With so much going on, I decided to focus on law enforcement, crime and related issues in this edition of BBR. I’ll get back to Covid, the economy and other joys of our time next week.
Here’s some stuff you might like.
I don’t remember if I knew who then-U.S. Senator Mark Hatfield was before I started college at Willamette University in the Fall of 1993. I was, relatively speaking, politically aware at the age of 18, but that’s not a particularly high bar.
To the degree I was unaware of Hatfield before going to Willamette, that omission was promptly corrected. Hatfield, an alumnus and former professor and dean of the school was unavoidable on the small, immaculate campus located across the street from the Oregon State Capitol. There was the Mark O Hatfield Library (where regrettably I told my friends I needed to study for a Western Civ midterm rather than attend one of Nirvana’s last concerts, at the Salem Armory). There was the Antoinette and Mark O. Hatfield Fountain, which depicted two eagles (everyone called it the “chicken fountain”). There was a special area of the library that contained Hatfield’s papers and other professional, political and academic detritus. It was like a mini presidential library.
Hatfield’s career is almost certainly the most impressive of any Oregon politician. The son of a school teacher and a blacksmith, growing up in Dallas and Salem (both Oregon), Hatfield attended Willamette as an undergrad. After graduation, with the U.S. embroiled in World War II, he enlisted in the Navy and was at the battles of Iwo Jima and Okinawa. After the war, he got a graduate degree in poli sci from Stanford and came back to Willamette to teach. He eventually ran for and won a state house seat while still living in his parents’ home in Salem. In the House, he introduced and passed legislation banning racial discrimination in public accommodations in Oregon, years before the federal government followed suit.
Hatfield went on to become the youngest Secretary of State and Governor in Oregon’s history. He won a U.S. Senate seat and served in the Senate for three decades, serving twice as chairman of the Appropriations Committee, which more or less decides how the federal government spends its money.
All that spending led to a lot of stuff being named for Hatfield throughout Oregon, including the federal courthouse in downtown Portland. Now, if you’ve spent time in courthouses, shame on you and I hope you’ve paid your debt to society, but also you were likely in a state courthouse, like the Deschutes County Circuit Court building in downtown Bend. Many state courthouses aren’t much to look at from the outside, and all of them, in my experience, resemble some kind of overwhelmed social service agency office, with witnesses, litigants, public defenders and harried staff milling about. The decor, depending on the vintage of the courthouse, is, in Oregon, either frontier courthouse with a veneer of bureaucratic accoutrements, and most of the newer ones are just plain bureaucratic chic to the studs.
A federal courthouse, like the Hatfield courthouse, is not like that at all. It resembles a high rise from the outside, and has high ceilings, paintings of judges and Oregon stuff, and walking around in it feels like walking around in St. Peter’s Basilica, except with a lot fewer people and better air conditioning. It is designed to impart to its occupants a reverence for the law, for any country that would spend that much money on a courthouse must highly value what happens therein. Federal courthouses like the Hatfield courthouse are as much architectural homages to the rule of law as they are office buildings with courtrooms inside.
Naturally, because this is 2020, the Mark O. Hatfield Federal Courthouse has become the international epicenter of lawlessness and performative political theater. Vandals disguised as protesters have marred the building with graffiti and burned it and shot fireworks at it, state and federal crimes all. In response, the City of Portland, habituated to ceding downtown streets to mobs of faux revolutionaries, didn’t do much.
So, in came the feds. Federal agents, clad in camouflage, have intervened to protect the courthouse. They’ve used more aggressive tactics than the Portland police, seriously injured one protester, and have detained people some distance from the courthouse, leading some to question whether they’re really there to protect federal property, or to do something more sinister. Now, protesters have rallied around the message of getting the federal agents out of Portland, and moms and dads, donning bike helmets and leaf-blowers respectively, have joined the effort.
During Wednesday’s nightly riot at the courthouse, Mayor Ted Wheeler made one of the weirdest public appearances I’ve ever seen by an elected official, which is, I promise you, saying something. He had a “listening session” with the protesters, which appeared to mostly involve Wheeler listening to them yell, ah, four-letter unpleasantries at him. He spoke in front of a huge projected message that read, “You, Ted Wheeler, need to resign.” He was engulfed in tear gas used by federal agents against protesters. Someone threw a water bottle at his head. It was all of the nightmares had by all the advance team members in the history of American politics crammed into one surreal night.
