Abductions in Portland: Are the Federal Laww Enforcement Extreme Aggressive Tactics Legal?

There is disturbing evidence of strange occurrences out of Portland, Oregon.

Videos and eye witness accounts spread across the Internet, detailing the action of armed men in camouflage fatigues and body armor pulling up in unmarked mini-vans, grabbing people off of the streets, and putting them in the back of those vans.  The reports began surfacing around July 14^th, and Federal Government officials have admitted that these tactics are going on.

The story of Mark Pettibone and Connor O’Shea is chilling.  In the early morning hours of July 15^th, Pettibone and O’Shea were heading home after spending the night in demonstrations.  The demonstrations were rather peaceful, with very little activity by either the Portland police or federal law enforcement.  While walking home, an unmarked mini-van pulled up in front of them, and four to five armed men in camouflage fatigues and body armor jumped out. 

O’Shea ran and hid, and began taking video with his phone.  Pettibone was caught, and thrown into the back of the van.  The men pulled the beanie he was wearing over his face and held his hands over his head.  Pettibone says he was driven around downtown Portland for a while, and then taken to a building.  He was patted down, and his belongings searched.  Officers put Pettibone in a cell, and later read him his Miranda rights.  No one told him why he was arrested.  But he was asked if he would waive his rights and answer some questions.  Pettibone demanded a lawyer, and was released about ninety minutes later.

Pettibone and O’Shea believe they were targeted merely because they were wearing black clothing near the area where demonstrations had occurred.  They denied engaging in activities such as spray painting any buildings, or using laser pointers to shine in the eyes of law enforcement officials.

Our Federal Government is one of limited power.  Whatever power it has, it has been given by the people, through the Constitution.  Keep in mind, in our system, the central government co-exists with state and local governments.  The Tenth Amendment to the Constitution makes it clear that if the Constitution does not give the Federal Government the power to do something, that power is reserved to the states or the people.  That is our federalist system.

The whole idea is that there are some issues that are inherently local.  The legal rules over those issues should be made by smaller governments, that are closer to the people.  Land use, health and safety issues, traffic rules, these are just a few examples of those types of issues.  Whereas foreign policy, trade among the states, establishing a common currency, these are all issues where a national government needs to be able to make the rules.

When you read the Constitution, you will find that it does not give the Federal Government the power to make rules and act to protect the health, safety and welfare of the people.  That is called the police power.  Through the auspices of the Tenth Amendment, the police power is reserved to the states.  That is why most criminal law is state law, and most law enforcement agencies are part of the state or local government.

For the Federal Government to be able to engage in criminal law enforcement activities, there has to be a federal hook.  Meaning, the activity being policed has to have some connection either to a power explicitly given to the Federal Government through the Constitution, or something that’s necessary in order for the Federal Government to do its job, like having employees or owning property.

For what’s going on in Portland, the federal hook is the protection of federally owned property.  The Federal Government needs to be able to own property to perform its functions.  It owns courthouses, office buildings, military installations.  Heck, the Federal Government owns parks for people to enjoy.

That’s why, for instance, it was the U.S. Park Police, an arm of the Federal Government, that used tear gas, flash-bang grenades, and brute force to push people out of Lafayette Square, a federally owned park, in early June, so President Trump could have a clear path to take his highly controversial photo op.

And keep in mind, I’m not saying how the Park Police did their job was legal.  There is an awful lot of documentation showing that their tactics to clear the park of demonstrators peacefully exercising their First Amendment rights, and news crews reporting on the demonstrations, was way over-aggressive and very likely a violation of law itself.

But getting back to Portland, the specific legal justification for federal law enforcement activities stems from Chapter 40 of the U.S. Code, section 1315.  This provision of law empowers the Secretary of Homeland Security to protect federally owned and occupied property, and the people on that property.  The Secretary is also empowered to designate employees of the Department of Homeland Security, as well as other federal employees transferred to the Department of Homeland Security, to be law enforcement officers for this purpose.

So far so good.  There is nothing really controversial about the Federal Government having the power to protect its property.  Nor is it controversial to give the Secretary the power to respond to requests by other federal agencies to deploy law enforcement officers to the requesting agency’s property.

But having the power to engage in law enforcement activities doesn’t necessarily mean that everything that the agency does in the name of protecting federal property is authorized by law.  Like every law enforcement agency, the Department of Homeland Security must exercise its powers consistently with the requirements of the Constitution.

Let’s take these abductions in the middle of downtown Portland in the early morning hours following a demonstration as an example.  Federal law enforcement activities are limited to federally owned or occupied properties.  That doesn’t mean that there is a magic line where the federal property stops and the federal agency therefore has no power to do anything.  The statute itself says the Department of Homeland Security’s authority extends to “areas outside the property to the extent necessary to protect the property and persons on the property.”  But that language and authority has to be interpreted with a degree of reasonableness. 

If U.S. law enforcement officers are protecting a federal courthouse for example, and someone from across the street has fireworks that he or she is aiming at the courthouse in order to do damage, it would be reasonable for the federal officers to be able to cross the street, regardless of whether that agency then crosses over into land that is not owned by the Federal Government, and arrest that person.

But it doesn’t give federal law enforcement officers the authority or power to drive around downtown Portland, blocks away from the federal courthouse, and randomly pick people up off of the streets.  That is what the Federal Government is being accused of doing.

