July 25, 2020 – In the thick of the night, crowds of protestors chant and sing for social justice, most are peaceful, albeit some infiltrate the crowds and vandalize the city. But peaceful protestors should not be punished for the acts of those who break the law.
But, the First Amendment of the US Constitution provides the “people” of the United States the right to Peaceably Assemble, and to Petition the Government for a Redress of Grievances. As most Americans already know, it provides the additional freedoms, of Religion, of Speech and of the Press. It is these protected rights that are “guaranteed” by the First Amendment of the US Constitution.
As for state police power, it is derived from the Tenth Amendment of the US Constitution. It confers right to the states that are “not already delegated to the United States” in the Constitution. These rights, retained by the States, clearly establish that each state can create and enforce their own laws, protecting the health, welfare, and safety of those within its borders.
Oregon Attorney General Takes a Stand
With the tenth amendment as a backdrop, the chief law enforcement officer of the state of Oregon, Attorney General (AG) Ellen Rosenblum, filed a Motion for a Temporary Restraining Order against US government officials – including the US Department of Homeland Security, US Customs & Border protection Service, United States Marshals Service & Federal protective Service and 10 unnamed individuals for allegedly infiltrating her state and exceeding the scope of their authority, by taking peaceful protestors into custody – many for no reason at all – other than they were in the streets exercising their First Amendment Rights, when they were “seized” by US government agents.
It is Rosenblum’s position that the US Government’s targeted actions towards protestors, violated Constitutional rights of the citizens of Oregon – specifically, the First and Fourth Amendments to the US Constitution. According to the AG, these alleged violations occurred when the government sent “unmarked” secret federal agents into Oregon – a sovereign state with its own laws and justice system, and proceeded to use “military-style” force upon its citizens. Notably, the AG’s position is that federal agents engaged in illegal conduct, “grabbing” peaceful protestors off the streets, “throwing” them into “unmarked vans,” and whisking them away over their objections – and detaining them at remote locations; all without probable cause, and without articulating the reason for the detention, or even identifying the branch of law enforcement – if any – that they represent. AG Rosenblum argued, those taken into this type of militarized process of “grab and go” – is antithetical to the rights of a democratic society, free to exercise their right to assemble under the First Amendment – and that government abridgement of those rights must cease.
With this heightening civil rights emergency taking place in Portland, the AG’s office petitioned the Federal District Court for an emergency order – a “temporary restraining order” to prevent more Oregonians from being “swept-up” by these federal raids gathering up citizens from the streets. The AG’s goal is to prevent the unwanted governmental intrusion on the rights of Oregonians, and prevent those infringements from recurring. The AG argued before the court that the Fourth Amendment rights of state citizens are being violated by the US government, by its seizure of random individuals off the streets of Portland. Oregonians, like all Americans, have the right to peaceably assemble, and be free from unwanted search, seizure, and unlawful detention. All law enforcement personnel know that any detention, such as a routine traffic stop, or a stop and frisk, must at minimum, be based on specific and articulable facts supporting “reasonable suspicion” that a crime has been committed – and any “seizure” which is a higher level of intrusion upon the person than a “stop,” must be based upon “probable cause.” Neither was present when federal agents grabbed random people off the streets, throwing them into unmarked vans, and driving-off with them against their will.
It is important to note, when AG Rosenblum went before Federal Judge Michael Mosman seeking to obtain an Emergency Restraining Order to stop the random lawless actions believed to be committed by government agents – kidnapping citizens from the streets of Portland – Judge Mosman did not refer to this conduct as “unlawful” detention, kidnapping, or arrest, he described it as an alleged “seizure.” He used this terminology to refer to the clandestine government actions “allegedly” used to remove protestors from the streets. If the Judge had used the term “arrest,” that would impute the need for probable cause, particularly when those “seized” from the streets had not committed any crimes.
The Hijacking of Democracy…
By all appearances, the American democracy is being “hijacked” by extremists on all sides. For those extremists who do harm to others or to public property, state, federal or private – they must be punished. But there is also no doubt, the Constitutional Rights of the Individuals being abducted by the government off the streets of Portland, Oregon, without probable cause – violates each individual’s First and Fourth Amendment Rights of the US Constitution, while robbing them of their Fifth Amendment Due Process rights – all equally abhorrent to the tenets of democracy. Yet, as “governmental expediency” would have it, there was no trace, “no evidence” of detainment or seizure, no proof of the kidnaps, no information as to who the unnamed governmental agents were, or what department of government they represented – so there was no “provable” Due Process violations by governmental actors. It also appears the government knew it had no right to detain those it kidnapped off the streets, as it was did so under cover of darkness, and with no written record of who they detained, or why – nothing a reviewing court could use to hold those responsible accountable. Such tactics clearly represent a well-choreographed scheme to frighten “law-abiding” protestors, and deter them from exercising their First Amendment Rights of Free Speech, the Right to Peaceably Assemble, and the Right to seek Redress of their Grievances from the Government.
