Sheriff's Office Asks Court To Prevent A Different Gov't Agency From Releasing Records Related To The US Marshals' Killing Of An Antifa Activist

from the is-this-a-'tell?'-it-feels-like-a-'tell' dept

A controversial shooting that resulted in another controversial shooting is generating even more controversy.

Earlier this year, self-proclaimed antifa supporter Michael Reinoehl allegedly shot and killed far right counter-protester Aaron Danielson during a protest in Portland, Oregon. Reinoehl claimed the shooting was self-defense. Other witnesses claimed the shooting was unjustified. Neither assertion ever had a chance to be proven. Reinoehl was killed by US Marshals four days later -- an extrajudicial killing praised by President Trump as good and lawful.

“We sent in the U.S. Marshals for the killer, the man who killed the young man on the street. He shot him… just cold blooded killed him,” Trump said. “Two and a half days went by, and I put out ‘when are you going to go get him?’ And the U.S. Marshals went in to get him, and they ended up in a gunfight.”

Trump called Reinoehl a “violent criminal” before suggesting that his extrajudicial killing was par for the course.

“This guy was a violent criminal, and the U.S. Marshals killed him,” Trump said. “And I will tell you something — that’s the way it has to be. There has to be retribution when you have crime like this.”

The Thurston County Sheriff's Department was part of the Marshals' fugitive task force. According to the department's statements, the kill was a good one. Officers and Marshals claimed Reinoehl opened fire on the task force first. But there was no evidence of that at the time the department made these statements. A witness said Reinoehl fired first, but here's all the Sheriff had in terms of actual evidence:

Lt. Ray Brady of the Thurston County Sheriff’s Department said investigators have not concluded whether Reinoehl fired any shots.

There could have been more corroboration of the officers' statements, but no officer felt compelled to document the scene.

Brady said he did not believe the officers involved in the shooting had body cameras or dashboard cameras on their vehicles.

Investigations of the shooting are ongoing. But the immediate aftermath featured both the Sheriff's Department and the US Marshals Service declaring the shoot justified.

CJ Ciaramella of Reason isn't satisfied with the official statements. He went looking for documents about the shooting -- one that might clear up whether or not Reinoehl produced a gun or opened fire on officers. Contradictory statements by non-law enforcement witnesses indicate this may not be as clean as law enforcement is portraying it.

But Ciaramella's request for records from the Washington Department of Corrections (which also had an officer on the Marshals' task force) is being blocked by an agency Ciaramella hasn't approached directly. Inserting itself into this open records request is the Thurston County Sheriff, which believes it has a right to prevent Ciaramella from obtaining records from a completely separate government agency.

The Sheriff's request [PDF] for a restraining order blocking the release of shooting records claims the release of these records will undercut its own investigation by [checks filing] giving the public access to information the Sheriff may later demand from the Department of Corrections.

The likelihood is high that the records DOC intends to release contain facts or statements that may be relevant to the Sheriff’s open investigation, and that could in turn undermine the Sheriff’s investigation. Release of these records could also undermine the exemption that the Sheriff properly claimed. Additionally, the likelihood is high that the records DOC holds may, even if redacted, contain information that the Sheriff’s investigation team is prohibited from seeing until its own investigation is complete; and the likelihood is high that such information could make its way back to the Sheriff’s investigation team if DOC releases its records before the Sheriff completes its investigation. Therefore, Thurston County Sheriff’s Office brings this action to preserve the integrity of its investigation and of its claimed exemption under RCW 42.56.240(1), as well as to ensure its efforts to meet its obligations under WAC 139-12-030 are not thwarted.

A cynical reading of this attempted intervention suggests the information held by the DOC isn't completely exculpatory and -- if that information becomes public -- will make it difficult for the Thurston County Sheriff to clear the officers it's investigating. That may also turn out to be the most accurate reading. But we'll have to wait a bit longer. The restraining order has been granted [PDF]... but not with all of the Sheriff's assertions intact.

Here's the pertinent part of the order, with the judge's modifications of the Sheriff's request in [brackets].

A temporary restraining order is appropriate as it appears that disclosure of certain information requested by CJ Ciaramella concerning records related to an open and active homicide investigation led by Thurston County Sheriff's Office (the Reinoehl incident) is [may be] exempt from disclosure under RCW 42.56.240(1), the non-disclosure of such records is [likely] essential to effective law enforcement, and disclosure would [likely] irreparably harm vital government functions…

This buys the Thurston County Sheriff a bit more time. The order is in effect until early next year, when the Sheriff will have to try to talk the court into delaying this release even longer. That it's decided to insert itself into this case suggests it already has some idea it's not going to like what's in the documents it's trying to keep from being released. This "clean" shoot may turn out to be anything but.

