The arrests in Portland now give courts a chance to expose the unconstitutionality of the president’s June executive order. The fight is already underway.
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From its inception straight through to its heavy-handed and widely condemned implementation, Trump’s crackdown on protesters has flouted well-established constitutional protections. Just how improper it is should have been clear from the executive order that underpins it. It might not be the quickest way to challenge Trump’s authoritarian crackdown, but anyone with constitutional standing to sue the Trump administration—one of the many people rounded up or injured in Portland, for example—would have a strong case.
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The First Amendment’s free speech clause vigorously protects speech that is targeted for its content or point of view. The framers did not want government singling out certain people for punishment based on what they say. The Supreme Court has thus consistently rejected laws that put prior restraints on speech—i.e., government proclamations that stop speech from occurring in the first place. Trump’s executive order targets speech for its viewpoint, threatening federal action against protesters with perceived “left-wing” ideologies before they’ve even spoken.
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The federal government’s enforcement of Trump’s order in Portland has been no less constitutionally flawed.
Trump’s attacks on protesters—which began with the tear-gassing of demonstrators in Lafayette Square in Washington so he could march to a historic church for a photo op holding a Bible—plainly violate at least two provisions of the U.S. Constitution: the First and Fourth amendments.
Again, the First Amendment protects against government infringements on “freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Although this area of the law is complex, suffice it to say that Trump’s intimidation of peaceful protesters infringes on the ability to peaceably assemble, because—as Portland moms showed in holding up their hands and chanting, “Hands Up, Please Don’t Shoot Me”—if people fear possible government violence for protesting, they might stay home. The fear itself squelches the ability to freely assemble. Couple that with the lack of insignia and identifying badges among Trump’s police force, a tactic that began at Lafayette Square, protesters are left unable to reasonably enforce their First Amendment rights in court. You can’t well sue someone if you don’t even know who they are.
The Trump administration’s actions in support of the executive order are also offensive to the Constitution’s Fourth Amendment (among other provisions). In Portland, a 26-year old man was videotaped being shot by federal officers with an impact weapon while he stood outside a federal courthouse. The man wound up with skull fractures that required brain surgery. Others were pulled off the streets by camouflaged agents in unmarked vans, hoods thrown over their heads, and charged with crimes simply for walking home from a protest.
For its part, the Fourth Amendment bans unreasonable searches and seizures, including seizures of a person—also known as kidnapping (if performed by a civilian). It also requires “probable cause” (that is, a reasonable basis) for believing that a crime may have been committed before police can make an arrest. Taking people off the streets for being part of a protest and transporting them to a detention facility against their will is illegal and unconstitutional because demonstrating—without more information indicating commission of a crime—does not give rise to probable cause. (Nor does it justify probable cause for a judge to issue an arrest warrant.)
But even if Trump’s federal agents had jurisdiction over offenses that traditionally fall to state and local police (which is a big “if” here, to the extent these victims were on state and local property and nobody crossed state lines), and even if there is probable cause to believe in a particular case that a demonstrator hypothetically committed a nonviolent offense like jaywalking that might justify an arrest under state or local law, there is no legal or constitutional justification whatsoever for physical violence under these scenarios. The Fourth Amendment’s touchstone is reasonableness. Fracturing someone’s skull for standing on a sidewalk is not reasonable. Indeed, the Supreme Court has held that police cannot use deadly force even on a fleeing felon unless the suspect poses a substantial risk of serious physical harm.
What are the legal consequences for Trump’s troubling policy? Oregon’s attorney general has already filed a lawsuit against the federal government. There are at least two other pending cases thus far. But the federal judge assigned to Oregon’s case seemed doubtful at a hearing Wednesday that an injunction directing officers to identify themselves would lessen any chilling effect on speech.
Detained protesters could alternatively file civil lawsuits for money damages arising from allegedly improper arrests, or they could cite the Constitution in defense to any criminal charges brought against them. (The same judge did say that one protester, Mark Pettibone, who was grabbed off the street by an officer in camouflage, appeared to have been illegally detained.)
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- Discussion
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Opinion: Anyone with constitutional standing to sue the Trump administration — one of the many people rounded up or injured in Portland, for example — would have a strong case https://t.co/7QgaoN3eJs
— POLITICO (@politico) July 23, 2020
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