Moreover, the exercise of law enforcement power must be reasonable.  An arrest, for example, must be based on a warrant, or probable cause.  So the statute empowers federal law enforcement officers to make an arrest without a warrant if a crime has been committed in their presence, or the officer has reasonable grounds to believe that the person being arrested has committed a felony.  And again, those specific powers are not in and of themselves controversial.

What is controversial, is grabbing someone off of the streets, blocks away from where a demonstration has taken place, hours after a demonstration has taken place, and assuming due to the color of the clothing that person is wearing, that that person has engaged in unlawful activities.  Especially when the officers are just grabbing the person, without announcing that they are law enforcement officers from the Federal Government, without announcing that the person is under arrest, without announcing why the person is being taken, and throwing that person in the back of an unmarked van.

That doesn’t look like an arrest.  That looks like kidnapping.

It doesn’t help that the law enforcement officers aren’t wearing traditional police uniforms.  They are wearing plan camouflage fatigues.  They are not wearing any clearly visible and identifiable insignia communicating that they are part of any government agency.  They are not wearing any name tag.  They are not showing any badge of office.  They have a tiny patch above the breast pocket that says “police.”  But that’s very ambiguous and not helpful. 

Let’s throw out there that there have been reports of right-wing militia type groups, some of whom are wearing military-style fatigues, mixing in with protesters, either to agitate or incite protesters into violence.

Under these circumstances, the actions of the federal officers is very dangerous, both to themselves and to the protesters.  Without a clearer indication of who these officers represent, it is very much reasonable for the person being abducted to assume that they are in fact being kidnapped, and possibly by these right-wing paramilitary groups.  It would be very reasonable, where the officers are not announcing who they are or why they are grabbing this person, for that person to fight back and try to protect themselves.

And while normally, as a lawyer, I would tell you, if you are being arrested or detained by a law enforcement officer, don’t fight back, and don’t physically resist,regardless of whether you think the arrest is legal, because such actions can themselves constitute a crime giving the officer further authority over you, in these cases how is the person supposed to know that they are being placed under arrest.

The danger created by federal law enforcement’s actions is further intensified by the fact the specific law enforcement officers in this case are not properly trained for the task at hand.  We’ve learned that the specific arm of the Department of Homeland Security assigned to protect the federal courthouse in Portland is the U.S. Customs and Border Patrol Tactical Unit, or BORTAC.  BORTAC’s primary law enforcement mission is to combat drug smugglers at the border.  And that is a very different type of law enforcement than crowd control.  BORTAC is simply not trained to keep the peace when it comes to large scale demonstrations.  Their tactics may very well be effective when you are talking about a member of the cartels trying to smuggle drugs across the Mexican border.  But it’s not the way to handle largely peaceful protesters exercising First Amendment rights.

Indeed, many critics of these abductions have likened the federal agents’ behavior to the disappearances of political opponents that often happens in third world tin-pot dictatorships.  Authoritarian dictatorships, like Venezuela, the right-wing’s favorite whipping boy when they engage in scare tactics to warn the electorate against turning socialist.

When you examine the root cause of this current campaign in Portland, the parallels between the Department of Homeland Security’s current actions, and those of authoritarian regimes because inescapable.

These actions are tied to a campaign to protect federal monument, memorials and statues, as outlined in President Trump’s June 26, 2020 Executive Order.  But the language Trump uses in that order is just striking.  In the preamble, Trump rails against “left-wing extremists,” whom he claims “call for the destruction of the United States system of government.”  His call to action is filled with references to “anarchists,” “left-wing extremists,” “fringe ideolog[ies],” and “Marxism.”  Trump is not even trying to hide his motivation in signing this Executive Order, and that is political.  He is targeting people and groups because of their political beliefs, and because of their involvement in left-wing politics.

Trump seems to conveniently forget that one of this country’s greatest values is the protection of free speech, and specifically, the protection of political speech meant to criticize the government and its leaders.  The fact that a sitting president feels so comfortable attacking political ideologies critical of his Administration is nothing less than shocking.  This is what authoritarian regimes do.

But Trump goes further.  He clothes his campaign against his political opponents in the supposed need to combat rioters.  But, in doing so, he deliberately conflates peaceful expression of protected political speech with the incidental violence that has coincided with the most recent protests.

This is not to say that violence hasn’t occurred since the protests over the killing of George Floyd by Minneapolis police began at the end of May.  It certainly has.  But the causes of that violence has been complex, and it is not necessarily true that the main proponents of the violence have been those who have protested against police brutality targeted at African-Americans and in support of Black Lives Matter. Indeed, some of the violence has been instigated by overly-aggressive police tactics aimed at the peaceful protesters.

The point is that you can’t presume that people gathered at or near federal properties to protest against institutional racism are going to engage in violence or property damage.

Turning back to Portland, it is true that federal properties, including the federal courthouse, have been damaged in the most recent demonstrations.  The damage to the courthouse after July 4^th appears to stand out in the minds of Homeland Security officials.  Specifically, in the early morning hours, at around 4:00 AM, about a thousand people had gathered at the federal courthouse, and launched commercial fireworks at the building.  Because no one was in the building at the time, the Portland police concluded that there was no immediate threat to any person’s life or safety, and decided against dispelling the crowd.