Filed Under: aaron danielson, antifa, foia, michael reinoehl, police, portland, thurston county, thurston county sheriff's department, transparency, us marshals, washington department of coorections

Portland, Maine Passes Facial Recognition Ban That Says The City Can Fire Employees For Violating It

from the we'll-see-if-the-city's-union-is-more-powerful-than-the-city,-I-guess dept

Another facial recognition ban has been passed, bringing a bit more enforceable privacy to the eastern side of the nation. Most of the ban action to date has been on the West Coast, with small pockets of resistance popping up elsewhere. Well, mainly just Massachusetts. The latest ban passed during the most recent election, gives Portland, Maine residents the freedom to live their lives with a little less panopticon.

In Maine, voters in the state's largest city recently enacted one of the toughest facial recognition bans in the country in the Nov. 3 elections, outlawing both use of the technology by local police and the city government.

The ban that passed during this referendum is an improvement over the original proposal. This version makes it enforceable. There are consequences for violating that go beyond the expected fines and fees that just shift tax dollars from one government agency to another.

The new law allows citizens to sue the city for illegal facial recognition surveillance by the city police or government. Citizens could get up to $1,000 per violation plus legal fees, if they prevail in court. Municipal employees can be fired for violating the ban.

Of course, these fines and fees just refund some tax dollars to taxpayers. But this is better than allowing the city to collect the fines, which isn't much of a deterrent to government agencies which can expect to see some of their paid fines dumped back into their pockets with the next budget approval.

The firing threat may be even more effective than giving taxpayers some of their taxes back. When a job's on the line, government employees are far less likely to abuse their power.

This ban was originally passed by the city council three months ahead of the election. But that ban did not include the possible firing of violators. It was the city's residents who insisted on this additional accountability measure. The ban goes into effect next year and cannot be removed for the next five years. That's five years of surveillance creep mitigation. The people have spoken. And what they're saying more and more frequently is they don't want their lives and bodies to be little more than data points for law enforcement surveillance programs.

Filed Under: facial recognition, maine, portland, privacy, surveillance

Portland's Facial Recognition Ban Won't Stop Private Citizens From Rolling Their Own Tech To ID Cops

from the how-the-turntables dept

Portland, Oregon recently passed a ban on facial recognition tech. Unlike bans passed elsewhere in the country, this one wasn't fucking around. The ban covered private companies as well as local government agencies. We've yet to see whether or not the courts will allow Portland to tell local businesses how to run their business, but the new ban has posed a novel problem not seen elsewhere. Residents trying to flip the script on law enforcement have discovered the new ban might impede their efforts. Kashmir Hill has the details on the unlikeliest outcome of blanket facial recognition bans.

When the city debated the ban, it asked residents for input. One resident had a very unique problem with the proposal.

During the time for public comments, a local man, Christopher Howell, said he had concerns about a blanket ban. He gave a surprising reason.

“I am involved with developing facial recognition to in fact use on Portland police officers, since they are not identifying themselves to the public,” Mr. Howell said. Over the summer, with the city seized by demonstrations against police violence, leaders of the department had told uniformed officers that they could tape over their name. Mr. Howell wanted to know: Would his use of facial recognition technology become illegal?

When cops resfuse to ID themselves while assaulting journalists and legal observers, why shouldn't citizens be able to deploy this controversial tech to put a name to the faces wielding the pepper spray and rubber bullets? It's a good question. And it's one Portland mayor Ted Wheeler answered after throwing a bit of undeserved shade at Christopher Howell:

Portland’s mayor, Ted Wheeler, told Mr. Howell that his project was “a little creepy,” but a lawyer for the city clarified that the bills would not apply to individuals.

Presumably, Wheeler's passage of the blanket ban means the mayor also thinks law enforcement's use of the tech is at least "a little creepy." But there's really nothing creepy about residents -- those on the lower end of the "inherent power" scale -- utilizing tech most often wielded by law enforcement against law enforcement. If officers think facial recognition use by civilians is a "little creepy," they're severely lacking in self-awareness. And if Portland cops don't want residents to turn their favorite tool against them, they could stop taping over their names when handling protests.

