May Federal Officers Do Police Work in Cities?

The presence of federal officers in Portland has generated significant litigation. Two of the cases brought so far get to the heart of a big question for local governments nationally:  what authority do federal officers have to do police work in local communities?

Both lawsuits have been filed very recently. The federal government hasn’t yet responded to either complaint, which lists the bare bones facts and legal arguments. Both complaints allege, among other violations, that federal officers exceeded their authority under a little-known statute, 40 U.S.C. § 1315, when they became involved in quelling protests. 40 U.S.C. § 1315 is entitled “Law enforcement authority of Secretary of Homeland Security for protection of public property.”

The complaint in Don’t Shoot Portland v. Wolf points to the following language in § 1315(b)(1) which states that the Department of Homeland Security Secretary may designate specific federal employees “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.”

Don’t Shoot Portland argues that § 1315(b)(1) doesn’t allow federal officers to act beyond “the extent necessary” to protect federal property and persons on the property. According to Don’t Shoot Portland, DHS deployed officers “according to a policy to intimidate and deter protesters because of their views and beliefs through surveillance; the use of militarized and unmarked force; the excessive deployment of crowd-control measures such as tear gas, pepper-spray balls, and less-lethal munitions; and warrantless arrests or custodial detentions without probable cause.”

In Western States Center v. Department of Homeland Security, Western States Center points to § 1315(b)(2) which states that while “engaged in the performance of official duties” federal officers and agents may “enforce Federal laws and regulations for the protection of persons and property” and “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 federal felony.”

Western States Center argues this portion of the statute allows federal officers to make warrantless arrests only of persons who the officer “(1) directly witnesses committing a federal crime, or (2) reasonably believes is committing or has committed federal felonies.”

According to Western States Center, “[b]y conducting law enforcement activities on the sidewalks and streets of Portland—as opposed to on the premises or within the curtilage of government property— defendants have encroached upon powers explicitly reserved to the State of Oregon, and to Oregon’s citizens, pursuant to the Tenth Amendment,” and exceeded their authority under § 1315(b)(2).

It is too early to predict the outcome in these lawsuits. Nevertheless, it is noteworthy that a federal judge in another Portland protest-related case acknowledged the authority of local governments versus the federal government when managing protests.

In Index of Newspapers v. City of Portland, a number of journalist received an injunction preventing city and federal officials from “assaulting news reporters, photographers, legal observers, and other neutrals who are documenting the police's violent response to protests over the murder of George Floyd.” The federal government defendants argued that journalists have no right to stay, observe, and document when the government “closes” public streets. The court concluded this argument doesn’t help the federal defendants because they “are not the entities that ‘close’ state public streets and parks; that is a local police function.”