Now, I’m not in a position to second guess the actions of the Portland police.  It can certainly be argued that police presence could have served to escalate the situation, and incited that crowd to turn toward more violence.  In their judgment, it was better to wait it out.

This doesn’t prevent either the state or federal officials from prosecuting anyone involved in the July 4^th incident.  In this modern society, video cameras seem to be everywhere in the public space.  To the extent that law enforcement officials are able to obtain evidence that implicates any specific person in the damage to the federal courthouse, by all means, that would be an appropriate exercise of law enforcement authority.

But President Trump and Homeland Security officials have used this incident not only to criticize local political decision-makers, but as an excuse essentially to usurp state and local law enforcement entities, with shock troops from the U.S. Marshal Service and the Department of Homeland Security.  On July 16^th, Acting Secretary of Homeland Security, Chad Wolf, released a statement condemning the “failed response” of state and local leaders.  In a laundry list of damage to federal properties in Portland, Wolf justified the Department’s enhanced law enforcement activities in Portland; activities that the state and local leaders neither requested, nor wanted.  Some of the items listed in the Homeland Security release appear like desperate attempts to paint a dire picture for public relations purposes.  The list includes items such as graffiti, taking down temporary fencing, plywood and wooden barriers, and ripping a card reader off of its mount.  This is not to defend those who were causing property damage, or to say that the Federal government didn’t have the right to take some action to protect federal property.  But the response has been way out of proportion to the damage sustained.

It bears noting, that Homeland security’s response has trampled on the very notion of states’ rights, a concept that the right-wing usually champions in political discourse.  Moreover, Trump and Homeland Security officials have overstepped their authority.

Even before federal thugs in rented mini-vans were abducting random people off the streets in Portland, the U.S. Marshal Service was continuing the trend we have seen nationwide in response to the George Floyd protests.  And that is overly aggressive tactics against peaceful demonstrators.  Specifically, on July 12^th, a twenty-six year old man had joined demonstrators across the street from the federal courthouse.  He was holding a speaker over his head with both hands.  He was unarmed.  One of the Marshals took that as an opportunity to shoot the young man in the head with a so-called non-lethal impact munition.  The man fell to the ground, unconscious and bleeding profusely.  He had fractures in his face and skull, and required surgery.

The Federal Government hasn’t denied that these things have happened.  Quite the contrary, Trump and Homeland Security officials have threatened further escalation.  Trump is threatening to expand the use of federal officers to cities like New York, Chicago, Philadelphia, Detroit, Baltimore and Oakland, because these cities are, in Trump’s words, run by “liberal Democrats.”  That’s right.  The political party of the chief executive of major metropolitan cities is being used as the reason to threaten the wide-scale deployment federal stormtroopers.

This is a threat that has been backed up by Deputy Secretary of Homeland Security Ken Cuccinelli, who cited vague “intelligence about planned attacks on federal facilities,” in response to the enhanced federal activities in Portland, and warned, “If we get the same kind of intelligence in other places . . . we would respond in the same manner.”

Indeed, in the wake of the federal action in Portland, it has been revealed that the Department of Homeland Security has been spying on people domestically, thought to be threats to monument, memorial and statues.  Moreover, the intelligence being gathered is not limited to statues that are owned by the Federal Government. That’s an awful lot of resources being expended on protecting lifeless representations of people long dead.

Trump’s real motivation is to quell demonstrations that call attention to systemic racism that plague law enforcement agencies across the country.  Trump has clearly allied himself with white nationalists and others who would deny that systemic racism is a problem.  Specifically, Trump opposes the move to remove statues and memorials dedicated to Confederate soldiers and politicians from the public space.  He highlights the vandalism and damage to such statues in his call for greater federal protection.

Trump has equated patriotism with the veneration of approved national symbols and historic figures, with no debate over whether the beliefs, actions and behaviors of these national figures actually merits the honor of having a statue in the public square.  To motivate his white nationalist allies, Trump likes to expand the discussion, and highlight the odd exceptions to the call for the removal of Confederate historical figures.  His Executive Order, for example, references the statue of Ulysses S. Grant in San Francisco.  But, Trump conveniently leaves out that while Grant fought against the Confederacy, he himself owned a slave in his lifetime, and his wife inherited slaves.  This is the very inconsistency that movements like Black Lives Matter have been pointing out, and that Americans who want their government to live up to the ideals and principles of our Founding Fathers, principles such as liberty and equality, ought to be able to question without having their patriotism impugned.

More disturbingly, Trump called attention to “Christian figures” supposedly “in the cross-hairs, too.”  Although Trump failed to mention any such Christian figures by name, in California a statue of Franciscan monk Junipero Serra has been removed.  And while Father Serra attempted to protect indigenous Americans from the abuse of Spanish Conquistadors, he was still part of the drive of the Spanish Catholic Church to eradicate the religious beliefs of Native Americans, and compel them to adopt Catholicism.

Yet, Trump uses this as justification to protect religious symbols and property, specifically mentioning depictions of Jesus, through federal action.  Trump cites the Church Arson Prevention Act of 1996, and in doing so, he turns the very purpose of that Act of Congress on its head.  Historically speaking, church burnings have been acts of intimidation perpetrated by white supremacists, such as members of the Ku Klux Klan, against the African American community.  The Church Arson Prevention Act was not meant to protect Christianity, per se.  It was meant to fight racial discrimination.  And here, Trump is invoking it to further the interests of white nationalists, who like to argue that the United States was founded on Judeo-Christian principles, and often use that as an excuse for discrimination against no-Christian Americans, such as Muslims.