Howell's tech is self-developed. That puts him a bit behind the curve. But it also means it will work well within its limitations. Rather than search for faces in databases containing millions of photos, it only has to deal with photos of known local law enforcement officers. The possibility of false positives remains. But the worst case scenario is a misidentified officer, rather than the arrest of an innocent citizen. Howell has no power to take away the freedom of any police officer, even temporarily.

For all their touting of pervasive surveillance as "harmless" and "for the public good," governments sure get touchy when people start subjecting their employees to the same sort of eyeballing. Hill's report notes Hong Kong authorities arrested a protester for developing a tool to identify police officers using nothing more than other publicly-available photos. And in France, an artist who published 4,000 facial photos of police officers in his art exhibit removed them after being threatened with legal action by the Interior Minister.

Meanwhile, the Portland Police Department continues to defend its policy of hiding officers' names, under the theory that it's the powerless populace that presents the biggest threat to safety.

Derek Carmon, a public information officer at the Portland Police Bureau, said that “name tags were changed to personnel numbers during protests to help eliminate the doxxing of officers,” but that officers are required to wear name tags for “non-protest-related duties.”

Officers "dox" people all the time. Sometimes for "business" reasons. Other times for personal reasons. The government has a lot more personal information at its fingertips than the average citizen does, even four decades after the birth of the internet. There's an existential threat present here, but it wears badges and guns. For all the talk about the threat posed to cops, I'm unaware of any instance where a doxxed cop was awoken by citizens breaking in their door, loading the house up with flashbangs, holding them at gunpoint while the house is ransacked, and locking them up until a certain amount of money is paid to a third party. Spinning the tech to face the entities that deploy it most is just fair play.

Filed Under: cops, facial recognition, portland, protestors

FBI Sent A Special Task Force To Portland To 'Exploit' Phones Taken From Protesters

from the collect-it-all dept

Ongoing protests in Portland have been met with a federal response. The opening salvo was disturbing: Gestapo-esque tactics carried out by unidentified federal officers driving unmarked vehicles. It didn't get any better after that. The federal task force headed by the DHS seemed more willing to escalate the situation than settle things down, even if they were supposedly there to just do federal things like protect federal property and investigate federal crimes.

Documents leaked to Ken Klippenstein indicated the federal presence in Portland was more interested in finding evidence of some sort of Antifa hierarchy than sticking to the directive. FBI forensic analysts and their tech had been scrambled to Oregon to dig into phones taken from protesters and arrestees in hopes of finding some sort of organizational structure for them to attack.

This immediately raised questions about the Constitutionality of these device extractions. There's a warrant requirement in place for phone searches incident to arrests and it's not clear whether this requirement is being followed. For that matter, cloning phones belonging to detainees not necessarily suspected of criminal activity (with or without a warrant) seems like an unjustified abuse of the powers granted to law enforcement.

Emails obtained by the New York Times indicate that's exactly what's happening. A special deployment of FBI agents was sent to Portland specifically to aid in the extraction of information from protesters' phones.

The FBI’s Washington, D.C., headquarters sent agents from its “Fly Team,” an elite counterterrorism unit, to Portland this summer during the second weekend in July. Their task was to interview arrested protesters and carry out the “initial exploitation of phones, or other communication devices,” according to FBI emails obtained through a public records request. It is unclear whether the Fly Team operation extended either past that weekend or beyond Portland, but the emails suggest that the FBI has been using counterterrorism tools and powers to map left-wing protest networks just months before an election whose result is likely to be delayed, if not challenged.

The Fly Teams have been in existence since shortly after the 9/11 attacks in 2001. But until now, they've mainly been foreign-focused -- either operating in other countries or targeting foreign terrorists. This breaks some new ground in a disturbing way: counterterrorist activity targeting US citizens, some of which have engaged in nothing more than exercising their First Amendment rights.

The emails also suggest federal law enforcement is working around warrant requirements by exploiting one particular exception:

In one of the replies to [Special Agent] Chamberlin’s email, a colleague in the Portland bureau notes that the Fly Team’s “defintion [sic] of exigency will be different from ours.”

The emails [PDF] detail an incident that might be used to stretch the definition of "exigent" to cover any detained protester. A man arrested for shining laser lights into officers' eyes was found to be carrying weapons and explosives. He consented to a search of his phone, which led to a search of his home and criminal charges. If agents can talk themselves into believing any arrestee or detainee poses a threat, phones are going to be searched without warrants in the hopes a court will grant the government the benefit of a doubt if the search is challenged.

