A Judge Won’t Force Federal Officers In Portland To Identify Themselves When Making Arrests

The judge found the Oregon attorney general’s office could not bring a lawsuit against the Trump administration over the federal presence in Portland.

WASHINGTON — A federal judge on Friday denied a request by the Oregon attorney general’s office for an order that would require federal law enforcement officers in Portland to identify themselves when making arrests and place limits on the detention and arrests of protesters.

US District Judge Michael Mosman found that state Attorney General Ellen Rosenblum lacked standing to bring a lawsuit on behalf of Oregon residents because her office hadn’t articulated any specific state interest beyond the constitutional rights of individuals.

Rosenblum’s office filed one of multiple pending lawsuits in federal court challenging the Trump administration’s deployment of federal officers, largely from agencies within the Department of Homeland Security, to Portland. Rosenblum’s complaint accuses federal officers of violating the constitutional rights of Oregonians, citing reports that individuals have been picked up off the street and detained without probable cause.

The offices of the inspector general for the departments of Homeland Security and Justice announced this week that they are investigating the actions by federal law enforcement officers in Portland.

Mosman's ruling came one day after another federal judge in Portland, US District Judge Michael Simon, granted an order restricting the activities of federal officers. Simon entered a temporary restraining order on Thursday that bars federal officers from arresting or using force specifically against journalists and legal observers at demonstrations unless there is probable cause that they committed a crime. Simon also ruled that clearly marked journalists and legal observers did not have to follow dispersal orders, writing that journalists are present to report on whether authorities are acting within the law.

"Without journalists and legal observers, there is only the government's side of the story to explain why a 'riot' was declared and the public streets were 'closed' and whether law enforcement acted properly in effectuating that order," Simon wrote.

Rosenblum’s office asked Mosman to also enter an immediate order, while the case is pending, that would bar federal law enforcement officers from making arrests or detaining people without probable cause or a warrant, and require federal officers who do make arrests to identify themselves and explain the reason.

The Justice Department argued that the state of Oregon lacked standing to bring constitutional claims on behalf of its citizens because the state hadn’t alleged any specific threat to its interests that were separate from those of private individuals.

The government also disputed that any Oregonian’s constitutional rights had been violated. In response to a viral video that showed two officers wearing military-style uniforms that lacked identification forcibly escorting a man into an unmarked van, Customs and Border Protection said it suspected the man had been involved in assaults on federal agents or property. The man in the video, Mark Pettibone, said he was not told why he was arrested and wasn’t given any paperwork when he was released.

The Justice Department argued that there wasn’t evidence that federal officers violated the First Amendment speech rights of protesters. Rosenblum’s office contends that federal officers were deployed to Portland to discourage otherwise lawful protests from taking place.

Mosman heard arguments on July 22.

In his order on Friday, the judge repeatedly described the case as "unusual," writing that typically in cases involving allegations of constitutional violations during protests, the people affected would be the ones to file a lawsuit, not a state. Rosenblum's office was also seeking a future-looking injunction, which set an "unusually high bar" for the attorney general's office to clear, he wrote.

To sue on behalf of citizens — a legal doctrine known as "parens patriae" — Oregon had to show that it had an interest that was separate from private individuals, and that a "quasi-sovereign interest" had been violated. Mosman wrote that the state offered mostly "purely hypothetical" arguments about the risks facing Oregonians by federal officers failing to identify themselves during arrests, such as the possibility of counterprotesters pretending to be federal officers to kidnap protesters.

More generally, the judge wrote that the "chilling effect" on the speech rights of Oregon residents didn't represent the kind of state-specific issue that the attorney general's office had to show to have standing to sue.

"Oregonians, like all Americans, have individual rights to freedom of speech and assembly, conferred by the First Amendment. They can, and often do, bring individual lawsuits to vindicate those rights. And the State of Oregon has not explained why this case is different, why the chilled speech it alleges here injures the state in a way that is distinct from the individual harms that it also alleges," Mosman wrote.

Even if the state did have standing, the judge found that the state failed to present evidence that illegal seizures and arrests by federal law enforcement officers was a "widespread practice" that would continue in the future.

Rosenblum said in a statement that she was disappointed and continued to believe that "all Oregonians have a right to know which federal law enforcement agencies are policing our streets, and why they are detaining peaceful protesters."

"While I respect Judge Mosman, I would ask this question: If the state of Oregon does not have standing to prevent this unconstitutional conduct by unidentified federal agents running roughshod over her citizens, who does? Individuals mistreated by these federal agents can sue for damages, but they can’t get a judge to restrain this unlawful conduct more generally. Today’s ruling suggests that there may be no recourse on behalf of our state, and if so that is extremely troubling," Rosenblum said.

A Justice Department spokesperson did not immediately return a request for comment.


Updated with comment from Oregon Attorney General Ellen Rosenblum.

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