This is very much at odds with the Establishment Claus of the First Amendment, which prevents the Federal Government from establishing a state religion.  Trump cannot show favoritism to any specific religion.  Yet, that is exactly what he has done by including the protection of Christian property and symbols as a goal in his Executive Order.

What is striking about all of this, is just how pointless it is.  Mark Pettibone, for example, asserted his right to an attorney, and the federal agents simply released him.  It is almost as if federal agents are just picking people up in the vicinity of where demonstrations took place, without cause and without any criminal charges, just in the hopes that someone waives their Miranda rights and incriminates himself.  Anne Applebaum, a writer for The Atlantic, has described these activities as “performative authoritarianism.”  That is, it is aimed at appealing to Trump’s base by making an apparent show of force, but a show that it meaningless as it fails to accomplish any true law enforcement aims.  If anything, it only telegraphs the ultimate impotence of the Trump Administration, while communicating that certain segments of American society are going to be treated as enemies.  These actions do set a dangerous precedent, as they firmly set America further down the road towards authoritarianism.

By: William J. Kovatch, Jr.

For the YouTube video of this article, click here:  https://youtu.be/hbqWB_3SULc

Photograph of federal officers in Portland on July 15, 2020, from Macha Chai on Twitter (@macha_chai), depicts unidentified officers who took a man off the streets and threw him in an unmarked mini-van without identifying who they were, or why the man was being abducted.  Photograph is used for the purpose of education, commentary, and research.

References

 Statutes

40 USC 1315.

Church Arson Prevention Act of 1996, Pub. L. 104-155 (July 3, 1996).

Executive Material

The U.S. Department of Homeland Security, Acting Secretary Wolf Condemns the Rampant Long-Lasting Violence in Portland (July 16, 2020).

The White House, Executive Order on Protecting American Monuments, Memorials and Statues and Combatting Recent Criminal Violence (June 26, 2020).

Articles

Becket, Lois, "San Francisco protesters topple statues of Ulysses Grant and other slave owners," The Guardian (June 20, 2020).

Campa, Andrew J., "Junipero Serra statues to come down in Ventura, city leaders decide," Los Angeles Times (July 16, 2020).

"DHS Official on Reports of Federal Officers Detaining Protesters in Portland, Ore.," NPR (July 17, 2020).

Jurecic, Quinta, and Wittes, Benjamin, "Nothing Can Justify the Attack on Portland," The Atlantic (July 21, 2020).

Kanno-Youngs, Zolan, "Were the Actions of Federal Agents in Portland Legal?" The New York Times (July 17, 2020). 

KOIN 6 News Staff, "Riot declared as federal courthouse attacked in Portland," KOIN 6 News (July 5, 2020).

Lang, Marissa J., "A Navy vet asked federal officers in Portland to remember their oaths.  Then they broke his hand." The Washington Post (July 20, 2020).

LeBlanc, Beth, "Trump considers 'more federal law enforcement' for Detroit protests," The Detroit News (July 20, 2020). 

Levinson, Jonathan, "Federal Officers Shoot Portland Protester in Head with 'Less Lethal' Munitions," OPB (July 12, 2020, updated July 26, 2020).

Levinson, Jonathan, and Wilson, Conrad, "Federal law Enforcement Use Unmarked Vehicles to Grab Protesters Off Portland Streets," OPB (July 16, 2020).

Olmos, Sergio, Baker, Mike, ad Kanno-Youngs, Zolan, "Federal Officer Deployed in Portland Didn't Have Proper Training D.H.S. Memo Said," The New York Times (July 18, 2020).

Shepherd, Katie, and Berman, Mark, "'It was like being preyed upon': Portland protesters say federal officers in unmarked vans are detaining them," The Washington Post (July 17, 2020).

Tiefenthaler, Ainara, Hill, Evan, Jordan, Drew, Browne, Malachy, and Botti, David, "Videos Show How Federal Officer Escalated Violence in Portland," The New York Times (July 24, 2020).

 

Vladeck, Steve, and Wittes, Benjamin, "DHS Authorizes Domestic Surveillance to Protect Statues and Monuments," Lawfare (July 20, 2020).

 

Weber, Peter, "Unidentified federal agents in camo and rented minivans are grabbing people off Portland's streets," The Week (July 17, 2020).

In Immigation Court, the Deck is Stacked Against Daniel Ramirez and Other Immigrants

Last week in Washington State, Immigration and Customs Enforcement (ICE) arrested and detained Daniel Ramirez.  Ramirez now sits in the Northwest Detention Center in Tacoma Washington awaiting his hearing in Immigration Court on whether he should be removed from the United States.

Ramirez was granted protection pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program.  DACA recipients essentially received a promise that the Government would not seek their removal for a certain period of time, and legal work authorization.  ICE seized Ramirez from his home despite the fact that his DACA protection had not expired.  Ramirez has no criminal convictions.