There's nothing in the emails that says the FBI is adhering to the Fourth Amendment. There's nothing in there that says it isn't, either. But you generally don't memorialize Constitutional violations in communications that can be obtained with public records requests.

As the New York Times notes, it's unclear under what authority the FBI is acting if it's treating domestic protests like domestic terrorism. But the Constitution may not be much of an obstacle thanks to actions taken by President Ronald Reagan nearly four decades ago.

Among the special powers granted exclusively to the FBI under a Reagan-era executive order (No. 12333) are authorizations to conduct “unconsented physical searches” and “physical surveillance” for intelligence purposes in the US.

We'll know more as more information leaks out or searches are challenged in court. But even if the FBI is following the law, the law gives it a lot of leeway to engage in acts it probably shouldn't, even if it legally can.

Filed Under: 1st amendment, 4th amendment, antifa, dhs, exigent circumstances, fbi, phones, portland, protests, surveillance

DHS Probably Didn't Clone Phones To Intercept Protesters' Communications

from the more-fuckedupness-from-the-feds dept

More information continues to leak out about the federal government's ad hoc anti-riot strike force (or whatever) that made its nationwide debut in Portland, Oregon. The federal officers -- composed of DHS components, US Marshals Service, and Federal Protective Services -- made an immediate impression on the nation as unmarked officers hauled protesters off in unmarked vehicles to undisclosed locations for questioning.

The feds immediately made things worse, resulting in a restraining order being sought after federal officers refused to stop attacking journalists, lawyers, and observers present at the protests. The DHS also began compiling "intelligence reports" on journalists covering the Portland protests, as well as other journalists who had published leaks about the federal response in Oregon.

Information obtained by Ken Klippenstein for The Nation shows the DHS and other federal agencies acting like they were headed to a war with foreign combatants, rather than limiting themselves to protecting federal buildings in Portland.

A current DHS official described a colleague with expertise in electronic surveillance who was being deployed to Portland. But for what purpose? “Extracting information from protester’s phones,” the DHS official said. While in Portland, an interagency task force involving DHS and the Justice Department used a sophisticated cell phone cloning attack—the details of which remain classified—to intercept protesters’ phone communications, according to two former intelligence officers familiar with the matter.

Cell phone cloning involves stealing a phone’s unique identifiers and copying them to another device in order to intercept the communications received by the original device. The former intelligence officials described it as part of a “Low Level Voice Intercept” operation, declining to go into further detail—one of them citing the sensitive nature of the surveillance tool and the other an ongoing leak investigation within I&A [Intelligence & Analysis].

If this is accurate, there are some obvious First and Fourth Amendment issues here. Targeting protesters engaged in protected speech is already wrong, but seeking to intercept their communications is something that requires a whole lot of probable cause. Wiretapping requirements are more stringent (or at least, they're supposed to be) than they are for other types of searches because of the obvious subversion of privacy expectations.

Beyond that, engaging in sophisticated cloning attacks is not "Low Level Voice Intercept." This term -- at least when used by the US military -- simply means scanning airwaves to find radio and mobile transmissions. Once located, they can be listened to. This generally refers to radio chatter, not the cloning of phones to eavesdrop on private communications between individuals.

This suggests the use of Stingray device to snag device identifiers and (possibly) engage in call interception. Stingray devices are capable of intercepting communications, but we've never seen one used that way domestically. It may not have happened here either, but it certainly would have helped identify devices and locate surveillance targets. The DHS has a warrant requirement for Stingray deployment, but there's no mention of warrants in this article. Some exceptions apply, but the DHS would still need a pen register order and that would also require a judge's okay.

That this was used domestically to possibly spy on people engaged in peaceful protests is concerning. That it was used to try to find evidence to back President Trump and AG Bill Barr's ridiculous assertions that "anitfa" is an organized terrorist group is even worse. And if this is indeed what happened, it seems unlikely federal officers (which may have included "volunteers" from the DEA) had the probable cause necessary to snoop on private communications.

Even former spies are uncomfortable with the tactics used here.

The former intelligence officers agreed that the Low Level Voice Intercept operation had been conducted on the ground, was far more invasive than aerial surveillance, and involved equipment that I&A did not have access to.

“[There were] at least two federal agencies and there was some spooky shit going on,” one former intelligence officer said of the Portland operation.

