Oakland, CA—Late yesterday, the cities of Portland and Oakland, represented by co-counsel at Public Rights Project, filed a lawsuit challenging the Trump Administration’s new policy and practice of unlawfully deploying federal law enforcement under the guise of protecting federal property. The purpose of this new policy and practice is to control, or overtake, progressive cities’ responses to protests. These federal actions lack legal authority and jeopardize cities’ efforts to promote racial justice and protect the health, safety, and welfare of their residents.
After the tragic killing of George Floyd by Minneapolis police in May, people across the nation protested to advocate for police reform and racial justice. Through evaluations of their policies, examining funding, new race equity efforts, community engagement, and other efforts, Portland and Oakland have worked to stand with their residents in this call for police reform, because public safety and thriving communities are built on a foundation of trust with law enforcement. Portland and Oakland have sought to protect public safety and support the exercise of First Amendment rights by their residents.
The Parties are bringing this new lawsuit to challenge a policy and practice that directly contravene—and harm—cities’ efforts to engage in the critical work of racial justice and police reform, and purport to allow the federal government to engage in virtually boundless policing in the nation’s cities. The policy and practice were animated, at least in part, by the Executive Order that President Trump signed on June 26, an Order aimed at punishing state and local governments that had, in his view, “lost the ability to distinguish between the lawful exercise of rights to free speech and assembly and unvarnished vandalism,” or “failed to protect public monuments, memorials, and statues.”
Under the new policy, in early July, the Trump Administration deployed unmarked federal law enforcement agents to the streets of Portland as part of “Operation Diligent Valor” without the city’s knowledge or consent. These federal forces included members of the U.S. Customs and Border Patrol’s paramilitary BORTAC Tactical Unit. The federal agents used tactics and munitions that significantly escalated violence and reduced public trust in public safety efforts. As the lawsuit explains, the federal agents’ actions exceeded their authority under the law. In addition, although the alleged purpose of the deployment was to protect federal property, under the new policy, federal agents patrolled and detained individuals far beyond the immediate vicinity of federal property.
“The call for police reform and racial justice is urgent,” said Jonathan Miller, Legal Director of Public Rights Project, counsel to the cities of Portland and Oakland. “The Trump Administration’s unlawful deployment of federal agents is a tactic used to foment violence and interfere with the very reform efforts with which the Administration disagrees.”
“In his rhetoric and actions, President Trump inflames tensions and seeks to exploit local issues for political purposes,” said LiJia Gong, Counsel at Public Rights Project. “It is unacceptable for the President to target cities that are working to achieve greater racial justice in their communities.”
The Administration’s efforts to direct local police powers beyond their legal authority have continued. For instance, on September 30, 2020, the federal government refused to return officers of the local Portland Police Bureau to operating under local authority, insisting they must remain deputized as federal agents without the city’s consent and against its explicit requests. In its inflammatory press release, the federal government accused “City Hall” of failing to support law enforcement officers as a rationale for its refusal.
“In Portland, we have seen firsthand that the deployment of federal militarized agents undermines our efforts to have a much-needed dialogue about racial justice in this city,” said Portland’s Mayor Ted Wheeler. “Federal forces physically harmed peaceful protestors and made local police work more dangerous by reducing public trust during a time of unprecedented racial reckoning,” Wheeler said. “We need support from the federal government, not violence.”
“It is a sad day for this nation when Oakland and other progressive cities must protect our residents’ constitutional rights from unlawful and unconstitutional federal overreach,” said Oakland City Attorney Barbara J. Parker. “During the 1960s civil rights movement, the federal government sought to protect constitutional rights to peacefully protest segregated businesses and public facilities, and to attend desegregated public schools when local and state governments failed to do so. But the Trump Administration’s new policy does the opposite, which is why we had to go to court to challenge it.”
The lawsuit was filed in the U.S. District Court for the Northern District of California against Attorney General William Barr, the U.S. Department of Justice, Acting Secretary of Homeland Security Chad Wolf, and the U.S. Department of Homeland Security. The lawsuit alleges violations of the Tenth Amendment of the U.S. Constitution, the Administrative Procedure Act, the Federal Vacancies Reform Act, and the Homeland Security Act.
# # #