Even more troubling: what occurred in Portland – doesn’t stay in Portland. The President is threatening to do the same in other cities around the nation. It appears the present administration’s threats to use more “over-the-top” conduct finds its kinship in the conduct of dictatorial third-world regimes around the world – those that routinely use force to take their people into “custody” usually in the dark of night. In many regimes, it has served as a successful means to dissuade protestors – deter those contemplating rebellion against bureaucratic policies from ever speaking out. Unfortunately, this appears to be the tack taken in Portland. The federal government’s actions of kidnapping and detention of peaceful protestors – protesting for “racial justice“must be condemned, if it is to be stopped.
A comparison can be made to an illegal “prior restraint on speech,” such as when the government and bureaucrats censor print or spoken media it finds objectionable, and then seeks to stop that message from being disseminated. Such actions are reminiscent of conduct displayed by autocratic regimes – the kind that American soldiers fought against in World War II. It is also eerily similar to what we see today in China – government seeking to stifle and control dissent in Hong Kong. There is no doubt, the purpose of these actions is to repress and quash dissent against the government and its leaders – leaving its citizens without recourse, and without a means to demand accountability. This is what totalitarian regimes do – and it is most alarming when it is playing out on American streets. When the US government appears to be taking pages from playbooks of autocratic fascist regimes, casting aside the foundational principles of our democracy – we are in a true crisis. As history has a way of repeating itself, we must never forget that countless Americans throughout the ages gave their lives to preserve freedom and liberty for all Americans – we must not squander or lose sight of that sacrifice.
Federal Judge “Shoots Down” Parens Patriae Argument
In reading through Federal Judge Mosman’s opinion, it appears that the Oregon Attorney General while seeking a “Temporary Restraining Order” against government intervention on the streets of Portland, she used the legal argument, the Doctrine of Parens Patriae. That is the argument that as AG, she is acting on behalf of all state residents, exercising her right and a duty to protect and defend them. Just as parents would have the responsibility to represent and defend their child, so too is the duty of the AG to protect those within state jurisdiction. Yet, the AG’s noble act of defending Oregonians from government overreach proved of no moment for Federal Judge Michael Mosman, a George W. Bush appointee. Upon hearing her argument, Judge Mosman found AG Rosenblum’s “Parens Patriae” claim to be “deficient,” claiming it sought to prevent “future harm,” and not vindication for harm that “allegedly” befell two protestors claiming to be “abducted” by federal agents from the streets of Portland. Unfortunately, it appears the Judge upon reviewing the case was able to “legitimately” state there was no tangible proof of any abduction by federal agents, other than the sworn statements of the two victims recounting their alleged abduction by unknown agents. Because the abducting agents had no identifying insignia upon their combat fatigues other than a “police” inscription, they could not be “identified” either individually or as a unit. Because there was also no “corroborating evidence” of the alleged abduction itself, Judge Mosman dismissed the AG’s request to temporarily restrain government conduct, and any further inquiry into the potential for “future harm” which was necessary for a Temporary Restraining Order to issue.Because the government covered its tracks so well by the clandestine methods it used to cover up the kidnaps and their identities – the judge made no further inquiry. Sadly, the search for righteous conduct by the government became a circular argument of proof and causation that put illegal government conduct above the rights of the people.
FEDERAL JUDGE SHOOTS DOWN ATTORNEY GENERAL BASED UPON LACK OF “STANDING” ARGUMENT
Yet, despite the AG’s substantive concerns of the people of Oregon, Judge Mosman dismissed AG Rosenblum’s request for relief upon a “procedural” issue – finding she had “no standing” to bring her complaint for relief before the court – even though her job as AG gives her the right to litigate the harms done to the people of her state. He also found fault with the AG’s petition for relief, naming only two individuals claiming abduction – no doubt laying blame and casting doubt on the severity and nature of the government intrusion, and inferring that if it were in fact a wide-scale government effort to abduct protestors, there would have been more names included in her claim for relief. Clearly a class action complaint needed to be put forth, but for purposes of an emergency motion, filed within the time-constraints of the emergency, one would anticipate that two sworn statements would peak a Judge’s interest – at least or until until more proof, and more names could be gathered. Yet, the judge showed no interest in learning more about the issues, or allowing the AG more time to gather additional names of victims. In effect, he cast shade on the State’s Rights Doctrine of the 10th Amendment that grants the states’ rights to perform actions and representations bestowed upon them by the US Constitution – such as self-policing, and holding the federal government accountable for infringing on a state and citizen rights. In the end, Judge Mosman provided Oregonian’s with no relief from continued government harassment, abductions or infringement of their Constitutional rights – a worrisome proposition that a federal judge, sworn to uphold the Constitution – abdicated it – to contravene the rights of the people, in favor of government suppression.