ICE contends that Ramirez admitted to "gang affiliation," and based on that persuaded U.S. Citizenship and Immigration Services (USCIS), the agency that grants and administers DACA, to revoke DACA protection.  Though his attorney, Ramirez denies gang membership.  He states that ICE has doctored records to make it appear as though he admitted gang affiliation, and that ICE has misconstrued statements he made during a custodial interrogation.  Moreover, ICE acted illegally and in direct contravention of the Constitution when it seized him, and questioned him aggressively without giving him an opportunity to consult with a lawyer.

Ramirez challenged his detention in the U.S. District Court for the Western District of Washington.  Friday, the court ruled that it would not order Ramirez be released, but that the Immigration Court must hold a hearing within one week on whether Ramirez should be released on bond.

The District Court's ruling is correct in that there is a procedure to seek Ramirez's release from detention while his removal case is pending before the Immigration Courts.  The Immigration Court should have the first shot of addressing whether Ramirez should be released on bond.  What is unusual, however, is that the District Court has given Ramirez permission to skip an appeal to the Board of Immigration Appeals (BIA) if bond is denied, and ask that the District Court hear his case on appeal.  This may be in recognition of the immense procedural hurdles that face Ramirez, indeed any alien, who seeks bond in Immigration Court while being detained for removal proceedings, faces.

When a person is detained, the Immigration Court can hold a hearing on whether to allow the person to be released on bond pending the resolution of his or her removal proceedings.  Because Ramirez has no criminal convictions, he may be released on bond.  He is not a mandatory detainee.

But a bond proceeding is not the same as a habeas corpus proceeding.  Through a habeas corpus proceeding, a court decides whether the Government is holding a person unlawfully.  A bond proceeding is simply a determination of whether a person should be released while further proceedings are pending, and if so the amount of a bond to be posted to secure his or her attendance at a later hearing.

The difference between these two proceedings shows the limits that the Immigration Courts have.  Despite the name, Immigration Courts as not part of the judiciary.  They are part of the Executive Branch.  Because of this, Immigration Courts lack powers of equity.  They cannot rule that an action of the Executive Branch is unconstitutional.  They cannot hold a person in contempt.  They cannot issue injunctions.  The powers of the Immigration Courts are strictly limited to what powers Congress has granted by statute.

The Immigration Courts are part of the Department of Justice.  They cannot hold an action of the Department of Homeland Security to be invalid.  In some instances, when the Department of Homeland Security has denied an application for immigration benefits, the Immigration Courts can hold a new hearing on the same application.  Thus, Immigration Courts can hear an application for asylum after it has been denied by USCIS, or review a petition to remove conditions on permanent residency, if initially denied by USCIS.  But without statutory authority, it cannot review other actions by the Department of Homeland Security.

This means that whether or not ICE violated the Constitution in arresting Ramirez and interrogating him without a lawyer present is not the deciding factor in the bond proceeding before the Immigration Court.  The questions before the Immigration Court will be whether Ramirez is a danger to the community, whether he is a risk of not appearing for his removal hearings, and whether there is any form of relief from removal available to him.  The constitutional violations could come into play if the Immigration Judge believes that the evidence obtained in violation of the Constitution should be suppressed in considering the bond motion.  But the constitutional arguments are not much more helpful in a bond proceeding.

For Ramirez, the key issues appear to be whether his so-called gang affiliation renders him a danger to the public, and whether there is relief from removal available to him.  In this regard, the reason he was able to stay in the United States before his arrest was the fact that he was granted protection pursuant to DACA.  DACA was not created by statute.  In fact, the President only created DACA when Congress failed to pass the DREAM Act, which would have given legal status to certain undocumented aliens who were brought to this country when they were children.  It is entirely a creature of executive discretion, not statute.  Because the Immigration Court lacks the ability to review every action of the Department of Homeland Security, the Immigration Court lacks the power to decide if DACA protection was rescinded illegally by USCIS.  This could be the issue that sinks Ramirez's request for bond.

But even assuming the Immigration Court were to grant Ramirez bond, that would not be the end of the case.  If bond is granted, the Government has the right to appeal it to the BIA, another arm of the Department of Justice.  If the Government appeals a bond determination, Ramirez would remain detained pending the outcome of the BIA appeal.  Even then, the Government has one more avenue of appeal, this time to the U.S. Court of Appeals for the judicial circuit where the Immigration Court lies.  In this instance, that is the 9th Circuit.

With all of these procedural barriers, it is difficult for an alien in detention to be released on bond, unless the Department of Homeland Security consents.  If the Immigration Judge denies bond, the prospect that a detained alien could be waiting in detention, which in just like being held in jail in all but name, for months and spending money on appeals while still waiting for a full hearing on the issue of removal itself is so daunting, that many aliens simply give up at this point, and agree to be returned to their home country.

It is perhaps because of this great disadvantage to alien detainees that the U.S. District Court gave Ramirez the ability to waive appeal to the BIA, and return to the District Court should he be denied bond.  The U.S. District Court, as part of the judiciary, does have equitable powers, and can entertain an argument that Ramirez's detention is unlawful because of the constitutional violations.  For this reason, the Ramirez case will continue to be an important case to watch when it comes to the potential of reigning in ICE enforcement raids.  This may well be the case that provides immigration law practitioners the tools needed to defend our clients' constitutional rights more effectively.

