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- When Trump threatened to send federal agents to Philadelphia, U.S. Sen. Bob Casey (D., Pa.) accused the officers in Portland of “kidnapping and holding citizens without charges.”
- A federal judge ruled that one protester’s arrest was unconstitutional, and a Trump administration official said federal agents lacked probable cause for the second.
- Legal experts say those seizures meet the common language definition of kidnapping, even as they stressed that the officers involved would never be formally charged.
Democrats and civil libertarians have decried the Trump administration’s response to unrest in Portland, Ore., in recent weeks. Federal agents have been criticized for beating and pepper spraying a peaceful Navy veteran and shooting another man in the face with a nonlethal munition, fracturing his skull.
When President Donald Trump threatened to send federal agents to Philadelphia, U.S. Sen. Bob Casey (D., Pa.) accused the officers in Portland of "kidnapping and holding citizens without charges."
We wondered whether Casey’s description was accurate.
Our analysis of this claim focuses on two detentions. A federal judge ruled one of them was unconstitutional, and a Trump administration official said agents lacked probable cause for the second. Legal experts say those seizures meet the common language definition of kidnapping, even as they stressed that the officers involved would never be charged.
Federal agents don’t typically patrol American cities. But in late June, Trump signed an executive order directing federal law enforcement agencies to send personnel to cities where monuments had become focal points for protests against systemic racism and police violence.
A few days later, Homeland Security agents from Customs and Border Protection and Immigration and Customs Enforcement — who didn’t have proper training in riot control or mass demonstrations — arrived in Portland to support officers of the Federal Protective Service, the division responsible for protecting federal buildings such as the city’s Mark O. Hatfield courthouse, which had been vandalized.
When Casey said protesters in Portland had been kidnapped, he was relying on news reports and legal documents that described two protesters who were picked up under "irregular" circumstances early July 15, said Natalie Adams, Casey’s spokesperson.
One is Mark Pettibone, who said he was seized near the courthouse by a group of armed agents traveling in an unmarked minivan. Pettibone told Oregon Public Broadcasting that as the van drove off, officers covered his eyes and restrained his hands.
Pettibone said he was taken to a building he later learned was the federal courthouse, loaded into a cell, and read his Miranda rights. He was patted down and photographed, and his belongings were searched. Officers didn’t tell him why he was being arrested, he said, and when he declined to answer questions without a lawyer present, he was released without any record of an arrest.
The other incident was captured in a now-viral video. It shows a team of federal agents dressed in combat gear surrounding a peaceful protester, removing him from the street, and carrying him away in an unmarked van — just like Pettibone. The protester in the video hasn’t been identified.
Legal experts said neither of these arrests was lawful because the officers lacked probable cause.
When Oregon Attorney General Ellen Rosenblum sued the Trump administration, she argued that the agents who snatched Pettibone violated his Fourth and Fifth Amendments rights and that his detention constituted "an unreasonable seizure." Michael Mosman, the federal judge who ruled on the case, agreed.
Mosman wrote: "There is no video of this arrest and no evidence relating to its legality other than Mr. Pettibone’s sworn statements. Defendants have not refuted the state’s allegation that Mr. Pettibone’s seizure lacked probable cause. I therefore assume, only for the purposes of this opinion, that this seizure was unlawful and constituted a violation of Mr. Pettibone’s rights under the Fourth and Fifth Amendments.
Regarding the arrest depicted in the video, Mosman added:
"The video shows the seizure but does not show any context for what preceded it. It therefore does not speak to probable cause one way or another because it is equally plausible that the individual was an innocent bystander or that he had committed some criminal act just before officers seized him."
But when a Trump administration official was asked to describe the probable cause, he admitted the officers had none. Rather, the agents wanted to question the man about a crime he might have observed — and believed they needed to move him to do so safely.
Richard "Kris" Cline, deputy director of the Federal Protective Service, said at a news conference that as agents approached the man, "they noticed that coming in their direction were violent demonstrators." This necessitated moving the man "to an area that was safe for both the officers and the individual," Cline said.
Cline went on to argue that the officers’ conduct was lawful because it was not actually an arrest, but rather a stop, which does not require probable cause.
Cline is wrong.
Forty years ago, the Supreme Court ruled in Dunaway v. New York that taking a suspect into custody, transporting him to a new location, and detaining him for questioning is "indistinguishable from a traditional arrest." And for such an arrest to be lawful, probable cause is required.
