield U.S. Courthouse on July 20, 2020 in Portland, Oregon. (Nathan Howard/Getty Images)

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This article originally appeared on VICE US.