One gets the sense that the Portland protesters have been waiting for someone to tell them no, someone to rally against. Parents of toddlers (and probably older kids too) will recognize this behavior as testing boundaries. The city hasn’t really told them no, and neither has the state. And now they’ve run up against federal agents who are ultimately under the control of none other than the very personification of evil in their eyes: Donald J. Trump. The feds work for Trump, and their job is to protect the courthouse, so the courthouse becomes the primary target in an attempt to provoke a response that might be construed as excessive.
We are well past the point at which the protests and vandalism are in any way about the killing of George Floyd – the protests now are ostensibly about getting the federal agents out of Portland. Of course, there were federal agents – FBI, federal protective service agents, customs and border agents – before any of this mess and they will be there after. What the protesters want is the news coverage they’re getting and the feeling that they’ve struck a blow against the monster in the White House. In the process, they’ve wandered pretty far afield from the original thrust of the protests, and demonstrated the willingness of some among their number to mar a public building dedicated to something they say they want: justice.
The federal presence is lawful
The Department of Homeland Security is lawfully entitled to “designate employees of the Department of Homeland Security . . . . , as officers and agents for duty in connection with the protection of property owned or occupied by the Federal Government and persons on the property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property.” 40 U.S.C. sec. 1315(b)(1) (for you snotty lawyers out there, I don’t know how to do the section symbol in Mailchimp so leave me alone about the citation). Those designated employees are empowered to, among other things,
“enforce Federal laws for the protection of persons and property . . . . ”
“make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony . . . . ”
“conduct investigations, on and off the property in question, of offenses that may have been committed against property owned or occupied by the Federal Government or persons on the property[.]”
So the hyperventilation about the alleged unlawfulness or even unconstitutionality of the use of federal agents is baseless. And I think even opponents of the use of federal agents concede as much. If the ACLU had a strong argument that the use of agents was unlawful or unconstitutional, it sure would have sought a temporary restraining order against deployment of those agents, rather than seeking (and receiving) an order merely prohibiting the agents from using tear gas and other munitions on journalists and legal observers among the protesters.
Perhaps the most promising legal tactic for opponents of the federal presence is the Portland Transportation Bureau’s claim that the fence erected around the besieged courthouse unlawfully blocks bike lanes. Hell hath no fury like the City of Portland upon learning of an obstructed bike lane.
But the feds should tread lightly, be transparent, and minimize the duration of their stay
Now, just because the federal government is legally entitled to do something doesn’t mean that it should, or that it shouldn’t be careful about it. In my view, it is appropriate for the Dept. of Homeland Security to deploy agents to protect federal property, in particular when local law enforcement is unable, or its leadership unwilling, to do the job. However, the feds have to understand that having camouflaged agents (do they have to be camouflaged?) on the streets of an American city is a jarring sight for the public to behold. Furthermore, the protesters and the local media, who quite obviously support the protesters and oppose the feds, will do everything in their power to highlight missteps, or even to make them up.
The Dept. of Homeland Security would be well-served to offer daily information to the public and the media about the precise location of its agents, the location where individuals are detained, and the reason for their detainment. The goal should be to demonstrate that the purpose of the federal presence is contained to the available statutory authority, and nothing more. This more muscular (I almost wrote “robust”!) federal presence should endure only so long as absolutely necessary to protect the courthouse. All care should be taken to minimize the use of force, and when force is used the feds should explain precisely why it was used.
Could the era of low crime be coming to an end?
This Spring and Summer, as lockdowns have eased and civil unrest aimed at defunding the police has intensified, crime has started to increase, with homicides up 23% in New York, mass shootings in Chicago and a widespread increase in urban homicides around the country. Do would-be criminals feel emboldened in a chaotic environment in which the police are politically hamstrung? I don’t know, but it makes sense, doesn’t it? The last time the U.S. embarked on a similar course of action, in the late 1960s, crime rates increased dramatically up until the 1990s, after significant investment in more robust (!) policing. The crime rate reduction led to all kinds of good things like fewer dead people and also the revitalization of cities like New York, where middle class folks had previously avoided due to fears about crime.
Our twin goals should be to empower the police to prevent crime while acting in a manner consistent with the rights of individuals, including people of color. Widespread denigration of the police, and depriving them of the resources needed to prevent another crime wave, is a blunt instrument that is unlikely to achieve those goals.
That’s if for this week. There’s a voice in my head saying, “You, Jeff Eager, need to get back to work.”
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