By:  William J. Kovatch, Jr.
For an appointment call (703) 837-8832
(571) 551-6069 (ESP)

Suspension of DACA Would Pose Legal Challenges for DREAMers

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Last Friday, Daniel Ramirez, who had been granted deferred action and work authorization pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program, was seized by Immigration and Customs Enforcement (ICE) agents, who raided his house to arrest Ramirez's father.  Ramirez's work authorization was still valid.  But this did not deter ICE agents from seizing him, as ICE contends that Ramirez admitted to being associated with a gang.  Ramirez claims he has no gang association, and that he was pressured by ICE to make such statements.

Ramirez has now initiated suit against the Untied States' Government. But his arrest and detention should serve as a warning to the thousands of young people who have applied for, and received, protection pursuant to DACA.

DACA is simply a promise made by President Obama that his Administration would not seek the removal of young people who were brought to the United States by their parents when they were children.  The President did this by granting deferred action.  Once the President grants deferred action, the recipient is entitled to apply for legal authorization to work in the United States.  But deferred action is not a legal status.  It is simply a promise from the Government not to seek removal.

DACA was not authorized by statute.  In fact, President Obama only created DACA when Congress failed to pass the DREAM Act, which would have created a path to legal residency and possibly citizenship for the young people who were brought to this country as children, but grew up knowing America as their home.  The people who would have qualified for status under the DREAM Act are affectionately known as DREAMers.

But because DACA is not a creature of statute, it is a very fragile promise.  The President is under no obligation to extend protection pursuant to DACA once the current protection expires.  Moreover, because it is a matter of executive discretion, an applicant is unable to challenge the denial of DACA protection in U.S. courts.

But once a DREAMer has been granted DACA protection, that person has an expectation to continue to receive protection from removal until the program expires.

This is the expectation that ICE violated when it took Ramirez into custody.  Ramirez, who has no other legal immigrant status, will now face proceedings in Immigration Court where the United States will seek his removal.

In many instances, Immigration Court can grant relief from removal.  There are some programs, such as asylum or cancellation of removal, which the Immigration Court by law can grant after a hearing.  However, because DACA is not a legal program, but an exercise of executive discretion, the Immigration Courts have no power to issue a ruling on whether DACA protection was improperly suspended for any individual.

This does not leave DREAMers without a remedy.  Because DACA recipients have an expectation of a governmental benefit, that benefit cannot be rescinded arbitrarily or capriciously.  That is, DACA recipients have a due process right to have their protection honored until the expiration of the program.  But to enforce this right, DACA recipients may need to go to federal district court.

That is, if ICE arrests a person who has been granted DACA protection, and seeks that person's removal, the DACA recipient will need to file a lawsuit in a U.S. District Court alleging constitutional violations, such as due process.  Such a lawsuit is expensive and can become complicated.  In Ramirez's case, he will have to address ICE's claims that Ramirez admitted to being associated with street gangs.  There will be discover and a hearing.

The availability of such a process may not be comforting news to other DACA recipients.  Many are not in a position to spend thousands of dollars on legal expenses to fight over weak legal promise which will expire anyway in a little more than a year.  Indeed, the current Administration could be counting on that level of vulnerability to pick off DACA recipients one by one, making tenuous claims of gang association, knowing that they are forcing the DACA recipients into an expensive legal battle.  In that way, the Administration can claim that it is merely going after the "bad hombres" and highlighting its argument that President Obama overstepped his authority when he instituted DACA.  This is a position that would play well with many of President Trump's supporters.

DACA recipients need to be prepared to defend their rights.  All immigrants should know that ICE cannot issue warrants to itself that allow entry into a dwelling.  Only a judge can issue such a warrant.  Before letting ICE into your house, make sure everyone knows that they need to ask to see the warrant, and to check whether it is judge-issued.  All residents of your home should also know that they are under no obligation to answer any question posed by ICE agents, except their name.  If asked anything by ICE agents, demand your right to consult a lawyer.  Sign nothing without consulting a lawyer.  Do not be intimidated by ICE.  Spread the word.

By: William J. Kovatch, Jr.
For an appointment, call (703) 837-8832
(571) 551-6069 (español)

The Senate Must Vote on Judge Garland's Nomination

While pursuing Facebook yesterday, I came across a post from Michelle Malkin on President Obama's nomination of Judge Merrick Garland to the Supreme Court. The post was a link to an article in the Conservative Review simply entitled, "What Conservatives Need to Know About Merrick Garland."  When I clicked the link, I was shocked to find a one word answer as the first paragraph of the article. It simply said, "Nothing."

Author Brian Darling's analysis didn't get much more informative. The crux of his argument was that because Judge Garland was nominated by President Obama, he is a liberal and will tip the balance on the Supreme Court in favor of the liberals. 

I was shocked because even though I consider myself a Republican with conservative leanings, my reaction to President Obama's pick was far different. I was surprised by how non-controversial the appointment would be. 

Judge Garland has sat on the U.S. Court of Appeals for the DC Circuit since 1997.  He is currently the Chief Judge.  Because of the location of the DC Circuit, it is the court that tends to hear cases involving Federal policy most often. The court is often considered a stepping stone to the Supreme Court. 

In addition, Judge Garland is a former prosecutor who is 63 years old. Not only has he worked in law enforcement, he is not likely to stick around the Supreme Court for a very long time. 

