Under Color Of Law

“If we desire respect for the law we must first make the law respectable.”
– Justice Louis Brandeis, Supreme Court of the United States

Since TNFN posted our opinion piece on the use of unmarked vehicles by unidentified officers in apprehensions and detentions in Portland, Oregon, we’ve been able to confirm some additional points of interest and establish a timeline of events.  This grants a new perspective on the so-called abductions, on the lawsuit filed by Oregon A.G. Ellen Rosenblum, and on the bills now before Congress aimed at halting this activity.  Please note the scope of the article is limited to this specific issue.

(Before continuing, we advise you make yourself familiar with the piece linked above for a consistent basis in the facts of the matter.  -Editor)

Rosenblum’s filing is a curious document, unusual not only in subject — it’s the state of Oregon seeking an injunction against Federal law enforcement, which is not at all normal — but in language and tone.  “On information and belief” is a phrase frequently seen in whistleblower and informant trials, but here it seems unlikely that such is the case, no such person being either named or indicated.  We conclude that it is likely the intent of the filing is in part to convince a judge to compel production of documents in that respect from the named Federal agencies.  At issue is whether a warrant, or evidence in lieu of a warrant, existed in such force as to justify the apprehensions of one named person and several unnamed and unidentified.

If indeed the action were honestly intended to provide rapid relief for citizens from actions by unmarked and unidentified law officers, it would perhaps proactively contain reference to laws and procedures, the Miranda case, and so on.  It does not; instead it merely tangentially references the phenomenon.  It is again reasonable to conclude that the practice is being used partly as a pretext (which is not unusual).  Without additional information, it appears that this action is designed to compel an answer on record from the federal agencies named — and since that answer is already known, the goal would seem to be to apply political and media pressure rather than judicial relief.

This is permissible, even if true.  But, given the facts as we know them, is it justifiable?

According to the U.S. Code, there is no requirement that any Federal officer of the law present identification during a detention or arrest.  Indeed, any citizen can make an arrest under certain circumstances; the entire root of the authority of police forces to do this is the right of one private person to detain another in order to prevent them doing harm.  (Sheriffs, baliffs, and other officers of the court are granted extraordinary rights, but only in specific cases.  -Editor)

There are several extant areas in which detentions are made without specific warrants; demonstrable cause is routinely considered sufficient.  Unmarked vehicles are commonly employed by all levels of law enforcement, from traffic control to prisoner transport, and it’s considered perfectly right and proper.  Much has been made of the provisions of Obama’s 2011 Defense Authorization Act for indefinite detention, but there’s no indication this applies here.  Thus, all that is required is due process — the right of any person to defend themselves in a fair and open court before the government deprives them of life, liberty, or the pursuit of happiness.

There is no indication of wholesale indefinite detentions or a failure to proceed to trial.

It is natural to consider whether Federal law enforcement is interfering with local authorities in some sort of jurisdictional dispute.  This does not appear to be the case.  Instead, we have confirmation that Federal liaison officers are working alongside local police to coordinate activities.  The Oregonian has reported that Federal and local officers are acting in tandem during control events.

Upon examination, it turns out that what’s actually happening in Portland is quite different from what’s being reported.

There are several tracking feeds readily available online that report useful ground-level information.  One of these sources tracks aircraft.  It’s an open secret that the Marshals Service uses surveillance planes registered to the “Early Detection Alarm Systems Corp”; one of these has been flying patrols over Portland for several days.  The U.S. Marshals are one of the organizations named in the Rosenblum filing, along with Homeland (administration), Protective (anti-terror coordination), and Border Patrol.  Feeds indicate that Border Patrol has a squad reinforcing local police, but where did the Marshals come into this?

It turns out, the Marshals were already there.  It is part of the job of the Marshals Service to protect Federal courthouses.  During the riot on July 4th, the Hatfield Federal Courthouse was attacked; a fire was set, every one of the windows was broken out, and local police were overwhelmed.  In the days before and since, officers were targeted and attacked on the way in and out, and there are reports that a judge was shot at.  It’s not unreasonable that the Marshals called for backup — and received it.

