Trump’s legal justification for the kidnapping of protesters in Portland is absurd.

Over the weekend, a group of mothers in Portland, Oregon, clashed with federal officials who had fired tear gas at them and other peaceful protesters on Saturday in front of federal court. The escalation of the Portland protests came as unidentified federal agents in paramilitary uniforms were captured on tape, kidnapping protesters, and President Donald Trump announced Monday that he could send “more federal law enforcement” to cities “led by liberal Democrats. “to replicate Portland tactics against protesters, including efforts to” catch them, many people in jail. ” On Monday, the Department of Homeland Security was reported to send 150 federal agents to Chicago this week with an unspecified mandate. The apparent legal justification for the kidnapping of protesters is weak, and must be vigorously challenged in court before Trump can export these tactics to other cities to use against citizens exercising their First Amendment rights.

Last week, people dressed in combat uniforms were seen pulling apparently peaceful protesters off the streets of Portland, Oregon, and pushing them into unmarked vehicles. Their uniforms bore no identifying insignia, but were clearly military uniforms. According to the video evidence so far, the arrested people were not involved in crimes. So we are faced with two questions. First, are these people military personnel, or are they policemen dressed as soldiers? Second, do these people have the authority to get people off the street in this way?

According to the Department of Homeland Security, the answer to the first question is that the force patrolling the streets of Portland consists of the Federal Protection Service, whose job is to protect federal property. Reportedly, staff from other federal agencies, primarily the Border Patrol, have also been delegated to assist in that mission. So these uniformed personnel are a militarized police force, which is always a dangerous thing. The answer to the second question is that, according to the Fourth Amendment, this force does not have the authority to stop people like this. But government attorneys will rely on expansive theories of police power that paralyze Fourth Amendment protection against illegal seizures. This would not be the first time that the federal government has attempted this, although it appears to be one of the first people attacked to exercise their right to protest in the First Amendment.

The Federal Protection Service has the authority to make arrests “if the officer or agent has reasonable reason to believe that the person to be arrested has committed or is committing a serious crime.” If that doesn’t sound good to you, it shouldn’t. People cannot be arrested unless the arresting officer has probable cause, not just reasonable reason, to believe that a crime has been committed or is ongoing. That is required by the Fourth Amendment to the Constitution, which allegedly prohibits seizures without probable cause.

The problem is that this presumption has been overwhelmed by constitutional semantics. When the Supreme Court decided that the stop-and-search tactic was allowed under the Fourth Amendment, it created a category of detention below an arrest and authorized it when a police officer has “reasonable suspicion” of a crime, rather than cause. probable . Over time, the court has dropped the probable cause requirement for each seizure that does not count as the direct application of criminal law. When Border Patrol agents arrest someone for crossing the border, for example, they don’t need probable cause. They don’t even need reasonable suspicion. They only need to detain the person reasonably, because patrolling the border is not an application of criminal law. So the two federal agencies involved here have been told they don’t need probable cause to make arrests. And the legal theory behind these dangerous rules is the same: that these federal agents are dedicated to protecting national security rather than enforcing criminal law.

But when it comes to the arrests in Portland, there are two reasons to believe that this will not hold. First, there is the word crime in the law that authorizes the Federal Protection Service to arrest without probable cause. A felony arrest is the direct application of criminal law by definition. Nothing in the semantic campaign to drag as many seizures as possible into the national security category can change that definition. And a felony arrest requires probable cause.

Second, when government officials claim they have seized for any purpose other than criminal law enforcement, such as national security, the Supreme Court has allowed the purpose of that seizure to claim that this alleged purpose is an illegal pretext. In the arrests captured on video so far, you can’t see an imminent threat to federal property. More importantly, while Trump occasionally mentions protecting property, he has repeatedly insisted that city officials have failed to control antifa, anarchists, and agitators, and that he will do the job if they cannot. If we take the president’s word, then defense of property is a pretext, and the law that allows arrests on a reasonable basis for that purpose does not apply.

The uniforms these government agents wear are a deliberate attempt to evade responsibility. But ultimately, it doesn’t matter which federal agency is committing these illegal seizures. Constitutional search and seizure questions focus on what government officials do, not what agency they work for. The important thing is that federal agents are lawless actors here. Their uniforms are no more or less part of the national security pretext for their actions.

It is important to understand all the implications of government legal theory as it is being developed in Portland. It is the equivalent of declaring martial law for national security purposes, based on the lie that military force is needed to maintain peace. Enforcing martial law for national security is a tool of dictators, and Donald Trump has been a waiting dictator for years. We can only hope that the wait is not over.

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