At this point, conservatives point to two cases in which he was involved to ring the alarm bells that he will rob us all of our gun rights. The first is the case that overturned the District of Columbia's gun control law. The case was decided by a three judge panel, and Judge Garland voted for the case to be reheard en banc, which means in front of all of the judges of the DC Circuit. 

The second was a case where Judge Garland agreed that the FBI could retain gun purchase records for six months to ensure that a computerized background check was working. 

Neither case hardly says anything about the Judge's views on the Second Amendment. Yet it is enough that Judge Garland acted in a way displeasing to the NRA for conservatives to mobilize opposition by engaging in the Second Amendment fear mongering. 

Conservatives are mourning the loss of Justice Antonin Scalia. The prospect that his seat on the Supreme Court could be filled by an Obama appointee is just devastating to them. Thus, Senate Majority Leader Mitch McConnell took the unprecedented step of announcing that there would be no hearings on any Obama nomination. Instead, the choice would be left to the new president. President Obama has countered with the nomination of a highly respected jurist, who is not likely to stay around for a very long time. The result is that Senate Republicans look far worse than just merely obstructionists. They look like whiny, petulant children. 

One of the most frightening characteristics of the Tea Party movement, and its influence on the Republican Party, has been the uncompromising willingness to shut down normal government functions in the name of promoting conservatism. Faced with very little on the record to challenge a nominee who appears to be eminently qualified, the conservatives resort to fear mongering. Senate leaders should not play this game. Rather, they should do their constitutional duty of allowing the full Senate to give advice and consent by holding hearings on Judge Garland, and sending his nomination to the floor for a vote. 

Is There a Right to Record Police Activity?

A judge on the U.S. District Court for the Eastern District of Pennsylvania has issued a decision holding that there is no First Amendment right to capture video images of police in public if the recording is not connected to some other form of expression.
 
The decision, Fields v. The City of Philadelphia, involves two cases with similar facts. In one, a pedestrian saw about twenty police officers hosting a party in public and used his smart phone to take video recordings. The pedestrian thought the scene was "pretty cool," and thus took the video.  He was about fifteen feet away from the police. An officer saw the pedestrian and asked him to leave. When the pedestrian refused, the officer detained him, handcuffed him, took the phone and searched his person.

In the second case, a "legal observer," trained in observing interactions between police and civilians in civil disturbances attended a protest wearing a pink identifier. As the police arrested a protester, she attempted to capture video images. An officer restrained her, preventing her from capturing the video images.
 
Both filed lawsuits pursuant to 42 U.S.C. § 1983. This law gives a cause of action to those who have been deprived of a constitutional right under the color of law. Both claimed constitutional rights under the First Amendment right to freedom of expression and the Fourth Amendment freedom from unreasonable searches and seizures.

The decision was issued in the context of motions for summary judgment. The court addressed only whether there was a First Amendment right to capture video images of police. That is, the court did not address the Fourth Amendment claims.  The District Court reasoned that observation alone was not expressive conduct.
 
The holding of Fields was actually very limited. The District Court held that in the context of a lawsuit alleging a deprivation of constitutional rights, capturing video images of police officers without some other form of expression connected to it is not a protected right pursuant to the First Amendment. The court did not hold that capturing video images alone is illegal. Nor did the court hold that seizing a device to prevent a person from recording video images of police officers in public was a reasonable search and seizure pursuant to the Fourth Amendment. All that the court held was that a person who had been prevented from capturing video images of police officers in public, who were not otherwise engaged in expressive conduct, could not sue the government or government officials for violating First Amendment rights.
 
The problem, however, is that the District Court's holding can be misinterpreted too broadly and thus lead to abuse by the police. For example, a police officer, upon seeing a person with a device which could possibly be used to capture images of police could conclude that because there is no First Amendment right simply to capture those images, that the officer is justified in confronting the putative videographer and seizing the device or otherwise preventing the images from being captured.

Another problem is that making the right to capture video images of police in public dependent upon some other form of expression means that the right would only be available to those who are quick-thinking, assertive or otherwise in conflict with the police. That is, in order to enjoy the right, a person must think of some reason why they are capturing the video images and assert that reason to police.

Take, for example, a shy person who has witnessed some form of police conduct they deem worthy of recording. If the police confront that person in an effort to prevent the recording, then whether the person has a First Amendment right would depend on whether that person has the temerity to challenge authority and was quick thinking enough to give the police some reason the police would deem valid.

The most disturbing aspects of the court's holding are the failure of the court to recognize that art itself is worthy of protection as free expression and the minimization of the court of the need to gather information before engaging in more expressive conduct.

Art is free expression. Art can be for the sake of aesthetics or simply stimulating the senses. While the Plaintiff in Fields may not have been the most articulate of witnesses, art can simply exist because it is "cool."  Fixing something a person sees to a visual medium, such as digitally recorded images is, in and of itself, art and therefore protected expression.

In order to enjoy a First Amendment right to capture video images of police, the District Court would require that a person go into the situation with a preconceived intent to publish the images captured in order to engage in criticism. But this would mean that the observer must already be in conflict with police activity before even observing it. It would mean that the observer must be able to express their conflict. It would further mean that the observer must know that the conduct is worthy of criticism. To put simply, the District Court's holding could be construed as a finding that there is no right to investigate police conduct in public absent knowledge that the police are doing something worthy of criticism.