The Federal Protective Service is the police force that reports directly to Homeland.  They provide coordination and liaison services, but there are only 900 officers nationally so there’s no anti-riot or arrest squad.  We know where Border Patrol is, and Homeland — aside from Protective — is analysts, intel, and bureaucracy.  So it follows that any detentions are being carried out by the Marshals.  We have some confirmation through UPI on the 11th, in that an arrest for the vandalism was made by Federal authorities and reported to the press by local police.

Protective has also released internal briefing materials (which of course we can’t publish even if we can get them -Ed.) with respect to the investigation of a cell-based violent anarchist group known as Black Bloc, operating within and around local Antifa activists.  This inner organization is being viewed as terrorist in nature, and they have an identifiable uniform.  Local feeds indicate that those being detained are wearing similar uniform clothing.

From all this, it must necessarily be concluded that the arrests and detentions are likely justified, or at least reasonably justifiable.  There appears to be cause.

The question remains, posed but not effectively asked in the Rosenblum filing:  Should officers of the law be required to identify themselves openly in the performance of their duties, specifically while making arrests?

In September of 2014, the Department of Justice sent an advisory letter to the police chief of Ferguson, Missouri regarding the practice common at the time of local officers to remove identifying name plates from their uniforms while on riot duty.  Here’s a quote from that letter:

“…Allowing officers to remain anonymous when they interact with the public contributes to mistrust and undermines accountability.  The failure to wear name plates conveys a message to community members that, through anonymity, officers may seek to act with impunity.  Further, the lack of name plates makes it difficult or impossible for members of the public to identify officers if they engage in misconduct, or for police departments to hold them accountable.”

It is further implied that, as standard procedure is to wear identification, it is certainly arguable that failure to do so is a denial of due process — for one of the key aspects of due process is consistency in procedure in every case.  Without that consistency, justice loses its fair application, and equal rights under the law are no longer guaranteed.  While In re Neagle will prevent any Federal officer from being the target of prosecution in this, Title 18 USC Sec 242 clearly describes the illegality of depriving citizens of their rights under color of law.

This is not about legal technicalities themselves.  It’s about why they exist in the first place:  to prevent agents of the government from overreaching and becoming tyrannical.  Police are citizens just like the rest of us, and they are compelled to follow the same laws we are.  Legal procedures and conventions exist solely to describe an easily visible line beyond which their powers do not extend; thus, wherever that line is even blurred, they have gone too far.

“Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another.”
– John Locke, “Two Treatises On Government”

The following is therefore the considered opinion of The Not Fake News:

  1. That Federal officers are very probably justified in their efforts in Portland, Oregon.
  2. That there is no reasonable indication that Federal officers are exceeding the bounds either of their jurisdictions or duty.
  3. That any failure in these law enforcement efforts in Portland is caused primarily by mismanagement from above, particularly in the city and state governments.
  4. That, nevertheless, those Federal officers operating without markings, name plates, or unit designations are very probably depriving detainees of due process thereby, which at the very least endangers any future prosecution following those arrests.

With this publication, we are inviting comment from the city of Portland and the U. S. Marshals Service.  Any official response will be passed on to our readers.

(NOTE, Post-publication:  We have been informed of certain factual errors and have acted toward correcting them.  Additionally, it is worthy of note that the Rosenblum filing is aimed at more than the use of unmarked cars and uniformed officers without unit designations or name plates.  No critique of that portion of the filing is intended. -Editor)

The Press was protected so that it could bare the secrets of the government and inform the people.  Only a Free and Unrestrained Press can effectively expose deception in government.  And paramount among the responsibilities of a Free Press is the duty to prevent any part of the government from deceiving the people.”
– Justice Hugo Black, U. S. Supreme Court

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