Who is Judge Mosman?
It is a very sad day in America, when its law-abiding citizens can be plucked off the streets – kidnapped – while exercising their First Amendment Rights of Free Speech & Assembly, and do so without recourse. Not surprisingly, Judge Mosman has a history of harmful decisions aimed at victims, and having the effect of negating the rights of the “institutionally” aggrieved. One such instance occurred when Mosman presided over the Catholic Church pedophile case in which he ruled against the the victims of pedophilia – not because of their victim status – but because Mosman held that the perpetrators – Catholic priests, are “not employees” of the Catholic church, and therefore “immune” from employer liability. His ruling found the Vatican not liable, nor accountable to victims because he ruled that the Vatican it is “not” and employer, and as a result, there can be no employer/employee relationship to hold them accountable.
In so finding the Vatican to be a nuanced relationship outside the “traditional” meaning of employer/employee – he absolved the religious order of any duty to parishioners, and any liability – civil or criminal. By such decision-making – the Judge effectively institutionalized pedophilia as a protected crime if committed by agents of an religious institution – not because no crime occurred or could not be proven – but because he deemed them not to be an “employer.” Mosman created this “legal fiction” to safe-guard a multi-billion dollar enterprise at the expense of child victims. Moreover, there is no doubt there was an agency relationship between priest and the Vatican that should surely bind the principal – the Vatican to the actions of its flock of priest agents. It is no secret that priests are trained, placed and promoted based upon a number of factors to which the Vatican sets as criteria – yet Mosman absolves them of liability. Even more troubling, where it is clear that church hierarchy had reason to know of the “proclivities” of its staff, but continued to keep them on their payroll, and in positions where they could continue to inflict unsupervised harm upon victims – that makes them complicit and in the criminal acts and should alone hold them responsible for allowing it to continue. Not only is Judge Mosman’s ruling antithetical to virtuous Christian teaching and the rule of law, it perpetuates and even legitimizes egregious conduct – giving tacit approval to those who victimize the most vulnerable, while treating the perpetrators with impunity.
POWER OF THE GOVERNMENT IS IN THE POWER OF THE POSSE
Much of this power of the government in sending militia to the states to “quell insurrection,” stems from a little known 1878 federal law, the Posse Comitatus Act (PCA). It can be found in Section 1385 of Title 18, of the United States Code, and by today’s standards, many see it as legalized ‘governmental over-reach’ where states’ have the right and power to police their own state affairs. Yet, a specific section of the “Act” entitled “The Insurrection Act,” Chapter 13 of Title 10 of the United States Code, states the following:
“This act allows the President to use U.S. military personnel at the request of a state legislature or governor to suppress insurrections. It also allows the president to use federal troops to enforce federal laws when rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. by the ordinary course of judicial proceedings.”
10 USC Sections 251-255.
What Does This All Mean?
The Posse Comitatus Act or PCA allows the President to send the military to a state at the request of a state legislature or governor when there is a need for help to suppress an insurrection.
Yet, the governor of Oregon clearly did not ask for governmental intervention or help.
Even so, the PCA only prohibits the the Army and Air Force from performing domestic law enforcement activities. The United States Code, 10 USC Section 275, requires the Secretary of Defense to make regulations to prohibit members of the Army, Navy, Air Force, or Marine Corps from direct participation in a search, seizure, arrest, or other similar activity unless it is authorized by law. (10 USC section 275).
10 USC Section 275 states as follows:
The Secretary of Defense shall prescribe [write] the regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.
Unfortunately here, an Executive Order by the president constitutes being “authorized by law,“ and that is what happened to initiate federal intervention in Oregon.
Democracy Demands that Journalists are to be Protected
The day before Judge Mosman’s ruling, Federal District Judge, Michael H. Simon had heard the Oregon case filed by the American Civil Liberties Union (ACLU) against the Department of Homeland Security and the US Marshals Service. Judge Simon, an Obama appointee, made a notable ruling concerning the tactics used by the federal agents on the ground in Oregon, a situation he feared put the First Amendment Free Speech & Assembly protections in jeopardy. He raised serious concerns regarding the government’s attempt to chill speech and assembly rights of protestors, and especially those of the “Fourth Estate,” – infringing on the rights of journalists to report back for the American people. To combat these threats to the First Amendment, the Judge issued a “‘Temporary Restraining Order“ to protect “journalists” and “legal observers” against the government looking to silence their reporting, by taking them into custody.