It's still unclear what the DHS actually did here. The article refers to the same actions as both "intercepting communications" and "extracting information." Undoubtedly, there's some "spooky shit" going on, but none of the former officials were present for whatever spookiness the DHS engaged in. The DHS has Stingrays and could have used them illegally. But it seems more likely it sent out an expert to help federal agents pull information from devices seized from protesters. The "cloning" discussed most likely refers to cloning the device's contents, rather than the device itself. This is common when phones are seized by law enforcement. Again, a warrant is required but the cloning often occurs before the warrant is sought to ensure law enforcement has access to it.

Then there's this, which suggests a DOJ component brought in a phone-cracking device (GrayKey, Cellebrite, etc.) to make it easier to extract device contents.

A current DHS official described how a colleague who was being deployed to Portland had alluded to using the Drug Enforcement Agency (DEA), part of the Justice Department, for the purposes of accessing protesters’ phones. “He said he needed some sort of ‘special key’ in order to …He said that DEA has that capability and vaguely alluded to possibly borrowing or using one from another agency once he got to Portland.”

If the DHS actually engaged in the interception of cellphone communications, it would be breaking new domestic surveillance ground. But it seems more likely it accessed a bunch of devices' contents and made copies of the data. Until more information surfaces, it's probably safe to assume federal agencies weren't listening in on private communications.

Filed Under: 1st amendment, dhs, federal protective services, portland, protests, stingray, surveillance, us marshals

DOJ Releases Its List Of 'Anarchy' Jurisdictions The President Thinks Should Be Blocked From Receiving Federal Funds

from the Pell-grants-no-longer-offered-to-Anarchy-State-University-students dept

The Trump Administration hasn't met a slope it isn't willing to grease up and go sliding down. There's not much united about the states at the moment and the President's lavish devotion to all things "law and order" is making things worse.

The insertion of federal officers into cities experiencing weeks and months of protests hasn't done much to reduce the adjacent violence that drew them there in the first place. Engaging in Gestapo-esque "disappearing" of protesters -- along with federal officer violence targeting journalists and observers -- has done nothing to return order to cities like Portland, Oregon.

Earlier this month, the Administration issued a memo threatening to cut off federal funding to cities the Administration doesn't like.

My Administration will not allow Federal tax dollars to fund cities that allow themselves to deteriorate into lawless zones. To ensure that Federal funds are neither unduly wasted nor spent in a manner that directly violates our Government’s promise to protect life, liberty, and property, it is imperative that the Federal Government review the use of Federal funds by jurisdictions that permit anarchy, violence, and destruction in America’s cities. It is also critical to ensure that Federal grants are used effectively, to safeguard taxpayer dollars entrusted to the Federal Government for the benefit of the American people.

Suddenly the Administration is very concerned about federal spending. Named in the memo were New York City, Seattle, Portland, and Washington DC. All of these have been targets of Trump's personal attacks via Twitter, where he's claimed the cities are being ruined by "radical left Democrats." The memo is transparently partisan. Nowhere in the memo -- which is directed to the DOJ and the Office of Management and Budget (OMB) -- does Trump call out cities in contested states vital to his reelection. Similar protests and/or law enforcement defunding are occurring in Minneapolis, Minnesota and Kenosha, Wisconsin, but neither city is mentioned in the memo.

The memo -- issued September 2nd -- gave the DOJ two weeks to designate "anarchist" cities unworthy of federal funding. The DOJ has responded, sparing Washington DC, but designating the other three cities mentioned in the memo as "anarchy jurisdictions."

The U.S. Department of Justice today identified the following three jurisdictions that have permitted violence and destruction of property to persist and have refused to undertake reasonable measures to counteract criminal activities: New York City; Portland, Oregon; and Seattle, Washington. The Department of Justice is continuing to work to identify jurisdictions that meet the criteria set out in the President’s Memorandum and will periodically update the list of selected jurisdictions as required therein.

So, what does it take to become an anarchy under Trump? Not much, apparently. Just an unwillingness to maintain the law enforcement status quo. The DOJ considers it "anarchy" to prevent police from "restoring order" or ordering them to abandon areas they lawfully have access to. (This refers to the temporary "autonomous zone" set up in Seattle by protesters.) These stipulations deal with judgment calls by city mayors during periods of intense civil unrest -- unrest prompted by previous police violence, something that's ignored completely by the memo and the DOJ.

But "anarchy" is also something as simple as police reform.

Whether a jurisdiction disempowers or defunds police departments.

