Attorney General Ellen Rosenblum on Wednesday urged a judge to declare it “unacceptable” for federal officers to engage in “unconstitutional police state-type tactics” by scooping up citizens and placing them in unmarked vans without probable cause.
The attorney general relied on the statement of Michael Pettibone, a 29-year-old Portland man who said he was placed in a van on July 15 as he was walking home from a protest in downtown Portland by men in camouflage uniform, taken to the federal courthouse, questioned and released without facing any charges.
The state also is relying on a widely circulated video on social media of a man dressed in black being approached by men in camouflage, being detained and walked to an unmarked van and driven off.
“That is terrifying. It’s terrifying for the people who are being marched into an unknown van by large, unknown men. And it’s going to terrify who witnesses it and everyone who hears about it,” said Sheila H. Potter, chief deputy trial counsel in Rosenblum’s office. “It was designed to terrify to quell protests.”
David M. Morrell, a U.S. Department of Justice attorney, argued that the state doesn’t have standing to sue the federal government and failed to prove that the detention of Pettibone or the man captured on video was unlawful.
“Regardless of Mr. Pettibone’s state of mind, the state has offered nothing to suggest there was no reasonable basis to believe Mr. Pettibone engaged in criminal or violent conduct,” Morrell said.
U.S. District Judge Michael W. Mosman heard about 90 minutes of arguments during the hearing held by video conference and didn’t rule from the bench. He’s expected to issue a written ruling soon.
Rosenblum late Friday filed suit against the Department Homeland Security, Customs and Border Protection, the Marshals Service and the Federal Protective Service seeking to bar federal officers from illegally detaining anyone without probable cause on city streets and whisking them off in unmarked rental vans.
The suit alleges that the actions by federal officers have violated free speech and due process rights of Portland residents and resulted in unlawful seizure, creating a public nuisance. On Wednesday, Rosenblum urged the court to grant a temporary restraining order to restrict the federal officers’s actions.
Morrell urged the judge to give deference to the federal officers and allow them to defend the downtown federal courthouse and themselves from violent demonstrators at night as the city marks the 55th day of protests against police violence and systemic racism.
What the state is seeking also could curtail investigatory stops by officers, known as Terry stops, which may be based on “reasonable suspicion” rather than probable cause and are a standard, lawful investigatory tool, he said.
Officers must make “split-second judgments” in “tense, uncertain, rapidly-evolving” circumstances, Morrell said, and he asked the judge to use caution and not allow the courts to direct how police do their jobs.
Any injunction issued that could hold an officer in contempt could have a “serious chilling effect on the way in which law enforcement officers attempt to discharge their lawful obligations in the course of their duties,” he said.
“The Hatfield courthouse did not damage itself. It was the result of intentional, repeated, violent conduct by protesters,” Morrell said. “It would be a very bad precedent for a court to superintend law enforcement operation in a very trying dynamic in a violent atmosphere.”
Lawyers for the state attorney general repeatedly pointed out that the federal government still, as of Wednesday, had not explained why Pettibone was detained, who picked him up or why.
“The federal government has given us nothing,” said attorney Steven M. Lippold, the state’s chief trial counsel. “Either there was no probable cause or reasonable suspicion, or it goes to the fact that they don’t know who did it either, because there are so many different agencies involved.”
Rosenblum asked the court to order federal officers to identify themselves and their agency before pulling someone off the street, why they’re being detained and not proceed without probable cause or arrest.
“Say who they are, where they’re from, what they’re doing,” Potter said.
The secretive maneuvers make other protesters fear they’ll be snatched off the city’s streets, Potter argued. They have a chilling effect on free speech and assembly, she said.
“There’s no other reason for law enforcement not to take five seconds to say, ‘we’re with the U.S. Marshals. You’re under arrest,’ other than to terrify people,” she said.
Mosman said he agreed for the purposes of the hearing that Pettibone likely wasn’t involved in any criminal activity and was held without probable cause. But he pointed out that the state had provided little information on the man detained in the video circulated on social media and whether federal officers had a lawful reason to seize that man at that time.