Judge Simon ruled:
“Although the Federal Defendants assert their right to disperse ‘violent opportunists,’ there is no evidence that any journalist or legal observer — let alone any of the named Plaintiffs — has damaged federal property or acted violently towards federal officers,” Simon wrote.
He added that the government during oral arguments had already “conceded that they have no such evidence.”
“Indeed, the evidence before the Court shows that journalists and legal observers attend the protests as ‘guardians of the public interest,’ not as vandals,” Simon wrote.
See: https://www.cnbc.com/2020/07/24/judge-blocks-federal-officers-from-targeting-journalists-in-portland.html
Judge’s Simon’s ruling: barred Federal officers from arresting or using force against journalists and legal observers at demonstrations – unless there is probable cause that those journalists or legal observers 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.
In issuing his order, Judge Simon wrote:
“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,” [.]
However, after Judge Simons ruled to protect journalists from being kidnapped from the streets of Portland as they report back to the American people, the very next day, Friday, July 24th, Federal Judge Michael W. Mosman issued his ruling, denying the Attorney General’s petition for a temporary restraining order to protect the people of Oregon from the abrogation of their First, Fourth & Fifth Amendment rights by government agents.
No Redressable Claim…No Proof
In Judge Mosman’s opinion, he asserted that AG Rosenblum failed to allege “redressable” conduct by the government – finding she did not meet the threshold requirements to bring her claim to court. He used the procedural device known as an Article III, a “case or controversy requirement” to stop any further inquiry into the actions of federal agents in the state. In addition, Judge Mosman criticized the AG for bringing only “two witnesses” before the court with allegations of being abducted – kidnapped, thrown into vans, and detained by government actors. Yet even though both witness statements were made under oath, the judge ruled that their allegations were not “independently” verifiable to prove the government’s conduct against them. The Judge stated there was “no evidence” to support their claims – as there was no evidence of their capture, “seizure” or their “arrest.” Basically, the judge denied any relief to the two kidnapped protestors – because they were seized in a clandestine manner, under cover of night, and without a paper trail – making it virtually impossible to authenticate – as if it never happened – even though everyone, except the judge, seemed to know that it did.
Judge Mosman ‘Denied’ AG Rosenblum & the People of Oregon, Any Relief from Seizure, Snatching & Detention by Unspecified Government Agents
By one party denying the seizure and denying the claim, the court engages in circuitous logic – depriving citizens of a cognizable claim against the government, and to ensure no other claims will ever be brought. The effect and purpose is clear: to chill speech and curb dissent by putting protestors in fear of government retaliation Yet, as Americans have proven time and again, silencing dissent will only incentive more people to speak out – as became apparent when mobs of people appeared in Portland, moms and dads of protestors causing the government to eventually decided to retreat.
Yet, in her argument, Attorney General Ellen Rosenblum implored Judge Mosman to stop federal officers from engaging in “unconstitutional police state-type tactics,” alleging they have violated the rights of protesters to exercise free expression and assembly – their right to be free from unreasonable search and seizure and receive due process when taken into custody.
But to bolster his position, Judge Mosman referred to the 58th day of continued protests related to police violence and racism traceable to the George Floyd murder. To that end, Mosman made the following remarks regarding the case made by AG Rosenblum, referring to the situation as:
“[h]ighly unusual one with a particular set of rules. In the first place, although it involves allegations of harm done to protesters by law enforcement, no protester is a plaintiff here. Instead, it is brought by the State of Oregon under a rarely used doctrine called parens patriae. In the second place, it is not seeking redress for any harm that has been done to protesters. Instead, it seeks an injunction against future conduct, which is also an extraordinary form of relief. Under the governing law for such cases, the State of Oregon must make a very particularized showing in order to have standing to bring a parens patriae lawsuit, a task made even more challenging by the nature of the remedy it seeks. Because it has failed to do so – most fundamentally, because it has not shown it is vindicating an interest that is specific to the state itself – I find the State of Oregon lacks standing her and therefore deny its request for a temporary restraining order. I do so without reaching the merits of the underlying claims.”
Without reaching the merits of the case, and dismissing the harms of those who sought to prevent further threats upon Oregonians, Mosman’s ruling had the effect of undoing Judge Simon’s ruling one day earlier, which granted a Temporary Restraining Order (TRO) to protect journalists and legal observers from “seizure,” and being “silenced” by the government.
