September 30, 2020

ACLU Sues Federal Officers Over Excessive Force Deployed Against Portland Protesters

By Tim Cushing
The Trump Administration’s decision to send federal agents — led by the DHS — to Portland, Oregon to handle civil unrest (prompted by yet another killing of an unarmed Black man by a white police officer) continues to generate litigation.

Supposedly sent to protect federal buildings targeted by Portland protesters, the DHS task force — composed of CBP, ICE, and FPS officers — rolled into Portland Gestapo-style, sending out unidentified officers to toss people into unmarked vehicles, spiriting them away to undisclosed locations to be subjected to detainment and interrogations that were never documented.

The DHS task force redefined riot police to include rioting federal police. Officers attacked press and legal observers with the same enthusiasm they attacked protesters with. Local journalists sued, obtaining a restraining order against federal agents… one the federal agents immediately violated.

Another lawsuit has been filed, this one accusing the DHS task force of violating the rights of protesters. The ACLU — along with a number of other plaintiffs (including the “Black Millennial Movement”) claims federal officers are deploying excessive force and engaging in unlawful detainments of participants in the ongoing Portland protests.

The complaint [PDF] opens up with a nice little dig at the Administration’s unwillingness to properly staff its departments, reminding the court (and readers) the DHS still doesn’t have a legally appointed director.

As part of a federal mission known as “Operation Diligent Valor,” spurred by President Donald J. Trump and directed by the purported Acting Director of the United States Department of Homeland Security (“DHS”) Chad Wolf, the federal government deployed more than a hundred federal law enforcement officers or agents employed by a variety of federal agencies in an alleged effort to “quell” the protests, which were occurring near the Mark O. Hatfield Federal Courthouse (the “Hatfield Courthouse”) in the center of Portland.

As befits an administration that likes the concept of “rule of law” as long as no one applies it to the administration, the DHS task force began violating laws and rights as soon as it set foot in Oregon.

Such federal law enforcement officials, heavily armed and clad in military-type camouflage or dark uniforms, indiscriminately used violent tactics on lawful protesters, including shooting them in the head and body with impact munitions and pepper balls, spraying them directly in the face with pepper spray, shoving them to the ground, hitting and beating them with batons, firing massive clouds of tear gas at them, and, in some instances, arresting and detaining them without any lawful basis.

All pretty unlawful. And that’s if you accept the assumption that the DHS has the legal authority to perform duties normally performed by local law enforcement. And there’s no reason you should accept that because [taps link discussing Chad Wolf’s illegitimately obtained position].

“Operation Diligent Valor” was not legally authorized. Pursuant to 40 U.S.C. § 1315(a), the Acting Secretary of DHS has limited statutory authority to designate DHS employees to “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government . . . and the persons on the property.” Defendant Wolf, however, had no such authority because he was not properly designated and serving as the Acting Secretary of DHS under the requirements of the Homeland Security Act of 2002, 6 U.S.C. § 113(g), and the Federal Vacancies Reform Act., 5 U.S.C. § 3348. As a result, he had (and still has) no authority whatsoever under 40 U.S.C. § 1315 and his designation of DHS officers pursuant to “Operation Diligent Valor” was null and void.

If the court chooses to believe Chad Wolf was legitimately appointed, this won’t change much.

[E]ven assuming “Operation Diligent Valor” had been properly authorized, the DHS officers conducting the operation exceeded their limited powers under 40 U.S.C. § 1315, which does not allow making warrantless arrests or taking actions such as detaining individuals or suppressing protests in locations that are away from, or not required to protect, federal property.

The officers brought in to settle things down riled them up instead. They shot protesters in the face with “less lethal” munitions, flooded the streets with tear gas whether or not the situation demanded extreme crowd control, expanded their “perimeter” far past the federal buildings they were supposed to protect, and snatched people off the streets (and, sometimes, right out of their vehicles).

The DHS task force also ignored local politicians’ demands they leave the city and allow the Portland Police to handle ongoing protests. An agreement was reached between the Trump administration and the governor of Oregon for federal officers to leave downtown Portland. They didn’t.

DHS confirmed that although federal officers had not interfered with peaceful protesters during the preceding days, “[t]here has been no reduction in federal presence; federal law enforcement officers remain in Portland at augmented levels.” “[T]he increased federal presence in Portland will remain until [DHS] is certain that federal property is safe.”


On August 7, 2020, OPB also reported that federal officials speaking off the record said that some of the forces might be drawn down, depending on how the weekend went, but an elevated force would likely remain in Portland through the November election.

Here’s a sampling of the abuse suffered by Portland protesters under the purported command of Chad Wolf’s DHS:

Federal officials were clearing nonviolent protesters in SW Third Avenue immediately in front of the Hatfield Courthouse, some 15 to 20 yards away from where Mr. Smiff was standing. Mr. Smiff was approximately 10 feet away from any other protesters. When Mr. Smiff looked down at his phone to send a tweet, he was shot in the right side of his face with an indelible hard-cap paintball, just below the line of his helmet and just above a face mask he was wearing.


On July 24, 2020, she was personally subjected to such unlawful tactics when she had a tear gas cannister hurled into her head, causing a three-inch gash to her forehead that ultimately required 11 stitches. Ms. Denison had come to the protests that evening as a member of the Wall of Moms, an unincorporated association with a mission to support Black Lives Matter, and to protect protesters supporting Black Lives Matter from being subject to excessive use of force by the federal government.


Mr. David then attempted to ask the officers what they were doing and why they were not honoring their oath to support the Constitution. The officers did not verbally respond or instruct Mr. David to move, but one of the officers trained his firearm on Mr. David’s chest and then lowered it, after which another officer plowed into Mr. David to knock him back.

Mr. David stumbled backwards in the street to recover his balance. Two federal officers then approached Mr. David, one after the other, and struck him with their batons while one of them deployed a canister of chemical irritant spray directly into Mr. David’s face. Mr. David was able to knock the cannister away in self-defense only to have another officer approach and spray him in the face again.


A flash-bang grenade then went off at Mr. McNulty’s feet, and the area began to fill with tear gas, which was blowing towards Mr. McNulty. To escape from the tear gas, Mr. McNulty moved through the intersection of Main Street and SW Third Avenue, crossing in front of the federal officers. As he crossed the intersection, his eyes and face began to burn. The federal officers then shot Mr. McNulty four times: three times with rubber bullets and one time with a pepper ball. He was given no warning and was not disobeying any orders or engaging in any violence before he was shot.

Mr. McNulty was bleeding, in considerable pain, and unable to move easily. He sought out volunteer medics who could assist him. The medics provided Mr. McNulty with short-term treatment and sent him to a hospital emergency room. At the emergency room, Mr. McNulty learned that one of the munitions that struck him in the back had not only gone through his clothes, but pierced his skin, fat layer, and at least one layer of muscle. The wound was severe enough that Mr. McNulty had to have a CT scan to confirm that it had not punctured his peritoneal cavity.

The ACLU and other plaintiffs are asking the court to find federal officers violated the rights of protesters by subjecting them to excessive force and curtailing their ability to protest peacefully. The ACLU is also wants the court to compel the release of records related to the unlawful arrest of one of the plaintiffs, which includes anything accessed by officers on the phone they seized during his arrest.

The federal government’s interlopment in Portland has been 100% ugly. And it’s been encouraged by the Commander-in-Chief, someone who appears to feel the “rule of law” should be applied rapidly and harshly against those questioning decades of abuse at the hands of law enforcement.