In an apparent response to the video, Mark Morgan, a senior official with Customs and Border Protection, wrote on Twitter last week that Border Patrol agents had approached a man on the streets of Portland and “moved the suspect to a safer location” for questioning to avoid a “large and violent mob,” suspecting he had previously assaulted a federal officer or destroyed federal property.
The judge characterized the state’s main argument as “all we want is the arresting agencies to use their words, to say who they are?”
In a sense, yes, Potter replied, noting that few people recognize the different insignias on the different uniforms worn by the various federal agencies.
The judge focused his questions on whether the conduct by the federal officers was lawful, what evidence the state had to support it and whether the state has legal status to seek court relief.
“It’s terrifying to be lawfully arrested. The fact that what law enforcement does is terrifying doesn’t advance your case very much,” Mosman told state lawyers. “I cant stop law enforcement from doing things that’s terrifying, if that’s lawful.”
Morrell argued that the state doesn’t have standing to sue the federal government that’s distinct from Pettibone’s individual right to challenge the federal actions. In court papers, U.S. Department of Justice co-counsel Andrew Warden argued that the state can’t seek relief from the court “based on at most two alleged past encounters involving federal law enforcement officers, when Plaintiff has not demonstrated that similar incidents will take place in the future. But Plaintiff has also failed to demonstrate that even those past encounters violated Oregonians’ rights.”
Yet Rosenblum and her lawyers countered that the state has a greater interest in this case beyond Pettibone to protect the welfare of all the citizens of Oregon.
“If federal officers are not obeying laws and taking people into custody without probable cause, the people of the state of Oregon are confused about what is happening…and there will be a lack of trust in state authorities when they’re trying to advance local law enforcement,” Lippold said.
Rosenblum, in closing, told the court: “These are very extraordinary times. These are very extraordinary circumstances. We are asking for extraordinary relief from the court today. We want our cities to be safe, that the U.S. and Oregon constitution doesn’t get suspended under any circumstances…so that we can proceed to have a city that we can be proud of, that can be safe and that we can all get along in.”
This Article argues that in formulating standards for stops and frisks, courts, police department and other policy makers should consider: whether and to what extent blacks are more frequently stopped and frisked than whites, whether and to what extent this disparity reflects police racial bias, and the nature and extent of the results negative effects. The Article provides an overview of the decision in US v. Terry and its impact on subsequent case law. It focuses on Terry’s ambivalent position on race relations, and posits that its empirical contention about the law’s inevitable inefficacy against racist abuse of the stop and frisk power is grounded in an unrealistic model of police motivation. The Article argues that racial impact should be taken into account in both the legal and administrative delimitation of the stop and frisk power.
U.S. Supreme Court
Terry v. Ohio, 392 U.S. 1 (1968)Terry v. Ohio
Argued December 12, 1967
Decided June 10, 1968
392 U.S. 1
A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed two strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed alternately back and forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times. Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man (Katz) who left swiftly. Suspecting the two men of “casing a job, a stick-up,” the officer followed them and saw them rejoin the third man a couple of blocks away in front of a store. The officer approached the three, identified himself as a policeman, and asked their names. The men “mumbled something,” whereupon McFadden spun petitioner around, patted down his outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol. The officer ordered the three into the store. He removed petitioner’s overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under petitioner’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station. Petitioner and Chilton were charged with carrying
concealed weapons. The defense moved to suppress the weapons. Though the trial court rejected the prosecution theory that the guns had been seized during a search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the ground that the officer had cause to believe that petitioner and Chilton were acting suspiciously, that their interrogation was warranted, and that the officer, for his own protection, had the right to pat down their outer clothing having reasonable cause to believe that they might be armed. The court distinguished between an investigatory “stop” and an arrest, and between a “frisk” of the outer clothing for weapons and a full-blown search for evidence of crime. Petitioner and Chilton were found guilty, an intermediate appellate court affirmed, and the State Supreme Court dismissed the appeal on the ground that “no substantial constitutional question” was involved.