Powers and Duties of a State Attorney General
For the most part, state attorneys general are the chief legal officers of the states, commonwealths, and territories of the United States. They serve as counselors to state government agencies and legislatures, and as representatives of the public interest. The concept of Attorney General originated in the mid-13th century in the office of England’s “King’s Attorney,” the office had become, by the American Revolution, one of advisor to the Crown and to government agencies.
Of the typical powers of state attorneys general, although varying from one jurisdiction to the next due to statutory and constitutional mandates, typical powers include: authority to issue formal opinions to state agencies; act as public advocates in areas such as child support enforcement, consumer protections, antitrust and utility regulation; propose legislation; enforce federal and state environmental laws; represent the state and state agencies before the state and federal courts; handle criminal appeals and serious statewide criminal prosecutions; institute civil suits on behalf of the state; represent the public’s interests in charitable trust and solicitations; and operate victim compensation programs. Basically, they represent the public. They are in fact the “people’s lawyer.”
Yet, despite the history of State Attorney Generals in the United States and there legal status as the “people’s lawyer,” AG Rosenblum was ridiculed by Judge Mosman, her claims minimized, and her authority questioned. No federal judge should ever treat the “people’s lawyer” with such contempt, as they represent, by virtue of their position, the rights of every citizen within state borders.
A Sad Day of What’s to Come…
It is a sad day for America and the Constitution when “unidentifiable federal agents” are allowed to “seize” peaceful protesters without probable cause or without reasonable suspicion to have committed a crime. Not only does this violate the tenants of criminal law – it impugns the Fourth Amendment rights bestowed by the US Constitution to protect against unreasonable Search and Seizure, and the Fifth and Fourteenth Amendment Due Process Laws of a fair process under the law. It contravenes Constitutional limited on government intervention in the lives of every Americans and deems them “guilty” – before they are “believed” to be innocent. It is unimaginable that in the twenty-first century, unnamed federal agents are whisking Americans away in unmarked vehicles, using tear gas, rubber bullets, on those who dare to exercise their voices to protest social injustice. Yet, federal authorities – including US Attorney General, Bill Barr dispute those allegations of unreasonable use of force, and abduction of “peaceful” protestors, despite journalists and legal observers witnessing it firsthand.
COVID Distraction?
Many believe the seizure of protestors by government agents is a subterfuge – a distraction to take focus away from the deadly Coronavirus pandemic, and how this administration has abysmally responded to the crisis – by effectively creating another. At a time when the next presidential election is approximately three months away – the health, safety and welfare of ALL Americans has never been more paramount. Yet, while thousands of Americans lay dying from COVID, hospital officials are begging for more protective gear, and refrigerator trucks are lining streets to serve as make-shift morgues; the US president remains focused on safeguarding statues erected during the Jim Crow Era – when black suppression was at its height – memorialized for the purpose of keeping that legacy of suppression alive for future generations. This should not be the priority of the commander in chief, when a viral disaster of epic proportions is killing Americans across the nation.
Instead of mounting a front-line defense to fight against the disease ravaging the nation: appropriating protective gear PPE to those who need it, mandating simple prophylactic practices as mask wearing equally across the nation, instituting the Defense Production Acts to create more PPE at home – our president sends out the calvary of troops to: Oregon, with New Mexico and Illinois on the list. Instead of allowing state government to handle state protests – the government sends military troops to abduct other Americans and violate their rights. Yet, the real fight should be focused on marshaling government resources to help save the lives of Americans who are needlessly dying from COVID. And those who claim that ‘insurrection is a democratic ploy to tear down precious monuments, should read the history books at least a few more times.
Since before the founding of the United States, Americans stood up for what they believe. They stood up to the British to carve their independence from Great Britain, they stood up against themselves in a divided nation on slavery during the Civil War, and they stood up against fascism during WWII. Americans are used to standing up – and they are standing up right now all across America in search of racial justice and social equality. It is this spirit of American strength and conviction that makes this a true Democracy – and those convictions cannot be overcome by a militarized government pitting American against American. At its core, the majority of Americans share the same values that are imbued in our Constitution: Right to Free Speech, Right of Assembly, and Right to Petition Government for Redress of Grievances – those are at the core of our democratic beliefs and values – it is the foundation of our great union. And, when a government that is supposed to be “by the people,” “for the people” and “of the people” is not working as a united front – Americans must and will mobilize as one to make it happen. Our nation was founded to create a more perfect union – meaning that together as one, we are stronger together than we are divided. This episode in history will once again prove it going forward.
Copyright, 2020, Mary Kay Elloian, Esq.
The Legal Edition® – Legal, Business & Policy News. All Rights Reserved.