Nobody's shutting down police departments. Taking police officers out of schools or routing mental health crisis calls to mental health professionals instead of cops isn't "disempowering." And if the funds aren't being used by law enforcement agencies to cover activities they're no longer being asked to perform, they should be routed to the agencies that are performing them. That's not "defunding." That's just funding.

And if the Attorney General can't find anything on the list to use to designate a city as "anarchist," he can always make something up.

Any other related factors the Attorney General deems appropriate.

So, anything could be used to trigger this review. Possibly even just being located in a state Trump doesn't think he can carry.

Right now, the memo only orders a "review" of existing funding. There are no laws on the books that allow the President to strip federal funding from cities he doesn't think lean right enough or are too mean to cops. Congress controls federal funding, not the Administration.

The slippery slope is, of course, a route to direct federal control of city and state-level policy making. Pass the "wrong" laws and your federal funds could be reduced or eliminated. If Congress somehow finds a way to make this legal by codifying pro-law enforcement requirements, the federal government will be the final arbiter of local lawmaking. This isn't the way it's supposed to work. And the Tenth Amendment is supposed to limit federal interloping like this. Even if a law is passed by Congress to make Trump's defunding plan "lawful," it probably won't be Constitutional. For an administration that leans so heavily on the phrase "rule of law," it sure seems to ignore rules and laws with alarming frequency.

Even if nothing happens past this point, the Administration will still be posting a periodic list of enemy cities and seeking some way to block them from receiving federal funds. And the selection process is transparently partisan, targeting only cities that have pushed back against Trump's heated rhetoric and his "offers" to deploy federal stormtroopers to handle local protests. This is more malignant ugliness from an administration that's served up plenty over the last four years.

Filed Under: anarchist jurisdictions, defund the police, doj, donald trump, fascism, new york city, partisanship, police, portland, protests, seattle, william barr

Portland Passes Ban On Facial Recognition Use By City Agencies And Private Businesses

from the FOR-HOME-SECURITY-USE-ONLY dept

Portland, Oregon has now joined parts of Massachusetts and all of California in protecting its residents from the sketchy surveillance method known as "facial recognition." For something that's supposed to recognize faces, it's usually pretty bad at it and gets worse when it has to deal with minorities. Of course, the same can be said about the law enforcement agencies deploying it, which might explain their love of tech that gives them more people to arrest but rarely the probable cause to do so.

Portland's ban is more restrictive than others already in place. It doesn't just affect the local government.

In addition to halting city use of the surveillance technology, the new rule prevents "private entities in places of public accommodation" in Portland from using it, too, referring to businesses that serve the general public — a grocery store or a pizza place, for instance. It does not prevent individuals from setting up facial-recognition technology at home, such as a Google Nest camera that can spot familiar faces, or gadgets that use facial-recognition software for authenticating users, like Apple's Face ID feature for unlocking an iPhone.

This means no one gets to use it but private citizens surveilling their own doorways. Sure, that's going to capture people moving up and down the street, but unlike law enforcement agencies, private citizens can't deprive someone of their freedom just because the tech thought it recognized someone.

The hit to businesses doesn't take effect until 2021. The rest of it starts immediately. Portland is still in the throes of civil unrest -- something that started in late May and shows no sign of letting up, no matter how many federal officers the Administration throws at the "problem." There's the obvious concern facial recognition is being used to identify people engaged in First Amendment activity for reasons unknown to anyone but those deploying the tech. The local cops will be blocked from doing this going forward (if they were ever doing it at all) but it will have no effect on facial recognition deployment by federal officers.

It seems inevitable some business owners will challenge the law. This tech allows internal security to keep an eye out for banned individuals and suspected shoplifters. But private tools don't appear to be any better at identifying people than the tech being sold to government agencies. Allowing private companies to use the tech puts law enforcement only a phone call away. And it can lead to the same results (false positives, bogus arrests) despite being owned and operated by non-government entities. It's a bold move by the city of Portland. But it's probably also a necessary one if you're serious about protecting residents from unproven tech that has the latent ability to destroy lives.

More bans are sure to come, especially now that everything law enforcement-related is under the microscope. Portland has set the ban bar pretty high. Other cities that believe they're serious about keeping their residents safe from surveillance creep now have something to shoot for.

Filed Under: facial recognition, law enforcement, police, portland, surveillance

ACLU Sues Federal Officers Over Excessive Force Deployed Against Portland Protesters

from the feds-chose-the-thug-life dept

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.

Filed Under: 1st amendment, dhs, excessive force, police, portland, protests, unlawful detainment
Companies: aclu