Let's say, for example, that the police have arrested a group of young men who are present in public. While the police were in the process of placing handcuffs on the men, and waiting for back-up to transport them to the police station, a person would not have a First Amendment right to stand at a distance unobtrusive to the police and record the event unless that person knew and was willing to state that the police action was in some way worthy of criticism.

That is not to say that recording the police in this fashion would be illegal. But this type of hair-splitting that the District Court has engaged in could embolden a police officer who did not want to have his or her actions in public captured as video images to take action against the observer even though the observer is doing nothing wrong.
 
That is, there is a very fine distinction between saying a person does not have a right to engage in certain conduct, and saying that the conduct is illegal. But to the average person, it is very difficult conceptually to make that distinction. Engaging in the conduct, such as capturing video images, may not be illegal. But that does not mean you can sue the government when you are prevented from engaging in that conduct. The average person would believe that if conduct is not illegal, then you have a right to do it.

There is also a very fine distinction between understanding that generally you do not have a right to record the police, but if you go into a situation knowing that you are going to be critical of the police then you do have a right to record them.

Recording police serves an important public service. A person who knows he or she is subject to being recorded is less likely to engage in illegal conduct. Discouraging the public from recording the police, even when not interfering with the police activity, robs the public of this vital check on abuse of authority.

Fields should not be construed as eliminating this check. In the first place, it is only the decision of one judge in one district responsible for Eastern Pennsylvania. It is by no means binding authority.  But the decision can be misconstrued in a dangerous way by the police. 

By: William J. Kovatch, Jr. 
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Be Wary of Voluntary Police Interviews

Last Night's Better Call Saul was brilliant.  It was brilliant in many ways, but I am only going to focus on one for the purposes of this blog.  And that concerns a police tactic that I am all too familiar with, and that I wish many of my clients understood before they spoke with the police.  It's a tactic I'm not particularly thrilled with, since it is an attempt to circumvent the Constitution and hang a person by their own petard under the guise of "consent."

I'm about to talk about the details of the episode, so here is the mandatory SPOILER ALERT.  If you haven't seen the February 22, 2016 episode entitled, "Cobbler," and you've DVRed it or intend to catch one of the encore showings, don't read below.

***SPOILER ALERT***

I love Mike Ehrmantraut. We know from Breaking Bad that he is a former Philadelphia Police Officer who had his own trouble with the law.  He's not above profiting off of criminal activity.  But he's smart, and having been on the inside, he knows police tactics.

Enter Pryce, an employee at a pharmaceutical company who tries to make a little money on the side selling pharmaceutical grade drugs to street criminal Nacho Vargas.  In season one, Pryce hires Ehrmantraut to be his bodyguard for the drug exchanges.

Pryce gets a bargain in Erhmantraut, but doesn't realize it.  When Mike balks at going to a meet in Pryce's new gaudy Range Rover, Pryce fires him.  In his naivety, he then lets Vargas see his car, thereby giving Vargas the information he needs to rip Pryce off.  By the end of episode one, Pryce has reported a break-in at his house to the police because his beloved baseball card collection was stolen.  Of course, the police get suspicious of Pryce's car and the reason for the break-in.  When Pryce is out of the room, they find his hiding spot in the baseboard behind the couch.  But, of course, there is nothing they can do about it right then and there.

In episode two, we meet Pryce again as he comes to the police station for an interview with the police.  Unknowingly, he once again becomes the luckiest stupid criminal alive, as he runs into Mike, who is the parking lot attendant.  When Mike realizes why Pryce is there, he pulls him aside to tell him why he should not speak with the police.

As Mike explains, the police are suspicious.  At this point they have nothing.  So they invite Pryce in to speak with them voluntarily.  They intend to be friendly and lull him into a false sense of security.  Then they will pounce on him and try to get him to confess the illegal activity that made him the victim of the break-in in the first place.  Pryce is reluctant to believe this, but agrees to leave the station when Mike promises to get his baseball card collection back.

And that is the tactic I wish my clients understood.  I have met many people who have been invited to the police station just to talk.  The police promise, "look you're not in trouble.  We only want to understand what happened." They may even say, "If you did nothing wrong, you'd be doing yourself a favor."  If you go in, they proceed to ask questions for hours, wearing you down.  They hope you don't realize you can have a lawyer.  They may even say, "Hey, if you didn't do anything wrong, why do you need a lawyer."  And then the conversation continues . . .  voluntarily they claim.  At no time do they tell you that you can get up and leave.  And if you do, again they ask, "Why are you in a hurry?  We only want to understand what happened.  You're not in trouble now."  So you stay, and worn down, you give the police the confession they want. 

In court, statements from such an interview are difficult to suppress.  The police will claim that no one was under arrest, that the person was free to leave, he just chose to stay and tell us what happened. 

The moral of the story is quite frankly don't trust the police if they ask you to come in for a "voluntary" interview, and claim that you are not trouble.  In truth, they only do this when they suspect criminal activity, but have no proof that they can use in court.  They are looking to trick you into giving a confession without a lawyer present, and then claim that the constitutional rights do not apply because it was voluntary.  While you may believe you have anything to fear, in reality any such contact should only be done in the presence of a lawyer representing you.