Harvard Law professor Andrew Crespo described the case law this way:
"Any one of these cases, standing alone, resolves the question at hand. Taken together, the conclusion is inescapable: When the agents put the man in the van, took him off the street, and brought him inside for questioning, they arrested him. Cline says they did so without probable cause. That means they violated the Constitution."
So, can these two incidents be considered kidnapping?
Rosenblum used the word kidnap in her petition for an injunction against future arrests involving protesters.
"Ordinarily, a person exercising his right to walk through the streets of Portland who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped and is the victim of a crime," Rosenblum wrote.
Some legal experts didn’t hesitate when asked if what happened was kidnapping.
"Apprehending a person by force and holding him or her in captivity without legal authority is the definition of kidnapping," said Erwin Chemerinsky, a constitutional law expert and the dean at Berkeley Law. "That is exactly what was done to some who were apprehended in Portland."
Former federal prosecutor Ken White, an outspoken legal commentator on Twitter who goes by @popehat, said calling the detentions kidnapping is a mostly rhetorical question rather than a legal one because it’s unlikely the agents responsible would ever be charged. But he didn’t dispute that some elements of the crime of kidnapping match what happened to Pettibone and the other protester.
"The arrest could certainly be unlawful and in violation of the Fourth Amendment, which has consequences in any criminal case against the arrestee and potential civil consequences if the arrestee sues," he said. "However, kidnapping is a different matter — that’s a criminal allegation against the cop."
He continued: "The crime of kidnapping usually has an element of wrongful intent — so you’d have to prove not just that the arrest was unlawful, but that the cop knew and intended it to be unlawful, which is difficult."
George Washington University Law’s Jonathan Turley said it was "reckless" for Casey to call the incidents kidnapping when the seizures were most likely false arrests, which can occur when an officer believes, even wrongly, that he had legal authority to detain someone.
Casey said federal agents in Portland have been "kidnapping and holding citizens without charges." It’s clear from Mosman’s ruling and from Cline’s remarks that the two detentions in question were unconstitutional or false, and it’s not in dispute that the two men were briefly held without charges. The circumstances of these two detentions fit many elements of the crime of kidnapping. This is true even if the crime is never charged or proved beyond a reasonable doubt. For these reasons, we rate Casey’s claim Mostly True.
Twitter, Mayor Ted Wheeler @tedwheeler, July 20, 2020
Oregon Public Broadcasting, "Federal Officers Shoot Portland Protester In Head With ‘Less Lethal’ Munitions," July 12, 2020
The Philadelphia Inquirer, "Trump is threatening to send federal agents to Philly. Here’s what you need to know," July 21, 2020
Opinion and order, U.S. District Judge Michael Mosman in Ellen Rosenblum v. John Does 1-10; United States Department of Homeland Security, filed July 24, 2020
The White House, "Executive Order on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence," June 26, 2020
U.S. Department of Homeland Security, "DHS Announces New Task Force to Protect American Monuments, Memorials, and Statues," July 1, 2020
The New York Times, "Federal Officers Deployed in Portland Didn’t have Proper Training, D.H.S. Memo Said," July 18, 2020
Oregon Public Broadcasting, "Federal Law Enforcement Use Unmarked Vehicles to Grab Protesters Off Portland Streets," July 16, 2020
Twitter, Hamed Aleaziz @Haleaziz, July 22, 2020
The Washington Post, "‘It was like being preyed upon': Portland protesters say federal officers in unmarked vans are detaining them," July 17, 2020
Twitter, Matcha Chai @matcha_chai, July 15, 2020
Lawsuit, Ellen Rosenblum v. John Does 1-10; United States Department of Homeland Security," filed July 17, 2020
U.S. Customs and Border Protection YouTube, "DHS/CBP Press Conference July 21, 2020," July 21, 2020
Lawfare, "Unpacking DHS’s Troubling Explanation of the Portland Van Video," July 25, 2020
Email interview, Erwin Chemerinsky, July 29, 2020
Email interview, Larry Tribe, July 29, 2020
Phone interview, Ken White, July 30, 2020
Phone interview, Bob Weisberg, July 31, 2020
Phone interview, Jonathan Turley, July 31, 2020
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