When the Federales do not know the law, how can they legitimately police? [the Portland story]

Andrew Crespo, Unpacking DHS’s Troubling Explanation of the Portland Van Video, Lawfare, July 25, 2020:

Over the past few days, millions of people have seen a now-viral video in which two federal agents dressed in full combat gear removed an apparently peaceful protester from the streets of Portland, Ore., and carried him away in an unmarked van.

7️⃣7️⃣6️⃣ Portland, OR: federal troops doing a casual roadside abduction, wordlessly seizing someone and putting them into an unmarked van before driving off

15 July 2020

[@matcha_chai]
pic.twitter.com/byQHLY4D6U

— T. Greg Doucette (@greg_doucette) July 15, 2020

Stories have emerged of other people being taken or pursued by federal agents in a similar fashion. Meanwhile, troubling videos show federal agents in Portland beating a peacefully resolute U.S. Navy veteran and, on a separate occasion, shooting a man in the face with a nonlethal munition, which broke his skull.

As criticism of these events rolled in—including from virtually every relevant state and local official in Oregon—the Department of Homeland Security scheduled a press conference earlier this week to try to reclaim the narrative. If the point of that press conference was to reassure an anxious nation that this unfamiliar and recently constituted federal police force is following the law, it likely achieved the opposite effect.

In particular, there is a two-minute segment of the press conference that is both revealing and highly disturbing. It shows that one of the top commanders of this new paramilitary federal police force—Kris Cline, Deputy Director of the Federal Protective Service—apparently does not know what the word “arrest” means. To say as much might seem like harping on semantics or, worse, like picking on Cline for speaking inartfully. But it is absolutely critical to unpack and examine Cline’s words—because the word arrest is one of the most important words in the constitutional law of policing.

Simply put, for an arrest to be constitutional it must be supported by probable cause. This means that the arresting officer must be able to point to specific facts that would cause a reasonable officer to believe that the person being arrested has committed a specific crime. If, on the other hand, the police have not arrested someone but have instead conducted only a brief investigatory stop, they need substantially less proof that the target of their attention is engaged in criminal activity. And if the police initiate instead what is often termed a consensual contact—as would occur if, say, a uniformed officer walked up to you and said, “hey, I want to ask you some questions”—well, in that case the Fourth Amendment simply does not apply, which means the officer does not need to have any reason to approach you.

Prof. Timothy Snyder of Yale: It’s very troubling. To say that the man was not arrested is simply lying. This is what authoritarian propaganda sounds like. A man has been arrested and you find some other way to describe it, for example, as a ‘simple engagement,’ which is false but it sounds like a technical term. So you stop and think about it. That’s how authoritarian propaganda works.

Arrests, stops and contacts carve up the universe of police-civilian interactions in the United States. So, when I say that Deputy Director Cline does not appear to know what the word “arrest” means, what I am really saying is that he does not know where the basic and essential legal lines are that mark the bounds of his agency’s lawful authority. That is a problem.

Crespo then goes go point out in some detail why Kline was wrong in his reasoning.

There is an odd, disorienting quality to Cline’s two-minute statement. I have no reason to question Cline’s integrity or motives. But on its face, his statement feels like a kind of criminal procedure version of gaslighting. With an earnest, “just the facts” style, Cline is clearly trying to convince the public that what happened in Portland is not a big deal.

The agents were “peaceful,” he said. “There was no tackle to the ground.” This was just “a simple engagement.” It is unfortunate, Cline tells us, that this all “got kinda spun out of control with the rhetoric about what happened,” as if the people questioning the legality of the arrest are the ones blowing this all out of proportion. After all, Cline reminds us, “it was not a custodial arrest.”

Except it was.